*1 Keough. Commonwealth Keough. vs. John Middlesex. November [1981] . February 1982. Present: Wilkins, Lynch, & Hennessey, Liacos, Nolan, C.J., JJ. Criminal, Practice, Verdict, Required Finding by judge, Appeal finding, Commonwealth. Rules Criminal Procedure. by authority Mass. R. P. 25 A had under the second sentence of Grim. presented, as postverdict to act on a defendant’s motion which alternative, guilty manslaughter for a degree, in the second not- jury’s lieu of a verdict of he had reserved the defendant’s earlier mo- withstanding fact that tion, evidence, required finding for a made at close of all it to the subsequent jury’s of murder had denied [316-318] of Mass. R. Grim. P. 25 A under the second sentence guilty manslaughter lieu of a to order of a even though verdict of murder in the second
jury’s guilty of evidence, appellate review of verdict was warranted whether abused his determination is limited A his discretion did not abuse committed his discretion error of law. [319] of a finding of of murder in the of a lieu facts, those undisputed including showing where persons con- encounter in which crime to be result of a senseless alcohol, warranted conclusion were under the influence cerned closely “comported more with finding manslaughter jus- consonant with thus more weight of the [would be] of similar cases in pattern fitted into the and where the case tice” 278, 33E, had L. c. ordered acting under G. lesser [318-321] has no concurring, his view that the Commonwealth J., stated Liacos, P. 25 action Mass. Grim. from trial (b) (2). [322] Court found and returned in Superior Indictment May
Department *2 The case was tried before A motion for a Connolly, J. or, alternative, new trial for a finding guilty in lieu of the verdict of of murder guilty heard him. degree, The Court a for direct Supreme granted Judicial review. appellate Sahakian, Assistant for the W. District Attorney,
James Commonwealth.
Michael for the defendant. Reilly The Commonwealth has from an appealed J. Wilkins, order entered Court a verdict Superior vacating murder in the second entering guilty The Commonwealth that manslaughter. argues lacked to allow the judge defendant’s motion for authority reduction the verdict, which was filed under purportedly Rule 25 of the Massachusetts Rules Criminal Pro- cedure, It further even if (1979). argues did have to motion, entertain such judge authority could act motion if the favorably evidence did not Thus, warrant it verdict. claims that error was in judge relying evidence to reduce the verdict from murder in the second We affirm the manslaughter. judgment.1 1. The had the to act on the judge alternative, postverdict a re- presented, that the enter a quest judge of the offense of We summarize the manslaughter. procedural background. At the close of the case, the defendant moved for a required finding al- guilty. lowed the motion as to the of murder in the first de- charge took the balance of gree. the motion under advise- ment and denied it the course of trial. The defendant during moved at the close of all the evidence for required finding not reserved decision on that guilty. motion and 1The Commonwealth has the from a appeal involved here. See character Therrien, Mass. (1981); 532- Mass. (1981).
submitted the case On December jury. in the second returned a at the reserved made and the denied for a close all required finding a life of murder. The defendant was sentence given at the Massachusetts Correctional Institution Walpole. moved, 11, 1979, the December defendant sepa- On motions, for rate required (1) new trial pursuant made no motion Grim. P. 30 He (b), (1979). time for a reduction of Decem- notice 19, 1979, ber filed a from *3 1981, filed 6, On the defendant a January he alternatively, motion for a new trial in which requested, reduce reference to rule that without any to in the second degree manslaughter. verdict of murder motion relief 1981, filed a for 4, the defendant February he motion to in which renewed his rule pursuant for new a requested re- It is on latter
a manslaughter. a acted favorably that the after hearing, quest judge, memo- filed an extensive defendant on March 1981. He on the defendant’s and decision randum findings, rulings, acknowl- motion for relief under (b) (2). verdict. Nev- that the evidence warranted edged He imposed. the sentence ertheless, previously vacated find- motion for in considering concluded crime, filed under rule (b) lesser included ing guilt Supreme he had task similar Judicial A finding L. c. 33E. Court under G. the defendant was sentenced entered, and seven not less than of not more than ten years terma Institution at Wal- Correctional in Massachusetts
years appealed. pole. contention that
The merits motion to act on the authority lacked on a reading verdict a reduction depend seeking set full Rule which is forth rule (b) (2). Commonwealth i>. 2 is entitled “Motion for of Not
margin, Required Finding Guilty.” characterizes main Although heading focus rule that rule concerns more than mo simply tions of not This is required findings guilty. particularly true for rule 25 which deals with motions after The first sentence of discharged. rule 25 (b) (2) per mits a motion for a new trial to be presented conjunction with the renewal a denied motion for a required finding of not guilty. of the rule that a new language suggests could, should, be filed. At perhaps least it ap pears unlikely made, for a re previously quired would have already “include[d] in the alternative a motion for a new trial.”
