-: SJC-13242, Commonwealth v. Christian Edwards.
-: Okay, Attorney Sheppard-Brick, when you're ready.
-: Thank you, may it please the court,
David Sheppard-Brick on behalf of the Commonwealth.
The trial judge here erred and abused his discretion
in dismissing this case with prejudice
as a discovery sanction,
when there was not a hint of prejudice to the defendant.
He was not deprived of any legally recognizable defense.
And I think, in addressing the double jeopardy issue,
in terms of what the defendant is entitled to here,
he is entitled under a double jeopardy analysis
to be in control of the outcome of the case,
whether he is tried by one jury
or gives up that right unto another.
And here, he didn't wanna be tried by this jury.
He wanted to raise a procedural issue
that is not a legitimate defense.
-: Why wouldn't he have done that then?
Why would he have waited?
Why did he wait until after the jury was empaneled?
Why wouldn't he have said, "Hey,
you don't have the sufficient evidence for the complaint.
And you've given me the wrong restraining order.
Move to dismiss"?
-: Well, as defense counsel below pointed it out,
the motion to dismiss would've been denied
because the complaint had the correct date of service.
Justice Gaziano: I thought he wanted to be tried
by this jury. -: [Atty. Sheppard-Brick] Hm?
-: I thought he wanted to be tried by this jury.
He basically said, "I'm gonna lay in the weeds.
I'm gonna make them empanel.
Once they empanel, I'm gonna spring the trap."
-: Well, I suppose if you consider that wanting to be tried.
I think that's sort of-- -: Oh, he did
because he wanted jeopardy to attach.
-: [Atty. Sheppard-Brick] Well, right.
-: 'Cause he didn't do it beforehand because he knew
darn well that you were just gonna file another complaint.
Justice Lowy: That's what he said at the motion
for reconsideration, "I wanted an acquittal."
That's the jury he wanted, the first one.
-: [Atty. Sheppard-Brick] Well--
Justice Lowy: Not the perhaps second one.
-: Well, right, I don't know that he really wanted...
He wanted to be legally in jeopardy,
although given the plan, I don't think he wanted
to actually be in jeopardy in that sense.
And the Commonwealth is not disputing
that jeopardy had attached here.
But the court shouldn't find that he's entitled
to that protection, where it's essentially an attempt
to sort of play the system.
-: You say that.
You say that, counsel, but I dispute that.
And it was gift-wrapped to the defense
when the prosecutor made the decision
to not call the law enforcement witness,
because whatever advantage the defendant may have had
with the improper certificate of service
would've been a non-issue
had the tactical decision not be made by the ADA
that I'm not gonna call the cop, right?
-: Right, and she made that decision,
as the trial judge noted,
because she believed that service was not an issue.
-: That may be so, but that was her decision to make.
And she did that.
And therefore, if now the defense is presented
with some manna from heaven
because she makes this determination,
why is that wrong?
-: [Atty. Sheppard-Brick] So--
-: And why shouldn't he have the benefit
of the double jeopardy protection?
-: Because it does not serve...
The purpose of Rule 11 is so that these issues get sorted
out beforehand, so there's not--
Justice Gaziano: Where in the rule does it say,
"Hey, defense attorney, point out government screw-ups"?
-: [Atty. Sheppard-Brick] So (laughs) it doesn't.
Justice Gaziano: Then that's your problem.
-: [Atty. Sheppard-Brick] This is--
-: I mean, there's alibi, lack of license, and NGI,
which require the government to get evidence,
to do different things,
not, "Hey, you screwed up your paperwork."
-: Well, that's true.
They don't have to tell us
that we've screwed up the paperwork,
but you can't cry foul that we've screwed up the paperwork
when you knew about the screw-up,
were prepared for the screw-up,
and we've also given you notice
of the mistake and essentially--
-: Understand how that's so different
from regular trial preparation on either side.
I mean, everybody makes strategic errors
or overlooks something at some point in their career
when they're doing that much litigation in court.
I mean, you and the defense attorneys are in court
every single day, so this is bound to happen on both sides.
And I don't understand what takes this out of strategy
and tactics and pushes it into,
this is unfair to the Commonwealth.
Justice Georges: Right.
-: So it pushes it out of that area
because, one, there's notice.
The complaint had the correct date of service.
So he was aware
that we had provided the wrong certificate of service, and--
-: That goes to whether or not it's dismissal
with prejudice or without prejudice,
whether there's prosecutorial misconduct.
