JOSHUA PERRIER vs. COMMONWEALTH.

CYPHER, J. The defendant, Joshua Perrier, [Note 1] was tried before a jury on a charge of operating a motor vehicle while under the influence of alcohol. During closing arguments, and again after the jury returned a guilty verdict, the defendant moved for a mistrial on the basis of prosecutorial misconduct. The judge denied the motion for a mistrial but granted the defendant's motion, in the alternative, for a new trial. After the judge denied the defendant's subsequent motion to dismiss the charge on double jeopardy grounds, the defendant petitioned a single justice of this court for relief under G. L. c. 211, § 3. He appeals from the single justice's denial of his petition to the full court.

Now on appeal, the defendant asks that we adopt under State law an expansion of the Federal double jeopardy principles of

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Oregon v. Kennedy, 456 U.S. 667 (1982), thereby overruling our decision in Donavan v. Commonwealth, 426 Mass. 13 (1997). Specifically, he asks us to include within the double jeopardy principles misconduct that a prosecutor knew or should have known would require a new trial, regardless of whether a defendant successfully moves for a mistrial. We decline to reconsider our holding in Donavan. We thus affirm the single justice.

Factual background. The defendant, aged nineteen, was charged by complaint with operating a motor vehicle while under the influence of alcohol. Prior to trial, the defendant filed a motion in limine seeking to preclude the Commonwealth from making references to his age. The judge allowed the motion, finding that the potential unfair prejudice of the evidence substantially outweighed its relevance.

During her closing argument, the prosecutor twice referenced the defendant's youth. The prosecutor argued that the jury could find that he was operating a motor vehicle while under the influence even if he was not driving erratically. The prosecutor told the jury, "You can have reduced judgment at the same time that you have the reflexes -- especially someone who's young, [whose] reflexes might be at their peak -- to drive the car." The prosecutor again referenced the defendant's youth, proposing a reason why he told police he had not been drinking the night in question. The prosecutor asked the jury, "Why do you think he might've said no while he was driving that car? I mean, I don't know if -- you know, probably -- maybe he's young -- maybe he was too young."

After this second reference to his age, the defendant objected. At sidebar, the prosecutor explained that she believed she was permitted to draw inferences from the appearance of the defendant. When the judge told her, "I said that [was] prejudicial," the prosecutor responded, "As to . . . the testimony. This is argument." The defendant then moved for a mistrial, which was denied.

Later during her closing argument, the prosecutor asked the jury to consider a scenario in which an animal or another driver had been on the road with the defendant. The defendant objected to the Commonwealth's appeal to sympathy and asked for a limiting instruction. The judge instructed the jury to disregard appeals to sympathy in the parties' closing arguments.

Ultimately the defendant was convicted of operating a motor vehicle while under the influence of alcohol. He orally moved for

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a "judgment . . . staying the verdict" based on the Commonwealth's references to his age. The judge asked that the defendant file a motion requesting the appropriate relief and stayed the sentence pending the anticipated motion. The defendant thereafter filed a motion to reconsider his earlier request for a mistrial with prejudice, citing the Commonwealth's failure to abide by the motion in limine ruling and its appeal to juror sympathy. In the alternative, the defendant requested a new trial.

In its response to the defendant's motion, the Commonwealth explained that the prosecutor misunderstood the judge's ruling on the motion in limine. According to the Commonwealth, the prosecutor interpreted the ruling specifically to exclude testimony of the defendant's age of nineteen. The Commonwealth provided to the judge the prosecutor's copy of the motion, on which she allegedly wrote, "[A]llowed, as to eliciting testimony of the defendant's age of [nineteen]." The judge denied the motion for a mistrial, crediting the Commonwealth's explanation of the prosecutor's misunderstanding and finding that her actions did not "constitute deliberate, intentional and/or egregious prosecutorial misconduct sufficient to give rise to presumptive prejudice." The judge nonetheless allowed the defendant's motion for a new trial.

The defendant subsequently filed a motion to dismiss, arguing that double jeopardy precluded his retrial. The judge denied his motion, holding that double jeopardy did not bar retrial in the event of "unintentional prosecutorial mistakes," citing Donavan, 426 Mass. at 16.

The defendant petitioned for review by a single justice under G. L. c. 211, § 3. The petition was denied on the basis that the double jeopardy claim lacked sufficient merit to warrant an interlocutory appeal, and the defendant appealed to the full court pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001).

