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SJC-12568
COMMONWEALTH vs. ABDULLAH YASIN.
Suffolk. March 5, 2019. - October 16, 2019.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
Practice, Criminal, Motion for a required finding, Required finding, Interlocutory appeal, Waiver.
Civil action commenced in the Supreme Judicial Court for the county of Suffolk on May 9, 2018.
The case was reported by Kafker, J.
Houston Armstrong, Assistant District Attorney (Tara B. Burdman, Assistant District Attorney, also present) for the Commonwealth. James L. Sultan (Kerry A. Haberlin also present) for the respondent. Nancy A. Dolberg, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.
GAZIANO, J. At the close of the Commonwealth's case in the
defendant's trial for murder in the first degree, the defendant
moved for a required finding of not guilty pursuant to Mass. R. 2
Crim. P. 25 (a), as amended, 420 Mass. 1502 (1995).
Notwithstanding the plain language of rule 25 (a), which
requires a judge to decide a motion for a required finding at
the close of the Commonwealth's case "at that time," the judge
reserved decision over the defendant's objection. The defendant
then was required to rest or put on his case. At the close of
all the evidence, the defendant again sought a motion for a
required finding, and the judge submitted the case to the jury
pursuant to Mass. R. Crim. P. 25 (b) (1), as amended, 420 Mass.
1502 (1995), also over the defendant's objection. After the
jury returned a verdict of guilty of murder in the second
degree, the defendant renewed his motion under rule 25 (a). In
the alternative, he sought relief pursuant to Mass. R. Crim.
P. 25 (b) (2), as amended, 420 Mass. 1502 (1995). At the
defendant's suggestion, the judge allowed the defendant's
rule 25 (a) motion, nunc pro tunc, to the close of the
Commonwealth's case. The Commonwealth subsequently filed a
petition for relief pursuant to G. L. c. 211, § 3, in the county
court, and the single justice reserved and reported two
questions to the full court.
We conclude that the judge erred in reserving decision on
the defendant's rule 25 (a) motion filed at the close of the
Commonwealth's case, and that the error violated the defendant's
right to due process. In addition, the error permeated the 3
remainder of the trial. In allowing the motion for a required
finding nunc pro tunc after the jury returned their verdict, the
judge abused her discretion and deprived the Commonwealth of its
right to appeal from a postverdict acquittal. See Mass. R.
Crim. P. 25 (c) (1), 389 Mass. 1107 (1983). Both parties,
therefore, were harmed by judicial error. Because the initial
error implicated the defendant's constitutional rights and
infected the remainder of the trial, however, we are constrained
to conclude that the Commonwealth may not appeal from the
allowance of the motion.1
1. Background. In November 2016, the defendant was
indicted on charges of murder in the first degree, G. L. c. 265,
§ 1, and assault and battery by means of a dangerous weapon,
G. L. c. 265, § 15A (b), in the shooting death of Chaz Burton.
The defendant was tried before a Superior Court jury.2 At
the close of the Commonwealth's case, he moved under Mass. R.
Crim. P. 25 (a) for a required finding of not guilty as to the
1 We acknowledge the amicus brief submitted by the Committee for Public Counsel Services.
2 The defendant was tried jointly with codefendant Fabian Llano, who was indicted on charges of murder in the first degree, G. L. c. 265, § 1; two counts of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b); and intimidation of a police officer, G. L. c. 268, § 13B. The codefendant was acquitted on the charge of murder and convicted of the other charges. 4
charge of murder.3 During a hearing on the motion, the judge
observed that murder premised on a theory of extreme atrocity or
cruelty was "totally unsupported" by the evidence. In addition,
she noted that there was no evidence as to the identity of the
shooter or the circumstances under which the shooter had acted.