All of this is from the second sentence of rule quite apart which authorizes after a verdict is judge, returned, to do one of three any addition, of things (in
2“Rule 25 MOTION FOR REQUIRED FINDING OF NOT GUILTY “(Applicable to District Court and Superior Court) “(a) ENTRY RY COURT. The judge motion of a defendant or on his own motion enter shall guilty of the offense charged 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 sus- *4 tain a conviction on the charge. If a defendant’s motion for a required finding of not guilty is made close of the Commonwealth’s evi- dence, it shall be ruled upon at that If time. the motion is denied or allowed part by the judge, the defendant may offer evidence in his defense without having reserved that right.
“(b) TRIALS. JURY (1) Reservation Decision on Motion. If a motion for a required finding not guilty is made at the close of all the judge may reserve decision on the submit the case to the jury, and decide the verdict, motion before the jury returns a after the jury returns a verdict of guilty, or after the jury discharged is having without returned a verdict. (2) Motion Discharge Jury. If the motion is denied and the After case is submitted to jury, the motion may be renewed within five days after the jury is discharged may and include in the alternative a motion for a new If returned, trial. a verdict of guilty is the judge may on motion set trial, aside the verdict and order a new or order the entry of a finding of not guilty, or order the entry of a finding of any offense in- cluded in the charged offense in the indictment or complaint.” 385 Mass. o.
Commonwealth to set its motion in course, entirety): (1) denying the en trial, to order order a new (2) aside the verdict and of a or to order the entry of not guilty, (3) try finding included within lesser offense any elected the of the indictment complaint. scope of guil entry these third of options. taken action did not duplicate ty manslaughter, time is there filed motion. Nor any under any previously sentence under the second of a motion limit on the filing on the time limit filing This absence rule 25 (b) (2). time limit the absence any motion is such a paralleled under Mass. for a new trial of a motion filing view our expressed P. 30 We stand by previously Crim. (b). motions, one of the second two rule 25 (b) (2) permits the verdict and to set aside involve a may a new or to order order the of a finding guilty, of a lesser trial, of a finding or to order 543, 552 See 529, 537 Therrien, n.6 (1981); re motion for a between a The distinction n.7 (1981). of not guilty (rule [b] quired finding [b] [1] of a finding a motion for [2], first sentence) [2], sentence) offense (rule [b] the different considers when apparent particularly on those in passing should apply standards issues.3 separate second conten- then to the Commonwealth’s come that, even assuming argues
tion. The Commonwealth whether rule question does not eliminate we have said What of a mo filing of time on the limitation impose should be amended a time Also, why, when there is the under its last sentence. tion presented (or been of rule the first sentence motion under ly question of a (the issues raising the same separate presented), trial) a new motion for perhaps required us, however, In the case before thereafter. any time be allowed *5 considered the judge effort because duplication judicial there is no includ of a lesser verdict to reducing once the that this court may suggest rule 25 (b) (2) under Experience offense. ed under of motions filing on the time limits impose the rule to amend should (b) (2). rule 25 sentence of the second in could act a reduction properly he no had guilt, give in defendant’s version of the events the face evidence that warranted We have held contrary findings. already whether to reduce verdict to deciding jury “[i]n offense, lesser rule under judge, acting be same considerations that guided have court in exercise its guided powers duties L. 278,] 33E, under c. to reduce a verdict.” [G. Gaulden, 555 (1981). The Commonwealth’s starts from a argument disadvantage because in almost in which this court case has reduced every the court concluded that the guilt, evidence warranted the verdict inter- but ests of substantial on record, a review of the entire justice the verdict the returned should be reduced. review a determination judge’s
to reduce offense, a verdict to “we consider only whether the committed abused his discretion or an error of law.” supra 557. We first set forth the evidence and then test the deci- sion to see if abused discretion his or committed error an of law.
