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SJC-12140

                  COMMONWEALTH   vs.   ATUNBI BRYAN.



       Suffolk.      November 7, 2016. - January 20, 2017.

 Present:   Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
                             Budd, JJ.


Practice, Criminal, Mistrial. Supreme Judicial Court,
     Superintendence of inferior courts.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on February 26, 2016.

    The case was heard by Duffly, J.


     Nicholas Brandt, Assistant District Attorney (Gregory D.
Henning, Assistant District Attorney, also present) for the
Commonwealth.
     Paul J. Davenport for the defendant.


    GAZIANO, J.    The defendant was one of three occupants of a

van that was stopped by a Boston police officer for a traffic

violation (driving without headlights) in the early morning

hours of April 12, 2014.   Police officers issued an exit order,

as a safety precaution, based on certain facts that unfolded
                                                                    2


during the motor vehicle stop.    When the defendant, the rear

seat passenger, got up to get out of the van, a police officer

observed a handgun underneath his right thigh.

     At trial, the judge issued an explicit order precluding

defense counsel from introducing evidence that the front seat

passenger in the van previously had been convicted of unlawful

possession of a firearm.1   Defense counsel elicited this

testimony anyway.   The judge declared a mistrial, over the

defendant's repeated objection.

     The defendant subsequently moved to dismiss the charges on

double jeopardy grounds, contending that there had been no

manifest necessity to declare a mistrial, and that the judge

erred in not pursuing a less severe option to cure the

introduction of the precluded testimony, such as a curative

instruction.   A different Superior Court judge denied the

motion, and the defendant filed a petition pursuant to G. L.

c. 211, § 3, in the county court.   The single justice determined

that the trial judge had erred in concluding that there was a

manifest necessity to declare a mistrial.    The Commonwealth

appealed to this court from the single justice's allowance of

the defendant's petition.

     Because a determination that a mistrial was manifestly

     1
       The front seat passenger, Derek Brown, was a codefendant
in this case; he pleaded guilty to drug charges after the
defendant's trial.
                                                                    3


necessary is committed to the sound discretion of the trial

judge, a reviewing court examines such a decision only for abuse

of discretion.   See L.L. v. Commonwealth, 470 Mass. 169, 185

n.27 (2014).   "We do not disturb the judge's ruling 'simply

because [we] might have reached a different result; the standard

of review is not substituted judgment.'"    Cruz v. Commonwealth,

461 Mass. 664, 670 (2012), quoting Bucchiere v. New England Tel.

& Tel. Co., 396 Mass. 630, 641 (1986).    We conclude that there

was no abuse of discretion in the judge's decision to declare a

mistrial, on the ground of manifest necessity, after defense

counsel intentionally violated her order that the evidence

concerning the other passenger's prior conviction was excluded

for all purposes, and that the single justice applied a

substituted judgment standard in deciding otherwise.

Accordingly, we remand the matter to the county court for entry

of an order denying the defendant's G. L. c. 211, § 3 petition.

    1.   Prior proceedings.    In order to understand the

circumstances surrounding the judge's order prohibiting inquiry

into the other passenger's criminal history, we first must

address testimony presented at the hearing on the defendant's

motion to suppress evidence seized after the stop, and the

Commonwealth's motion in limine to exclude such testimony.

    a.   Motion to suppress.    In May, 2015, a Superior Court

judge who was not the trial judge (motion judge) conducted an
                                                                   4


evidentiary hearing on the defendants' motions to suppress.

Boston police Officer Sean Daniely and two other officers

testified at that hearing.   Daniely testified that at 1:30 A.M.

on April 12, 2014, he stopped a van on Blue Hill Avenue in the

Mattapan section of Boston for being operated without its

headlights illuminated.   There were three occupants in the van:

Sedeke Williams, the driver; Derek Brown, the front seat

passenger; and the defendant, in the rear bench seat behind the

driver.   The defendant and Brown were not wearing seat belts.

