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SJC-12037

                  COMMONWEALTH   vs.   JAHMAL BRANGAN.



            Hampden.     April 7, 2016. - August 12, 2016.

 Present:     Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                              Hines, JJ. 1


         Practice, Criminal, Appeal by Commonwealth, Mistrial.



     Indictment found and returned in the Superior Court
Department on February 25, 2014.

     The case was tried before Mark D. Mason, J., and a mistrial
was ordered by him.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Amal Bala, Assistant District Attorney, for the
Commonwealth.
     Merritt Schnipper for the defendant.


     CORDY, J.    On March 13, 2015, a jury convicted the

defendant of armed robbery while masked, in violation of G. L.

c. 265, § 17.    During closing argument, the defendant objected

     1
       Justice Duffly participated in the deliberation on this
case prior to her retirement.
                                                                   2


to a series of the prosecutor's statements, and at its

conclusion moved for a mistrial, claiming that those statements

constituted prejudicial error.   The trial judge, who had given

curative instructions in response to the defendant's objections,

took the defendant's motion under advisement, gave the jury

final instructions, and placed the case in their hands for

deliberations.

     After the jury returned a guilty verdict, the judge

solicited briefs from both parties on the prejudicial error

issue and held a nonevidentiary hearing.   He then granted the

defendant's motion for a mistrial, 2 ordering that the defendant's

indictment would stand for retrial.   The Commonwealth sought an

appeal of the judge's decision pursuant to G. L. c. 278, § 28E,

suggesting that the judge had granted a motion for a new trial,

as opposed to a mistrial.   The case was entered in the Appeals

Court, and we allowed the defendant's motion for direct

appellate review.

     On appeal, the Commonwealth argues that, although an order

granting a mistrial is generally not appealable, we have

jurisdiction to hear its appeal pursuant to G. L. c. 278, § 28E,

because the defendant's motion, granted after the verdict, was

akin to a motion for relief from a guilty verdict under the

     2
       The judge also denied the Commonwealth's motion to stay
proceedings pending an appeal after concluding that the
Commonwealth had no right to appeal his order.
                                                                      3


Massachusetts Rules of Criminal Procedure. 3   See Mass. R. Crim.

P. 25 (c), as amended, 420 Mass. 1502 (1995) (right of appeal

where motion for required finding of not guilty granted after

verdict of guilty); Mass. R. Crim. P. 30 (c) (8), as appearing

in 435 Mass. 1501 (2001) (right of appeal where motion for new

trial granted).    Because we conclude that the timing of the

order granting the defendant's motion for a mistrial, brought

prior to the verdict, did not change the character of that

motion, the Commonwealth is not entitled to an appeal.

     1.   Background.   We summarize the facts in the light most

favorable to the Commonwealth.    On January 17, 2014, a bank in

Springfield was robbed.    The robber passed a note to the bank

teller stating that he had a weapon and demanding that she give

him money.    The robber fled the bank after obtaining less than

$1,000.    The police arrived at the bank a short time later.   The

responding officer instructed the bank employees to leave the

note untouched.    The note was collected as evidence and

processed for fingerprints within hours of the commission of the

crime.    The defendant was arrested after his thumbprint was

found on the note.




     3
       General Laws c. 278, § 28E, provides in relevant part that
the Commonwealth may take an appeal "from a decision, order or
judgment of the court . . . allowing a motion for appropriate
relief under the Massachusetts Rules of Criminal Procedure."
                                                                       4


     At trial, a police officer testified that, in addition to

the defendant's thumb print, the note was marked by a "right

hand writer's palm" print.   While the palm print was unusable

for purposes of seeking a match with the defendant, the officer

opined that, because of the position and orientation of the

print, the person who wrote the note was likely left-handed.

     During the Commonwealth's closing argument, the prosecutor,

in an attempt to link the defendant to the writer's palm print

left on the robbery note, stated to the jury:    "it would be

impossible to write the note right-handed and put that mark on

the note.   Left-handed, someone holding the paper [sic].     You've

got to watch [the defendant] the whole trial take his notes

left-handed."   The defendant objected to the prosecutor's

statement on the basis that evidence of the defendant's left-

handedness was not introduced through a witness at trial. 4      The

judge struck the statement and gave curative instructions to the

jury after the objection was made. 5   As noted, the defendant

orally moved for a mistrial at the end of the Commonwealth's

     4
       The defendant lodged three objections during the
Commonwealth's closing argument, only one of which is relevant
for the purposes of this appeal. All three objections were
sustained, and the judge gave the jury limiting instructions on
each. The judge, however, only granted the mistrial due to the
left-handedness statement.
     5
       The judge informed the jury that the statement about the
defendant writing with his left hand "is not evidence and will
not be construed as evidence for your purposes during the course
of your deliberations."
                                                                    5


closing argument, and the judge took the motion under

advisement.