The judge summarized the Commonwealth's case as, "some unknown
person came down in the middle of [a] melee and shot [the
victim] as he was apparently waving a knife" at others, after
having stabbed "at least" two people. Based on the evidence of
the victim's conduct, the judge said that "there [was] certainly
evidence raised of self-defense, [and] defense of others, enough
so that the Commonwealth then [had] to prove beyond a reasonable
doubt that the perpetrator was not acting in self-defense" or in
defense of others.4 The judge also said that the Commonwealth
3 The defendant did not challenge his conviction of assault and battery by means of a dangerous weapon.
4 In reviewing the defendant's motion for a required finding at the close of the Commonwealth's case, the judge asked the prosecutor,
"Since we have no idea who this shooter is and why he or she did what they did and the circumstances under which they acted, and understanding that an unlawful killing is one . . . where the Commonwealth can prove that the individual did not act in self-defense or defense of others but with the requisite intent for first degree murder, how are you going to be able to prove that, given that we have no idea who the shooter is and the circumstances under which the shooter acted? How can you argue to the jury that the shooter committed murder, which I think is a 5
had failed to present any such evidence and thus that the
Commonwealth had not proved that the killing was unlawful. She
noted, as well, that the Commonwealth had presented no evidence
that the defendant had aided or abetted the shooter. For all
practical purposes, the judge thus deemed the evidence
insufficient to convict the defendant of murder.
Acting under an apparent misapprehension of the
requirements of Mass. R. Crim. P. 25 (a), however, the judge
said that she was "inclined to reserve" decision on the
defendant's rule 25 (a) motion filed at the close of the
Commonwealth's case, in order to "let the jury decide it" and to
avoid a retrial. The defendant objected, arguing that he was
"entitled to a judgment of acquittal at [that] stage" of the
trial. The Commonwealth did not object, and indeed made no
comment concerning the reservation of decision.
At the close of all the evidence, the defendant again
sought a directed verdict under Mass. R. Crim. P. 25 (a) with
respect to the indictment charging murder in the first degree;
the judge reserved decision pursuant to Mass. R. Crim. P.
25 (b) (1). After four days of deliberation, the jury convicted
the defendant of murder in the second degree and assault and
battery by means of a dangerous weapon.
necessary prerequisite for the defendant[] to be found guilty under a theory of joint venture?" 6
The defendant subsequently moved to renew the rule 25 (a)
motion that he had filed at the close of the Commonwealth's
case. He also moved, in the alternative, for a required finding
of not guilty, or other relief, under Mass. R. Crim. P.
25 (b) (2). At a hearing on the motion, the defendant argued
that it was error for the judge to have reserved decision on the
rule 25 (a) motion filed at the close of the Commonwealth's
case, and requested that the judge allow the motion nunc pro
tunc to the time it had been filed. The Commonwealth did not
object to, or otherwise address, the defendant's request to
allow his rule 25 (a) motion nunc pro tunc, but did argue that
it had presented sufficient evidence to overcome a motion for
required finding of not guilty.
The judge explained that she had reserved decision on the
rule 25 (a) motion filed at the close of the Commonwealth's case
because she had been "[c]onfident that the jury would see the
deficiencies" in the Commonwealth's evidence. She explained
further that "there was only one verdict that was legally
possible in [her] view, and that was a verdict of not guilty on
the murder charge." The judge outlined her view of
"deficiencies" in the evidence, including insufficient evidence
of an unlawful killing, of aiding and abetting, and of the 7
shooter's identity.5 Reiterating an apparent misapprehension of
5 The judge observed,
"This Court . . . disagrees with the Commonwealth when it appears to suggest that [the defendant's] kicking of [the victim] somehow contributed to his death. In short, a tie between [the defendant] and the shooter is critical, and the evidence showing beyond a reasonable doubt that [the defendant] assisted the shooter in some way in bringing about that death was required, and that evidence was simply missing.
