Commonwealth v. Reginald Grant.

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

23-P-1127

COMMONWEALTH

vs.

REGINALD GRANT.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A judge of the District Court declared a mistrial without

prejudice after the person whom the Commonwealth alleged was the

victim (victim) began to testify but failed to appear in court

on the following day of trial, thereby preventing defense

counsel from concluding his cross-examination of her.1 Three

months after declaring a mistrial, the judge allowed the

Commonwealth's motion for a new trial date.2 The defendant now

1The defendant was charged with two counts of indecent
assault and battery on a child under the age of fourteen (G. L.
c. 265, § 13B), and one count of open and gross lewdness (G. L.
c. 272, § 16).

2The defendant appealed from the judge's ruling allowing a
new trial to a single justice of the Supreme Judicial Court, who
granted the defendant leave to pursue an interlocutory appeal in
this court.
appeals from this order, arguing a retrial is impermissibly

prejudicial because (1) the judge's declaration of mistrial was

not supported by manifest necessity, and (2) the trial

prosecutor goaded the defendant into seeking a mistrial.

Because we cannot conclusively determine from this record

whether the judge found manifest necessity before ordering a

mistrial without prejudice and allowing a retrial, we vacate the

order allowing the Commonwealth's motion and denying the

defendant's motion for reconsideration, and remand for further

findings.

Background. The facts of the proceedings are well known to

the parties and will be repeated here only as necessary. On the

first day of trial,3 April 26, the Commonwealth completed its

direct examination of the victim and defense counsel started,

but did not finish, his cross-examination. On the following

day, the Commonwealth reported to the judge that the victim and

the victim's mother, who was also scheduled to testify, decided

they would not be returning to court for the conclusion of the

trial. The Commonwealth informed the court that it would not be

asking for a capias to secure the victim's presence due to her

age and stated it "understand[s] that that will mean a

3 Jury empanelment began on Tuesday, April 25, 2023. A full
jury were empaneled the following day, at which point the trial
commenced.

2
mistrial." The prosecutor then informed the judge that the

Commonwealth "has no witnesses here today" and would leave the

issue up to the judge's discretion.4 Defense counsel then

requested a mistrial with prejudice. The Commonwealth requested

the mistrial be without prejudice.

After a brief recess, the courtroom clerk informed the

judge and the parties that the victim had called the clerk's

office and expressed her desire to speak with the Commonwealth.

The judge then took another brief recess to allow the

Commonwealth to speak with the victim. After reconvening, the

Commonwealth conveyed that the victim had changed her mind, and

while she would not be able to come to court that day, she

wanted to come finish her testimony on the following day

(Friday). At this point, the Commonwealth asked for a one-day

continuance. The judge briefly discussed with the parties the

option of continuing with the trial on the day the Commonwealth

was requesting, but determined it was not feasible. As a

result, the Commonwealth asked for a mistrial without prejudice

for the second time. Defense counsel again requested a

mistrial, and emphasized it should be with prejudice, suggesting

to the judge that "the standard . . . is whether there was

4 We note the defendant did not move to strike the victim's
testimony and ask for a directed verdict.

3
prosecutorial misconduct in connection with the reason for the

mistrial." The judge then denied the Commonwealth's request for

a one-day continuance and addressed the Commonwealth, stating,

"I gave you an opportunity to see if your witness could get here

this morning. You've reported that that's also not doable for

the family. Given the intentional absence of your witnesses,

two in this instance, this case is going to be declared a

mistrial."

The Commonwealth thereafter filed a motion for a new trial

date. The defendant opposed the motion on the basis that a

retrial would violate his double jeopardy rights. The judge

treated the defendant's opposition as a motion to reconsider her

decision to declare a mistrial. In allowing the Commonwealth's

motion and denying reconsideration of her earlier ruling, the

judge found that there was no prosecutorial misconduct leading

up to her decision to declare a mistrial.

Discussion. "The decision to allow a retrial after a

mistrial implicates a defendant's right, under the Fifth

Amendment to the United States Constitution, as well as

Massachusetts statutory and common-law protections, against

being placed in jeopardy twice for the same criminal offense."

Commonwealth v. Bryan, 476 Mass. 351, 356 (2017). "[R]etrial

may be permissible after a mistrial if a defendant consented to

4
the mistrial . . . or if there was a manifest necessity to

declare the mistrial." Commonwealth v. Edwards, 491 Mass. 1, 12

(2022).

1. Consent. The Commonwealth argues the defendant

consented to retrial because the mistrial was declared on the

defendant's motion. We disagree.