     After the jury's guilty verdict was entered, 6 the judge

informed counsel that the defendant's motion for a mistrial

remained pending.   The defendant requested that his prior motion

for a mistrial be both briefed and heard, which the judge

allowed, explaining that the defendant should "reduce [his]

motion for mistrial to writing."   The judge also requested that

any motions for postconviction relief be submitted in

conjunction with the motion for a mistrial.

     The defendant filed a brief in support of his motion for a

mistrial.   After a nonevidentiary hearing, the judge issued a

detailed memorandum of decision allowing the defendant's motion

for a mistrial and ordering a retrial.   In his memorandum, the

judge concluded as follows:

     "[b]ased on personal observations at trial and the evidence
     before the jury, . . . the error went to the heart of [the
     defendant's] defense and did make a difference in the
     jury's conclusion. The error was prejudicial. Despite the
     Court's best efforts to immediately strike the prosecutor's
     comment and instruct the jury appropriately, no curative
     instruction would have been sufficient to mitigate the
     excessive nature of the prosecutor's comment. [The
     defendant] has overcome the presumption that the jury
     followed the Court's curative instructions pertaining to
     this issue."




     6
       The jury deliberated for eleven hours over three days
before rendering their verdict.
                                                                   6


     The Commonwealth moved to stay proceedings subsequent to

the issuance of the order allowing the defendant's motion for a

mistrial. 7   The judge denied the order, holding that a

"[m]istrial where, as in this case, retrial has been ordered

'ordinarily is neither appealable by the Commonwealth nor a bar

to retrial on double jeopardy grounds.'    Commonwealth v. Curtis,

53 Mass. App. Ct. 636, 639 [2002]."    The Commonwealth now

appeals the judge's order granting the defendant's motion for a

mistrial, and argues that it is entitled to such appeal because

the order came after the jury's verdict.

     2.   Discussion.   a.   Characterization of the motion.

Generally, when a mistrial is ordered upon a defendant's motion,

such order is not appealable by the Commonwealth when a new

trial is contemporaneously ordered because the order granting

the mistrial does not dispose of the case with finality.

See Commonwealth v. Lam Hue To, 391 Mass. 301, 310-311 (1984).

Contrast Curtis, 53 Mass. App. Ct. at 639 (dismissal of

complaint with prejudice pursuant to motion for mistrial

reviewable because "[t]he essence of the judicial action was

finality").    On the other hand, where a judge has granted a

postverdict motion for a new trial, see Mass. R. Crim. P. 30

(b), 378 Mass. 896 (1979), or a postverdict motion for a


     7
       The Commonwealth labeled the judge's order as an order
allowing the defendant's motion for a new trial.
                                                                     7


required finding of not guilty, see Mass. R. Crim. P. 25 (b)

(2), as amended, 420 Mass. 1502 (1995), that decision is

appealable.   See G. L. c. 278, § 28E.   Therefore, whether the

Commonwealth's appeal is properly before us turns on the

procedural posture of the trial judge's order granting the

defendant's motion for a mistrial.

     The Commonwealth argues that the trial judge's decision to

take the defendant's motion for a mistrial under advisement,

coupled with the defendant's filing of a supplemental brief in

support of it, turns this case from an average mistrial case

into an order that is appealable.    We disagree.   There is no

question that the judge intended to grant a mistrial.     He had a

"practice" of taking motions for a mistrial under advisement,

acknowledged that the defendant's motion was still pending after

the verdict, and, in his order, explicitly allowed the

defendant's "[m]otion for [a] [m]istrial." 8   However, "[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." Curtis, 53 Mass. App. Ct. at 639, citing Commonwealth

v. Hosmer, 49 Mass. App. Ct. 188, 189-190 (2000) ("We are not

bound by labels or checkmarks on a form").     See Commonwealth

     8
       Additionally, the judge requested that the defendant file
any motions for postconviction relief with his supplementary
brief on his motion for a mistrial.
                                                                    8


v.Powers, 21 Mass. App. Ct. 570, 571 (1986), citing Commonwealth

v. Preston, 393 Mass. 318, 322-323 (1984).

     In support of its argument that the order directing that

there be a retrial was a form of postverdict relief, the

Commonwealth cites to Powers, supra.   In Powers, 21 Mass. App.

Ct. at 571, a mistrial was granted on the defendant's motion

filed after the jury foreperson announced that the jury found

the defendant guilty, but the jury's verdict slip was

erroneously marked "not guilty."   The Commonwealth appealed,

arguing that it had the authority to do so on the basis that the

defendant's motion, although labeled a motion for a mistrial,

was truly a motion for a new trial.    See id. at 571-572.    The

Appeals Court, noting that the motion was brought after the jury

returned its verdict and that the judge, in ruling on the

motion, referred to it as a motion for a new trial, held that

the motion was "in the nature and substance of a motion for a

new trial," and was thus appealable.    Id. at 572.

