Criminal Law

By Thornton, Gabriel T. | Suffolk University Law Review, Fall 2008 | Go to article overview

Criminal Law


Thornton, Gabriel T., Suffolk University Law Review


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. …

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