Com. v. Therrien

• Citation: 383 Mass. 529,420 N.E.2d 897
• Parties: COMMONWEALTH v. Dennis G. THERRIEN (and a companion case of the same name).
• Decision Date: 06 May 1981
• Court: United States State Supreme Judicial Court of Massachusetts

Page 897

420 N.E.2d 897

383 Mass. 529

COMMONWEALTH

v.

Dennis G. THERRIEN (and a companion case of the same name).

Supreme Judicial Court of Massachusetts, Hampshire and Suffolk.

Argued Jan. 6, 1981.

Decided May 6, 1981.

Stephen R. Kaplan, Asst. Dist. Atty., for the Commonwealth.

David A. Robinson, Springfield, for defendant.

Before HENNESSEY, C. J., and BRAUCHER, WILKINS, LIACOS and ABRAMS, JJ.

WILKINS, Justice.

Following the return of a jury verdict that the defendant was guilty of rape, the judge allowed the defendant's motion for a finding of not guilty, ruling that, in the circumstances, the evidence did not warrant a finding of guilty. The Commonwealth has sought to challenge the judge's ruling, both by an appeal from the judge's order and by a complaint filed in the county court seeking relief under G.L. c. 211, § 3. We granted the Commonwealth's application for direct appellate review of its attempted appeal from the judge's order. A single justice of this court has reserved and reported to this court the case entered in the county court.

Initially, these cases present the question whether the Commonwealth has the right to appeal, or otherwise challenge, the order that a finding of not guilty be entered on the offense charged. We conclude that the Commonwealth does have the right to appeal from that order. Because of that conclusion, we need not consider whether, in the absence of a right to appeal, the Commonwealth would have been entitled to seek relief under the general superintendency authority of this court, and, accordingly, we shall order the entry of a judgment dismissing the complaint seeking relief under G.L. c. 211 § 3. ¹ Having concluded that the Commonwealth has a right to appeal, we reach the question whether the judge was correct in ruling that, in the circumstances, the jury's verdict was not warranted. We conclude that the verdict was warranted by the evidence and vacate the order allowing the defendant's motion for a finding of not guilty.

A brief recitation of the circumstances that bear on the question of the Commonwealth's right to appeal is appropriate at this point. We leave until later a presentation of the circumstances that relate to the propriety of the judge's order allowing the entry of a finding of not guilty. The trial was held in November, 1979, before a jury in Hampshire County. At the close of the Commonwealth's case, the defendant filed a motion for a required finding of not guilty. See Mass.R.Crim.P. 25(b), 378 Mass. --- (1979). The judge denied the motion, and the defendant renewed the motion at the close of the evidence. The judge reserved decision until the verdict was returned, as is permitted by Mass.R.Crim.P. 25(b)(1). The jury returned a verdict of guilty and answered two questions, a circumstance that becomes important when we consider the propriety of the judge's order. The judge thereafter heard argument of counsel and allowed the motion for a required finding of not guilty. ²

1. We point out initially that there is no constitutional barrier to the Commonwealth appealing from the order vacating the guilty verdict.

The double jeopardy clause of the Fifth Amendment to the Constitution of the United States, applicable to the States through the Fourteenth Amendment (Benton v. Maryland, 395 U.S. 784, 795-796, 89 S.Ct. 2056, 2063-2064, 23 L.Ed.2d 707 (1969)), does not forbid the Commonwealth's appeal, and the defendant makes no such claim. "(W)hen a judge rules in favor of the defendant after a verdict of guilty has been entered by the trier of fact, the Government may appeal from that ruling without running afoul of the Double Jeopardy Clause." United States v. Wilson, 420 U.S. 332, 352-353, 95 S.Ct. 1013, 1026-1027, 43 L.Ed.2d 232 (1975). See United States v. DiFrancesco, --- U.S. ----, 101 S.Ct. 426, 434, 66 L.Ed.2d 328 (1980); United States v. Martin Linen Supply Co., 430 U.S. 564, 569-570, 97 S.Ct. 1349, 1353-1354, 51 L.Ed.2d 642 (1977). Deferring action on a motion for a judgment of acquittal until after the jury have returned their verdict is a sensible procedure where the question appears to be close because, by doing so, the judge makes it possible "to reconcile the public interest in the Government's right to appeal from an erroneous conclusion of law with the defendant's interest in avoiding a second prosecution." United States v. Scott, 437 U.S. 82, 100 n.13, 98 S.Ct. 2187, 2198 n.13, 57 L.Ed.2d 65 (1978). See United States v. Jenkins, 420 U.S. 358, 365, 95 S.Ct. 1006, 1011, 43 L.Ed.2d 250 (1975), cited with approval in United States v. Scott, supra, 437 U.S. at 91 n.7, 98 S.Ct. at 2194 n.7, which overruled the Jenkins case in other respects. If the appellate court decides that the judge was wrong, a new trial is not required; the conviction is simply reinstated. See United States v. Forcellati, 610 F.2d 25, 28-30 (1st Cir. 1979), cert. denied, 445 U.S. 944, 100 S.Ct. 1342, 63 L.Ed.2d 778 (1980).

