COMMONWEALTH v. Quincy BUTLER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A jury convicted the defendant, Quincy Butler, of murder in the second degree as well as several related offenses.2 On the verdict slip, which separately listed two theories of murder in the second degree, the jury marked the option indicating their unanimous decision that the defendant was guilty of that offense under the theory of felony-murder. The jury left blank the option for “malice-murder” in the second degree. A panel of this court set aside the convictions. See Commonwealth v. Butler, 92 Mass. App. Ct. 1119 (2017). After the Commonwealth stated its intent to proceed with a new trial, the defendant moved to dismiss the murder indictment against him.3 He now appeals so much of the order as denied his motion to dismiss the charge of malice-murder in the second degree based on double jeopardy principles.4 We affirm.
Background. Following the presentation of evidence, the trial judge instructed the jury on three theories of murder in the first degree. Thereafter, the trial judge stated,
“Now let me turn to second degree murder. If after your consideration of all the evidence the Commonwealth has not proved beyond a reasonable doubt all the elements necessary to prove the defendant guilty of murder in the first degree, you should then consider whether the Commonwealth has proved murder in the second degree.”
The trial judge explained the elements of malice-murder in the second degree: “Number one, that the defendant committed an unlawful killing. Number two, that the killing was committed with malice.” The judge then instructed,
“If after your consideration of the evidence the Commonwealth has proved beyond a reasonable doubt both elements of murder in the second degree, then you should find the defendant guilty of murder in the second degree. If, however, after your consideration of all the evidence you find that the Commonwealth has not proved beyond a reasonable doubt either one, any one of these two elements of murder in the second degree, you must not convict the defendant of murder in the second degree, unless, unless the Commonwealth has proved beyond a reasonable doubt that the defendant is guilty of felony murder in the second degree” (emphasis added).
The trial judge proceeded to instruct the jury on the felony-murder theory of murder in the second degree, including that “the intent to commit the felony substitutes for the malice requirement.”
The trial judge then furnished the jury with copies of the verdict slip for the murder indictment and provided additional instructions. The verdict slip allowed the jury to return a verdict of: (1) “NOT GUILTY”; (2) “GUILTY OF MURDER IN THE FIRST DEGREE,” based on the theory or theories of “Deliberate Premeditation,” and/or “Extreme Atrocity or Cruelty,” and/or “Felony Murder”; or (3) “GUILTY OF MURDER IN THE SECOND DEGREE,” based on the theory or theories of “Murder in the Second Degree,” i.e., malice-murder in the second degree, and/or “Felony Murder.” Blank spaces were provided next to the two guilty and one not guilty options, as well as next to each corresponding theory of guilt listed underneath the guilty options; the verdict slip reflected that the options marked by the jury after deliberations represented “their unanimous verdict.”
In explaining the verdict slip with respect to murder in the second degree, the trial judge stated,
“Now if you determine that the defendant is guilty of murder in the second degree, that's number three, again it has to be unanimous, you must then go on and determine which or both theories of second degree murder you find the defendant guilty under. And the choices there are murder in the second degree, and I don't have a short catch phrase for that. Murder in the second degree is unlawful killing with malice as I've defined. The other choice is felony murder in the second degree, and I have gone through that with you. So whichever or both of these theories you determine applies, it has to be unanimous, remember, you can't put a check mark beside a theory unless you've unanimously determined that the Commonwealth has proved guilt under that theory, you should check mark check and indicate which or both of the theories of second degree murder that you have found the defendant guilty under” (emphasis added).
After deliberating, the jury returned the verdict slip. The jury selected the options for guilty of murder in the second degree based on a theory of felony-murder. All other options were left blank including, notably, the option corresponding to the theory of malice-murder in the second degree.
Following his successful appeal, the defendant filed his motion to dismiss the murder indictment on double jeopardy grounds. After a hearing, the motion judge issued a written decision denying the motion as to the charge of malice-murder in the second degree, and otherwise allowing the motion.5 Relying primarily on Commonwealth v. Carlino, 449 Mass. 71 (2007), the motion judge rejected the defendant's argument that double jeopardy barred retrial on the charge of malice-murder in the second degree because the jury impliedly acquitted him of that charge.6
Discussion. The double jeopardy clause of the Fifth Amendment to the United States Constitution and the corresponding guarantees recognized under State law protect a criminal defendant from a second prosecution for the same offense after an acquittal. See, e.g., Commonwealth v. Bloom, 53 Mass. App. Ct. 476, 477 (2001). “A true acquittal requires a verdict on ‘the facts and merits.’ ” Commonwealth v. Gonzalez, 437 Mass. 276, 282 (2002), cert. denied, 538 U.S. 962 (2003), quoting G. L. c. 263, § 7. “[I]f a verdict ‘neither affirms nor denies’ the truth of the allegations tried to the jury, ‘the prisoner must be put again on his trial.’ ” Carlino, 449 Mass. at 80, quoting Commonwealth v. Call, 21 Pick. 509, 514–515 (1839).
