RICHARD GIBSON vs. COMMONWEALTH.

WILKINS, J. This is the second case we decide today involving the claim of an accused that he would be denied his constitutional right against being placed twice in jeopardy if a new trial is offered as the only relief from his conviction on insufficient evidence presented at a bench trial in a District, Municipal, or Juvenile Court.

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On May 4, 1978, the petitioner, whom we shall call the defendant, was convicted, after a bench trial in the Second Plymouth Division of the District Court Department sitting at Hingham, of using a motor vehicle without authority (G. L. c. 90, Section 24) and of receiving stolen goods (G. L. c. 266, Section 60). The proceeding was recorded on tape. The defendant moved for a finding of not guilty on both charges at the close of the Commonwealth's case. He claimed an appeal for a trial de novo before a jury of twelve in the Superior Court in Plymouth County. See G. L. c. 278, Section 18, as amended through St. 1974, c. 167. He moved in the Superior Court for dismissal of the charges and for judgments of acquittal on the charges, alleging that there was insufficient admissible evidence at his first, or bench, trial to warrant a conviction. He argued that a trial de novo would violate his double jeopardy rights and would deny him due process of law under the Fourteenth Amendment to the Constitution of the United States.

In a carefully considered order concerning the motion to dismiss, entered on April 9, 1979, a judge of the Superior Court noted that, in light of the decision in Burks v. United States, 437 U.S. 1 (1978), the defendant's double jeopardy claim was one of substance. He concluded that "if the defendant's conviction after a bench trial in the District Court is based on insufficient evidence as a matter of law, he is not subject to further criminal proceedings upon these charges." However, he concluded further that the Superior Court had no jurisdiction to review the defendant's double jeopardy claim and denied the motion to dismiss. He suggested that relief might be obtained in an appellate court, perhaps by a writ of error.

The defendant thereafter filed a petition seeking relief under this court's power of general superintendence. G. L. c. 211, Section 3. A single justice reported the entire case to the full court, reciting three principal questions, that are set forth in the margin. [Note 1] These questions concern (a) the right

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of the defendant to raise by a pretrial motion in the Superior Court the issue of the insufficiency of the evidence at his bench trial, (b) the jurisdiction of the Superior Court to hear such a motion, and (c) the defendant's double jeopardy rights if the evidence at his bench trial was not sufficient to support findings of guilt beyond a reasonable doubt.

The defendant's trial occurred at a time when the former two-tier procedure was in effect in the Commonwealth. Under that procedure, a defendant was tried first in the District Court without a jury and, if found guilty, could appeal to the Superior Court for a trial before a jury of twelve or to the District Court before a jury of six. G. L. c. 278, Section 18, as amended through St. 1974, c. 167. The defendant did not have the option of having a jury trial in the first instance as is the case under the current two-tier system. [Note 2] See Lydon v. Commonwealth, ante 356 (1980).

We conclude that the principles of the Burks case apply only when there is an appellate determination that the evidence at trial was insufficient. Because neither the former Massachusetts trial system nor the present one provides any

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appellate review of errors or omissions in the bench trial, the principles underlying the Burks case have no application to these two-tier systems. We conclude further that, on proper motion, a judge of the Superior Court should pass on a double jeopardy challenge of the character involved here.

The defendant argues that the Burks opinion stands for the proposition that a person convicted at a bench trial on insufficient evidence may not be retried regardless of the fact that the only avenue of relief from such conviction is a trial de novo. The argument rests on the assertion that if, as in the Burks case, an appellant who successfully challenges the sufficiency of the evidence must be acquitted, then a defendant convicted on insufficient evidence must have available, prior to a second trial, some procedure by which he can secure an acquittal. The defendant claims that the Massachusetts two-tier trial system is unconstitutional because it does not provide for appellate review but offers an improperly convicted defendant only another trial as a cure, that is, a second trial at which the prosecution will have a chance to overcome its earlier failure to meet its proof. In short, the defendant argues that principles underlying the Burks decision imply that an accused who is obliged to undergo a bench trial, is found guilty on evidence not sufficient to warrant a conviction, and has no avenue of relief but to seek a de novo jury trial is denied his right under the double jeopardy clause to have the charges against him dismissed. [Note 3]

