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

22-P-972

COMMONWEALTH

vs.

WILLIAM J. PAPP, THIRD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, William J. Papp, III, appeals from 

convictions, after a second District Court jury trial, for 

operating a motor vehicle under the influence of intoxicating 

liquor, G. L. c. 90, § 24 (1) (a) (1), and operating a motor 

vehicle after a license suspension, G. L. c. 90, § 23.1 

Concluding that the trial judge properly allowed the second 

trial to proceed after the defendant agreed to a mistrial in the 

first jury trial, we affirm.2

1 After the jury verdicts, the defendant pleaded guilty to a 

second offense on the first charge and to a subsequent offense 

on the second charge. 2 The second jury trial was not transcribed, and the parties are 

vague about how the defendant's objection to the retrial was 

brought to the attention of the trial judge. Cf. Papp v. 

Commonwealth, 491 Mass. 1019, 1019 (2023) (defendant objected to 

retrial in pleading with Supreme Judicial Court). We assume, 

without deciding, that the issue was preserved in the District 

Court.
2

"[O]nce jeopardy has attached, a judge may declare a 

mistrial over a defendant's objection and commence a new trial 

only in light of a 'manifest necessity.'" Commonwealth v. 

Fitzpatrick, 463 Mass. 581, 589 (2012), quoting Cruz v. 

Commonwealth, 461 Mass. 664, 670 (2012). "A judge's 

determination that there is a 'manifest necessity' warranting 

the declaration of a mistrial is reviewed under an abuse of 

discretion standard." Commonwealth v. Bryan, 476 Mass. 351, 356 

(2017), quoting Cruz, supra at 669.

"The 'manifest necessity' test has no application in 

situations where, as here, the defendant requested or 

effectively consented to the mistrial." Commonwealth v. Curtis, 

53 Mass. App. Ct. 636, 640 (2002). Accord Daniels v. 

Commonwealth, 441 Mass. 1017, 1018 (2004). "[C]onsent to a 

mistrial may be inferred from silence where a defendant had the 

opportunity to object and failed to do so." Pellegrine v. 

Commonwealth, 446 Mass. 1004, 1005 (2006), quoting Commonwealth

v. Phetsaya, 40 Mass. App. Ct. 293, 298 (1996). Cf. 

Commonwealth v. Edwards, 491 Mass. 1, 15-16 (2022) (consent 

cannot be inferred where defendant failed to object to dismissal 

order precluding retrial); Commonwealth v. Donovan, 8 Mass. App. 

Ct. 313, 316 (1979) (no consent where "defense counsel had 

requested that the trial go forward").
3

Here, the defendant consented to the mistrial. After the 

trial judge reported to the parties, outside the hearing of the 

jury, that the prosecutor at the first trial had been taken to a 

hospital and that he was "going to declare a mistrial with 

manifest necessity, . . . so the Commonwealth is free to retry 

the case," the judge asked the defendant whether he understood 

and would like to be heard. The defendant asked when the 

retrial would be held. The judge then explained why he believed 

that the trial could not continue and asked, "was there anything 

else that you wanted to address the Court on the issue of the 

mistrial?" The defendant responded by stating that the 

prosecutor "didn't look to be doing too good." By failing to 

object after being given two opportunities to be heard, the 

defendant consented to the mistrial. See Daniels, 441 Mass. at 

1017.

This is not a situation where the judge declared the 

mistrial to the jurors without first consulting with the 

parties, see Commonwealth v. Horrigan, 41 Mass. App. Ct. 337, 

338-339 (1996), or where the judge intimidated defense counsel 

from objecting by calling him incompetent and fining him, see 

Phetsaya, 40 Mass. App. Ct. at 298. Rather, the judge properly 

explained the situation to the defendant and solicited his views 

before bringing in the jurors and declaring a mistrial. The 

defendant's acquiescence to a mistrial with the expectation of a 
4

retrial means that no manifest necessity was required for the 

declaration of a mistrial and that the trial judge had no 

obligation to describe the alternatives to a mistrial that he 

considered (or, for that matter, to consider such alternatives).

Judgments affirmed.

By the Court (Green, C.J., 

Ditkoff & Hodgens, JJ.3),

Clerk

Entered: August 28, 2023.

3 The panelists are listed in order of seniority.