“A defendant seeking to dismiss an indictment on double jeopardy grounds bears the burden of proof.” Bloom, 53 Mass. App. Ct. at 477. “Because the double jeopardy issue raises a question of law, our review of the judge's decision is de novo.” Commonwealth v. Hebb, 477 Mass. 409, 411 (2017). See Carlino, 449 Mass. at 72 n.7.
Absent some other indicia in the record of the jury's intent, their failure to select the option for malice-murder in the second degree on the verdict slip does not amount to an acquittal on that theory. See Commonwealth v. Niemic, 483 Mass. 571, 579 (2019) (“This court repeatedly has declined to accept a jury's failure to mark one of the theories of a charge as an acquittal on that theory”), and cases cited. The defendant contends that the jury's intent to acquit him is clear when the jury's silence on the verdict slip is viewed in conjunction with the trial judge's instructions.7
The defendant argues that the judge's instructions required the jury to first deliberate on the theory of malice-murder in the second degree before reaching the issue whether the defendant was guilty of murder in the second degree on the theory of felony-murder. Even accepting that view, the record then reflects that the jury's silence on the verdict slip denotes one of two possible outcomes: (1) the jury unanimously acquitted the defendant of malice-murder in the second degree; or (2) the jury deliberated but was unable to reach a unanimous verdict on that theory. This falls short of providing the kind of unequivocal expression of the intent required to conclude there was an acquittal on that theory for double jeopardy purposes.8 See Niemic, 483 Mass. at 579 (double jeopardy did not bar retrial where “[t]here is no indication that the jury were aware that silence on a particular theory would be deemed an acquittal”); Commonwealth v. Brown, 470 Mass. 595, 604 (2015), quoting Commonwealth v. Babb, 389 Mass. 275, 281 (1983) (double jeopardy did not bar retrial where foreperson's statements “not sufficiently clear and unequivocal to show that the jury actually reached a resolution of the ‘factual elements’ of deliberate premeditation”); Carlino, 449 Mass. at 78 n.18 & 80 (double jeopardy did not bar retrial where jury's failure to mark theory on verdict slip may reflect acquittal, failure to reach unanimous verdict, or failure to deliberate on theory at all). Indeed, “if it is possible that the jury were split as to the crime for which they gave no indication, double jeopardy does not bar retrial on that theory.” Commonwealth v. Zanetti, 454 Mass. 449, 460 (2009). Such a possibility remains here and, therefore, double jeopardy principles do not attach.9
We note that this case is distinguishable from those cited by the defendant where the jury were polled after rendering their verdict and each juror unequivocally expressed an intent to acquit the defendant on a theory left blank on the verdict slip. Compare Commonwealth v. Smith, 473 Mass. 798, 814 n.26 (2016) (double jeopardy barred retrial on deliberate premeditation where each juror polled and individually stated that defendant not guilty on that theory); Commonwealth v. Roth, 437 Mass. 777, 796 (2002), quoting Commonwealth v. Fowler, 431 Mass. 30, 35 (2000) (double jeopardy barred retrial where “poll [of jury] provided adequate evidence of ‘the free and unanimous assent of the jury to the verdict,’ which is the purpose of the various customs and rituals that surround the taking of a verdict”). Here, we are constrained by the record and the relevant case law that dictates that the defendant has failed to meet his burden of demonstrating that double jeopardy principles apply.10
Conclusion. So much of the order dated December 21, 2018 as denied the defendant's motion to dismiss the charge of malice-murder in the second degree is affirmed.
2. The defendant was convicted of armed carjacking, see G. L. c. 265, § 21A; two counts of kidnapping, see G. L. c. 265, § 26; two counts of armed robbery, see G. L. c. 265, § 17; assault and battery by means of a dangerous weapon, see G. L. c. 265, § 15A (b); larceny of a motor vehicle, see G. L. c. 266, § 28 (a); and possession of a firearm without a license, see G. L. c. 269, § 10 (a). The jury also convicted the defendant of armed home invasion, see G. L. c. 265, § 18C, but that conviction was later dismissed as duplicative. The jury returned these verdicts in the defendant's fourth trial. His three prior trials resulted in mistrials, twice because of hung juries and once due to an illness of the judge.