"There was no evidence of any kind of any interaction between [the defendant] and the shooter, whoever that shooter may have been. Indeed, there was no evidence the shooter was even a guest at the . . . birthday party, much less that he or she was part of the group that followed [the victim] into the hallway or that [the defendant] knew or even met that person. There was no evidence any gun was displayed at any time before the shooting or that [the defendant] had any advance knowledge that anyone was so armed. . . .
"[T]he evidence showed that . . . family and friends surrounded [the victim] in the hallway armed with stakes, a bottle, a shoe and a knife. If this were enough to support a joint venture as to murder, then one wonders why everybody involved in the melee was not charged with murder. That they were not suggests that the Commonwealth itself knew that this evidence was legally insufficient.
"Moreover, unlike several others charged in this case, [the defendant] himself was not armed at any time with any weapon. There was no evidence he was involved in any argument with [the victim] at the party much less that he even knew about one. There was no evidence he played any part in the fighting that occurred outside the building. And although he was in the hallway, there's no evidence he did anything in the hallway except be present there. This is in contrast to [the codefendant], who is convicted of throwing a trash can in the hallway. That [the defendant] kicked [the victim] after he had been fatally shot is not in and of itself enough to support the jury's finding of second degree murder, and yet that would appear to be the evidence upon which the jury relied." 8
the provisions of Mass. R. Crim. P. 25 (a), the judge said that
she had "always thought that if [she] allowed a motion for a
directed verdict at the close of the Commonwealth's case," her
decision "could be appealed by the Commonwealth and could be
reviewed" by an appellate court.
Ultimately, the judge allowed the defendant's rule 25 (a)
motion nunc pro tunc to the close of the Commonwealth's case.
In the alternative, the judge allowed the defendant's motion
under rule 25 (b) (2) for a required finding as to the murder
charge.6 The prosecutor did not object, and did not seek
reconsideration of the judge's decision. Instead, the
Commonwealth filed a notice of appeal in the Superior Court and
entered its appeal in the Appeals Court. Because the appeal was
prematurely filed, it was dismissed without prejudice.
6 Before issuing her ruling under Mass. R. Crim. P. 25 (b) (1), as amended, 420 Mass. 1502 (1995), the judge addressed defense counsel as follows,
"[Counsel], let me just ask you one more question. Going back to the distinction you've made between the required finding at the close of the Commonwealth's case that you say is unreviewable and this discretionary finding and this, frankly, surprising revelation to me that I'm not sure I agree with that it cannot be appealed, let's say you were wrong on that for a minute and that if I were to rule on the motion at the close of the Commonwealth's case, nunc pro tunc, or whatever, that that was reviewable, wouldn't it be a good idea for me to also visit or rule on the second part of your argument? In other words, if I were to allow this motion, I feel very confident that the Commonwealth would appeal." 9
The defendant filed a motion in the Superior Court to
strike the Commonwealth's notice of appeal. He argued that the
allowance of his rule 25 (a) motion, nunc pro tunc to the close
of the Commonwealth's case, constituted an unreviewable
acquittal under principles of double jeopardy. The Commonwealth
then filed a petition pursuant to G. L. c. 211, § 3, in the
county court, seeking relief from the judge's decision to allow
the rule 25 (a) motion nunc pro tunc. The defendant opposed the
petition.
The single justice stayed the defendant's motion to strike
the notice of appeal in the Superior Court, and reserved and
reported the following questions to the full court:
"1. Whether a judge may reserve ruling on a [Mass. R. Crim. P. 25 (a)] motion made at the close of the Commonwealth's case and, after the jury has returned a guilty verdict, allow that motion nunc pro tunc to the close of the Commonwealth's case, or whether such a ruling falls under [Mass. R. Crim. P. 25 (b)]?
"2. May such a ruling be appealed by the Commonwealth?"
After argument before us, and while the matter was under
advisement, the Commonwealth again entered an appeal in the
Appeals Court. The defendant's motion to stay that appeal was
allowed.
