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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

(2014).

    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.
