Commonwealth v. William J. Papp, Third.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-972

COMMONWEALTH

vs.

WILLIAM J. PAPP, THIRD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, William J. Papp, III, appeals from

convictions, after a second District Court jury trial, for

operating a motor vehicle under the influence of intoxicating

liquor, G. L. c. 90, § 24 (1) (a) (1), and operating a motor

vehicle after a license suspension, G. L. c. 90, § 23. 1

Concluding that the trial judge properly allowed the second

trial to proceed after the defendant agreed to a mistrial in the

first jury trial, we affirm. 2

1 After the jury verdicts, the defendant pleaded guilty to a
second offense on the first charge and to a subsequent offense
on the second charge.
2 The second jury trial was not transcribed, and the parties are

vague about how the defendant's objection to the retrial was
brought to the attention of the trial judge. Cf. Papp v.
Commonwealth, 491 Mass. 1019, 1019 (2023) (defendant objected to
retrial in pleading with Supreme Judicial Court). We assume,
without deciding, that the issue was preserved in the District
Court.
"[O]nce jeopardy has attached, a judge may declare a

mistrial over a defendant's objection and commence a new trial

only in light of a 'manifest necessity.'" Commonwealth v.

Fitzpatrick, 463 Mass. 581, 589 (2012), quoting Cruz v.

Commonwealth, 461 Mass. 664, 670 (2012). "A judge's

determination that there is a 'manifest necessity' warranting

the declaration of a mistrial is reviewed under an abuse of

discretion standard." Commonwealth v. Bryan, 476 Mass. 351, 356

(2017), quoting Cruz, supra at 669.

"The 'manifest necessity' test has no application in

situations where, as here, the defendant requested or

effectively consented to the mistrial." Commonwealth v. Curtis,

53 Mass. App. Ct. 636, 640 (2002). Accord Daniels v.

Commonwealth, 441 Mass. 1017, 1018 (2004). "[C]onsent to a

mistrial may be inferred from silence where a defendant had the

opportunity to object and failed to do so." Pellegrine v.

Commonwealth, 446 Mass. 1004, 1005 (2006), quoting Commonwealth

v. Phetsaya, 40 Mass. App. Ct. 293, 298 (1996). Cf.

Commonwealth v. Edwards, 491 Mass. 1, 15-16 (2022) (consent

cannot be inferred where defendant failed to object to dismissal

order precluding retrial); Commonwealth v. Donovan, 8 Mass. App.

Ct. 313, 316 (1979) (no consent where "defense counsel had

requested that the trial go forward").

2
Here, the defendant consented to the mistrial. After the

trial judge reported to the parties, outside the hearing of the

jury, that the prosecutor at the first trial had been taken to a

hospital and that he was "going to declare a mistrial with

manifest necessity, . . . so the Commonwealth is free to retry

the case," the judge asked the defendant whether he understood

and would like to be heard. The defendant asked when the

retrial would be held. The judge then explained why he believed

that the trial could not continue and asked, "was there anything

else that you wanted to address the Court on the issue of the

mistrial?" The defendant responded by stating that the

prosecutor "didn't look to be doing too good." By failing to

object after being given two opportunities to be heard, the

defendant consented to the mistrial. See Daniels, 441 Mass. at

1017.

This is not a situation where the judge declared the

mistrial to the jurors without first consulting with the

parties, see Commonwealth v. Horrigan, 41 Mass. App. Ct. 337,

338-339 (1996), or where the judge intimidated defense counsel

from objecting by calling him incompetent and fining him, see

Phetsaya, 40 Mass. App. Ct. at 298. Rather, the judge properly

explained the situation to the defendant and solicited his views

before bringing in the jurors and declaring a mistrial. The

defendant's acquiescence to a mistrial with the expectation of a

3
retrial means that no manifest necessity was required for the

declaration of a mistrial and that the trial judge had no

obligation to describe the alternatives to a mistrial that he

considered (or, for that matter, to consider such alternatives).

Judgments affirmed.

By the Court (Green, C.J.,
Ditkoff & Hodgens, JJ. 3),

Clerk

Entered: August 28, 2023.

3 The panelists are listed in order of seniority.

4