Clearly, he found there was no prosecutorial misconduct.
-: [Atty. Sheppard-Brick] Right.
-: So you have, I think, a dismissal
that should've been without prejudice,
but now you have the whole double jeopardy issue,
which is larger.
So if there's a labeling issue with a judge,
he really did mistry it 'cause it wasn't on the merits.
But now the issue becomes, how do you retry this person?
-: Well, and I think that, in terms--
Justice Gaziano: You have a bad dismissal.
-: Yes.
Justice Gaziano: Right?
-: Right, this is a mistrial with prejudice, essentially.
Gaziano: Correct. So now how do you retry him?
-: So we retry him because,
if a judge declares a mistrial
over the defendant's objection, which this wasn't,
then the Commonwealth is prohibited from a retrial
unless there's a manifest necessity.
There's no objection here.
The defendant had the opportunity
after the judge says, "Well, I'm gonna dismiss it
with prejudice," before the jury has been dismissed.
And there's no implicit objection.
There's no explicit objection.
This isn't a case where...
I think there was a case,
Commonwealth versus Phetsava from the appeals court.
It's 40 Mass Appeals Court 293,
where in that case, the court said,
"Well, we're not gonna assume the defendant consented,"
because the judge had basically been yelling
at the defense attorney about how incompetent he was.
And so there was really no opportunity
for him to object. (laughs)
-: Oh, it's true that we have cases
that say consent may be inferred from silence, but...
And I wanna talk about those cases.
I know that's where you're at.
But I just wanna take a step back first for a moment.
You started off by talking about, that this was an error
by the judge to dismiss it with prejudice.
-: [Atty. Sheppard-Brick] Yes.
-: And it probably was.
You could've dismissed it without prejudice,
could've had a sanction
of the actual 209A not being admitted
and only admitted the police testimony,
which would've been a wait issue without an exhibit.
But that doesn't matter at this point.
I think the fact that you've just started to talk
about whether or not there's consent
to what was not a dismissal of prejudice,
for all intents and purposes, a mistrial,
sort of recognizes that whether the judge was right
or wrong in the remedy just doesn't matter
at this point for our analysis.
-: I mean, in essence, that's correct,
because I mean, this court has said,
whether the judge is right or wrong,
if what he did terminated jeopardy,
then it doesn't really matter whether it was right or wrong.
-: Right, and we just had that case with Taylor
when the judge should've given
the lesser included instruction.
So a lot of this discussion,
we've actually got to get to the point
that you're talking about now to resolve this,
because if there's consent, we don't have to worry
about manifest necessity.
-: [Atty. Sheppard-Brick] Right.
-: So talk about that.
-: So you know, the cases in which this court has found
that the defendant didn't consent,
and I think Taylor is a good example,
where you have a defense attorney
who raises a legitimate point
that the 10(n) charge is not sustainable.
And then the judge does something incorrect
in that he just will not allow the Commonwealth
to go forward on what is essentially the lesser included.
And the defendant is repeatedly insisting
that he wants a directed verdict,
that this should be directed out.
The court said, "Look.
Under those circumstances, that's not consent."
But here, we don't have that.
We just have, "I'm gonna object to this.
I know about the issue."
-: The closest thing to consent we have is,
"I wanted to go forward
with the state of the evidence," correct?
-: [Atty. Sheppard-Brick] Right, so he--
-: Now you have a judge sua sponte dismissing.
So you think, in order to have consent
or non-consent, the defendant would've said,
"No, I wanna go forward as a discovery sanction,"
as Justice Lowy mentioned.
"The Commonwealth is bound by their discovery.
Let's go forward, and I'll take my NG."
-: Yes, I think that's what he has to say,
is that, "No, I don't want a dismissal
because then jeopardy might not terminate.
I want to go forward with this evidence
or with the Commonwealth not having this evidence."
-: Because the dismissal with prejudice is wrong,
given the stakes.
-: Right, so I think that's what you have.
If there's an objection, that's what it looks like.
-: So when there's an error in a double jeopardy case
that, if we corrected it, would hurt the defendant,
what criteria do we use?
How do we do that?
-: I'm not quite sure.
-: I guess, are there any cases like this?
-: So there aren't really any cases like this that I was...
I mean, there are similar cases where, you know,
you have similar fact patterns of...
(sighs) I mean, to be--
Justice Lowy: I don't know there's any case like this,
to tell you the truth.
