Standard of Review for Motion for Required Finding of Not Guilty Massachusetts

COMMONWEALTH vs. RICHARD LOWDER

432 Mass. 92

May four, 2000 - July 10, 2000

Bristol County

Present: MARSHALL, C.J., ABRAMS, GREANEY, IRELAND, SPINA, & COWIN, JJ.

A petition for relief under G. 50. c. 211, southward. 3, was the appropriate procedure to review a judge'due south entry of verdicts of not guilty on criminal indictments afterwards the prosecutor delivered his opening statement and over the prosecutor'due south objection, where the effect of double jeopardy was not meritless in the circumstances. [93-94]

A judge at a criminal trial has inherent authority to direct verdicts in favor of the defendant later the prosecutor'due south opening statement, where the bear witness to exist presented is insufficient to warrant a finding of guilty [94-100], and the practise of such authority is non in contravention of fine art. thirty of the Massachusetts Proclamation of Rights [100].

Discussion of circumstances in which the entry of a finding of not guilty subsequently an opening statement might be warranted. [ 100- 103]

In the circumstances of a criminal case, the judge erred in directing, on his own motion, verdicts in favor of the defendant after the prosecutor's opening statement and over the prosecutor's objection, where the prosecutor was deprived of an opportunity to be heard on the decision and where the estimate did non consider any alternative activity [103], simply principles of double jeopardy barred retrial of the indictments [103-106].

CIVIL Activity commenced in the Supreme Judicial Court for the county of Suffolk on May 6, 1999. The case was heard by Lynch, J.

John D. Moses, Assistant Commune Chaser, for the Commonwealth.

Paul J. Machado for the accused.

---

SPINA, J. At the trial of this criminal case, the trial judge entered findings of non guilty shortly after the prosecutor delivered his opening argument to the jury. Nosotros are asked to decide whether the gauge acted within his authority. We conclude that judges have the power to enter findings of not

Page 93

guilty at the early stages of trial, that they should exercise this power but rarely, and that the judge abused his discretion by exercising information technology as he did in this case. Nosotros also conclude that double jeopardy principles bar the Democracy from trying the defendant anew for the offenses of which the judge acquitted him.

The defendant, Richard Lowder, was indicted and put on trial for ii narcotics offenses. After a jury were empaneled, the prosecutor delivered his opening statement. A recess was alleged, during which defense counsel objected to parts of the statement. The guess questioned the prosecutor briefly and appear that the statement did not country a example sufficient to be presented to a jury. Ignoring the prosecutor's asking to exist heard on the matter, the judge entered verdicts of not guilty on both indictments over the prosecutor's objection. Defense counsel did non object to the guess's action. The trial concluded.

The Commonwealth petitioned this court pursuant to G. 50. c. 211, south. iii, for a annunciation that a trial gauge lacks the authority to enter a required finding of not guilty until the Republic rests its case and for an order reinstating the prosecution in this case. A single justice denied the petition. The Commonwealth appealed from his decision to the full court.

one. This courtroom'southward jurisdiction to hear the Democracy's petition pursuant to G. L. c. 211, southward. three. The single justice rightly held that this court has jurisdiction to hear the petition. The Commonwealth has no other remedy for the error that it claims the trial judge committed by entering the required finding. Run into Commonwealth v. Super, 431 Mass. 492, 495 northward.v (2000). See generally McGuinness 5. Commonwealth, 420 Mass. 495, 497 (1995); Commonwealth v. Lam Hue To, 391 Mass. 301, 306 n.4 (1984). No rule or statute authorizes the Republic to entreatment from a required finding of not guilty entered before the Commonwealth has closed its case. [Note 1]

It might be argued that the Democracy can obtain an

Page 94

adequate remedy past bringing a new indictment. The new indictment would presumably exist dismissed equally barred by double jeopardy. The Republic would then be complimentary to appeal the dismissal pursuant to Mass. R. Crim. P. 15 (a) (ane), 378 Mass. 883 (1979), and One thousand. L. c. 278, s. 28E. See Commonwealth five. Jenkins, 431 Mass. 501, 504 (2000). If the defendant'southward motion to dismiss the new indictment were to be denied, the defendant could appeal the denial to this courtroom pursuant to G. 50. c. 211, south. iii. Come across Powers v. Democracy, 426 Mass. 534, 534-535 & 534 n.one (1998). Requiring the Republic to resort to such a process would cause needless filibuster. See A Juvenile v. Commonwealth, 380 Mass. 552, 556 (1980).