     Daniely obtained identification from the three occupants in

order to write traffic citations.    He entered their names into

his police cruiser's onboard computer (referred to as a mobile

data terminal or MDT) and learned that Brown, whom he had

recognized as someone he had seen previously, had a prior

conviction for a firearms offense.    The defendant and Williams

did not have criminal records.

     While Daniely was at his cruiser, two night club bouncers

walked across Blue Hill Avenue and approached Boston police

Officer Gregory Vickers, who had arrived to assist.2   The

bouncers told Vickers that they worked at a nearby night club,

and had just ejected the occupants of the van from the club.

They said that "someone" outside the club reported that one of

     2
       The location of the stop was very close to a Boston police
                                                       3
station, almost directly across the street from it.      The
prosecutor did not object to these questions.
                                                                       5


the passengers in the van was in possession of a firearm.

    Based on the information about Brown's prior conviction,

the bouncers' report, the driver's "nervous" appearance, and a

suspicion that the driver might have been operating under the

influence of alcohol, Daniely ordered the defendant, Brown, and

Williams out of the van.    When the defendant got up to get out

of the van, Vickers observed a firearm underneath his right

thigh.

    The motion judge found that the exit order had been

justified for reasons of officer safety, and denied the

defendant's motion to suppress.

    b.     Motion in limine.   The Commonwealth filed a motion in

limine to preclude inquiry at trial into Brown's criminal

history.    The prosecutor maintained that inquiry into Brown's

conviction of unlawful possession of a firearm would be

irrelevant, prejudicial, and confusing to the jury.     The parties

addressed the issue of Brown's criminal history at a pretrial

conference on the Friday before the scheduled Monday trial.       On

the defendant's objection that exclusion of the evidence of

Brown's prior conviction would further confuse the jury because

they would assume that the information Daniely learned from his

MDT concerned the defendant, and not another of the vehicle's

occupants, the trial judge asked the parties if they would be

able to reach an agreement as to the exclusion of this evidence.
                                                                      6


The prosecutor suggested that Daniely be permitted to testify

that "based upon certain information . . . he learned from his

review of the computer system and conversations he had with

these additional people that showed up [the night club

bouncers] . . . [h]e made a decision [to issue an exit order]."

Defense counsel agreed to this suggestion.     The judge remarked,

"All right.    So it sounds like there is no dispute about the

Commonwealth's motion as it's written, . . . is that fair?"

Defense counsel replied, "That's fair, Your Honor."

    c.     Proceedings at trial.   Trial began the following

Monday.    In his opening statement, the prosecutor told the jury

that they would hear evidence that "the gun was underneath [the

defendant's] butt, and his fingerprint was on the magazine

stuffed up inside that gun, and those two factors are going to

make it abundantly clear at the end of this case that [the

defendant] is guilty of these charges."     In his opening, defense

counsel disputed the Commonwealth's simplified version of the

facts.    He stated, "Don't forget to use your common sense about

how the world works, about what's really going on behind the

scenes."

    Daniely was the first witness.      On direct examination, he

testified that he obtained identification from all three

occupants of the van in order to issue traffic citations.      He

utilized his police cruiser's onboard computer to "research some
                                                                      7


information on the three occupants in the car."

     On cross-examination, defense counsel asked Daniely if the

information obtained from the computer search, "without getting

into the substance of what [he] discovered," caused him to focus

on "one of the other occupants in the vehicle than my client."

Daniely replied that it did not.    In response, defense counsel

asked, "You did not have a reason to suspect one of the

occupants of the van over the others?"     The judge sustained the

prosecutor's objection to this question.

     Defense counsel pursued the line of questioning, and

Daniely testified that his computer search revealed that Brown,

as opposed to the defendant, had a criminal record.3    Daniely,

however, maintained that the criminal history check did not

cause him to suspect Brown more than the other two occupants of

any wrongdoing.    Defense counsel pressed the issue and asked

about the nature of Brown's criminal conviction.     The judge

sustained the prosecutor's objection.