2. Discussion. a. Waiver. The Commonwealth did not
object when the judge reserved decision on the motion for a
directed verdict filed at the close of the Commonwealth's case. 10
When the judge ultimately allowed the motion nunc pro tunc, the
Commonwealth did not object to the entry nunc pro tunc, but did
object to the conclusion that the evidence was insufficient.
Therefore, the defendant contends that the Commonwealth has
waived any claims concerning the reservation of decision and the
entry nunc pro tunc. In its petition to the county court, and
in its brief before this court, the Commonwealth has not
addressed the question of waiver.
As the defendant points out, "[i]t is a fundamental
principle of appellate review that a prompt objection at trial
is a prerequisite to the presentation of an issue for appellate
review." Commonwealth v. Andrade, 481 Mass. 139, 141-142
(2018), quoting Commonwealth v. Gallison, 383 Mass. 659, 669
(1981). "Prompt objections by parties allow judges to cure any
defects in the proceedings when they occur." Andrade, supra at
141 n.2. "A party may not remain 'mute as to a particular
procedure, abiding the event of decision and, finding the
decision unfavorable, attack . . . that decision as procedurally
defective'" (citation omitted). Commonwealth v. DelVerde, 401
Mass. 447, 448 n.2 (1988).
We long have held that "we need not consider an argument
that urges reversal of a trial court's ruling when that argument
is raised for the first time on appeal." Commonwealth v.
Bettencourt, 447 Mass. 631, 633 (2006). See, e.g., Commonwealth 11
v. Fredericq, 482 Mass. 70, 84 n.9 (2019) ("We will not here
address the merits of that argument because the Commonwealth did
not argue it below . . ."); Commonwealth v. Alexis, 481 Mass.
91, 101 (2018) (argument waived because Commonwealth raised it
for first time on appeal); Commonwealth v. Leslie, 477 Mass. 48,
58 (2017) ("The Commonwealth failed to raise this argument
below, and therefore it is waived"); Commonwealth v. Dery, 452
Mass. 823, 825 (2008) ("we conclude that the Commonwealth
forfeited any such claim when it failed to object");
Commonwealth v. Black, 403 Mass. 675, 677-678 (1989)
(Commonwealth's argument "has no force" where Commonwealth
"failed to object" and "willingly" participated in proceedings
"potentially dispositive of the case"). Thus, we ordinarily
decline to consider on appeal the merits of an argument that was
not presented in the trial court.
Nonetheless, we do "occasionally exercise our discretion"
to consider an issue that is raised for the first time on
appeal. See Bettencourt, 447 Mass. at 633. We generally do so
only where "the questions presented are of some public
importance" and where "the outcome of the case is not changed by
our consideration of them" (citation omitted). Id. Contrast
Commonwealth v. Morrissey, 422 Mass. 1, 4 n.5 (1996) ("it is
rare for us to consider an argument for reversal of a lower
court which is first raised on appeal and is dispositive in 12
favor of the party belatedly raising the issue" [citation
omitted]). In addition, we may weigh whether the parties have
"fully briefed" the relevant issues, see Commonwealth v. Daniel,
464 Mass. 746, 755 (2013); Commonwealth v. Sheehy, 412 Mass.
235, 237 n.2 (1992), and whether an otherwise waived argument is
"essentially an extension" of an argument that was raised
properly, see Commonwealth v. Powell, 468 Mass. 272, 275 n.5
(2014).
Whether a trial judge may reserve decision on a preverdict
motion for a required finding under rule 25 (a), and then
retroactively allow that motion nunc pro tunc, is a question of
importance, the answer to which will affect the prosecution,
defense, and adjudication of numerous trials in our courts. The
outcome of this case is not changed by our consideration of the
Commonwealth's newly raised arguments, and the issues have been
fully briefed. Accordingly, in our discretion, we conclude that
the circumstances of this case warrant review of issues that
otherwise have been waived by the Commonwealth.
b. Reservation of rule 25 (a) decision. Because the
defendant objected when the judge reserved decision on his
motion under rule 25 (a) at the close of the Commonwealth's
case, the defendant's claims of error are preserved. When
reviewing preserved constitutional error, we must determine
whether the error was "harmless beyond a reasonable doubt." See 13
Commonwealth v. Tyree, 455 Mass. 676, 700-701 (2010).