We circumspection that nosotros might exercise our discretion under G. L. c. 211, s. 3, differently (as might a unmarried justice) in other cases - for case, if the Commonwealth'south statement as to double jeopardy was conspicuously meritless and if for that reason its petition raised no questions of importance. Cf. Richardson v. The states, 468 U.S. 317, 322, 326 northward.vi (1984); Villalta v. Commonwealth, 428 Mass. 429, 433 (1998). Our boggling powers under the statute are not for ordinary cases. Encounter Adams five. Cumberland Farms, Inc., 420 Mass. 807, 808 (1995). In this case, however, the Democracy may plausibly claim that it does not know with certainty whether retrial is possible. Run into Democracy 5. Super, supra at 495 due north.5 ("Later the accused was placed in jeopardy, the Commonwealth correctly invoked Thou. 50. c. 211, s. 3, to test the claim of jeopardy"). Cf. Commonwealth v. Jenkins, supra (Grand. L. c. 211, southward. 3, relief is non bachelor when "the Commonwealth is not precluded from prosecuting the case on a new indictment").

2. The authority of judges to enter a finding of non guilty at the early stages of trial. The Democracy claims that the judge lacked the power to enter a finding of non guilty after the prosecutor'south opening. We reject the Commonwealth'due south statement.

Rule 25 (a) of the Massachusetts Criminal Rules of Procedure, 378 Mass. 896 (1979), states in part as follows:

"The judge on movement of a accused or on his own motion shall enter a finding of not guilty of the criminal offence

Page 95

charged in an indictment or complaint or any part thereof after the testify on either side is closed if the evidence is insufficient as a thing of constabulary to sustain a confidence on the accuse."

Rule 25 is derived "with a minimum of change" from the version of G. Fifty. c. 278, s. 11, that was in effect prior to the promulgation in 1979 of the Rules of Criminal Procedure. Reporters' Notes to Mass. R. Crim. P. 25, Mass. Ann. Laws, Rules of Criminal Procedure at 254 (Lexis 1997). The rule "conforms in substance to Fed. R. Crim. P. 29." Id. See Republic five. Cote, 15 Mass. App. Ct. 229, 241 (1983). [Note ii] The "practical effect" of the rule "is essentially a modify in terminology": it renames the common-constabulary motility for a directed verdict as the motion for a required finding of non guilty. Reporters' Notes to Mass. R. Crim. P. 25, supra. Compare Advisory Commission'southward Notes to Fed. R. Crim. P. 29 ("alter of nomenclature" fabricated past dominion "does non modify the nature of the motion or overstate the scope of matters that may exist considered"). The dominion "does not presume to change do as it has developed relative to the directed verdict." Reporters' Notes to Mass. R. Crim. P. 25, supra at 255. Cf. Reporters' Notes to Mass. R. Crim. P. one, supra at xi ("While these rules are intended to constitute a comprehensive code of criminal procedure . . . , nevertheless there are areas of criminal practice which were left unregulated").

The rule is silent as to the ability of trial judges to enter a finding of not guilty earlier the evidence on either side is closed. The rule neither authorizes nor forbids judges to exercise and then. Cf. Uniform Rules of Criminal Procedure, Rule 522(a) comment, 10 U.50.A. App. (Master ed. 1987) (Spec. Pamph. 1992). But cf. The states 5. Martin Linen Supply Co., 430 U.S. 564, 570 n.viii (1977) (motion for judgment of amortization nether Fed. R. Crim. P. 29 "tin can be entertained, at the earliest, 'after the evidence on either side is closed'").

The text of former 1000. 50. c. 278, s. 11, offers us more than guidance. Betwixt 1855 and 1979, G. Fifty. c. 278, s. 11, provided in relevant part that the jury, "subsequently receiving the instructions of

