Heard: April 7, 2016.
found and returned in the Superior Court Department on
February 25, 2014.
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.
Bala, Assistant District Attorney, for the Commonwealth.
Merritt Schnipper for the defendant.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
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.
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,  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
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. 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.
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.
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.
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. The judge struck
the statement and gave curative instructions to the jury
after the objection was made. 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
the jury's guilty verdict was entered,  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 ...