Criminal law.

• Author: Thornton, Gabriel T.

Jury's Silence on Theory of First-Degree Murder Not an Acquittal for Double Jeopardy Purposes--Commonwealth v. Carlino, 865 N.E.2d 767 (Mass. 2007)

Prohibitions against double jeopardy, whether based on the Double Jeopardy Clause of the United States Constitution or the right provided by Massachusetts law, prevent the government from subjecting individuals to the hazards of standing trial more than once for the same offense. (1) Generally, courts have not interpreted a jury's silence on one charge as an implied acquittal for purposes of double jeopardy, unless the jury's guilty verdict on another charge logically excludes guilt of the charge on which the jury remained silent. (2) In Commonwealth v. Carlino, (3) the Massachusetts Supreme Judicial Court (SJC) considered whether a jury's silence on one of three alternate theories of first-degree murder at the defendant's first trial prevented the Commonwealth from retrying the defendant on that same theory. (4) The SJC held that the jury's silence on the felony-murder theory in Thomas Carlino's first trial was not an acquittal for double jeopardy purposes and, thus, did not prevent retrial on that theory. (5)

In 1995, the Commonwealth tried Thomas Carlino for first-degree murder on three theories: premeditation, extreme atrocity or cruelty, and felony-murder. (6) At the trial's conclusion, the judge gave the jury a verdict slip with lines for "Not Guilty" and "Guilty of Murder in the First Degree," as well as lines for each of the three theories of first-degree murder under the line for guilty. (7) The judge instructed the jury that if they found the defendant guilty of first-degree murder they must "answer the questions ... as to under which theory or theories, whether it be one, two, or all three." (8) The jury convicted Carlino of murder in the first degree on both the premeditation and extreme atrocity or cruelty theories, placing an "X" on the line next to both, but the jury placed no mark on the line for felony-murder. (9) Upon appeal, the SJC reversed Carlino's first-degree murder conviction and remanded for a new trial because of erroneous or misleading jury instructions on provocation, self-defense, and defense of another. (10)

In Carlino's second trial in 2001, the trial judge initially ruled that double jeopardy principles barred retrial on the felony-murder theory but reversed herself the following day. (11) At the close of evidence, the judge instructed the jury on premeditation, extreme atrocity or cruelty, and felony-murder, and the jury convicted Carlino of first-degree murder on all three theories. (12) Once again, Carlino appealed his conviction to the SJC, and argued the prohibition against double jeopardy prevented the second jury from considering the felony-murder theory after the first jury failed to convict him on that theory. (13) The SJC held the ban on double jeopardy did not prevent the second jury from convicting on felony-murder because the jury's failure to "check the felony-murder box" was neither a conviction nor an acquittal for double jeopardy purposes. (14)

The Fifth Amendment of the United States Constitution prohibits double jeopardy and applies to the states through the Fourteenth Amendment. (15) Both Massachusetts statutory and case law provide prohibitions on double jeopardy independent of the federal prohibition. (16) The Double Jeopardy Clause prevents the government from subjecting a defendant to the hazards of trial, including possible punishment, more than once for the same offense. (17) The prohibition prevents three specific actions: a prosecution for the same offense after acquittal, a prosecution for the same offense after conviction, and multiple punishments for the same offense. (18) Double jeopardy principles, however, do not necessarily bar retrial on the same offense following a successful appeal. (19) Courts balance double jeopardy concerns against society's countervailing interest in bringing criminals to justice. (20)

When a trial ends without an acquittal or a conviction--as with a mistrial or hung jury--determining whether the double jeopardy prohibition applies becomes complicated. (21) In Green v. United States, (22) the Supreme Court held that a jury's silence on first-degree murder and conviction on second-degree murder implied an acquittal on first-degree murder preventing further prosecution on that charge. (23) Seven years later, in United States v. Tateo, (24) the Supreme Court noted that Green's holding applies only to cases where the jury convicts the defendant of a lesser included offense. (25) Courts generally do not interpret a jury's silence as an implied acquittal unless a guilty verdict on one charge, such as a lesser included offense, logically excludes guilt on another. (26) When a jury convicts on one theory and remains silent on an alternate theory, some courts have held silence does not prevent retrial on the alternate theory. (27) Conversely, other courts have held a jury's silence on a certain theory prevents retrial on that theory. (28)

Recently, in Commonwealth v. Crawford, (29) the SJC briefly noted that the jury's rejection of a particular theory of first-degree murder implied an acquittal on that theory. (30) The court, however, relegated discussion of this issue to a footnote and did not address the distinction between a jury's rejection of a theory of first-degree murder through silence or an affirmative indication on a verdict slip. (31) There is little Massachusetts authority on this issue, but the SJC did explain, in Edgerton v. Commonwealth, (32) a nineteenth century case, that a jury's failure to decide one part of an indictment prevented further proceedings upon that matter. (33) By contrast, in Commonwealth v. Call, (34) decided two decades before Edgerton, the SJC contended that the government must retry a defendant when the jury's verdict neither affirms nor denies the allegations in the indictment. (35) In 2002, in Commonwealth v. Gonzalez, (36) the SJC affirmed Call's reasoning, explaining that "for double jeopardy purposes," a "true acquittal requires a verdict on 'the facts and merits.'" (37)

In Commonwealth v. Carlino, the SJC considered whether double jeopardy attaches to a jury's decision on a first-degree murder theory when the jury did not mark the appropriate line on the verdict slip. (38) The court reasoned that the jury's silence had three possible meanings: an acquittal on the theory, the inability to reach a unanimous verdict on it, or a failure to deliberate on the theory altogether. (39) The...