     The judge heard further argument from both lawyers at

sidebar.    Defense counsel represented that he was attempting to

elicit from the arresting officer the reasons that the officer

ordered all the occupants out of the van.     The judge agreed to

allow limited additional evidence on this topic.     She ruled that

defense counsel would be permitted to ask, without revealing the

     3
         The prosecutor did not object to these questions.
                                                                        8


nature of the conviction, whether there was "something on the

computer that made [the officer] worry about the passenger."

Defense counsel continued to argue that Brown's firearm

conviction was admissible.       The judge did not agree.   She

instructed, "It [the firearm conviction] doesn't come in at all

is my ruling . . . .     Okay?   Let's be clear about that."      The

judge noted the defendant's objection, and told defense counsel

to continue with cross-examination without eliciting this

inadmissible evidence.

    Defense counsel returned to the conduct of his cross-

examination and immediately asked Daniely:

    Q.:   "So, when you reviewed the information from the MDT,
          it didn't come up with a criminal conviction for one
          of the occupants of the van?"

    A.:   "It did."

    Q.:   "And that was for Derek Brown in . . . the front
          passenger seat?"

    A.:   "Yes, sir."

    Q.:   "And that was possession of a firearm?"

    A.:   "Yes, sir."

    The judge excused the jury for the day to address defense

counsel's violation of her evidentiary ruling.       The prosecutor

moved for a mistrial.    He argued that the "toothpaste is out of

the tube" and that the jury would be unable to disregard

information that the judge specifically had precluded.         The
                                                                   9


judge initially denied the motion and raised the possibility of

a curative instruction, asking the Commonwealth to "tell me

about this detail that you say can't be cured," and "Why can't I

tell the jury that they are to disregard [the statement]?"

After a discussion of the prejudicial impact of Daniely's

testimony that Brown had a prior firearm conviction, the

prosecutor maintained that the evidence was too prejudicial to

cure.

    The judge then turned to defense counsel and asked him to

respond to the Commonwealth's motion for a mistrial.   She said,

"I'll hear you, [counsel].   What do you have to say for

yourself?"   Defense counsel did not address the Commonwealth's

motion for a mistrial, and stated instead, "that information

should stand in evidence."   When the judge again asked defense

counsel "what do you have to say for yourself for violating a

court order?," he continued to argue that he should be allowed

to introduce evidence of Brown's firearm conviction to impeach

Daniely, whose testimony at trial differed in some respects from

his testimony at a prior hearing.   The judge asked defense

counsel, two more times, to explain why he disregarded her

order, while defense counsel continued to argue that the judge's

evidentiary ruling was incorrect, and that the evidence should

be admissible for impeachment purposes.   Finally, the judge

declared a mistrial, observing that defense counsel had "wasted
                                                                  10


everyone's time."

    2.   Discussion.   The decision to allow a retrial after a

mistrial implicates a defendant's right, under the Fifth

Amendment to the United States Constitution, as well as

Massachusetts statutory and common-law protections, against

being placed in jeopardy twice for the same criminal offense.

See Benton v. Maryland, 395 U.S. 784, 793-796 (1969);

Commonwealth v. Cassidy, 410 Mass. 174, 176 (1991); G. L.

c. 263, §§ 7, 8, 8A.   As a consequence, once jeopardy has

attached, a judge may declare a mistrial over the defendant's

objection only if there is a manifest necessity to do so.

United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824).

Commonwealth v. Nicoll, 452 Mass. 816, 818 (2008).   "[I]n view

of the importance of the right, and the fact that it is

frustrated by any mistrial, the prosecutor must shoulder the

burden of justifying the mistrial if he is to avoid the double

jeopardy bar" (citation omitted).   Commonwealth v. Steward, 396

Mass. 76, 79 (1985).   See Nicoll, supra (due to importance of

double jeopardy protection, Commonwealth bears "heavy" burden).

    A judge's determination that there is a "manifest

necessity" warranting the declaration of a mistrial is reviewed

under an abuse of discretion standard.   Cruz, 461 Mass. at 669.

