Commonwealth v. Lowder

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432 Mass. 92 (2000)

SPINA, J. At the trial of this criminal case, the trial judge entered findings of not guilty shortly after the prosecutor delivered his opening statement to the jury. We are asked to decide whether the judge acted within his authority. We conclude that judges have the power to enter findings of not guilty at the early stages of trial, that they should exercise this power only rarely, and that the judge abused his discretion by exercising it as he did in this case. We also conclude that double jeopardy principles bar the Commonwealth from trying the defendant anew for the offenses of which the judge acquitted him.

The defendant, Richard Lowder, was indicted and put on trial for two narcotics offenses. After a jury were empaneled, the prosecutor delivered his opening statement. A recess was declared, during which defense counsel objected to parts of the statement. The judge questioned the prosecutor briefly and announced that the statement did not state a case sufficient to be presented to a jury. Ignoring the prosecutor's request to be heard on the matter, the judge entered verdicts of not guilty on both indictments over the prosecutor's objection. Defense counsel did not object to the judge's action. The trial ended.

The Commonwealth petitioned this court pursuant to G. L. c. 211, § 3, for a declaration that a trial judge lacks the authority to enter a required finding of not guilty until the Commonwealth rests its case and for an order reinstating the prosecution in this case. A single justice denied the petition. The Commonwealth appealed from his decision to the full court....

The authority of judges to enter a finding of not guilty at the early stages of trial. The Commonwealth claims that the judge lacked the power to enter a finding of not guilty after the prosecutor's opening. We reject the Commonwealth's argument. Rule 25 (a) of the Massachusetts Criminal Rules of Procedure, 378 Mass. 896 (1979), states in part as follows:

"The judge on motion of a defendant or on his own motion shall enter a finding of not guilty of the offense charged in an indictment or complaint or any part thereof after the evidence on either side is closed if the evidence is insufficient as a matter of law to sustain a convic-tion on the charge."

The rule is silent as to the power of trial judges to enter a finding of not guilty before the evidence on either side is closed. The rule neither authorizes nor forbids judges to do so.

The text of former G. L. c. 278, § 11, offers us more guidance. Between 1855 and 1979, G. L. c. 278, § 11, provided in relevant part that the jury, "after receiving the instructions of the court, shall decide, in their discretion, by a general verdict, both the fact and the law involved in the issue, or they may, at their election, find a special verdict." The court, by contrast, was to "superintend the course of the trials, decide upon the admission and rejection of evidence, upon all questions of law raised during the trials and upon all collateral and incidental proceedings, and . . . charge the jury."

It would be an under-statement to say that the enactment of this language in 1855 was controversial. The language had originally been proposed as an amendment to the Massachusetts Constitution that failed in a close vote to win popular approval in 1853. The amendment was at least in significant part a response to the decision of this court in Commonwealth v. Porter, 51 Mass. (10 Met.) 263 (1845), which held that juries are obliged to obey the instructions of judges on questions of law. See Comment, The Changing Role of the Jury in The Nineteenth Century, 74 Yale L.J. 170, 177-183 (1964); M.D. Howe, Juries as Judges of Criminal Law, 52 Harv. L. Rev. 582, 608-610 (1939). In Commonwealth v. Anthes, 5 Gray 185 (1855), four of the six members of the court held that to the extent the statute conferred on the jury the power to determine questions of law against the directions of the court, the statute violated the State Constitution. See id. at 220, 222, 236 (Shaw, C.J., with whom Metcalf and Merrick, JJ., joined); id. at 251 (Bigelow, J.); Commonwealth v. Rock, 10 Gray 4, 5 (1857). Anthes made clear "that the jury in criminal trials have no rightful power to determine questions of law against the instructions of the court." Commonwealth v. Davis, 271 Mass. 99, 100, 170 N.E. 924 (1930). See Commonwealth v. Marzynski, 149 Mass. 68, 73, 21 N.E. 228 (1889).

Chief Justice Shaw's opinion in Anthes distinguished sharply between questions of law and questions of fact: the former were for the judge to decide, the latter for the jury. See id. at 193-194, 198-199 (Shaw, C.J., with whom Metcalf and Merrick, JJ., joined). If there was any doubt after Anthes whether the sufficiency of the evidence to support a conviction was a question of law for the court to decide, that doubt was dispelled five years later in Commonwealth v. Merrill, 14 Gray 415 (1860), which made clear that judges have the power and the duty to direct verdicts in favor of criminal defendants when the evidence is insufficient to convict them. Unlike its modern equivalent, the directed verdict at common law was not always a command that jurors were obliged to obey. The decision in Merrill was perceived by some as a departure from this more modest understanding of the directed verdict. The decision was cited within a dozen years of its issuance as sole authority for the statement that, "although as a general proposition the sufficiency of the evidence is for the jury, yet, if it is found not to cover every part of the case, the court will, as matter of law, order the prisoner's discharge." 1 J.P. Bishop, Commentaries on the Law of Criminal Procedure § 128, at 76-77 (2d ed. 1872).

We said in a civil case that "[a] trial judge always has had power to direct a verdict provided the law required it." Bothwell v. Boston Elevated Ry., 215 Mass. 467, 477, 102 N.E. 665 (1917). This statement applies with equal force to criminal cases in light of the trial judge's historic power to determine questions of law for the protection of criminal defendants. Cf. Commonwealth v. Sheehy, 412 Mass. 235, 240, 588 N.E.2d 10 (1992). In other words, "the traditional understanding in our system" is "that the application of the beyond-a-reasonable-doubt standard to the evidence is not irretrievably committed to jury discretion." Jackson v. Virginia, 443 U.S. 307, 317 n.10, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). See Commonwealth v. Anthes, 71 Mass. (5 Gray) 185 (1855); Commonwealth v. Porter, 51 Mass. (10 Met.) 263 (1845). Cf. BMW of North Am., Inc. v. Gore, 517 U.S. 559, 573 n.17, 134 L. Ed. 2d 809, 116 S. Ct. 1589 (1996). It was only in 1963 that G. L. c. 278, § 11, was amended to provide that judges must enter verdicts for defendants in certain circumstances. See St. 1963, c. 569. The Commonwealth's argument accordingly fails to the extent it rests solely on the ground that judges do not have the power to direct a verdict apart from statute. Cf. Galloway v. United States, 319 U.S. 372, 389-395, 87 L. Ed. 1458, 63 S. Ct. 1077 (1943). The Commonwealth's argument fares no better to the extent that it rests on the notion that a judge's power to direct a verdict for the defendant manifests itself no earlier than the close of the Commonwealth's evidence. This notion lacks support in our case law as well as in reason. ...

We conclude that judges have inherent power to enter a finding of not guilty in a criminal case after the prosecutor's opening statement. ...

So ordered.