-: Well, right, to be honest, and that's why I--
Justice Lowy: This is the price,
and it's up to the DA to decide this.
This is the price of horizontal prosecution.
-: Yeah, and I think that there aren't really...
I was not able to find a case
that really has these type of facts.
I mean, we've cited a bunch of different cases.
I cited Commonwealth versus Frith,
but that really just gets to the issue
of the lack of discovery and the discovery sanction.
There's Cruz versus Commonwealth.
Justice Gaziano: There have been precipitous dismissal
with prejudice cases where we reversed
and allowed them to retry.
-: [Atty. Sheppard-Brick] Yes.
-: Bourgeois, I think it is.
-: [Atty. Sheppard-Brick] Mm-hm, yeah.
-: So are you arguing that that would apply here?
-: [Atty. Sheppard-Brick] That--
-: The case where they've precipitously dismissed
with prejudice and we've said, "No, no, that was wrong.
Go ahead."
-: [Atty. Sheppard-Brick] Yes.
-: And so the court didn't consider that that was a mistrial,
or the analysis wasn't there?
-: I'm recalling the case.
The court said it was essentially a mistrial.
I think the judge characterized it
as a mistrial with prejudice.
And I think the court said,
"Well, that's not really a thing,
but we'll treat it as a mistrial, and we'll send it back
because it shouldn't have been with prejudice."
And jeopardy never terminated
because it was a procedural dismissal.
And a procedural dismissal, which this was in this case--
Justice Gaziano: How were there two
certificates of service?
-: So the restraining order was renewed.
-: Oh, so the latter one was on the renewed.
-: So the one that was turned over was the renewal,
not the original, and so that's--
-: Yeah, and the police report reflected the proper date.
-: [Atty. Sheppard-Brick] The original certificate, yes,
the original date of service.
-: Let's see if we can agree on one more thing
because it's been talked about, dismissal with prejudice
and another trial being possible.
But here, if you're wrong,
if the defendant didn't consent, you know, by his statements
or by his initial strategy in not disclosing
that it was the wrong return,
and I don't think he had any obligation to disclose it,
and if we decide that...
I know you disagree, and you may be right,
but if we decide that he didn't consent,
do you agree that there's no manifest necessity here?
-: So essentially, in the judge's finding,
he found a manifest necessity.
But then also, because he said, "It's fundamentally unfair
for me to have the trial go forward,
but it's also fundamentally unfair
for this to be put back on trial,"
which I guess he may not have abused his discretion
in finding that it was fundamentally unfair
to make the defendant go forward at that time,
I mean, he said he considered all of the options.
So you could treat his finding
that it's fundamentally unfair to allow the case
to go forward as a finding of manifest necessity
and then set aside his finding
that it's fundamentally unfair to ever put the defendant
to the bar again, because I think,
implicit in what he's saying when he says,
"Oh, it's fundamentally unfair
to make the defendant go forward," is,
he says they prepared their defense based on this,
which, I think there were multiple defenses
that he had prepared, but this was certainly one of them.
So if he's not prepared,
then a mistrial might be the appropriate...
I mean, there's the...
There's the case, and the name is escaping me at the moment,
but there was...
It was Cruz versus Commonwealth,
where the Commonwealth turned over a box of discovery
on the day of trial.
And the judge in that case said, "Look."
And the defense counsel had said,
"I'm willing to go forward."
And the judge said, "I'm not gonna let you go forward
because there's no way you can review that box."
-: I know, but the facts here are
that it was not a manifest necessity
to declare the functional equivalent of a mistrial,
because the reality is that the defendant knew
that that exhibit was wrong,
presumably knew there was a correct service.
It's a public record right down the hallway
in the clerk's office.
Sounds like this was a very zealous,
competent defense attorney, so he probably had the original.
But put that aside, he's got the police report
with a complaint, so he knows there's service.
So there's not a manifest necessity for the mistrial.
I'm not saying that the judge wouldn't have had
the discretion to dismiss it without prejudice.
I'm not saying that at all.
But it doesn't seem like there'd be a manifest necessity,
which leaves this case, if that's correct,
coming down to whether or not is the functional equivalent
of consent to the mistrial.
-: I think I would agree with that.
I think that ultimately is correct.
I see my time is up.
Unless there are other questions, I'll rest on my brief.
-: [Chief Justice Budd] Great. -: Thank you.
-: [Chief Justice Budd] Thank you.
Okay, Attorney Schneiderman.
-: Good morning.
Good morning, may it please the court,
I am Joseph Schneiderman.