It has long been accepted that the Commonwealth may not appeal from an acquittal of a criminal defendant, in spite of the broad supervisory role of this court. See Commonwealth v. Anthes, 5 Gray 185, 207-208 (1855); Commonwealth v. Cummings, 3 Cush. 212, 214 (1849). Where, as here, there has been a conviction, "the considerations are quite different" from those where there was no conviction. Commonwealth v. Hayes, 372 Mass. 505, 508, 362 N.E.2d 905 (1977). For example, without raising any significant double jeopardy question, this court properly may consider, pursuant to statute, a case on further appeal where the Appeals Court has reversed a conviction and ordered judgment for the defendant. See Commonwealth v. Gosselin, 365 Mass. 116, 117, 309 N.E.2d 884 (1974); G.L. c. 211A, § 11. Similarly, we would accept as proper a statute that allowed the Commonwealth to appeal from an order setting aside a verdict of guilty in a criminal case.

In this Commonwealth, the subject of double jeopardy generally has been treated as a matter of common law rather than as a question under the Constitution of the Commonwealth. See Commonwealth v. Diaz, --- Mass. ---, ---, ^a 417 N.E.2d 950 (1981); Commonwealth v. Cepulonis, 374 Mass. 487, 491-492, 373 N.E.2d 1136 (1978). Any statutory provision for an appeal by the Commonwealth, of course, would overcome any common law rule barring such an appeal. If there is a double jeopardy guaranty to be found in the Constitution of the Commonwealth, we would not interpret it to bar the Commonwealth from challenging an error of law in the setting aside of a verdict of guilty.

2. The Commonwealth may appeal from the allowance of a defendant's renewed motion for a finding of not guilty presented pursuant to Mass.R.Crim.P. 25(b) (1). ³ General Laws c. 278, § 28E, as appearing in St. 1979, c. 344, § 45, provides that authority. In relevant part, § 28E provides that the Commonwealth may appeal "to the supreme judicial court in all criminal cases from a decision, order or judgment of the (Superior Court) (1) allowing a motion to dismiss an indictment or complaint, or (2) allowing a motion for appropriate relief under the Massachusetts Rules of Criminal Procedure." The 1979 amendment of § 28E was adopted, as its title and preamble state, to conform the General Laws to the Massachusetts Rules of Criminal Procedure and, as § 51 of the act states, to be effective on July 1, 1979, which is the date on which, by order of this court, amendments to the Rules of Criminal Procedure became effective. See 378 Mass. --- (1979). Two days after § 28E was amended in 1979, St. 1979, c. 346, conforming the General Laws to the Massachusetts Rules of Appellate Procedure, effective July 1, 1979, was enacted. There is no question that these two acts were designed to coordinate the statutes of the Commonwealth with the new rules of this court concerning trials and appeals in criminal cases.

The answer to the central question concerning the Commonwealth's right to appeal in this case turns on the meaning in § 28E of the words "allowing a motion for appropriate relief under Massachusetts Rules of Criminal Procedure." The defendant argues that "a motion for appropriate relief" includes only pretrial motions, such as a motion to suppress evidence. That limited scope was clearly the subject of § 28E prior to its 1979 amendment. See Commonwealth v. McCarthy, 375 Mass. 409, 413, 378 N.E.2d 429 (1978), which concerned a similar situation before the 1979 changes in statutes and rules. The previously relevant provision in § 28E, inserted by St. 1967, c. 898, § 1, authorized an appeal from "a decision, order or judgment of the (Superior Court) (1) allowing a motion to dismiss an indictment or complaint, or (2) allowing a motion to grant appropriate relief under the provisions of (G.L. c. 277, § 47A)." Section 47A, as then amended (see St. 1965, c. 617, § 1, for the relevant language), referred to defenses or objections raised by motions for relief before trial. ⁴ The defendant continues his argument by asserting that the only portion of the Rules of Criminal Procedure which concerns a motion to grant appropriate relief is Mass.R.Crim.P. 13(c)(1), 378 Mass. --- (1979), which refers, in part, to defenses being raised by a motion to dismiss or "by a motion to grant appropriate relief." Rule 13(c)(2) refers to an objection which is capable of determination without trial of the general issue being "raised before trial by motion." Clearly, Rule 13 is concerned only with pretrial motions. Massachusetts R.Crim.P. 15 concerns only appeals from interlocutory rulings. Neither rule 13 nor rule 15, therefore, has anything to do with an appeal from action on a motion after discharge of the jury, such as the defendant here filed pursuant to Mass.R.Crim.P. 25(b) (1). See G.L. c. 278, § 11, as appearing in St. 1979, c. 344, § 43A.

We conclude that the defendant reads § 28E too narrowly and that § 28E does not apply only to the Commonwealth's appeals from the allowance...