Commonwealth v. Lowder

Decision Date04 May 2000
PartiesCOMMONWEALTH v. RICHARD LOWDER.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

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

John D. Moses, Assistant District Attorney, for the Commonwealth.

Paul J. Machado for the defendant.

SPINA, J.

At the trial of this criminal case, the trial judge entered findings of not guilty shortly after the prosecutor delivered his opening statement to the jury. We are asked to decide whether the judge acted within his authority. We conclude that judges have the power to enter findings of not guilty at the early stages of trial, that they should exercise this power only rarely, and that the judge abused his discretion by exercising it as he did in this case. We also conclude that double jeopardy principles bar the Commonwealth 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 two narcotics offenses. After a jury were empaneled, the prosecutor delivered his opening statement. A recess was declared, during which defense counsel objected to parts of the statement. The judge questioned the prosecutor briefly and announced that the statement did not state a case sufficient to be presented to a jury. Ignoring the prosecutor's request to be heard on the matter, the judge entered verdicts of not guilty on both indictments over the prosecutor's objection. Defense counsel did not object to the judge's action. The trial ended.

The Commonwealth petitioned this court pursuant to G. L. c. 211, § 3, for a declaration that a trial judge lacks the authority to enter a required finding of not guilty until the Commonwealth 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.

1. This court's jurisdiction to hear the Commonwealth's petition pursuant to G. L. c. 211, § 3. 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. See Commonwealth v. Super, 431 Mass. 492, 495 n.5 (2000). See generally McGuinness v. Commonwealth, 420 Mass. 495, 497 (1995); Commonwealth v. Lam Hue 7b, 391 Mass. 301, 306 n.4 (1984). No rule or statute authorizes the Commonwealth to appeal from a required finding of not guilty entered before the Commonwealth has closed its case.1

It might be argued that the Commonwealth can obtain an adequate remedy by bringing a new indictment. The new indictment would presumably be dismissed as barred by double jeopardy. The Commonwealth would then be free to appeal the dismissal pursuant to Mass. R. Crim. P. 15 (a) (1), 378 Mass. 883 (1979), and G. L. c. 278, § 28E. See Commonwealth v. Jenkins, 431 Mass. 501, 504 (2000). If the defendant's motion to dismiss the new indictment were to be denied, the defendant could appeal the denial to this court pursuant to G. L. c. 211, § 3. See Powers v. Commonwealth, 426 Mass. 534, 534-535 & 534 n.1 (1998). Requiring the Commonwealth to resort to such a procedure would cause needless delay. See A Juvenile v. Commonwealth, 380 Mass. 552, 556 (1980).

We caution that we might exercise our discretion under G. L. c. 211, § 3, differently (as might a single justice) in other cases — for instance, if the Commonwealth's argument as to double jeopardy was clearly meritless and if for that reason its petition raised no questions of importance. Cf. Richardson v. United States, 468 U.S. 317, 322, 326 n.6 (1984); Villalta v. Commonwealth, 428 Mass. 429, 433 (1998). Our extraordinary powers under the statute are not for ordinary cases. See Adams v. Cumberland Farms, Inc., 420 Mass. 807, 808 (1995). In this case, however, the Commonwealth may plausibly claim that it does not know with certainty whether retrial is possible. See Commonwealth v. Super, supra at 495 n.5 ("After the defendant was placed in jeopardy, the Commonwealth correctly invoked G. L. c. 211, § 3, to test the claim of jeopardy"). Cf. Commonwealth v. Jenkins, supra (G. L. c. 211, § 3, relief is not available when "the Commonwealth is not precluded from prosecuting the case on a new indictment").

2. The authority of judges to enter a finding of not guilty at the early stages of trial. The Commonwealth claims that the judge lacked the power to enter a finding of not guilty after the prosecutor's opening. We reject the Commonwealth's argument.

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

"The judge on motion of a defendant or on his own motion shall enter a finding of not guilty of the offense charged in an indictment or complaint or any part thereof after the evidence on either side is closed if the evidence is insufficient as a matter of law to sustain a conviction on the charge."

Rule 25 is derived "with a minimum of change" from the version of G. L. c. 278, § 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 Commonwealth v. Cote, 15 Mass. App. Ct. 229, 241 (1983).2 The "practical effect" of the rule "is essentially a change in terminology": it renames the common-law motion for a directed verdict as the motion for a required finding of not guilty. Reporters' Notes to Mass. R. Crim. P. 25, supra. Compare Advisory Committee's Notes to Fed. R. Crim. P. 29 ("change of nomenclature" made by rule "does not modify the nature of the motion or enlarge the scope of matters that may be considered"). The rule "does not presume to alter practice 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. 1, supra at 11 ("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 power of trial judges to enter a finding of not guilty before the evidence on either side is closed. The rule neither authorizes nor forbids judges to do so. Cf. Uniform Rules of Criminal Procedure, Rule 522(a) comment, 10 U.L.A. App. (Master ed. 1987) (Spec. Pamph. 1992). But cf. United States v. Martin Linen Supply Co., 430 U.S. 564, 570 n.8 (1977) (motion for judgment of acquittal under Fed. R. Crim. P. 29 "can be entertained, at the earliest, `after the evidence on either side is closed'").

The text of former G. L. c. 278, § 11, offers us more guidance. Between 1855 and 1979, G. L. c. 278, § 11, provided in relevant part that the jury, "after receiving the instructions of the court, shall decide, in their discretion, by a general verdict, both the fact and the law involved in the issue, or they may, at their election, find a special verdict."3 The court, by contrast, was to "superintend the course of the trials, decide upon the admission and rejection of evidence, upon all questions of law raised during the trials and upon all collateral and incidental proceedings, and ... charge the jury."4 It would be an understatement to say that the enactment of this language in 1855 was controversial. The language had originally been proposed as an amendment to the Massachusetts Constitution that failed in a close vote to win popular approval in 1853. The amendment was at least in significant part a response to the decision of this court in Commonwealth v. 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 Role of the Jury in the Nineteenth Century, 74 Yale L.J. 170, 177-183 (1964); M.D. Howe, Juries as Judges of Criminal Law, 52 Harv. L. Rev. 582, 608-610 (1939). In Commonwealth v. Anthes, 5 Gray 185 (1855), four of the six members of the court held that to the extent the statute conferred on the jury the power to determine questions of law 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.); Commonwealth v. Rock, 10 Gray 4, 5 (1857). Anthes made clear "that the jury in criminal trials have no rightful power to determine questions of law against the instructions of the court." Commonwealth v. Davis, 271 Mass. 99, 100 (1930). See Commonwealth 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 judge to decide, the latter for the jury. See id. at 193-194, 198-199 (Shaw, C.J., with whom Metcalf and Merrick, JJ., joined). If there was any doubt after Anthes whether the sufficiency of the evidence to support a conviction was a question of law for the court to decide, that doubt was dispelled five years later in Commonwealth v. Merrill, 14 Gray 415 (1860), which made clear that judges have the power and the duty to direct verdicts in favor of criminal defendants when the evidence is insufficient to convict them. See id. at 418, citing Commonwealth v. Packard, 5 Gray 101, 103 (1855). Unlike its modern equivalent, the directed verdict at common law was not always a command that jurors were obliged to obey.5 The decision in Merrill was perceived by some as a departure from this more modest understanding of the directed verdict. The decision was cited within a dozen years of its issuance as sole authority for the statement that, "although as a general proposition the sufficiency of the evidence is for the jury, yet, if it is found not to cover every part of the case, the court will, as matter of law, order the prisoner's...

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