Constitutional Law, Double jeopardy. Practice, Criminal,
Mistrial, Double jeopardy.
M. Thompson (Linda J. Thompson also present) for the
Bethany C. Lynch, Assistant District Attorney, for the
Pinney is charged with murder in the first degree. After his
first trial ended in a mistrial, he moved to dismiss the
indictment on the basis that the evidence presented was
legally insufficient to warrant a conviction, and therefore
retrying him would violate the guarantee against double
jeopardy. The trial judge denied the motion, and Pinney then
filed a petition pursuant to G. L. c. 211, § 3, in the
county court, seeking review of that decision. A single
justice denied the petition, and Pinney appeals. We affirm.
was indicted in 2014 for the murder of Tayclair Moore. His
trial commenced in January, 2016, and lasted several days. At
the close of the Commonwealth's case, Pinney moved for a
required finding of not guilty, which the trial judge denied.
He renewed the motion orally later that day at the close of
all the evidence; the judge took no action on the motion at
that time. Pinney renewed the motion again, in writing,
several days later while the jury were deliberating; again
the judge took no immediate action.
deliberating for several days, the jury reported to the judge
that they were deadlocked, leading the judge to give them,
the following day, an instruction pursuant to
Commonwealth v. Rodriguez, 364 Mass. 87, 101-102
(1973) (Appendix A), and Commonwealth v. Tuey, 8
Cush. 1, 2-3 (1851). Later that day, the foreperson informed
the judge that one of the deliberating jurors had discussed
the deliberations with the alternate jurors. The judge
conducted an individual voir dire of the jurors, determined
that the deliberating and alternate jurors had improperly
communicated, and concluded that the jurors had engaged in
misconduct. On this basis, Pinney filed a motion for a
mistrial that the judge allowed. The judge later denied
Pinney's renewed motion for a required finding of not
guilty. Pinney subsequently filed a motion to dismiss the
indictment, claiming that the evidence was insufficient to
warrant a guilty verdict and that double jeopardy principles
thus barred any retrial. The trial judge denied that motion
certain circumstances, allowing a retrial of a defendant
whose first trial has ended in a mistrial would infringe on
the defendant's double jeopardy right not to be tried
twice for the same offense. One such circumstance is where
the evidence at the first trial was legally insufficient to
warrant a conviction. See Choy v. Commonwealth, 456
Mass. 146, 149-150, cert, denied, 562 U.S. 986 (2010);
Neverson v. Commonwealth, 406 Mass. 174, 175-176
(1989). See also Commonwealth v. Scott, 472 Mass.
815, 818 & n.5 (2015). "After a mistrial, the
Commonwealth may retry a defendant [only] if it has presented
evidence at the first trial that, if viewed in the light most
favorable to the Commonwealth, would be sufficient for a
rational trier of fact to find the defendant guilty of the
crime charged beyond a reasonable doubt." Brangan v.
Commonwealth, 478 Mass. 361, 363 (2017), citing
Commonwealth v. Latimore, 378 Mass. 671, 676-677
(1979). The issue here, then, is whether the evidence
presented to the jury was legally sufficient to support a
guilty verdict on the charge of murder. We conclude that it
on the extensive evidence presented to the jury, considered
in the light most favorable to the Commonwealth, the jury
could have found the following. The day before the
victim's death, Pinney, his roommate Christopher
Podgurski, and the victim, Podgurski's girlfriend, were
together in Holyoke, where all three of them consumed illegal
drugs. Pinney and the victim eventually returned to the home
that he and Podgurski shared in Springfield. Podgurski,
meanwhile, stayed in Holyoke -- he went to a bar and to a
friend's house and then went to his mother's house to
stay the night. At 4:26 A.M. he received a text message from
Pinney saying that the victim was "fucked up." He
also received an unrelated telephone call from a friend at
around the same time, on his mother's home telephone. The
friend testified that Podgurski was sleepy and sounded
"hammered" when they spoke on the telephone.
woke up at his mother's house at approximately 10:15 A.M.
He called the victim, but she did not answer her telephone.
He then drove to his home in Springfield to look for her and,
upon arriving there, found her cellular telephone and glasses
in the bedroom that they shared. He could not, however, find
the victim. Podgurski knocked on Pinney's bedroom door
and asked about the victim. Pinney responded (without opening
the door) that she had gotten angry and "left." He
eventually opened the door just enough to exit the room and
then closed and locked the door behind him. Podgurski told
Pinney that he wanted to see inside the room; Pinney agreed,
went downstairs to get a key to the bedroom door, and
returned with the key and a butcher knife. After Pinney
unlocked the door, Podgurski glimpsed the victim's
unclothed legs on the floor. Because Pinney was armed with a
butcher knife, Podgurski pretended not to see the victim. He
then left the house, parked his motor vehicle in the driveway
blocking Pinney's truck, and telephoned 911.
the police arrived, they found Podgurski outside. They
entered the home and observed blood on the kitchen floor and
knives on the countertop. Pinney was in the kitchen at the
time. The police forced open the locked door to
Pinney's bedroom and found the victim on the floor,
unclothed and unresponsive. She had ligature marks on her
neck and a bloody nose. A paramedic determined that she had
no pulse and was not breathing, and that her pupils were
fixed. She was cool to the touch, and her jaw and upper and
lower extremity joints were stiff, indicating rigor mortis.
collected at the scene were tested for deoxyribonucleic acid
(DNA), and the results of the tests were presented at trial.
Among other things, swabs of red-brown stains taken from the
victim's chest indicated the presence of Pinney's
blood. Other DNA belonging to Pinney and the victim was
recovered from the house, including from the kitchen, stairs,
and bathroom. A DNA profile from an electrical cord taken
from Pinney's bedroom matched Podgurski, and Podgurski
could not be excluded from a partial DNA profile from the
victim's fingernail scrapings. The forensic pathologist
who conducted the autopsy testified that the victim died as a
result of asphyxia by ligature strangulation by another. She
further testified that the victim's death was not caused
by the presence of narcotics in her body or by manual
strangulation. Additionally, the certificate of death
indicated that the time of death was unknown.
and the Commonwealth agree that the primary contested issue
at trial was the identity of the perpetrator. Pinney argues
that the evidence suggests that Podgurski killed the victim.
He points to evidence that Podgurski and the victim had been
together for ten years, during which time the victim had
obtained numerous abuse prevention orders against Podgurski.
Additionally, there was evidence that Podgurski had been
convicted of assault and battery on the victim, admitted that
he had beaten and strangled her on a ...