Rules of procedure "have the force of law and may not be
disregarded by an individual judge" (citation omitted).
Commonwealth v. Brown, 395 Mass. 604, 606 (1985). "[T]o
interpret a rule of criminal procedure, we begin with the plain
language of the rule." Commonwealth v. Wright, 479 Mass. 124,
133 (2018), quoting Commonwealth v. Hanright, 465 Mass. 639, 641
(2013). When a defendant files a motion for a required finding
at the close of the Commonwealth's case, the plain language of
Mass. R. Crim. P. 25 (a) requires that the motion "shall be
ruled upon at that time."7 See Commonwealth v. Hurley, 455 Mass.
53, 68 (2009) ("the judge must rule on that motion at that time
and may not reserve it"). Indeed, we have said that rule 25 (a)
contains a "prohibition against reserving decision" on a motion
for a required finding filed at the close of the Commonwealth's
case. See id.
On appeal, the parties agree that it was error for the
judge to reserve decision on the defendant's motion for a
required finding filed at the close of the Commonwealth's case.
See Mass. R. Crim. P. 25 (a). With respect to prejudice caused
by this judicial error, we previously have concluded that
7 By contrast, when a motion for a required finding of not guilty "is made at the close of all the evidence, the judge may reserve decision" pursuant to Mass. R. Crim. P. 25 (b) (1). See, e.g., Commonwealth v. Therrien, 383 Mass. 529, 531 (1981). 14
because "the purpose" of a rule 25 (a) motion "is to protect 'a
defendant's right to insist that the Commonwealth present proof
of every element of the crime with which he is charged before he
decides whether to rest,' we discern no prejudice to the
Commonwealth" when a "judge reserve[s] judgment" on a rule
25 (a) motion "made at the close of the Commonwealth's case"
(emphases in original; citation omitted). See Commonwealth v.
Preston, 393 Mass. 318, 321 n.2 (1984).
The defendant, on the other hand, was prejudiced by the
judicial error. Rule 25 (a) of the Massachusetts Rules of
Criminal Procedure mandates that a judge "shall enter a finding
of not guilty of the offense charged . . . if the evidence is
insufficient as a matter of law to sustain a conviction on the
charge." The rule thus "protects a defendant's right to insist
that the Commonwealth present proof of every element of the
crime with which [the defendant] is charged before he decides to
rest or to introduce proof in a contradiction or exoneration."
Commonwealth v. Cote, 15 Mass. App. Ct. 229, 240 (1983).
Accordingly, a judge is precluded from reserving decision on a
rule 25 (a) motion that is filed at the close of the
Commonwealth's case. See Hurley, 455 Mass. at 68; Preston, 393
Mass. at 321 n.2; Cote, supra. See generally E.B. Cypher,
Criminal Practice and Procedure § 37:13 (4th ed. 2014). 15
When the judge reserved decision on the defendant's motion
for a directed verdict at the close of the Commonwealth's case,
she deprived the defendant of his right to insist that the
Commonwealth prove each element of murder beyond a reasonable
doubt before he decided whether to rest or to present a defense.
Such prejudice is manifest where, as here, the judge indicates
at the time of the reservation that she strongly favors allowing
the motion. Immediately prior to reserving a decision, the
judge observed that the Commonwealth had presented no evidence
to identify the killer or the circumstances under which the
shooter acted, or to show that the killing was unlawful, given
evidence that the shooter may have acted in self-defense or in
defense of others. In addition, the judge noted that murder
predicated on extreme atrocity or cruelty was "totally
unsupported" by the evidence. In effect, the judge told the
parties that the Commonwealth had presented insufficient
evidence to convict the defendant of murder. After the judge
made these statements, however, the trial proceeded, and the
defendant was put to the choice of deciding whether to rest or
to present a defense.