We summarize the evidence
the Common-
presented by
wealth. The defendant stabbed the
victim the
heart
tween 1 a.m.
a.m. on
5, 1979,
1:30
January
causing
victim’s death. The victim and
male
three
friends had ar-
rived about
in a Volvo automobile at a
midnight
restaurant
on Route 28 in
Andover.
defendant and a
friend
male
were
bar,
at one
and the victim and his friends at another
bar, in the restaurant. The two
had no
at the
contact
groups
restaurant,
other,
did
know each
left the
restaurant
The victim’s
drove north
Route
separately.
group
vehicle,
followed them
his motor
a Corvair
automobile. There
some
followed
senseless antics between
the motor
Thereafter,
vehicles.
of the Volvo
occupants
num-
pursued
Corvair
obtain its license plate
ber. The chase
continued until the Volvo
into
pulled
*6
Commonwealth v. into and the Corvair another driveway a school driveway The school, the one hundred feet apart. about stopping to the Corvair. The victim out of the Volvo and got jogged Corvair, left toward the defendant’s friend the headed victim, with Volvo, the in a struggle and engaged passing defendant, of the The who the other Volvo. occupants the Corvair, of the with victim out get struggled trying of the door of the Corvair. In this over struggle opening several times. the defendant stabbed victim out of the The defendant testified tried get him Corvair, door and with the victim opened grabbed remembered the victim once both hands. He only stabbing work. with a knife he carried use at of the The Commonwealth certain findings challenges events concerning leading up struggle involve his defendant and the victim because they tween the defendant that could testimony acceptance have disbelieved. Commonwealth particularly objects in which the “that the circumstances judge’s finding confusion, fear, were defendant acted characterized by element malice necessary anger, other murder was absent.” light judge’s conclusions, this statement not as a ruling we interpret was not of murder in second that a verdict of man- warranted but rather as conclusion with the more closely slaughter “comported more with jus- and thus consonant [would be] tice.” See McCarthy, 416 (1978). with statement that agree tragic “[t]his a minor between ex- strangers
case controversy A number into the human being.” sig- ploded killing nificant facts are undisputed. persons consumption involved to have been affected appears had no defendant the victim had previ- of alcohol. The had the murder weapon ous confrontation. and return to He did to obtain it in his not leave possession. moment, victim At the crucial confront the victim. There were out the defendant for confrontation. sought de- two in the four victim’s and persons group sense- The entire incident was characterized *7 fendant’s. by There no evidence of the less conduct both by groups. criminality. prior of each case on a consideration its par- depends Although here fits into circumstances, ticular conclusion of those cases senseless encounters pattern involving which, 278, 33E, under G. L. c. have ordered the we See Commonwealth v. degree Tavares, 140, ante 157-159 Commonwealth v. King, (1982); 501, Jones, 374 Mass. 506-508 Commonwealth v. 366 (1978); 805, Mass. 807-809 Commonwealth v. 361 (1975); Kinney, 709, Ransom, v. (1972); 580, 582-583 (1971). should use his grant power sparingly under rule 25 to reduce He should not sit a verdict. as a “second Commonwealth v. 372 Mass. jury.” Earltop, 199, Gaulden, See Commonwealth v. (1977). supra n.9, which, in which we list thirteen cases tween 1963 and this court exercised its to re- power duce a verdict.
In whether a a lesser passing be entered, is not foreclosed guilt from the defendant’s considering testimony, particularly uncontroverted on and, it, if believes testimony, relying Gaulden, it. See Commonwealth v. where we supra in lieu of a upheld finding manslaughter, of murder in the second on part basis defendant’s uncontroverted testimony. We conclude that the did not abuse his discretion in the verdict of vacating
and in manslaugh- ter.4
Judgment affirmed. not, course, any appellate do affirming pass we may by way appeal issue that the defendant be entitled to raise from his conviction of manslaughter. Mass. 314 I have my expressed previously (concurring). J. Liacos, has no from
view that
right
action of a trial
under Rule 25
Massa-
Procedure,
chusetts Rules of Criminal