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 , theref ore , 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 imp roperly opined that the

defendant had operated his vehicle while under the influence of

alcohol , see Commonwealth v. C anty , 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 s ingle j ustice of the Supreme Judicial Court , and a

different panel affirmed the denial of the motion to di smiss in

an unpublished memorandum and order. See Commonwealth v.2

Mc I lroy , 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).

T hereafter , the case was rescheduled for trial

. T his time ,

the defenda nt elected to proceed without a jury and , f ollowing 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 jeo pardy 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 , 6 99 (2015 )

. S ee3

Commonwealth v. Arias , 488 M ass. 1004 , 1006 (2021) ( " In general ,
a defendant is directly estopped from obtaining review of a

claim where the Commonwealth demonstrate s that the issue was

' already litigated and determined .

. . , that such

determination was essential to the .

. . conviction , an d 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. Mc I lroy , 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 S upreme Judicial Court ' s recent decision in Commonwealth v. Ed wards , 491 Mass. 1 (2022) , requires a different result. In any event , we note that Ed ward s did not announce a new rule of law and , more fundamentally , the facts in Ed wards are distinguishable from those present here.

2 The panelists are listed in order of seniority.