Writing for the United States Supreme Court in Smith v.
Massachusetts, 543 U.S. 462, 471-472 (2005), Justice Antonin
Scalia explained that "when, as here, the trial has proceeded to
the defendant's presentation of his case, the possibility of 16
prejudice arises." A "false assurance of acquittal on one count
may induce the defendant to present defenses to the remaining
counts that are inadvisable." Id. at 472. "The seeming
dismissal" of an indictment "may induce a defendant to present a
defense to the undismissed charge[] when he would be better
advised to stand silent." Id. See Cote, 15 Mass. App. Ct. at
240.
In an affidavit, defense counsel averred that, after "many
hours" of preparing the defendant to testify at trial, the
defendant was "prepared to do so" and likely would have been an
"effective trial witness." Based on the judge's statements
prior to reserving decision on the rule 25 (a) motion, however,
counsel "formed the opinion that the trial judge agreed that the
evidence was legally insufficient"; counsel therefore concluded
that it would be imprudent to put the defendant on the stand.
The Commonwealth does not dispute these assertions of prejudice.
See Tyree, 455 Mass. at 701.
Because the judge erroneously reserved decision on the
motion for a required finding at the close of the Commonwealth's
case, the defendant was prejudiced and was deprived of due
process.
c. Allowance of rule 25 (a) motion nunc pro tunc. On
appeal, the Commonwealth contends that the judge erred in
allowing the motion for a required finding nunc pro tunc to the 17
close of the Commonwealth's case, because the nunc pro tunc
doctrine may be used only to correct clerical errors in the
record. The defendant maintains that a judge may, in his or her
discretion, prevent a miscarriage of justice by entering a
judgment nunc pro tunc to a prior date.8
Making an entry nunc pro tunc has been described as a power
"inherent in the courts" that has been "exercised . . . from the
earliest times." A.C. Freeman, A Treatise on the Law of
Judgments 72-73 (4th ed. 1892) (Freeman). See Green v. Clerk of
the Mun. Court of the Dorchester Dist. of Boston, 321 Mass. 487,
491 (1947). "The function of a nunc pro tunc order in general is
to put upon the record and to render efficacious some finding,
direction or adjudication of the court made actually or
inferentially at an earlier time, which by accident, mistake or
oversight was not made matter of record, or to validate some
proceeding actually taken but by oversight or mistake not
8 The defendant argues that the retroactive allowance of his rule 25 (a) motion filed at the close of the Commonwealth's case, even if erroneously entered nunc pro tunc, nonetheless constituted an unreviewable acquittal under the double jeopardy clause of the Fifth Amendment to the United States Constitution. Accordingly, he argues, the Commonwealth's pending appeal must be dismissed. Because we conclude that an appeal by the Commonwealth is independently foreclosed, see Mass. R. Crim. P. 25 (c) (1), as amended, 420 Mass. 1502 (1995), we need not reach the constitutional claim. 18
authorized,"9 or "to prevent a failure of justice resulting,
directly or indirectly from delay in court proceedings
subsequent to a time when a judgment, order or decree ought to
and would have been entered, save that the cause was pending
under advisement."10 Perkins v. Perkins, 225 Mass. 392, 396
(1917).11
9 Entries made nunc pro tunc have been used, for example, to amend the court's record so as to correct docketing errors caused by the parties, see Donald v. Commonwealth, 452 Mass. 1029, 1030 (2008); Tavares v. Commonwealth, 443 Mass. 1014, 1014 n.1 (2005), and to remedy "clerical" omissions and errors. See Commonwealth v. Taylor, 113 Mass. 1, 4 (1873); State v. Maher, 35 Me. 225, 227 (1853). See generally F.J. Lippitt, Criminal Law as Administered in Massachusetts 275 (1879).