There is no abuse of discretion "simply because [we] might have

reached a different result."   Id. at 670, quoting Bucchiere, 396
                                                                    11


Mass. at 641.   See L.L., 470 Mass. at 185 n.27 (abuse of

discretion where "judge made 'a clear error of judgment in

weighing' the factors relevant to the decision . . . such that

the decision falls outside the range of reasonable alternatives"

[citation omitted]).

    Because of the fact-intensive nature of this inquiry, we

recognized, in Steward, 396 Mass. at 79, that "[i]t is

impossible to create a crisp formula for determining when

'manifest necessity' arises" justifying a mistrial.   See Lovett

v. Commonwealth, 393 Mass. 444, 447 (1984) (particular facts of

each case dictate determination of manifest necessity).     Under

our case law, however, "[t]wo principles emerge for guidance."

Steward, supra.   A judge considering whether to declare a

mistrial over a defendant's objection is required to (1) provide

counsel with a full opportunity to be heard, and (2) give

careful consideration to possible alternatives to a mistrial.

Nicoll, 452 Mass. at 818 (under second requirement, judge

identifies alternative remedy to mistrial and, if one or more

exists, carefully considers each one).

    Applying these principles to this case, we conclude that

the judge's declaration of a mistrial to remedy defense

counsel's violation of her order was not an abuse of discretion.

As to the first requirement, the defendant argues that the judge

declared a mistrial without allowing him an opportunity to
                                                                   12


respond.   He maintains that the judge interrupted him, abruptly

cut him off, and then immediately declared a mistrial.      He

contrasts his treatment with the treatment that the judge

afforded the prosecutor, who was "given considerable time to

make [his] argument."    We do not agree with the defendant's

characterization of the proceedings.

    At the beginning of the hearing, the prosecutor represented

that all of the attorneys had been in the hallway discussing

options to a mistrial.    The judge then discussed the necessity

of a mistrial with the prosecutor in some detail.    At the end of

that discussion, she turned to defense counsel and said, "I'll

hear you . . . .   What do you have to say for yourself?"

Counsel did not then directly address the Commonwealth's motion

for a mistrial but, rather, argued that the judge's evidentiary

ruling was erroneous.    He did not respond to the judge's

repeated questions to explain himself and his reasons for

violating the court's order other than to continue to argue that

the judge's evidentiary ruling was incorrect.    When the judge

reminded defense counsel of the recently concluded sidebar

conference where she had ruled that Brown's prior conviction was

inadmissible for all purposes, counsel responded that the

testimony she had ordered excluded was admissible, "regardless

of motions in limine or court rulings," "according to the rules

of evidence."   Immediately thereafter, the judge declared a
                                                                     13


mistrial.4

     We conclude that the judge provided defense counsel with an

opportunity to be heard.   Counsel was unable, or unwilling, to

put aside his disagreement with the judge's evidentiary ruling

and address the motion for a mistrial.     As a result, he did not

avail himself of the opportunity to be heard that was provided

to him.   In these circumstances, the judge was not required to

continue her futile efforts to convince counsel to address the

motion.   Compare Steward, 396 Mass. at 79 (judge declared

mistrial and, "almost as an afterthought, unenthusiastically"

asked whether defense counsel objected).

     We turn to the second requirement, whether the judge fully

explored possible alternatives before declaring a mistrial.      The

single justice focused on the existence of these alternatives,

and the importance of the defendant's interest in proceeding

with the trial, in deciding that there was no manifest necessity

for a mistrial.   We conclude, however, that in weighing these

alternatives, the trial judge did "balance" the "two competing

policy considerations" at issue in making a determination of

manifest necessity:   the defendant's "valued right to have his

     4
       The defendant asserts that his repeated responses to the
judge's inquiry regarding a mistrial were justified by his
obligation to perfect his appellate rights. Defense counsel
objected to the exclusion of this evidence at sidebar and stated
the grounds for its admissibility. See Mass. G. Evid. § 103
(2016). The appellate record had been preserved, and there was
no need for further argument to do so.
                                                                  14


trial completed by a particular tribunal" and the "interest of

the public in 'fair trials designed to end in just judgments.'"