     The procedural posture of the motion in Powers differs

significantly from that of the defendant's in the present case.

Here, the defendant brought his motion for a mistrial as soon as

procedurally possible, and well before the jury returned its

verdict.   The fact that the mistrial was granted after the

verdict was not a result of when the motion was brought or any

other action of the defendant, but instead due to the trial
                                                                   9


judge's decision to take the defendant's motion under

advisement.   We have previously condoned the practice of taking

motions for mistrial under advisement until after the jury

return their verdict, and we see no reason to depart from that

position based on the circumstances presented in this case.

See Commonwealth v. Murchison, 392 Mass. 273, 275 (1984)

("judge's decision to defer action on the defendant's motion for

a mistrial until after the verdict was one of fairness and

common sense").

     Our conclusion is supported by the policy implications

arising from a judge's decision to defer judgment on a

defendant's motion for a mistrial in the present circumstances.

Where a defendant's motion for a mistrial is brought during

closing arguments and presents a close question, a judge's

decision to defer ruling on the motion until after the jury

return their verdict enhances judicial efficiency and preserves

valuable judicial resources by "obviating the need for a retrial

should the verdict result in an acquittal."   See Robinson

v. Commonwealth, 13 Va. App. 574, 577 (1992).   See

also Companioni v. Tampa, 51 So. 3d 452, 455 (Fla. 2010),

quoting Ed Ricke & Sons v. Green, 468 So. 2d 908, 910 (Fla.

1985) ("it is quite reasonable for a trial judge to reserve

ruling [on a motion for a mistrial] until after the jury
                                                                    10


deliberates in the hope that the jurors can rise above the

alleged prejudice and cure the error"). 9

     That the judge took the defendant's motion under advisement

was a reflection on the complexity of the issue.    To allow such

motion to be appealed simply because it was granted postverdict

would be to change the character of the motion.    Allowing the

judge to take the motion under consideration affords the judge

the opportunity to effectively balance the need to maintain

judicial resources with the principles of fairness to which each

criminal defendant is entitled.   Because the defendant's motion

cannot be characterized as a motion for relief from a guilty

verdict pursuant to either rule 25 (b) (2) or rule 30 (b), the

Commonwealth has no right to appeal the judge's order granting

the defendant's motion for a mistrial and ordering that the

defendant be retried. 10

     b.   Double jeopardy.   The defendant argues that he is

entitled to an analysis of the sufficiency of the evidence in

order to determine whether double jeopardy bars his retrial

     9
       Our endorsement of this practice in the circumstances of
this case should not be construed as encouraging judges to defer
acting on such motions based on errors that occur earlier in a
trial where deferral would not necessarily promote the same
policy of judicial economy.
     10
       Our holding in this case does not limit our general
superintendence powers set forth in G. L. c. 211, § 3. If a
judge's mistrial determination constitutes particularly
egregious error, such a decision remains reviewable by this
court. See id. We find no such error here.
                                                                    11


pursuant to Berry v. Commonwealth, 393 Mass. 793 (1985).     "The

United States Constitution and Massachusetts common and

statutory law protect criminal defendants from being twice

placed in jeopardy for the same crime."    Choy v. Commonwealth,

456 Mass. 146, 149, cert. denied, 562 U.S. 986 (2010).

See Commonwealth v. Beal, 474 Mass. 341, 353-354 (2016),

quoting Burks v. United States, 437 U.S. 1, 11 (1978)

(Massachusetts common-law double jeopardy rule "forbids a second

trial for the purpose of affording the prosecution another

opportunity to supply evidence which it failed to muster in the

first proceeding").

     The judge, in granting the motion for a mistrial,

determined that the Commonwealth could retry the defendant,

because the prosecutor's misconduct did not reach such a level

as to warrant dismissal of the indictment against the defendant

due to double jeopardy.   See Murchison, 392 Mass. at 275-276.

The defendant did not appeal the trial judge's conclusion that

double jeopardy would not bar a retrial, nor did he file a

motion to dismiss his case based on the insufficiency of the

evidence at the first trial.    The issue is therefore not

properly before us on appeal.    See Pena v. Commonwealth, 426

Mass. 1015, 1016 & n.2 (1998) (double jeopardy appeal not

procedurally sound unless Commonwealth has sought to retry

defendant and defendant has filed motion to dismiss).
                                                               12


     3.   Conclusion.   The trial judge's order granting the

defendant's motion for a mistrial is not appealable, and the

indictment stands for retrial.

                                     So ordered.