3. By the same order, the motion judge dismissed the charges of murder in the first degree and murder in the second degree on the theory of felony-murder, and denied in its entirety the defendant's separately filed motion to dismiss in the interests of justice. Those matters are not before us on appeal.
4. The defendant filed a petition to a single justice of the Supreme Judicial Court pursuant to G. L. c. 211, § 3, for interlocutory review of his motion to dismiss. See Soucy v. Commonwealth, 470 Mass. 1025, 1026 (2015); Neverson v. Commonwealth, 406 Mass. 174, 175 (1989). A single justice of the Supreme Judicial Court allowed the petition and transferred the case to the Appeals Court for a decision on the underlying merits of the defendant's double jeopardy claim.
5. The defendant's motion to dismiss was resolved by a different Superior Court judge because the trial judge had retired and is deceased.
6. In her written decision, the motion judge explained that retrial on any theory of murder in the first degree was barred by double jeopardy principles because conviction of a lesser included offense necessarily implied an acquittal of the greater offense. The motion judge also concluded that retrial on murder in the second degree based on a theory of felony-murder was precluded by the Supreme Judicial Court's decision in Commonwealth v. Brown, 477 Mass. 805, 807-808 (2017), cert. denied, 139 S. Ct. 54 (2018).
7. We decline the defendant's invitation to draw inferences on the jury's intent based on a reading of the Supreme Judicial Court's decision on the appeal of his codefendant with whom the defendant was tried. See Commonwealth v. Wood, 469 Mass. 266, 294-295 (2014) (discussing jury's verdicts finding codefendant guilty of murder in first degree and defendant guilty of murder in second degree).
8. Where the jury convicted the defendant of the lesser included offense of murder in the second degree, binding precedent dictates that we must treat the jury's failure to mark any of the options related to murder in the first degree as an implied acquittal of that greater offense for double jeopardy purposes. See, e.g., Green v. United States, 355 U.S. 184, 190-191 (1957); Commonwealth v. Figueroa, 468 Mass. 204, 228 (2014). As the United States Supreme Court explained, to hold otherwise would serve as a disincentive for criminal defendants to appeal from convictions of lesser included offenses for fear that if successful, they could face retrial on the greater offense. See Green, supra at 189-198. However, the Supreme Judicial Court has expressly distinguished circumstances like the present one and declined to conclude there was an implied acquittal where the jury's decision to convict a defendant on certain theories of murder did not “logically require[ ] the conclusion that the jury must have acquitted the defendant of [another theory that the jury did not mark on the verdict slip].” Carlino, 449 Mass. at 78 (distinguishing Green).
9. We recognize the defendant's argument that where the record is ambiguous on the issue whether the jury acquitted him, any ambiguity must be resolved in his favor. The cases relied on to support the application of that principle in the double jeopardy context are factually distinguishable. In those cases, juries returned split verdicts on several identically-worded indictments, but the record was unclear as to what conduct underpinned the convictions as opposed to the acquittals. In those circumstances, unlike here, where double jeopardy principles applied because the jury unequivocally acquitted the defendant on certain indictments, ambiguities in the record were resolved in favor of the defendant. See Commonwealth v. LaCaprucia, 429 Mass. 440, 445-446 (1999); Commonwealth v. Hrycenko, 417 Mass. 309, 317 (1994). Any extension of that principle to the present circumstances where the record is devoid of an unequivocal expression of the jury's intent to acquit the defendant on a particular theory is foreclosed by the Supreme Judicial Court's decisions in Carlino and its progeny, cited above. See, e.g., Carlino, 449 Mass. at 80 (expressly disregarding prior cases supporting notion that acquittal may be entered “by accident or supposition”).
10. Assuming, as the defendant argues, that he only bears the burden of demonstrating by a preponderance of the evidence that he was acquitted of malice-murder in the second degree, his claim still fails. See Lego v. Twomey, 404 U.S. 477, 488-489 (1972). The record here reflects, at a minimum, two competing, but equally possible conclusions that can be drawn from the jury's silence on the verdict slip; such a showing falls short of satisfying that standard. See Continental Assur. Co. v. Diorio-Volungis, 51 Mass. App. Ct. 403, 408 n.9 (2001) (“ ‘By a preponderance of the evidence’ means that the trier of fact had to conclude that it was more probable than not ․ If the proposition is as probably false as it is true, then the [defendant] has not met [his] burden”). See also DeFilippo's Case, 284 Mass. 531, 534 (1933) (“where the evidence shows no greater likelihood that facts which must be proved really existed, than that such facts did not exist, the necessary preponderance of evidence in favor of the existence of such facts is lacking, and the party having the burden of proof fails”).
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