A defendant may consent to a mistrial either explicitly,

"by moving for one or by agreeing to one proposed by the

prosecutor or judge," or implicitly, "where [they] had the

opportunity to object [to a declaration of a mistrial] and

failed to do so" (quotations and citations omitted). Edwards,

491 Mass. at 13.

Here, the defendant initially moved for a mistrial, and

explicitly asked that prejudice attach to the judge's

declaration of a mistrial, when he first learned that the victim

refused to come to court and would not be present to finish her

testimony.5 Defense counsel again voiced his opposition to a

mistrial without prejudice when the Commonwealth requested a

continuance. At no time did counsel suggest the defendant was

5 The Commonwealth provided a rationale for the victim's
absence, reporting the victim "[was] very scared about
testifying because . . . while she was testifying[,] she felt
that the defendant was snickering and laughing at what she
said." Defense counsel disputed this account, stating "I was
standing right next to [the defendant]. Your Honor is in plain
view of him."

5
amenable to a mistrial without prejudice. Where the defendant

specifically requested the judge declare a mistrial with

prejudice, and objected to a mistrial without prejudice, we

conclude that he did not consent to retrial. See Edwards, 491

Mass. at 13 ("[A] defendant may object [to a mistrial] by

expressing a preference against mistrial prior to the judge's

ruling"); Commonwealth v. Cassidy, 410 Mass. 174, 177 n.2 (1991)

(defendant did not consent to mistrial where "defendant did not

formally object" but "did . . . ask the judge to try to avoid a

mistrial").

2. Manifest necessity. Because we conclude that the

defendant did not consent to retrial, "the Commonwealth bears

the 'heavy' burden of proving that a mistrial rested on manifest

necessity." Commonwealth v. Nicoll, 452 Mass. 816, 818 (2008),

quoting Arizona v. Washington, 434 U.S. 497, 505 (1978). A

judge's determination that manifest necessity warrants a

mistrial is a "fact-intensive" inquiry. Bryan, 476 Mass. at

357. "We review a judge's determination that there was

'manifest necessity' for a mistrial under an abuse of discretion

standard." Cruz v. Commonwealth, 461 Mass. 664, 669 (2012).6

See also Commonwealth v. Steward, 396 Mass. 76, 79 (1985)

We also review for an abuse of discretion a decision to
6

deny a motion for reconsideration. See Commissioner of Revenue
v. Comcast Corp., 453 Mass. 293, 313 (2009).

6
("discretion of a trial judge where double jeopardy is concerned

is more restricted than the discretion commonly granted to trial

judges for the more routine matters"). In determining whether a

judge abused their discretion, "[t]wo principles guide our

review: (1) counsel must [have been] given full opportunity to

be heard and (2) the trial judge must [have given] careful

consideration to alternatives to a mistrial" (quotation and

citation omitted). Commonwealth v. Taylor, 486 Mass. 469, 484-

485 (2020).

Here, by giving each counsel ample time to argue the

necessity of a mistrial or pose alternative options, the judge

provided both parties the opportunity to be heard. Cf. Nicoll,

452 Mass. at 818 (opportunity to be heard satisfied by trial

judge "asking the attorneys for their opinions and openly

listening to their views and advice"). Contrast Picard v.

Commonwealth, 400 Mass. 115, 118-119 (1987) (judge provided

counsel "[n]o opportunity . . . to argue the propriety of the

question or of the necessity of a mistrial").

However, as to the second requirement, this record does not

allow us to examine whether the judge properly determined

manifest necessity supported her declaration of mistrial. See

Picard, 400 Mass. at 118, quoting Barton v. Commonwealth, 385

Mass. 517, 519 (1982) (we defer to trial judge's exercise of

7
discretion in ruling that manifest necessity exists for mistrial

"only if it is clear from the record that the judge has given

careful consideration to the available alternatives and to the

defendant's interest in having the trial concluded in a single

proceeding"). Neither the judge nor the parties ever mentioned

manifest necessity, and in the judge's written findings, she

found only that there was no prosecutorial misconduct that

warranted a mistrial with prejudice. Because the record is not

adequately clear as to the nature of and basis for the judge's

decision, we cannot without further factual findings assess

whether the judge acted within her discretion by engaging in

careful consideration of the alternatives to a mistrial. See

Lovett v. Commonwealth, 393 Mass. 444, 447 (1984) (particular

facts of each case dictate determination of manifest necessity).

More specifically, we cannot discern from the trial

transcript the judge's reason for rejecting a one-day

continuance as a possible alternative. One potential reason

appears to be that the judge and counsel agreed that multiple

jurors may have had scheduling conflicts that impacted their

availability for the following day.7 However, the basis for the

conclusion that the trial could not continue into Friday is

7 It is also unclear whether the victim would even have been
available, as the Commonwealth stated she "could possibly do
Friday."

