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Com. v. Horrigan9/19/1996
Constitutional Law, Double jeopardy. Practice, Criminal, Double jeopardy, Mistrial. Judge. Words, "Manifest necessity."
KAPLAN, J. This appeal poses a claim of double jeopardy. We reach it after a sequential statement of the case.
On November 19, 1994, about 11:45 P.M., James Horrigan was arrested on route 62 by North Reading officer Robert Marchionda, and later was charged by complaint with operating under the influence of liquor and with civil violations of speeding and crossing a marked lane.
The matter came to trial in Cambridge District Court, jury-of-six session, on the afternoon of March 23, 1995. Called by the Commonwealth, Marchionda testified that while on uniform patrol in a cruiser that night, headed east on route 62, he observed a car traveling west in the next lane at forty-five miles per hour in a thirty mile per hour zone, and swerving or weaving. Marchionda said he made a three-point turn, gave chase, and, activating his lights, caused the car to pull to the side of the road and stop. As he asked the driver, James Horrigan (defendant), routine questions, he smelled the odor of alcohol and saw the glassy-eyed sign of inebriation. Marchionda said he put Horrigan through a series of field sobriety tests which he believed demonstrated impairment of Horrigan's capacity to drive. Thereupon Marchionda wrote a citation and placed the defendant under arrest. On cross-examination the officer conceded that the defendant, although swerving, had not crossed the center line, and that the defendant had understood and responded to instructions during the tests.
Officer Kevin Brennan, who had arrived as backup, in his testimony confirmed that the defendant had difficulty with the tests and smelled of alcohol; he reported also that the defendant had been belligerent, agitated, swearing repeatedly while being conducted to the police station.
The Commonwealth rested, defendant's motion for a required finding was denied, and the defense called Horrigan's mother to the stand. She testified to receiving a telephone call from her son (a youth, eighteen years old) at 12:20 A.M. and picking him up at the police station. The witness said Horrigan sounded clear and direct on the phone; on the drive home about 2 A.M. he appeared angry and upset, but sober. With the close of the mother's redirect examination, the presiding Judge, Judge Sragow, recessed the case for the day. A transcript from the tape for the day ran to but eighty-two pages.
As the trial was about to resume the next morning, the first Justice of the court entered the courtroom and made an announcement declaring a mistrial as follows:
"Good morning, ladies and gentlemen. I'm Judge Sherman and I'm the First Justice of this Court."
"Regretfully, about 30 minutes ago we were informed of a medical emergency in Judge Sragow's family, as a consequence of which this case cannot go forth."
"I'm required, under the rules of court, to declare a mistrial. That means that this case for these purposes at this point in time is over and that the parties will have to start all over again, depending upon what the schedule of the session is. And that, I would assume, you would arrange, please, with the clerk. The Jury of Six office will reschedule the case."
"I have no idea as to the nature of the emergency but it's the -- I've been working with Judge Sragow now since the day of her first appointment and I'll tell you it's the first day she's ever missed work."
"I'm sorry for your inconvenience but you're excused at this point. And if counsel will see the clerk, arrangements will be made for your convenience to reschedule the tria
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