Discussion. Relief under G. L. c. 211, § 3, "is extraordinary and will be exercised only in the most exceptional circumstances." Matthews v. Appeals Court, 444 Mass. 1007, 1008 (2005), quoting Campiti v. Commonwealth, 417 Mass. 454, 455 (1994). Accordingly, we review the single justice's decision for abuse of discretion or clear error of law. Matthews, supra. The single justice determined that the defendant did not present a double jeopardy claim of substantial merit sufficient to warrant an interlocutory appeal from the denial of his motion to dismiss. We hold that this was neither an abuse of the single justice's discretion nor a clear error of law, and we therefore affirm her decision.

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The Fifth Amendment to the United States Constitution, applicable to the States through the Fourteenth Amendment to the United States Constitution, protects an individual defendant from multiple prosecutions for the same offense. [Note 2] Kennedy, 456 U.S. at 671 & n.3. Massachusetts provides similar protections under State statute and common law. See Marshall v. Commonwealth, 463 Mass. 529, 534 (2012); G. L. c. 263, § 7. The Federal and State principles of double jeopardy protect defendants from being subjected to "embarrassment, expense and ordeal and compelling [them] to live in a continuing state of anxiety and insecurity." Donavan, 426 Mass. at 15, quoting Commonwealth v. Andrews, 403 Mass. 441, 447 (1988). Double jeopardy principles further allow defendants to have their trial heard by a "particular tribunal." Kennedy, supra at 672, quoting Wade v. Hunter, 336 U.S. 684, 689 (1949).

The protection against double jeopardy does not, however, ensure an error-free trial. Donavan, 426 Mass. at 15. For "it [would] be a rare trial of any complexity in which some proffered evidence by the prosecutor . . . [would] not be found objectionable by the trial court." Kennedy, 456 U.S. at 674-675. Accordingly, these principles do not bar retrial of a defendant in all instances. Thames v. Commonwealth, 365 Mass. 477, 479 (1974). For example, a defendant may be retried if the jury are unable to reach an agreement and are discharged. [Note 3] Id. Double jeopardy principles recognize that while defendants have a "legitimate

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interest in protection from unfair prosecution by the State," the Commonwealth has a coexisting interest in pursuing prosecutions of those who are guilty. Donavan, supra. Dismissal of an indictment based on double jeopardy thus is considered a "drastic remedy." Id. at 15-16, quoting Commonwealth v. Cinelli, 389 Mass. 197, 210, cert. denied, 464 U.S. 860 (1983).

When a defendant moves for a mistrial, the right to be heard by the first jury empanelled for trial is forfeited. Kennedy, 456 U.S. at 672-673, 676. The protections against double jeopardy, therefore, ordinarily are not implicated in such circumstances. See id. at 673. Massachusetts follows the United States Supreme Court's holding in Kennedy, which establishes a narrow rule requiring dismissal on double jeopardy grounds following a defendant's motion for mistrial. Id. at 676. Donavan, 426 Mass. at 15. Under the Kennedy-Donavan rule, retrial will be barred only where two predicates are met: (1) a defendant successfully moves for a mistrial; and (2) the first trial contains prosecutorial misconduct intended to goad or provoke a defendant into moving for the mistrial. Kennedy, supra. Donavan, supra at 14-15.

The Kennedy-Donavan rule recognizes that a defendant's right to be heard by the first empanelled jury "would be a hollow shell" without protection from conduct designed to force a defendant to forgo that jury by moving for a mistrial. Kennedy, 456 U.S. at 673. Prosecutorial misconduct absent a specific intent to goad the defendant into a mistrial does not bar retrial, however, because it does not wrest from the defendant control over such a decision. Id. at 676. The Kennedy-Donavan rule is, therefore, a narrow rule.

In Donavan, we declined to expand the Kennedy rule under our State common law to allow dismissal of an indictment for "unintentional prosecutorial mistakes." Donavan, 426 Mass. at 16. We asserted that "[w]e remain[ed] satisfied with the current rule which directs the dismissal of indictments on double jeopardy grounds only in instances of intentional prosecutorial misconduct calculated to provoke a defendant into moving for a mistrial" (emphasis added). Id.

