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Pinney v. Commonwealth

Supreme Judicial Court of Massachusetts

February 15, 2018


         Homicide. Constitutional Law, Double jeopardy. Practice, Criminal, Mistrial, Double jeopardy.

          John M. Thompson (Linda J. Thompson also present) for the petitioner.

          Bethany C. Lynch, Assistant District Attorney, for the Commonwealth.

         Frederick 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.


         Pinney 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.

         After 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 as well.


         In 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 was.

         Based 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.

         Podgurski 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.

         When 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.[1] 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.

         Items 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.

         Pinney 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 ...

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