I represent Christian Edwards.
Your Honors, unless an exception applies,
double jeopardy prohibits subjecting a defendant to retrial,
even when a trial terminates him perfectly.
Here, the judge correctly prohibited a retrial
because the Commonwealth did not disclose correct
and complete dates of service of the abuse prevention order
until the middle of the victim's testimony.
And that failure thwarted Mr. Edwards'
well-established right, as a matter of statute,
common law, and in the constitution,
to trial by a jury of his choice in a single proceeding.
Before I get to the heart of my argument,
I do want to respond to something the Commonwealth said.
And I think the Commonwealth has overburdened the record
as to the issue of consent.
And I don't think the judge's findings translate neatly
or even at all into a finding of manifest necessity.
Regarding consent,
Mr. Edwards' trial counsel consistently asserted below
that this case should remain dismissed.
As Taylor points out,
and as the US Supreme Court has pointed out
in their double jeopardy jurisprudence,
the defendant is the one who controls the course
of the conduct.
It's the defendant's choice as to whether or not
to ask for a mistrial.
And here, defense counsel consistently said,
"No, this case should remain dismissed."
-: That's hard argument to hear
because he said that on the motion,
the defense attorney said that on the motion
for reconsideration, X amount of weeks or months
after the jury was gone.
That's not when we analyze whether or not there was consent
to let this jury go.
-: Your Honor, actually,
I'd like to take a step back in the record.
Nobody said anything in the trial.
This is at transcript three, 22 to 23,
when the judge issued his remedy.
Everybody was silent at that point.
It was after the Commonwealth made a motion
for reconsideration that defense counsel asserted
jeopardy had attached and jeopardy prohibited--
-: I understand. Fair enough, fair enough.
I'm just pointing out your argument about,
he wanted the case to remain dismissed is not dispositive
of what happened weeks earlier,
when the case actually was dismissed.
We have to look at what happened at that time,
not at the motion for reconsideration.
-: I appreciate that, Your Honor,
that the court's analysis is holistic.
And that takes me back to what I said before.
I think the Commonwealth has overburdened the record
as to the issue of consent.
The judge did not make any findings.
And his findings were reproduced in the addendum
at 142, 3, and 4, that the defendant consented.
The defendant wanted an acquittal.
He asserted that consistently.
The Commonwealth, for some reason, asserted
at reconsideration that jeopardy had never truly attached,
which takes me to the heart of my argument here,
which is jeopardy had attached.
The stresses, risks, and anxiety
of trial were very real here.
Justice Gaziano: They don't dispute
that jeopardy attached. -: No, they don't, Your Honor.
But I think it's important because they're saying
that jeopardy has not terminated.
As I read my learned brother's brief,
he's saying Mr. Edwards is still in jeopardy
because his case did not terminate.
And that's not what happened here.
The case did terminate, albeit in a mistrial.
And it was at that point
that the parties had some opportunity or obligation
to get into this issue, and the Commonwealth didn't.
The Commonwealth at record 17 says,
"We think jeopardy has not attached here.
We think this is a sham proceeding."
They did not say that there was some manifest necessity
or argue that there was some cure that could occur here.
Therefore, I think any analysis of consent
or of manifest necessity just overburdens the record.
-: Look, the consent goes to what the defense attorney did.
And after the judge sua sponte decides to dismiss,
the defense attorney never says, "No, I want this jury,"
never asked for a sanction,
"I want this jury, but they can't call the witnesses."
The defense attorney says nothing.
-: Your Honor, the defense attorney says nothing,
but I think saying nothing does not equate to consent
for purposes of double jeopardy.
The case law has spoken about how,
if it's the judge who is the one who acts on their own
to terminate a trial, then that is not the same thing
as the defendant actually speaking up
and objecting and consenting.
So I think the key event here is that the judge was the one
who took charge of this, as opposed to the parties.
-: Well, this case, Commonwealth versus Pellegrini,
quoting Commonwealth versus Phetsayo, that says,
"Consent to a mistrial may be inferred from silence,
where the defendant had the opportunity to object
and failed to do so."
So this is a hard case.
The posture of the case is,
I don't know, sui generis, but (chuckles).
Justice Cypher: Attorney Schneiderman,
oh, I'm sorry, was there--
-: No, no. Go ahead, please.
-: [Atty. Schneiderman] Your Honor, yes.
-: This was done as a sanction for discovery violation?
-: That's how the judge characterized his order.