Page 96

the court, shall decide, in their discretion, past a general verdict, both the fact and the law involved in the issue, or they may, at their election, find a special verdict." [Note 3] The court, by contrast, was to "superintend the course of the trials, determine upon the admission and rejection of evidence, upon all questions of law raised during the trials and upon all collateral and incidental proceedings, and . . . accuse the jury." [Note four] It would exist an understatement to say that the enactment of this language in 1855 was controversial. The linguistic communication had originally been proposed as an amendment to the Massachusetts Constitution that failed in a shut vote to win pop blessing in 1853. The amendment was at to the lowest degree in meaning role a response to the decision of this court in Commonwealth 5. Porter, 10 Met. 263 (1845), which held that juries are obliged to obey the instructions of judges on questions of law. See Comment, The Changing Office of the Jury in The Nineteenth Century, 74 Yale 50.J. 170, 177-183 (1964); Thousand.D. Howe, Juries equally Judges of Criminal Law, 52 Harv. L. Rev. 582, 608-610 (1939). In Republic v. Anthes, 5 Gray 185 (1855), 4 of the 6 members of the court held that to the extent the statute conferred on the jury the power to determine questions of police force against the directions of the court, the statute violated the State Constitution. See id. at 220, 222, 236 (Shaw, C.J., with whom Metcalf and Merrick, JJ., joined); id. at 251 (Bigelow, J.); Republic 5. Rock, 10 Grayness 4, five (1857). Anthes made articulate "that the jury in criminal trials have no rightful power to determine questions of police against the instructions of the court." Commonwealth v. Davis, 271 Mass. 99, 100 (1930). See Republic v. Marzynski, 149 Mass. 68, 73 (1889).

Chief Justice Shaw's opinion in Anthes distinguished sharply between questions of law and questions of fact: the former were for the approximate to decide, the latter for the jury. See id. at 193194, 198-199 (Shaw, C.J., with whom Metcalf and Merrick, JJ., joined). If in that location was any doubt after Anthes whether the sufficiency

Page 97

of the prove to support a confidence was a question of law for the court to decide, that doubtfulness was dispelled five years later in Commonwealth five. Merrill, 14 Grey 415 (1860), which made clear that judges have the ability and the duty to direct verdicts in favor of criminal defendants when the evidence is insufficient to convict them. See id. at 418, citing Republic v. Packard, five Grey 101, 103 (1855). Unlike its modem equivalent, the directed verdict at common constabulary was not always a control that jurors were obliged to obey. [Notation 5] The decision in Merrill was perceived by some as a departure from this more than small understanding of the directed verdict. The decision was cited inside a dozen years of its issuance as sole dominance for the statement that, "although as a full general proposition the sufficiency of the prove is for the jury, yet, if it is constitute non to embrace every part of the case, the court will, as matter of police, order the prisoner's discharge." I J.P. Bishop, Commentaries on the Police force of Criminal Procedure south. 128, at 76-77 (2d ed. 1872). Run into id. at s. 977, at 600 & due north.2, citing Packard, supra, and Merrill, supra. Encounter likewise Annotate, The Motility for Acquittal: A Neglected Safeguard, 70 Yale L.J. 1151, 1152 & northward.8 (1961). By that time requests for directed verdicts in criminal cases were quite routine in Massachusetts. Come across, eastward.grand., Commonwealth 5. Certain Intoxicating Liquors, 105 Mass. 595, 598 (1870); Commonwealth v. Bakeman, 105 Mass. 53, 56-57, sixty-61 (1870); Commonwealth v. Shepard, I Allen 575, 586-587 (1861). Cf. Oscanyan 5. Arms Co., 103 U.South. 261, 263-264 (1880).

Nosotros said in a civil case that "[a] trial guess always has had power to direct a verdict provided the police force required information technology." Bothwell 5. Boston Elevated Ry., 215 Mass. 467, 477 (1917). This statement applies with equal strength to criminal cases in lite of the trial judge'due south historic power to decide questions of constabulary for the protection of criminal defendants. Cf. Commonwealth v. Sheehy, 412 Mass. 235, 240 (1992). In other words, "the traditional understanding in our organisation" is "that the application of the across-a-reasonable-doubtfulness standard to the evidence is not irretrievably committed to jury discretion." Jackson v. Virginia,

Folio 98

443 U.S. 307, 317 n.10 (1979). See Commonwealth 5. Anthes, 5 Gray 185 (1855); Commonwealth v. Porter, x Met. 263 (1845). Cf. BMW of N Am., Inc. five. Gore, 517 U.Southward. 559, 573 north.17 (1996).

It was only in 1963 that 1000. L. c. 27 8, south. 11, was amended to provide that judges must enter verdicts for defendants in certain circumstances. See St. 1963, c. 569. The Commonwealth's argument accordingly fails to the extent it rests solely on the basis that judges do not have the ability to direct a verdict autonomously from statute. Cf. Galloway v. United States, 319 U.S. 372, 389-395 (1943). The Commonwealth's statement fares no better to the extent that it rests on the notion that a judge'southward ability to direct a verdict for the defendant manifests itself no earlier than the close of the Commonwealth's testify. This notion lacks support in our case law as well equally in reason. Cf. Oscanyan v. Artillery Co., 103 U.S. 261, 265 (1880) ("Indeed, in that location tin can be, at this day, no serious doubt that the courtroom may at whatsoever time direct a verdict when the facts are undisputed . . .").