Cruz, 461 Mass. at 670-671, quoting Arizona v. Washington, 432

U.S. 479, 503 & n.11 (1978), and Oregon v. Kennedy, 456 U.S.

667, 672 (1982).   As stated, she initially denied the

Commonwealth's motion for a mistrial, and sua sponte raised the

possibility of a curative instruction.    She noted that a

mistrial bypasses "another whole procedure here which is a

limiting and restrictive instruction," and asked the prosecutor,

"Why can't I tell the jury that they are to disregard that?"

    The judge also weighed the prejudicial impact of Daniely's

testimony that Brown had been convicted previously of a firearms

offense.   She considered a number of factors related to

potential prejudice.   First, Brown's prior firearms conviction

did not necessarily lead to the inescapable conclusion that

Brown possessed the firearm discovered in the van.    Second, a

police officer was expected to testify that he observed the

firearm underneath the defendant on the van's rear bench seat.

The judge noted, "I don't see how it becomes the other guy's gun

when he's sitting on it."    Third, the prosecutor proceeded on

alternative theories of joint possession and constructive

possession, which would take into account Brown's possible

connection to the firearm.    Fourth, the judge recognized that

the level of prejudice is different when considering the
                                                                   15


introduction of evidence that another person had been convicted

of a crime, as opposed to evidence that a defendant had been

convicted of a crime.    Compare Nicoll, 452 Mass. at 822 (judge

failed to consider alternative to mistrial where he did not

offer defendant option of waiving his right to trial by full

jury and proceeding with five jurors as permitted by Mass. R.

Crim. P. 19 [b], 378 Mass. 888 [1979]); Jones v. Commonwealth,

379 Mass. 607, 618 (1980) (judge failed to consider alternative

to mistrial where he believed that severance of defendants was

not available option).

    It would have been better practice for the judge to state

expressly the available alternatives to a mistrial, if any

existed, and the reasons why the available alternatives were not

viable options to remedy the cause of the mistrial, and the

single justice's decision emphasizes these deficiencies.

Nonetheless, we view the judge's declaration of a mistrial, made

after she provided counsel with the opportunity to be heard and

weighed the available options, as an implicit finding that she

considered her proposed curative instruction, and determined

that a mistrial was a manifest necessity.   See Commonwealth v.

Bishop, 461 Mass. 586, 595 (2012) (evidence supported judge's

implicit finding that statement was given voluntarily beyond

reasonable doubt).

    As stated, before declaring a mistrial over a defendant's
                                                                     16


objection, a trial judge is required to balance the competing

interests of a defendant's right to have his or her case decided

by a particular jury, Cruz, 461 Mass. at 670, and the public's

interest in "fair trials designed to end in just judgments."

Id., quoting Oregon v. Kennedy, 456 U.S. at 672.   A judge is

permitted to take into account the cause of the mistrial.      See

Jones, 379 Mass. at 620.   "It would be a reproach to the

administration of justice if a defendant through his counsel,

could pollute the atmosphere of a trial and then turn this to

his own advantage on appeal."   Id., quoting Commonwealth v.

Lewis, 346 Mass. 373, 379 (1963), cert. denied, 376 U.S. 933

(1964).

    In this case, the judge issued an explicit order

prohibiting defense counsel from eliciting evidence that Brown

previously had been convicted of a firearms offense.   Defense

counsel was not content with registering his objection to that

order, disregarded the judge's explicit instruction, and

inquired into a prohibited topic.   After weighing possible

alternatives to a mistrial, the judge concluded that nothing

else would suffice.   While there is no "bright-line rule as to

what constitutes manifest necessity," Cruz, 461 Mass. at 671, in

the circumstances here, the trial judge's decision was not an

abuse of discretion. See id. at 672.   Therefore, the single

justice's decision, applying a substituted judgment standard,
                                                                   17


must be vacated.

    3.   Conclusion.   The judgment allowing the defendant's

petition pursuant to G. L. c. 211, § 3, is vacated and set

aside.   The matter is remanded to the county court for entry of

an order denying the defendant's petition.

                                    So ordered.