10Nunc pro tunc entries are commonly made "to prevent a failure of justice" that otherwise would result, "directly or indirectly," because of a "delay in court proceedings" arising from "a judgment, order or decree" that "ought to and would have been entered," except that "the cause was pending under advisement." See, e.g., Perkins v. Perkins, 225 Mass. 392, 396 (1917). See also Almeida Bus Lines, Inc. v. Department of Pub. Utils., 348 Mass. 331, 338 (1965); Miller v. Emergency Hous. Comm'n, 330 Mass. 693, 700 (1953); Diggs v. Diggs, 291 Mass. 399, 402 (1935). See generally A.C. Freeman, A Treatise on the Law of Judgments 73 (4th ed. 1892). The harmful delay must have been caused by the court rather than by a party to the case. See Zuker v. Clerk-Magistrate of the Brookline Div. of the Dist. Court Dep't of the Trial Court, 423 Mass. 856, 862 (1996); Agawam v. County of Hampden, 130 Mass. 528, 539 (1881); Terry v. Briggs, 12 Cush. 319, 319-320 (1853); Commonwealth v. Comm'rs of Highways for the County of Hampden, 6 Pick. 501, 507 (1828); Perry v. Wilson, 7 Mass. 393, 395 (1811).
11Certain aspects of the common-law nunc pro tunc doctrine have been codified. In civil matters, nunc pro tunc entries may be made under G. L. c. 235, § 4, a statute that is "declaratory of the common law." See Almeida Bus Lines, Inc., 348 Mass. at 337. "Clerical mistakes" in both civil and criminal cases may be corrected nunc pro tunc under Mass. R. Civ. P. 60 (a), 365 19
We review a judge's choice to enter a decision nunc pro
tunc for abuse of discretion. See Santos v. Chrysler Corp., 430
Mass. 198, 217 (1999). An abuse of discretion occurs when a
judge makes "a clear error of judgment in weighing the factors
relevant to the decision, such that the decision falls outside
the range of reasonable alternatives" (quotation and citation
omitted). See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
Of central importance here, a judge may not use his or her
authority to issue an order nunc pro tunc so as to contravene a
statutory mandate or a mandate established by court rule. See,
e.g., Commonwealth v. Asase, 93 Mass. App. Ct. 356, 360 (2018).
Compare Commonwealth v. White, 429 Mass. 258, 263 (1999). See
generally Freeman, supra at 264. Because the defendant's motion
under rule 25 (a) was filed at the close of the Commonwealth's
case, the judge was required to rule on it "at that time." See
Mass. R. Crim. P. 25 (a). See, e.g., Hurley, 455 Mass. at 68.
When the judge belatedly allowed the motion, nunc pro tunc to
Mass. 828 (1974), and Mass. R. Crim. P. 42, 378 Mass. 919 (1979), respectively. See Reporters' Notes to Rule 42, Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1878 (LexisNexis 2018) ("Rule 42 is limited to the correction of 'clerical mistakes' or errors 'arising from oversight or omission' and does not apply to the correction of errors of substance, such as an illegal sentence or improperly obtained conviction"). 20
the close of the Commonwealth's case, she thus contravened the
plain dictates of Mass. R. Crim. P. 25 (a). See Asase, supra.
The judge's application of the nunc pro tunc doctrine was
additionally egregious given that the timing of filing and
acting on motions for a required finding, explicitly set forth
in Mass. R. Crim. P. 25, implicates a defendant's due process
rights, on the one hand, see Cote, 15 Mass. App. Ct. at 240, and
the Commonwealth's right to appeal from a postverdict acquittal,
on the other hand, see Commonwealth v. Therrien, 383 Mass. 529,
536 (1981). These competing concerns illustrate the harm caused
to both a defendant and the Commonwealth when a judge
contravenes the mandates of Mass. R. Crim. P. 25 (a) and later
enters a ruling nunc pro tunc after the jury verdict.