In recent times nosotros take repeatedly said without elaboration that a approximate cannot be required to direct a verdict in a criminal case afterward the prosecutor's opening argument. Meet Rosenberg five. Commonwealth, 372 Mass. 59, 61 (1977); Republic v. Sandler, 368 Mass. 729 (1975), and cases cited; Commonwealth v. Bader, 285 Mass. 574, 575 (1934). Compare Perry v. Carter, 332 Mass. 508, 509 (1955). If a estimate lacked the power to direct a verdict afterwards the opening, one might wonder why we did not say so in any of these cases. Cf. Republic v. Dietrich, 381 Mass. 458, 460, 463 (1980). This court had said decades earlier that a judge has the power to direct a verdict subsequently an opening in a civil trial. See Hey v. Prime, 197 Mass. 474, 475 (1908); Stevens v. Nichols, 155 Mass. 472 (1892); Howe v. Dickinson, 154 Mass. 494 (1891).

In Commonwealth v. Hare, 361 Mass. 263 (1972), we strongly suggested that a guess has the power to straight a verdict of acquittal later a prosecutor'due south opening. There we said that, "[i]f the bill of particulars in the instant case in fact presents the total extent of the Commonwealth's proof, nosotros think, without so deciding, that the allowance of a motion for a directed verdict might well be required at the conclusion of the Commonwealth's opening statement or at the close of the Commonwealth's case." Id. at 270. We made a like suggestion in Republic five. Pope, 397 Mass. 275, 282 north.10 (1986), in which we said that a

Folio 99

motion for a required finding of not guilty was "premature" when fabricated at the close of the Republic's opening argument. Accord Commonwealth 5. Brusgulis, 398 Mass. 325, 333 n.fifteen (1986). We then said that "the judge need non take ruled on the motion until later on the Republic'south testify was closed" (emphasis added). Republic v. Pope, supra at 282 northward.ten. [Note half dozen]

We conclude that judges have inherent power to enter a finding of not guilty in a criminal case afterward the prosecutor'southward opening statement. [Annotation 7] This is true not only because of the history of the evolution of the directed verdict and the strong suggestions in our recent cases, just considering of what we have said more often than not nigh the ability of courts to cease a criminal trial. "A court may terminate a prosecution by discharging a accused . . . during a trial" (citation omitted). Republic v. Hart, 149 Mass. seven, 9 (1889). That is precisely what the judge did in this example. There is more than one way, of course, in which a judge may exercise this ability. He may, for example, stop a prosecution past declaring a mistrial. If he does and then over the defendant's objection without a manifest necessity for the deed, the Republic is barred on double jeopardy grounds from retrying the defendant. Run across Collins v. Commonwealth, 412 Mass. 349, 352 (1992). Cf. United States five. Perez, nine Wheat. (11 U.S.) 579, 580 (1824). Regardless of

Folio 100

whether it can be said that a judge has rightful authority to do such a thing, it is articulate that the judge has the power to do it, and that the practise of this ability has irrevocable legal consequences. It is no unlike for acquittals.

three. Whether the approximate's action violated fine art. xxx of the Declaration of Rights. Citing Commonwealth v. Gordon, 410 Mass. 498 (1991), the Democracy suggests that the judge's premature entry of the finding of not guilty in this case violated art. 30 of the Massachusetts Declaration of Rights. In Gordon, the defendant was charged with murder in the outset degree. Over the prosecutor's objection, the judge accustomed the defendant'due south plea of guilty of murder in the second degree. We held that the judge's action violated art. 30. Run into id. at 498. Nosotros emphasized that the case did non involve a estimate'south authority to club "a dismissal of an indictment on a legal basis." Id. at 502. We enumerated a number of instances of valid exercises of this ability, amid which was the dismissal of an indictment "for insufficiency of the evidence to be presented at trial." Id., citing Rosenberg v. Democracy, 372 Mass. 59 (1977). "All those powers," we said, "involve either rulings of law or exercises of discretion after the Democracy has had a full and fair opportunity to present its case. Past contrast, pretrial dismissal of a lawful complaint prematurely cuts off the prosecution without a legal footing" (emphasis in original). Commonwealth v. Gordon, supra at 502-503. Dissimilar the judicial action held unconstitutional in Gordon, the approximate's decision in this case was made on a legal basis. He ruled as a matter of law that the evidence that the prosecutor would nowadays was inadequate to prove that the defendant had committed the crimes of which he stood defendant. The question of the legal effect of the prosecution's testify was a question within the judge's province; and as we have explained, judges have power to rule on the question at any stage of a trial. An entry of a finding of not guilty is not a nolle prosequi. See, e.g., Commonwealth 5. Hart, supra. The Commonwealth'due south art. 30 claim fails.