8
unclear without further elaboration from the judge.8 We note

that the judge did not inquire with the seated jurors as to

their availability should the trial extend past the two-day

mark, or discuss the use of the two alternate jurors in the

event of juror unavailability. If the judge based her decision

to declare a mistrial without prejudice in part or entirely on

juror unavailability, she should state as much, as well as her

basis for so concluding.

In addition, we see no basis in the record to support the

Commonwealth's statement, uncorrected by either the judge or

defense counsel, that "I do understand that we could not

continue this [trial] into Friday given everyone's schedule."9

Our uncertainty as to the basis for this statement does not mean

that we have reason to doubt the veracity of the statement;

merely that it is unclear from the record why "everyone's

schedule" would not allow for that one-day continuance.10

8 For instance, jurors no. 2 and 5 said it would be
difficult but possible to serve on the jury until Thursday; the
judge did not ask about their availabilities on Friday.

9 Because the defendant did not contest this statement, we
take his silence as assent.

10We note that the judge encouraged the parties to discuss
potential ways to resolve the issue of the witness not
appearing. It may be that the prosecutor was referring to
something that was said off the record.

9
Furthermore, although the judge and defense counsel

discussed the defendant's expert witness's availability, we are

unable to ascertain from their discussion whether this witness

would have been available if he had been called "out of turn" or

had the trial had been continued. While defense counsel stated

that the expert witness had a conflict at 1 P.M. on Thursday and

was "lined up all day tomorrow [Friday]," there was no

discussion on the record whether time would have permitted him

to conclude his testimony on Thursday morning or if he was

available to testify on Friday.11 If the judge inferred that the

defendant's expert witness was unavailable to testify on Friday,

and if that factored in her decision to declare a mistrial, she

should so state in her findings.12

The lack of clarity on the basis for the judge's decision

to declare a mistrial is furthered by her written decision on

the Commonwealth's motion to retry the defendant, where she

affirmed the mistrial without prejudice solely on the basis that

there was "no prosecutorial misconduct." Although we conclude

that the judge did not abuse her discretion in finding there was

11It is unclear to us if being "lined up all day" meant the
expert witness, a surgeon, was available for trial, or in the
alternative if he had scheduled surgery for that date and thus
would be unavailable for trial unless held by the court.

12We acknowledge that defense counsel represented that the
expert witness was critical to his defense.

10
no prosecutorial misconduct under Oregon v. Kennedy, 456 U.S.

667, 676 (1982), further factual findings are necessary as to

whether she declared a mistrial because of the witnesses'

intentional failures to appear, or instead, if her reasons for

declaring a mistrial included her implicit finding of manifest

necessity.13 See, e.g., Edwards, 491 Mass. at 17-18; Bryan, 476

Mass. at 359.

"[D]ismissal with prejudice is a 'remedy of last resort,'"

(citation omitted), Edwards, 491 Mass. at 9, and would be

warranted here only if the judge did not carefully consider

possible alternatives to declaring a mistrial. See Nicoll, 452

Mass. at 822. However, due to the fact-dependent nature of the

manifest necessity inquiry, see Bryan, 476 Mass. at 357, we

cannot determine whether the judge abused her discretion on this

incomplete record, and thus, cannot conclude this remedy is

warranted at this juncture. Cf. Commonwealth v. Jones-Pannell,

472 Mass. 429, 437 (2015) ("where the facts as found are

susceptible of more than one interpretation, and there is

additional evidence in the record, neither implicitly credited

nor discredited by the judge, remand may be appropriate"

[quotation omitted]). Accordingly, remand is prudent, to allow

13We agree with the trial judge as to her finding that
there was no prosecutorial misconduct. The record does not
support any assignment of misconduct to the trial prosecutor.

11
the judge to make findings regarding her assessment of manifest

necessity and to clarify the facts supporting her elimination of

a continuance as a possible alternative and other factors she

considered in declaring a mistrial. See Commonwealth v.

Tremblay, 480 Mass. 645, 660-661 (2018).

Conclusion. Accordingly, the order allowing the

Commonwealth's motion for a new trial date and denying the

defendant's motion for reconsideration is vacated. The case is

remanded for the judge to make express findings (1) whether she

found manifest necessity before declaring a mistrial; and if so,

(2) the factual basis for such a finding. If the judge

concludes that she did not find that manifest necessity

supported her order of mistrial, the case against the defendant

is ordered dismissed with prejudice, as double jeopardy

principles bar a retrial. See Edwards, 491 Mass. at 18, citing

Commonwealth v. Gonzalez, 437 Mass. 276, 283 (2002), cert.

denied, 538 U.S. 962 (2003) ("Double jeopardy principles

12
will often foreclose any remedy for, or shield from review, a

trial judge's errors or misconduct").

So ordered.

By the Court (Rubin,
D'Angelo & Smyth, JJ.14),

Clerk

Entered: June 13, 2025.

14 The panelists are listed in order of seniority.

13