Commonwealth v. Brangan, 56 N.E.3d 153

Background

Defendant was tried for armed robbery while masked after his thumbprint was found on a robbery note; a police witness testified the palm mark on the note suggested the writer was left-handed.
During the Commonwealth's closing, prosecutor commented the defendant took notes left‑handed; defense objected because left‑handedness had not been introduced as evidence.
The trial judge struck the remark, gave curative instructions, and the defense moved for a mistrial; the judge took the motion under advisement rather than ruling immediately.
The jury deliberated and returned a guilty verdict; only then did the judge hold a nonevidentiary hearing, grant the defendant's motion for a mistrial, and order a retrial.
The Commonwealth sought to appeal the judge's postverdict order, arguing it was in substance postverdict relief (and thus appealable under G. L. c. 278, § 28E); the judge denied a stay and the Supreme Judicial Court reviewed the appeal.

Issues

Issue	Plaintiff's Argument (Commonwealth)	Defendant's Argument (Brangan)	Held
Whether the Commonwealth may appeal the judge's order granting a mistrial after the jury returned a guilty verdict	The postverdict grant and briefing converted the mistrial into postverdict relief (akin to a new trial), making it appealable under G. L. c. 278, § 28E	The motion was a pre‑verdict mistrial motion taken under advisement; its postverdict grant did not change its character and is not appealable by the Commonwealth	Court held the order was a mistrial in substance, not postverdict relief, and therefore not appealable by the Commonwealth
Whether the judge's practice of deferring ruling until after verdict affects appealability	Postverdict grant plus briefing makes it appealable	Taking motions under advisement is permissible and does not convert the motion's character	Court upheld the judge's discretion to defer and rejected conversion into appealable postverdict relief
Whether double jeopardy bars retrial because of prosecutorial misconduct	Commonwealth argued retrial permissible; judge found misconduct prejudicial but not dismissal‑level	Brangan argued retrial should be barred; he sought sufficiency review under Berry	Court declined to review double jeopardy sufficiency because defendant did not timely challenge or appeal that ruling; issue not before the Court
Whether exceptional supervisory review is available	Commonwealth sought review via appeal route	Defendant relied on ordinary rules foreclosing appeal	Court noted supervisory powers remain for egregious error but found none here; no appeal allowed

Key Cases Cited

Commonwealth v. Curtis, 53 Mass. App. Ct. 636 (Mass. App. Ct. 2002) (distinguishes final judicial action from routine mistrial orders)
Commonwealth v. Lam Hue To, 391 Mass. 301 (Mass. 1984) (mistrial granting with contemporaneous new trial not appealable)
Commonwealth v. Murchison, 392 Mass. 273 (Mass. 1984) (approving deferral of mistrial rulings until after verdict in appropriate cases)
Commonwealth v. Powers, 21 Mass. App. Ct. 570 (Mass. App. Ct. 1986) (postverdict motion labeled mistrial treated as new‑trial motion and appealable)
Berry v. Commonwealth, 393 Mass. 793 (Mass. 1985) (double jeopardy analysis and sufficiency review to bar retrial)
Burks v. United States, 437 U.S. 1 (U.S. 1978) (principle that reversal for insufficient evidence bars retrial)