4. Principles to guide judges in deciding whether to enter an early finding of not guilty. The "overwhelming majority" of courts take held that motions to behave a accused fabricated subsequently an opening statement "should be denied unless it clearly appears from the opening statement that the accused cannot be lawfully convicted so but after the prosecutor has been made aware of the difficulty and fails or is otherwise unable to

Page 101

correct information technology." People five. Kurtz, 51 N.Y.2d 380, 385 (1980), cert. denied, 451 U.S. 911 (1981). We adopt this standard. Nosotros foresee ii circumstances in which the entry of a finding of not guilty after an opening statement might exist warranted: (one) the statement "clearly and deliberately" admits a fact "which must necessarily prevent a conviction and crave an amortization," United States v. Dietrich, 126 F. 676, 677 (C.C.D. Neb. 1904); and (two) the statement "embraces all operative facts to be proven at trial and those facts are insufficient to sustain a claim for relief under any legal theory," showing unmistakably that the prosecutor's testify cannot prove one or more elements of the offense charged. 9 Moore's Federal Practise par. 50.20[ii][b], at fifty-42 (Supp. Dec. 1999). In either of these circumstances, "the basic facts lead inescapably to a conclusion that the prosecution must neglect" regardless of the light in which the facts are viewed. 2 C.A. Wright, Federal Practice and Procedure s. 462, at 639 (2nd ed. 1982). [Note 8]

Trial judges must adhere to this standard with strictness because the Democracy is otherwise barred from retrying the defendant. A judge who directs a verdict in violation of the standard abuses his or her discretion. Run into Us v. Donsky, 825 F.2d 746, 751 (3d Cir. 1987). Cf. Republic 5. Steward, 396 Mass. 76, 79 (1985), citing Jones v. Commonwealth, 379 Mass. 607, 617 (1980). If the question in a given case is at all close, if information technology depends on a conclusion of law or an assessment of the evidence that is fairly questionable, then the estimate should refrain from entering an early finding of not guilty. See nine Moore, supra at par. 50.20[2][b], at fifty-43 ("If the court entertains any doubt as to the propriety of granting a pre-verdict motility, the court should wait . . ." [emphasis added]); Douglas v. Whittaker, 324 Mass. 398, 399-400 (1949). The judge volition not err by waiting; judges are not required to enter premature findings of non guilty. See, east.g., Rosenberg v. Republic, 372 Mass. 59, 61 (1977). Merely cf. Commonwealth 5. Hare, 361 Mass. 263, 270 (1972).

Acquittals that depart from this standard do violence to the weighty public interest in ensuring that wrongdoers are bedevilled of the crimes that they commit. See Commonwealth

Folio 102

5. Therrien, 383 Mass. 529, 531 (198 1). The Commonwealth, as well as a criminal defendant, has the right to a off-white trial. See Commonwealth 5. Roy, 349 Mass. 224, 227 (1965). And the Commonwealth's counsel has a right to try his or her case without interference, subject field to well known limits. Run across Commonwealth v. Bearse, 358 Mass. 481, 487 (1970); Commonwealth 5. Hartford, 346 Mass. 482, 486 (1963); Commonwealth 5. Trung Chi Truong, 34 Mass. App. Ct. 668, 671 (1993).

What we said nearly this topic in Douglas v. Whittaker, supra, a ceremonious example, applies all the more strongly to criminal trials. "The opening is to be examined with care and the power to dispose of the case on the opening must be exercised charily. Information technology should non be exercised until it is apparent that the plaintiff cannot supply the show necessary to found his instance. Cases should be decided upon sworn evidence rather than upon an anticipatory statement of counsel which might carry little resemblance to the bachelor evidence." Id. See Aragona v. Parrella, 325 Mass. 583, 584 (1950). Rather than speculate virtually evidence that they have non heard, judges should expect for the Republic to present its case.

