COMMONWEALTH v. Julie HERNANDEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Julie Hernandez, appeals from judgments of conviction on three counts of assault, one count of assault and battery on a police officer, and one count of resisting arrest. The convictions were entered after a second jury trial in the District Court, the first trial having ended in a mistrial when, after the jurors were sworn in, the trial judge dismissed three of the eight seated jurors because they reported that it would be inconvenient for them to return to court the next day. The defendant argues that the first trial judge improperly declared a mistrial in the absence of “manifest necessity,” and that the second trial therefore was barred by double jeopardy principles. See Lovett v. Commonwealth, 393 Mass. 444, 447 (1984) (“a retrial violates the constitutional prohibition against double jeopardy [if] there was no manifest necessity for the declaration of a mistrial”).
The Commonwealth agrees that the mistrial was improperly declared and that the judgments of conviction should be vacated on double jeopardy grounds.2 Upon independent review of the somewhat limited record before us, we accept the Commonwealth's concession that the first trial judge declared a mistrial too hastily, without giving “careful consideration to alternatives to a mistrial,” Commonwealth v. Nicoll, 452 Mass. 816, 822 (2008), quoting Commonwealth v. Steward, 396 Mass. 76, 79 (1985), and that the second trial therefore violated the defendant's protection against double jeopardy.
Verdicts set aside.
Judgments for the defendant.
2. “Confessions of error are, of course, entitled to and given great weight, but they do not relieve this Court of the performance of the judicial function” (citation omitted). Commonwealth v. Poirier, 458 Mass. 1014, 1015 (2010).
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