MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was charged in District Court with operating a motor vehicle while under the influence of intoxicating liquor (OUI).
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After the jury were empanelled and certain testimony from a Commonwealth witness caused a potential infirmity in the trial, the judge declared a mistrial. The defendant subsequently filed a motion to dismiss based on double jeopardy grounds. The judge denied the motion, and the defendant sought relief through a petition filed pursuant to G. L. c. 211, § 3. A single justice of the Supreme Judicial Court transferred the matter to this court to be heard as a panel appeal. We affirm the denial of the motion to dismiss.
During direct examination, the prosecutor asked the arresting officer whether he had formed an opinion about the defendants condition. The officer responded, “I believe that he was operating his motor vehicle while under the influence of alcohol.” The defendant did not object. However, the judge shortly thereafter sua sponte raised concern about the officers answer in light of Commonwealth v. Canty, 466 Mass. 535, 544 (2013) (witness at OUI trial “may not opine whether a defendant operated a motor vehicle while under the influence of alcohol”). The judge called a short recess during which she asked counsel to review Canty and to be prepared to respond.
After the recess, the judge explained why she believed there was a Canty issue here. The prosecutor then suggested that a curative instruction would sufficiently address the Canty problem as to obviate the need for a mistrial. Defense counsel explained that he did not object to the officers answer or move to strike it because he did not want to highlight the testimony. For the same reason, defense counsel stated that he believed a curative instruction would make the problem worse. In his words, “I think a curative instruction just draws more attention to the opinion offered by the police officer.”
After each counsel had spoken, the judge made a lengthy statement that consumed almost two pages of trial transcript. She began by indicating that she believed that she would have to declare a mistrial because the officers testimony was improper under Canty. She added her view that the problem here potentially was more serious than the one in Canty itself, because the Commonwealths case was not overwhelming; in the judges words, this was a “triable case.” She concluded her remarks by asking the parties about potential dates for a retrial, and -- after some back and forth -- a new date was chosen. At no point during or after the judges lengthy remarks did defense counsel object to the declaration of a mistrial.
Although counsel expressed clearly that he did not want the officers opinion testimony struck or curative instructions provided to the jury, he expressed no preference between the trial continuing and the declaration of a mistrial (an option that the prosecutors comments made clear potentially was implicated by the Canty issue).
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Then, after the judge began to explain -- at length -- her view that a mistrial was appropriate, counsel had ample opportunity to object, but did not do so. Under these circumstances, the defendant acquiesced to the declaration of a mistrial. See Pellegrine v. Commonwealth, 446 Mass. 1004, 1005 (2006) (consent to mistrial could be inferred where “[d]espite having an adequate opportunity to object to the mistrial, defense counsel remained silent”); United States v. DiPietro, 936 F.2d 6, 9-10 (1st Cir. 1991) (“consent to a mistrial may be inferred from silence where a defendant had the opportunity to object and failed to do so”). The defendant has not put forward any credible basis for excusing his counsels silence. Contrast United States v. Toribio-Lugo, 376 F.3d 33, 41 (1st Cir. 2004) (no consent to mistrial where defense counsel “lapsed into silence” only after her repeated attempts to be heard were rebuffed by trial judge).
We acknowledge, as the defendant highlights, that the judge at one point in her remarks expressed her view that the officer had not intentionally caused the Canty issue, and based on that view added, “[T]his is a case that may be retried.” However, we are not persuaded by the defendants suggestion that the judges comment is tantamount to an implicit finding that the defendant had objected to the declaration of a mistrial (on the theory that the judge would not have commented on the Commonwealths good faith unless the defendant had raised the issue of “manifest necessity” for declaring a mistrial).
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See generally Perrier v. Commonwealth, 489 Mass. 28, 34-35 (2022).
In any case, the facts regarding the interchanges between the judge and counsel are not in dispute, and whether the defendant consented to the mistrial based on counsels statements and inaction presents a question of law that lies within our purview. Toribio-Lugo, 376 F.3d at 38 (“[w]hether the facts as found add up to consent is a legal determination that [appellate courts] review de novo”). We conclude, as a matter of law, that the defendant consented to the declaration of a mistrial.
Accordingly, we discern no abuse of discretion or other legal error in the judges denying the defendants motion to dismiss. We need not address whether the declaration of a mistrial over the defendants objection was warranted by “manifest necessity” or because the “ends of public justice would otherwise be defeated” (citation omitted). Elder v. Commonwealth, 385 Mass. 128, 133 (1982). See DiPietro, 936 F.2d at 9 (“manifest necessity test does not apply when the defendant has requested or effectually consented to the mistrial”).
Order denying motion to dismiss affirmed.
FOOTNOTES
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. The defendant initially faced other charges as well, but these were resolved through a change in plea. Only the OUI charge remains live.
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. Although on this record we have little difficulty concluding that the defendant acquiesced to the mistrial, we note that it would have been better practice for the judge to pin defense counsel down on whether he preferred going forward without a curative instruction in lieu of a mistrial being declared.
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. Similarly, to the extent that the defendant suggests the respective positions that the parties took at the hearing on the motion to dismiss established that he did not consent to the mistrial, we are unpersuaded. At that stage, the defendant had an incentive to claim that, at trial, he actively had opposed the granting of a mistrial. The fact that the Commonwealth apparently choose not to raise the consent issue in opposition to the motion to dismiss does not preclude us from relying on it as an alternative ground for affirming the denial of that motion. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997) (“appellate court is free to affirm a ruling on grounds different from those relied on by the motion judge if the correct or preferred basis for affirmance is supported by the record and the findings”).