In the rare instance when an early on finding of not guilty may seem proper, two procedural safeguards should be followed: "(1) counsel must be given full opportunity to be heard and (2) the trial gauge must requite conscientious consideration to alternatives." Democracy v. Steward, 396 Mass. 76, 79 (1985). Compare Fed. R. Crim. P. 26.3. The trial judge must always brand clear to the prosecutor the basis for his belief that the evidence to be presented cannot sustain a verdict of guilty. The prosecutor must then have total opportunity to explain why he thinks the approximate'south impression is erroneous and to correct "any ambiguity, error, or omission in the [opening] statement." United States five. Dietrich, supra at 677. Accord People v. Kurtz, 51 N.Y.second 380, 385-386 (1980). [Note 9] The judge must then consider less desperate alternatives to entering the finding, including declaring a mistrial, meet Commonwealth v. Smith, 404 Mass. 1, 4-5 (1989),

Page 103

or issuing curative instructions to the jury. Run into Republic v. Hoilett, 430 Mass. 369, 372 (1999); Commonwealth 5. Trung Chi Truong, supra at 671, and cases cited. The judge must discuss such alternatives with counsel before deciding to acquit. The guess must state on the record the reasons for his conclusion to acquit. Cf. Lovett v. Commonwealth, 393 Mass. 444, 447 (1984).

5. Whether the judge in this instance abused his discretion by entering an early finding of not guilty. Later on the defence force attorney objected to the opening, the judge listened at length without interruption. The approximate and then launched into a rapid-fire interrogation of the prosecutor. The prosecutor got few words in edgewise. The judge stated that the opening did not raise a sufficient case for the jury. The prosecutor asked to be heard, but the judge cut him off. When the prosecutor tried to respond, the judge abruptly announced that he would be directing a verdict for the defendant. The prosecutor objected and again asked to be heard. The guess repeated that he would be directing a verdict. The prosecutor fabricated a final effort to articulate the reasons for his objection, which the gauge interrupted. When the prosecutor replied, not without cause, that, "If you don't want to hear from me, I won't be heard," the judge ordered the prosecutor not to say anything more, repeating that the instance was "directed out." We agree that the judge abused his discretion.

Get-go, the judge deprived the prosecutor of an opportunity to exist heard on a conclusion that terminated the trial and permanently barred convicting the accused on the charges of which he was defendant. Second, the estimate did non consider alternatives to entering findings of non guilty. Defense counsel had not even asked the judge for the entry of findings of non guilty, and the judge denied the prosecutor an opportunity to correct any deficiency in the opening statement.

6. Whether double jeopardy principles bar a retrial. A criminal defendant has a constitutional right not to be placed in jeopardy twice for the same criminal offense. See Commonwealth v. Super, 431 Mass. 492, 496 (2000), and cases cited. When a defendant has been put in jeopardy for an offense and acquitted, he may not be retried for that offense. Run across Sanabria 5. Usa, 437 U.South. 54, 64 (1978). The Commonwealth argues that, because the judge lacked potency to enter a finding of not guilty afterwards the opening, the judge's action was not a true acquittal. The same argument in substance was rejected by the United

Page 104

States Supreme Court in its per curiam opinion in Fong Foo five. United States, 369 U.Due south. 141 (1962), rev'm In re Us, 286 F.2d 556 (1st Cir. 1961).

In Fong Foo v. United States, supra, the trial judge directed verdicts of acquittal before the authorities'due south quaternary witness had finished testifying. The gauge's action "was based upon i or both of two grounds: supposed improper behave on the part of the Banana U.s.a. Chaser who was prosecuting the case, and a supposed lack of brownie in the testimony of the witnesses for the prosecution who had testified upwardly to that point." Id. at 142. The United States Court of Appeals for the Kickoff Circuit issued a writ of mandamus to the trial judge, directing that the amortization be vacated and the instance reassigned for trial. The courtroom reasoned that the trial judge lacked the power to straight a verdict for the defendants in the circumstances of the example. The U.s.a. Supreme Court held that the Fifth Amendment to the Usa Constitution forbade the Court of Appeals from setting aside the verdict and ordering a retrial. "The petitioners were tried under a valid indictment in a federal court which had jurisdiction over them and over the subject field thing. The trial did non end prior to the entry of judgment . . . . It terminated with the entry of a final judgment of acquittal every bit to each petitioner. The Courtroom of Appeals thought, not without reason, that the amortization was based upon an egregiously erroneous foundation. Nevertheless, [t]he verdict of acquittal was terminal, and could not be reviewed . . . without putting [the petitioners] twice in jeopardy, and thereby violating the Constitution.' " (Citations omitted.) Id. at 143, quoting The states v. Ball, 163 U.S. 662, 671 (1896).