Yes, Your Honor.
-: And does characterizing it that way change it
from being a, if we had a dismissal
because he could've dismissed the case and said,
"Look, you don't have enough on the elements right now,
so it's dismissed."
-: [Atty. Schneiderman] Mm-hm.
-: He could've entered a required finding.
He could've given many others.
He could've issued a short delay or a long delay
so that defense got, he had other options.
So what makes this option that he took
as a discovery violation sanction,
what makes that reasonable?
-: Your Honor, the key fact is, is that the violation arose
after jeopardy had attached.
I think that is the key distinction here,
unlike Frith or the other cases the Commonwealth relies on.
Those involve pre-trial dismissals.
Here, we have a sanction that comes to light
in the middle of the victim's,
or we have a violation that comes to light
in the middle of the victim's testimony.
I think that is the key distinction here,
is the timing of the violation.
And this court has recognized that the timing
of the violation or the effect of it is critical.
-: Yeah, so you know, the Commonwealth doesn't come into this
with clean hands.
They're the ones that didn't turn over
the right restraining order, that started all this,
no doubt about it.
And that sometimes happens with horizontal prosecution,
but that's what they did.
And she evidently even looked at it,
if I'm remembering the record correctly.
But the defendant knows that it's the wrong return.
-: [Atty. Schneiderman] Mm-hm.
And he has no obligation, probably a violation of the rules
of professional responsibility for him to say anything.
But he sort of lays back and waits
and gets out of this situation
exactly what he was looking for.
So where does that leave us when he doesn't object
to the dismissal and exactly what he was looking for occurs?
-: Your Honor, I think that leaves us still
with a termination because everyone proceeded
as though this was a valid trial.
Justice Gaziano: It's a procedural termination,
as we said in Taylor.
-: That's correct, Your Honor, yes.
But the key event here is that
counsel didn't really have a means to bring it forward
in advance or to raise it as an issue
and was, as the brothers--
Justice Gaziano: He did have the means.
He just didn't want to.
-: Right. (laughs)
Justice Lowy: I mean, he could've done something, I--
-: I mean, he's smart.
He didn't have to.
But the problem is, he rolled the dice.
And what he should've done is say,
"No, I don't want the dismissal. I want an acquittal."
Justice Lowy: Right.
-: Your Honor, I think, at core though,
the entire course of events,
the significance here is that jeopardy has attached.
If we were in a pre-trial ambit
or if jeopardy had not terminated--
-: Which just leads to what Justice Lowy's been pointing
out all along, is the only issue really before us
is whether he consented or not
and whether we can read his silence as consent.
-: I think, and as I suggested before,
I think it overburdens the record to read that into it,
especially where trial counsel--
-: I'm sorry, to read into that there is consent?
But I thought you told us a few minutes ago
that when the judge issued the decree of the remedy,
no one said anything.
So how does that overburden the record if the record says
or demonstrates that defense counsel said nothing?
-: Actually, Your Honor,
that's true that nobody said anything
at the time the judge issued his order,
but thereafter, defense counsel's--
-: Hey, but if I were to freeze that for a second,
if our case law...
If our case law says that you have,
at the time of the remedy being issued by the judge,
an opportunity to object and you don't,
if that's what our case law says,
do you lose on the consent issue?
-: No, I don't, Your Honor.
I think that--
Justice Georges: Tell me why.
-: The opportunity to,
as this court more recently articulated in Taylor,
the opportunity to object must be a meaningful one.
And as Justice Lowy and I have discussed,
the analysis needs to be holistic.
And the key is, is that once things had terminated,
trial counsel asserted that jeopardy had attached
and jeopardy barred further proceedings, so I think--
Justice Gaziano: It's hollow
once the jurors get in their cars and leave.
Justice Georges: Right.
-: So the motion for reconsideration's meaningless
as far as an objection goes.
If the point is, I want this jury,
once they discharge, it's over.
Then the inquiry's over.
-: Right, and I would not say
that Justice Lowy's comments were holistic.
They were actually segmented,
because what he was telling you was,
"Don't look at the motion reconsideration
and what he says there.
Focus on the trial."
And the trial was like you said.
He said nothing.
So again, if you can point me to the case law
or the authority that supports your view
that you still don't lose if the record reflects
that the defense lawyer had an adequate opportunity
to interpose an objection and did not,
if you could help me with that.
-: I will endeavor to, Your Honor.
And I apologize, Justice Lowy,
for mischaracterizing what you said.