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Our opinion in Lydon v. Commonwealth, supra, considers and rejects the proposition that the double jeopardy clause of the Fifth Amendment, made applicable to the States by the Fourteenth Amendment, requires a State to provide, in all instances, a procedure for review of the sufficiency of the evidence at a bench trial. Much of the reasoning of that opinion applies here. In our Lydon opinion, at 263, we noted that "[t]he two-tier court system has already withstood constitutional challenge [on double jeopardy grounds] in the United States Supreme Court. Ludwig v. Massachusetts, 427 U.S. 618 (1976). Colten v. Kentucky, 407 U.S. 104 (1972)." Approximately half the States have some form of two-tier system. Colten v. Kentucky, supra at 112 n.4. The Burks opinion makes no mention of two-tier trial systems and cites neither the Ludwig nor the Colten cases. We are unwilling to conclude that the Supreme Court intended in its Burks opinion to invalidate by implication such a widely used system for the disposition of cases involving less serious crimes. We have found no reported case in any other jurisdiction in which a two-tier criminal defendant has advanced a double jeopardy argument based on an extension of the holding in the Burks case. We do not find in the Burks opinion any indication that the Supreme Court has abandoned its position in Ludwig v. Massachusetts, 427 U.S. 618 (1976), where the Court upheld the very same procedure that is involved in this case. We hold that the Supreme Court's ruling in the Ludwig case is controlling here.

We come then to the question whether a defendant under the former two-tier system could present to the Superior Court his challenge based on the double jeopardy clause. We think that the Superior Court was the appropriate forum for such a claim and that, at least until the matter is passed on there, a single justice of this court need not grant relief under this court's general superintendence power (G. L. c. 211, Section 3). See Whitmarsh v. Commonwealth, 366 Mass. 212, 216 (1974), appeal dismissed, 421 U.S. 957 (1975). At the time the defendant's motion was filed in the Superior Court and considered there (see G. L. c. 277,

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Section 47A, as amended through St. 1978, c. 478, Section 298 [effective January 1, 1979 (St. 1978, c. 478, Section 343)]), the applicable statute provided that in criminal proceedings "[a]ny ... objection which is capable of determination without the trial of the general issue may be raised before trial by motion." [Note 4] Consequently, the defendant's motion to dismiss properly should have been considered on its merits in the Superior Court. See Lydon v. Commonwealth, supra.

Because the defendant has no valid double jeopardy claim even if the evidence at his bench trial was insufficient to warrant his convictions, the motion to dismiss should have been denied in the Superior Court and, accordingly, relief under the general superintendence powers of the court is not appropriate. The petition under G. L. c. 211, Section 3, should be dismissed. [Note 5]

So ordered.

LIACOS, J. (dissenting, with whom Abrams, J., joins). I respectfully dissent for the reasons stated in my opinion in Lydon v. Commonwealth, supra at 368. I would remand the case to the single justice who could either rule on the sufficiency of the evidence or permit the judge of the Superior Court to reconsider the defendant's motion to dismiss. Upon a determination that the evidence at the bench trial was insufficient, the court should allow the motion to dismiss. I need not reach the question whether double jeopardy bars a retrial when the only evidence tending to prove an element

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of the crime was improperly admitted at the first trial. See Greene v. Massey, 437 U.S. 19, 26 n.9 (1978). I add only that if the majority's opinion in Lydon has any arguable validity whatsoever, the majority opinion here is even less justifiable. This defendant had no option under G. L. c. 278, Section 18, as amended through St. 1974, c. 167, but was required to undergo a bench trial prior to obtaining a constitutionally protected right to trial by jury. Supra.