We perceive no difference between this instance and Fong Foo that would allow us to conclude that the defendant may be retried. Here as in Fong Foo, the judge unquestionably had jurisdiction to try the case. Cf. Commonwealth Y. Lovett, 374 Mass. 394, 397-398 (1978), and cases cited; Commonwealth 5. Zawatsky, 41 Mass. App. Ct. 392, 397 n.half dozen (1996), and cases cited. Cf. United States five. Weissman, 266 U.Southward. 377, 379 (1925) ("if directing the verdict was incorrect information technology certainly was not beyond the jurisdiction of the Court"). As in Fong Foo, the ruling equally to the charged offenses that terminated the trial was an amortization "in substance as well as form": for the judge "evaluated the Government's evidence and adamant that it was legally insufficient to sustain a conviction." United States v. Martin Linen

Page 105

Supply Co., 430 U.Southward. 564, 572 (1977). See id. at 571; Commonwealth 5. Brusgulis, 398 Mass. 325, 333 (1986). Compare Commonwealth v. Hart, 149 Mass. 7, nine (1889). [Annotation x]

In that location is merely one difference between this case and Fong Foo that is conceivably relevant to the double jeopardy enquiry: the finding of not guilty in this case was entered immediately after the opening statement, rather than after a few witnesses had testified. This stardom cannot carry the twenty-four hours for the Commonwealth. It is truthful that double jeopardy protections "are implicated only when the accused has really been placed in jeopardy." United States 5. Martin Linen Supply Co., supra at 564, 569. In this case, however, at that place is no question that the defendant was in jeopardy when the judge ended the trial. "[I]n a jury trial, jeopardy attaches when the jurors are sworn." Commonwealth 5. Super, supra at 496. See Crist v. Bretz, 437 U.Southward. 28, 38 (1978) ("The [F]ederal dominion that jeopardy attaches when the jury is empaneled and sworn is an integral function of the constitutional guarantee against double jeopardy"); Us v. Martin Linen Supply Co., supra; Commonwealth 5. Tuck, 20 Pick. 356, 365-366 (1838).

Retrial would be barred in this instance, nosotros think, fifty-fifty if the judge had lacked the authority to direct a verdict afterward the opening. In Sanabria v. United States, 437 U.South. 54 (1978), the Court noted that in Fong Foo the Court of Appeals had "held that the Commune Court . . . lacked power to directly a verdict of acquittal before the Government rested its instance. Nosotros accepted the Court of Appeals' property that the District Court had erred, but nevertheless constitute that the Double Jeopardy Clause was violated . . . (footnote and quotations omitted). Sanabria five. United states, supra at 64. The Court went on to say that "when a defendant has been acquitted at trial he may not exist retried on the aforementioned law-breaking, fifty-fifty if the legal rulings underlying the amortization were erroneous." Id. Run into id. at 75; Arizona v. Washington, 434 U.South. 497, 503 (1978). See as well United States five. Ingraldi, 793 F.2d 408, 414 (1st Cir. 1986) (regardless of whether trial courtroom had authorization to enter judgment of acquittal after government's opening statement, double jeopardy principles would bar regime from appealing such a judgment), citing Fong Foo, supra.

Page 106

The cases cited by the Commonwealth are not apposite. In Republic 5. Babb, 389 Mass. 275 (1983), double jeopardy did not bar a retrial because the trial guess "did not intend to make, and did not make, a decision of the defendant's guilt or innocence of the crimes charged" when he dismissed complaints against the defendant. Id. at 28 1. Commonwealth v. Brusgulis, 398 Mass. 325, 333 (1986), Republic 5. Smith, 404 Mass. 1, 4-5 (1989), and Commonwealth v. Andrews, 403 Mass. 441, 447-448 (1988), each involved a mistrial or the belittling equivalent of a mistrial. The principle that a defendant who invites a mistrial ordinarily may not claim double jeopardy protection against retrial, run into Commonwealth v. Lam Hue To, 391 Mass. 301, 310-311 (1984), does not use to directed acquittals. Come across Us ex rel. Young v. Lane, 768 F.second 834, 839 (7th Cir.), cert. denied, 474 U.S. 951 (1985). Cf. Commonwealth v. Lam Hue To, supra at 311.

The order of the single justice is affirmed.

So ordered.

---

FOOTNOTES

[Note 1] General Laws c. 278, s. 28E, which in relevant function provides that the Commonwealth may appeal from the allowance of "a motion for appropriate relief under the Massachusetts Rules of Criminal Procedure," does not authorize the Commonwealth to entreatment the entry of the finding of not guilty in this example. Rule 25 of the Rules of Criminal Procedure does not provide that judges may allow a motion for a finding of non guilty later on an opening argument. Nor does any other rule. A judge's allowance of such a motion is therefore not "relief under the . . . [r]ules" and cannot be appealed pursuant to s. 28E. See Democracy five. Velle, 390 Mass. 678, 684 (1984). Cf. Democracy v. Therrien, 383 Mass. 529, 535-536 (1981). The statute does provide for appellate review in other circumstances, which are not presented in this case. Compare Democracy v. Lam Hue To, 391 Mass. 301, 306 & n.iv (1984), cited in Commonwealth v. Brusgulis, 398 Mass. 325, 326 n. I (1986).

