26 Mass. App. Ct. 933 | Mass. App. Ct. | 1988
As to the defendant’s motion for a new trial under Mass.R.Crim.P. 25(b)(2), 378 Mass. 896 (1979), we decide that the case should be remanded to the Superior Court so that the trial judge may consider action on that motion as a matter of discretion. Other than that, we are not persuaded by the defendant’s various claims of error. A jury convicted the defendant of armed robbery (G. L. c. 265, § 17) and assault by means of a dangerous weapon (G. L. c. 265, § 15B).
1. Sufficiency of the evidence. Two persons, the store clerk and a customer, witnessed the robbery, which occurred at night at a Cumberland Farms convenience store. The customer had been encouraged by the clerk to
2. Prosecutor’s closing argument. There was no objection at trial to the prosecutor’s closing argument. We need only review it, therefore, on a substantial risk of a miscarriage of justice standard. Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). Commonwealth v. Pickles, 393 Mass. 775, 776 (1985). Commonwealth v. Schoen, 24 Mass. App. Ct. 731, 734 (1987). The prosecutor’s argument that the clerk was paralyzed by fear was tolerably based on evidence that the robbery had “made [her] very nervous.” See Commonwealth v. Hoffer, 375 Mass. 369, 378 (1978); Commonwealth v. Ferreira, 381 Mass. 306, 316 (1980). He was free to fit all the pieces of evidence together so that they formed a comprehensive and comprehensible picture for the jury. Commonwealth v. Haas, 373 Mass. 545, 557 n.11 (1977). Contrast Commonwealth v. Shelley, 374 Mass. 466, 470-471 (1978); Commonwealth v. Hogan, 12 Mass. App. Ct. 646, 651-652 (1981). Fairly read, we do not think the argument was tainted by the second impropriety claimed by the defendant, viz., conveying to the jury that the prosecutor was possessed of personal knowledge which he was sharing with them. The assistant district attorney peppered his closing with phrases such as “I suggest” and dutifully reminded the jurors that they should draw their
3. Motion under Mass.R.Crim.P. 25(b)(2). Two days after the jury returned their verdict of guilty, the defendant, acting under Mass.R.Crim.P. 25(b)(2), 378 Mass. 896 (1979), renewed his motion for a required finding of not guilty, moved to set aside the verdict, and moved, in the alternative, for a new trial on both counts of the indictment. Carolyn Clark, the store clerk, asked and received leave to address the court at the hearing on the motion. She stated:
“I feel very strongly that yesterday in the courtroom a man was convicted of a crime he didn’t commit. . . . I’m positive beyond a reasonable doubt that Frank Marsh is . . . not the person who committed the burglary [sic] on July 28, 1985, and I ask, your Honor, to set aside this verdict ... in order to prevent a miscarriage of justice.”
During the colloquy between judge and counsel that followed, it must be said, the concentration was on setting aside the verdict and entering a finding of not guilty. That, the judge correctly observed, she was without authority to do if (as it did) the evidence warranted the jury’s verdict. Commonwealth v. Torres, 24 Mass. App. Ct. 317, 323-325 (1987). A judge acting on a rule 25(b)(2) postverdict motion for a finding of not guilty “is required to use the . . . standard set out in Commonwealth v. Latimore, 378 Mass. at 677-678.” Id. at 324.
In response to the argument of counsel the judge observed: “Regardless of whether I agree or disagree with the verdict I can only set aside the verdict where I find there has been an error of law.” So far as the new trial component of the defendant’s rule 25(b)(2) motion was concerned, the judge was not thus restricted. As to that aspect of the motion, the judge has authority to consider and weigh the evidence and grant a new trial if it appears to the judge that the jury’s verdict was against the weight of the evidence. See Commonwealth v. Keough, 385 Mass. 314, 318 (1982); Commonwealth v. Preston, 393 Mass. 318, 324 (1984); Commonwealth v. Torres, 24 Mass. App. Ct. at 324; Smith, Criminal Practice and Procedure §§ 1918, 1919 (2d ed. 1983). C.f. Commonwealth v. Millyan, 399 Mass. 171, 189 (1987). Possessed of discretion, the trial judge was bound to exercise it one way or the other. See Commonwealth v. Knight, 392 Mass. 192, 193-194 (1984); Commonwealth v. Edgerly, 13 Mass. App. Ct. 562, 571 (1982).
In stating that the judge had discretion to grant or deny that aspect of the rule 25(b)(2) motion which asked for a new trial, we emphasize that we intimate no opinion about how that discretion ought to be exercised. The judge heard and observed the witnesses and had a far better sense of
There was no error requiring reversal of the convictions. The case is remanded to the Superior Court so that the trial judge may consider and exercise her discretion on the new trial component of the postverdict motion under rule 25(b)(2).
So ordered.