I think I heard it one way. (laughs)
Your Honor, the key thing here is that,
even if this is a judicial error, jeopardy is attached.
That is an established line of cases
such as Super, Lowder, Taylor.
If the risks and stress of trial were real,
which they clearly were here,
and as much as a jury was empaneled,
the jury heard the victim testify,
then in that light,
if it's the judicial error that terminates the proceedings,
and by extension of prosecutorial error, jeopardy attached,
the Commonwealth took a risk here
by proceeding on these incomplete dates of service.
And in light of Super, Taylor, Lowder,
all of these cases that recognize
that the attachment of jeopardy,
assuming it has attached, is legally significant,
that is why this prevails.
-: You keep saying that jeopardy attached,
which I think everybody agrees.
But I think the question is whether jeopardy terminated,
and that's the question.
And so if it hasn't terminated, then he can be retried.
-: Your Honor, I appreciate that.
Jeopardy has terminated here.
This court in Taylor reaffirmed and clarified
that there are two events which can terminate a trial
and terminate jeopardy.
One is an acquittal.
The other is a mistrial.
If we're not, though, in Mistrial Land,
the judge, and this actually goes back
to something Justice Cypher said,
the Commonwealth's proof was deficient
as to a fundamental theory here.
So given that notice is an essential element here,
the judge, even if we're not in the ambit of a mistrial,
the judge's ruling could perhaps be seen as an acquittal.
-: Only if that's what he ordered.
He ordered a mistrial, a dismissal with prejudice,
dismissal with prejudice as a discovery sanction.
That's what he said.
And so that's what we have to deal with.
And so we can't say, "Oh, you could say it's..."
-: I appreciate that, Your Honor.
I think, though, the key here is that the stresses
of trial were real and that there was an event
that terminated the trial after the trial had began.
And at that point, the burden is on the Commonwealth.
-: Quickly, I'll ask you this question.
Assume that you're wrong and there's consent.
Going back to Justice Georges' question,
could you win anyway?
I think what you're suggesting,
and we'll put aside there's no 211:3 on this,
and there's not a cross-appeal and all that.
Were you just about to say that you don't believe
that the evidence was sufficient on the issue of notice?
-: [Atty. Schneiderman] Yes, I think that's absolutely fair,
Your Honor, here, which is even--
Justice Lowy: I'm not saying it.
I'm asking if that's what you were saying.
-: That is what I was saying here, Your Honor,
which is the Commonwealth's proof was not enough
to get to the jury.
The victim's testimony was very limited.
That's at transcript three, pages 7 through 10.
The victim testified that there had been a 209A order
in place, and then the Commonwealth thereafter
affirmatively represented on the record
that it had lapsed.
Justice Cypher: Do you, oh, go ahead.
-: Go ahead, no, no.
But if I remember correctly,
please let me know if I'm wrong,
the government hadn't rested, right?
-: The government had not rested, Your Honor.
But to Justice Lowy's point, do I win anyway,
the judge has the authority to enter a directed verdict
at any time, even after the Commonwealth's opening.
That's Lowder.
Justice Cypher: But he didn't.
-: But he didn't, yes. No, I appreciate that.
But he didn't, but--
Justice Cypher: And he didn't call this a mistrial,
right? -: No, he didn't, Your Honor.
-: He didn't call it a not-guilty or a directed verdict.
It's called a dismissal with prejudice.
So if we're going to characterize it as something else,
we could pick any one of those.
Is that your point?
-: That's correct, Your Honor.
I think, actually, at core, that is my point,
which is, we always look to the substance
of what happened here.
And no matter what, because of that substance,
because jeopardy has attached
and the stresses of trial were real--
-: Now, I have one other quick question.
And that is, at the time,
there is no motion made by defense counsel
to dismiss on insufficient evidence.
But if we look at a case and say the Commonwealth had rested
and there's insufficient evidence,
is that something we could examine anyway,
even though it wasn't raised?
-: Yes, you could, Your Honor.
Actually, I briefed that in part three of my brief.
I asserted that, even though there's not a cross-appeal here
on this issue, this court should look to it.
And as Justice Lowy pointed out,
because we are in a little bit of a different posture here,
this is not a 211:3 by the defendant,
the court should look to that because I think inherent
in any question of double jeopardy is,
did the Commonwealth present a legally sufficient case?
Unless Your Honors have further questions,
I ask that this court affirm
because double jeopardy has kicked in,
and I thank you for your time.