For these reasons, we conclude that the judge abused her
discretion in allowing the defendant's motion nunc pro tunc to
the close of the Commonwealth's case.
d. Applicable provision of Mass. R. Crim. P. 25. "[I]n
determining whether the Commonwealth may take an appeal from a
judicial action, we look to the true nature of the action rather
than to what it has been termed or to its particular form"
(citation omitted). See, e.g., Commonwealth v. Brangan, 475
Mass. 143, 147 (2016). See also Preston, 393 Mass. at 322-323
("We have long held that pleadings are to be treated 'according
to their nature and substance' rather than their technical form" 21
[citation omitted]). We therefore are "not bound by labels or
checkmarks on a form" (citation omitted). Brangan, supra.
To discern the "true nature" of a defendant's motion, we
have considered whether "the defendant brought [the]
motion . . . as soon as procedurally possible, and well before
the jury returned their verdict." Id. We also have examined
whether the motion was allowed after the jury verdict as a
result of "any other action of the defendant" and whether the
time of the allowance "instead [was] due to the trial judge's
decision to take the defendant's motion under advisement." Id.
In considering these nonexhaustive factors, we also have looked
to the judge's statements, writings, and actions. See id. at
147-148.
Here, as stated, the defendant filed a motion for a
required finding under Mass. R. Crim. P. 25 (a) at the close of
the Commonwealth's case; this was both "as soon as procedurally
possible" and "well before the jury returned their verdict."
See Brangan, 475 Mass. at 147. See also Mass. R. Crim. P.
25 (a). The postverdict disposition of that motion was in no
way attributable to the defendant. When the judge reserved her
decision, the defendant objected, explaining that he was
entitled to a finding at that time. Moreover, the judge's
stated reasons for reserving the decision over the defendant's
objection were based upon an evident misapprehension of the 22
requirements of Mass. R. Crim. P. 25 (a). The reservation did
not suggest in any way an intention later to deny the
defendant's motion. To the contrary, the judge "tipped [her]
hand" in stating at the hearing that the evidence failed to
demonstrate a number of elements of the offense. In essence, at
the close of the Commonwealth's case, the judge deemed the
evidence insufficient to convict the defendant of murder.
In these circumstances, "[t]o allow [a] motion to be
appealed simply because it was granted postverdict would be to
change the character of the motion" filed preverdict. Brangan,
475 Mass. at 148. Accordingly, we conclude that the defendant's
preverdict motion must be viewed under Mass. R. Crim. P. 25 (a),
rather than under Mass. R. Crim. P. 25 (b). Therefore, any
appeal by the Commonwealth is foreclosed by court rule. See
Mass. R. Crim. P. 25 (c) (1); Berkwitz, petitioner, 323 Mass.
41, 47 (1948) ("rules of court . . . have the force of law and
are just as binding on the court and the parties as would be a
statute").
3. Conclusion. As to the first reported question, a judge
may not reserve decision on a motion for a required finding of
not guilty under Mass. R. Crim. P. 25 (a) that is filed at the
close of the Commonwealth's case. Nor may a judge allow such a
motion, nunc pro tunc, after the jury have rendered their
verdict. In the circumstances of this case, the defendant's 23
preverdict motion must be viewed under Mass. R. Crim. P. 25 (a),
rather than under Mass. R. Crim. P. 25 (b). Therefore, we
answer the second reported question in the negative: the
Commonwealth may not appeal from the judge's ruling.
The matter is remanded to the county court for entry of an
order affirming the allowance of the motion for a directed
verdict, pursuant to Mass. R. Crim. P. 25 (a), and for entry of
an order in the Appeals Court dismissing the Commonwealth's
appeal.
So ordered.