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-67

COMMONWEALTH

vs.

PEADAR MCILROY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On July 16, 2018, the defendant was charged with operating 

a motor vehicle while under the influence of intoxicating 

liquor. A jury trial in the District Court commenced on May 1,

2019. However, after a police witness who testified in the 

Commonwealth's case-in-chief improperly opined that the 

defendant had operated his vehicle while under the influence of 

alcohol, see Commonwealth v. Canty, 466 Mass. 535, 543-544 

(2013), the judge declared a mistrial. The defendant 

subsequently filed a motion to dismiss based on double jeopardy 

grounds. The motion was denied, and the defendant sought relief 

pursuant to G. L. c. 211, § 3. The matter was referred to this 

court by a single justice of the Supreme Judicial Court, and a 

different panel affirmed the denial of the motion to dismiss in 

an unpublished memorandum and order. See Commonwealth v. 
2

McIlroy, 100 Mass. App. Ct. 1126 (2022). In reaching the 

conclusion that the motion to dismiss had been properly denied,

the panel determined that, as a matter of law, the defendant 

consented to the declaration of a mistrial. Consequently, the 

principle of double jeopardy did not bar a retrial. See

Pellegrine v. Commonwealth, 446 Mass. 1004, 1005 (2006) ("A 

defendant's consent to a mistrial removes any double jeopardy 

bar to retrial" [quotation and citation omitted]). The 

defendant filed an application for further appellate review,

which was denied. See Commonwealth v. McIlroy, 489 Mass. 1107 

(2022).

Thereafter, the case was rescheduled for trial. This time,

the defendant elected to proceed without a jury and, following a

bench trial held on October 12, 2022, he was found guilty. The 

defendant now appeals from that judgment of conviction.

The defendant's sole contention is that his motion to 

dismiss based on double jeopardy grounds, which, as previously 

noted, was filed following the declaration of a mistrial in his 

first trial, should have been allowed. As the Commonwealth 

correctly argues in its brief, the doctrine of direct estoppel 

bars review of this claim. "[U]nder the doctrine of direct 

estoppel, a defendant is barred from seeking review of claims 

'actually litigated' and denied against him" (citation omitted). 

Commonwealth v. Coutu, 88 Mass. App. Ct. 686, 699 (2015). See 
3

Commonwealth v. Arias, 488 Mass. 1004, 1006 (2021) ("In general,

a defendant is directly estopped from obtaining review of a 

claim where the Commonwealth demonstrates that the issue was 

'already litigated and determined . . . , that such 

determination was essential to the . . . conviction, and that 

the defendant had an opportunity to obtain review of the 

determination'" [citation omitted]).

Here, there is no question that the precise issue raised by 

the defendant in this appeal was previously addressed by this 

court in Commonwealth v. McIlroy, 100 Mass. App. Ct. 1126 

(2022). Accordingly, the doctrine of direct estoppel prohibits 

further review.1

Judgment affirmed.

By the Court (Vuono, Rubin & 

Smyth, JJ.2),

Assistant Clerk

Entered: February 8, 2024.

1 Given our conclusion, we need not address the defendant's 

argument, raised for the first time on appeal, that the Supreme 

Judicial Court's recent decision in Commonwealth v. Edwards, 491 

Mass. 1 (2022), requires a different result. In any event, we 

note that Edwards did not announce a new rule of law and, more 

fundamentally, the facts in Edwards are distinguishable from 

those present here.

2 The panelists are listed in order of seniority.