Commonwealth v. Bryan (Lawyers Weekly No. 10-016-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12140 COMMONWEALTH vs. ATUNBI BRYAN. Suffolk. November 7, 2016. – January 20, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Practice, Criminal, Mistrial. Supreme Judicial Court, Superintendence of inferior courts. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 26, 2016. The case was heard by Duffly, J. Nicholas Brandt, Assistant District Attorney (Gregory D. Henning, Assistant District Attorney, also present) for the Commonwealth. Paul J. Davenport for the defendant. Gaziano, J. The defendant was one of three occupants of a van that was stopped by a Boston police officer for a traffic violation (driving without headlights) in the early morning hours of April 12, 2014. Police officers issued an exit order, as a safety precaution, based on certain facts that unfolded during the motor vehicle stop. When the defendant, the rear seat passenger, got up to get out of the van, a police officer observed a handgun underneath his right thigh. At trial, the judge issued an explicit order precluding defense counsel from introducing evidence that the front seat passenger in the van previously had been convicted of unlawful possession of a firearm.[1] Defense counsel elicited this testimony anyway. The judge declared a mistrial, over the defendant’s repeated objection. The defendant subsequently moved to dismiss the charges on double jeopardy grounds, contending that there had been no manifest necessity to declare a mistrial, and that the judge erred in not pursuing a less severe option to cure the introduction of the precluded testimony, such as a curative instruction. A different Superior Court judge denied the motion, and the defendant filed a petition pursuant to G. L. c. 211, § 3, in the county court. The single justice determined that the trial judge had erred in concluding that there was a manifest necessity to declare a mistrial. The Commonwealth appealed to this court from the single justice’s allowance of the defendant’s petition. Because a determination that a mistrial was manifestly necessary is committed to the sound discretion of the trial judge, a reviewing court examines such a decision only for abuse of discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). “We do not disturb the judge’s ruling ‘simply because [we] might have reached a different […]