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Commonwealth v. Brangan

Supreme Judicial Court of Massachusetts, Hampden

August 12, 2016


          Heard: April 7, 2016.

         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.

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

          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 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 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.

         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 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 ...

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