The defendant nonetheless asks us to reconsider Donavan, extending double jeopardy protections to situations in which there was neither a successful motion for mistrial nor prosecutorial intent

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to provoke a mistrial. [Note 4] He argues that the Kennedy-Donavan rule is not sufficiently protective of a criminal defendant and invites us to expand the rule under our common law, as other jurisdictions have done. [Note 5] Specifically, the defendant proposes that double jeopardy principles apply "where a prosecutor either [1] engaged in misconduct with the intent to goad the defendant into requesting a mistrial or [2] engaged in misconduct that results in [a] mistrial, order [for a] new trial, or reversal; which had the effect of depriving a defendant of [the] reasonable likelihood of acquittal; and where the prosecutor knew or reasonably should have known from all of the facts and circumstances that his or her conduct would require [a] new trial."

Without deciding whether to expand our common-law double jeopardy principles to include other kinds of prosecutorial error,

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we note that the defendant would not find relief under the common-law principles from other States, nor under his own rule. None of these standards extends double jeopardy protections to purely unintentional prosecutorial mistakes, as the judge found occurred here. We remain, as stated in Donavan, satisfied that unintentional mistakes do not preclude retrial. [Note 6]

Whether the prosecutor acted with intent to goad the defendant into a mistrial is a question of fact. Andrews, 403 Mass. at 448. The trial judge is "in the best position to see and evaluate the circumstances." Commonwealth v. Merry, 453 Mass. 653, 665 (2009). Accordingly, we give deference to the trial judge's findings and review for clear error. Commonwealth v. Cousin, 449 Mass. 809, 820 (2007), cert. denied, 553 U.S. 1007 (2008). Here, the judge found that the prosecutor's actions did not "constitute deliberate, intentional and/or egregious prosecutorial misconduct sufficient to give rise to presumptive prejudice." In denying the defendant's mistrial motion, the judge credited the Commonwealth's contention that the prosecutor's actions were based on a misunderstanding of his ruling. Moreover, in denying the defendant's motion to dismiss, the judge characterized the prosecutor's actions as "unintentional prosecutorial mistakes."

Review of the facts leads us to determine that the judge did not commit clear error in finding that the prosecutor's actions were unintentional mistakes. Nor did the judge err in crediting the Commonwealth's assertion that the prosecutor's actions were based on a misunderstanding of the judge's ruling. We note that the Commonwealth presented notes, allegedly contemporaneous, consistent with the prosecutor's claimed misunderstanding. These notes properly could be considered in conjunction with the prosecutor's comments to the judge at sidebar, including her response, "As to . . . the testimony. This is argument." Additionally, after

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the defendant objected, the prosecutor did not again mention the defendant's youth. These circumstances support the judge's findings.

The prosecutor's alleged appeal to sympathy likewise does not display an intent to provoke the defendant into moving for a mistrial. After the defendant's objection, the prosecutor did not renew her argument. While the prosecutor contested whether her argument could be characterized as an appeal to juror sympathy, she did not object to the judge's limiting instructions. This does not evince an intent by the prosecutor to provoke the defendant. Rather, we hold that the judge did not err in determining that the prosecutor's errors were unintentional. We thus conclude that based on the record, neither predicate necessary to implicate double jeopardy under the Kennedy-Donavan rule was satisfied.

For the same reasons, we conclude that there is no support for the suggestion that the prosecutor acted knowingly, recklessly, or indifferently, the mental states raised by the defendant. The prosecutor misunderstood the judge's rulings and refrained from making further errors as soon as she was made aware of her misunderstanding. We do not believe the prosecutor should have known that her actions would require a new trial, or that she ignored the substantial risk that such result would occur. Nor can we say that a reasonable person in similar circumstances would understand such actions to create a substantial risk of retrial. The judge found that the prosecutor's actions merely were mistakes: as we indicated in Donavan, 426 Mass. at 15, "inadvertence" is not enough to implicate double jeopardy. Nor is such error "egregious," id. at 15 n.2, enough to warrant the "drastic remedy" of dismissal, id. at 15-16, quoting Cinelli, 389 Mass. at 210. See Commonwealth v. Cronk, 396 Mass. 194, 199 (1985). Were we to conclude otherwise, it would be a "rare trial" in which prosecutorial mistakes giving rise to a new trial did not result in dismissal. See Kennedy, 456 U.S. at 674-675.

We thus hold that the defendant does not present a double jeopardy claim warranting the extraordinary relief of G. L. c. 211, § 3. The single justice did not abuse her discretion or commit a clear error of law in determining that the denial of the defendant's motion to dismiss cannot be appealed until after trial.

We reserve for another day the question whether the Kennedy-Donavan rule sufficiently protects defendants against double jeopardy

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under different circumstances.

Judgment affirmed.