[Annotation 2] Rule 29 of the Federal Rules of Criminal Process and Mass. R. Crim. P. 25, as amended, 420 Mass. 1502 (1995), have each been amended since the promulgation of the Massachusetts rules in 1979. The amendments are not relevant to our inquiry in this case.

[Note 3] The special verdict was eliminated in criminal cases when the Rules of Criminal Procedure were promulgated. See Reporters' Notes to Mass. R. Crim. P. 27, Mass. Ann. Laws, Rules of Criminal Procedure at 254 (Lexis 1997).

[Note four] Nosotros quote from R. L. 1902, c. 219, south. 13, the version of the statute that was in forcefulness at the time of the codified of the Full general Laws. The differences between this version of the statute and older versions are not relevant to the conclusion of this example. At that place were no changes in the quoted portion between 1902 and 1979.

[Note 5] In the words of 1 commentator, the early on directed verdict "was either instruction on the police or advice on the facts, or a mixture of the 2. Information technology was not a device for taking a case from a jury . . . ." W.W. Blume, Origin and Development of the Directed Verdict, 48 Mich. L. Rev. 555, 561 (1950). See Quincy, Reports of Cases in Juries of Superior Court of Massachusetts Bay (1761-1772) 382 & n. i, 556, 558, 564-565, 566 (1865 ed.); 2 L. Wroth & H. Zobel eds., Legal Papers of John Adams 404-406 (1965).

[Note 6] The United States Court of Appeals for the First Circuit has stated repeatedly that directed verdicts of not guilty are permitted after the opening statement in some circumstances. Run into U.s.a. five. Graham, 146 F.3d 6, 10 (1st Cir. 1998); Us v. Ingraldi, 793 F.2d 408, 414 (1st Cir. 1986), citing United States five. Oliver, 570 F.second 397, 400 (1st Cir. 1978). Cf. In re United States, 286 F.2d 556, 562 (1st Cir. 1961), rev'd on other grounds, Fong Foo v. United states of america, 369 U.South. 141 (1962).

In U.s. five. Weissman, 266 U.Due south. 377 (1925), the trial guess entered a directed verdict of acquittal though "nothing had been submitted to the jury, no evidence, not even an opening statement." Id. at 378. And so Justice Holmes, writing for the Court, said that, "if directing the verdict was wrong information technology certainly was not beyond the jurisdiction of the Court. The jury were there and the prisoners before them, and and then far equally jurisdiction is concerned it did not matter whether evidence had been put in or not. . . . [W]e do not mean to imply that an opening by counsel or the offer of bear witness is necessary in order to justify directing a verdict of not guilty; at that place are other cases in which it is done." Id. at 379.

[Annotation 7] In then terminal, we join a majority of the courts that take decided this question. Encounter Annot., Ability of Trial Court to Dismiss Prosecution or Direct Amortization on Basis of Prosecutor'southward Opening Statement, 75 A.Fifty.R. 3d 649, 653 (1977 & Supp. 1999).

[Note 8] We acknowledge that some appellate courts would allow trial judges to direct a verdict after the opening merely in the first circumstance, simply not in the 2d. Encounter, e.g., United States v. Donsky, 825 F.2d 746, 751-752 (3d Cir. 1987).

[Note nine] The judge must "brand sure that the case has been fully stated" before deciding whether to direct a verdict. Carbone v. Trustees of N.Y, N.H. & HAR., 320 Mass. 710, 714 (1947). Cf. Commonwealth v. Clark, 393 Mass. 361, 366 (1984) ("Only when all relevant evidence is disclosed [prior to trial] can a ruling upon the sufficiency of the evidence be appropriately fabricated" pursuant to Commonwealth v. Brandano, 359 Mass. 332 [1971]).

[Notation 10] "It is without constitutional significance that the court entered a judgment of acquittal rather than directing the jury to bring in a verdict of acquittal or giving it erroneous instructions that resulted in an amortization." Sanabria v. Usa, 437 U.S. 54, 64 n.18 (1978).

sullivanrectelon1981.blogspot.com

Source: http://masscases.com/cases/sjc/432/432mass92.html

Share this post