SMITH v. MASSACHUSETTS
No. 03-8661
SUPREME COURT OF THE UNITED STATES
Argued December 1, 2004—Decided February 22, 2005
543 U.S. 462
David Nathanson argued the cause and filed briefs for petitioner.
Cathryn A. Neaves, Assistant Attorney General of Massachusetts, argued the cause for respondent. With her on the brief were Thomas F. Reilly, Attorney General, Dean A. Mazzone and Joseph M. Ditkoff, Special Assistant Attorneys General, and David M. Lieber, Assistant Attorney General.
Sri Srinivasan argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Clement, Assistant Attorney General Wray, and Deputy Solicitor General Dreeben.*
*Andrew H. Schapiro and Pamela Harris filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of Idaho et al. by Lawrence G. Wasden, Attorney General of Idaho, and Kenneth K. Jorgensen, Lori A. Fleming, and Jessica M. Borup, Deputy Attor-
JUSTICE SCALIA delivered the opinion of the Court.
Midway through a jury trial, the judge acquitted petitioner of one of the three offenses charged. The question presented in this case is whether the Double Jeopardy Clause forbade the judge to reconsider that acquittal later in the trial.
I
Petitioner Melvin Smith was tried before a jury in the Superior Court of Suffolk County, Massachusetts, on charges relating to the shooting of his girlfriend‘s cousin. The indictments charged three counts: armed assault with intent to murder; assault and battery by means of a dangerous weapon; and unlawful possession of a firearm. The “firearm” element of the last offense requires proof that the weapon had a barrel “less than 16 inches” in length. See
The victim testified at trial that petitioner had shot him with “a pistol,” specifically “a revolver” that “appeared to be a .32 or a .38.” App. 12, 14. The prosecution introduced no other evidence about the firearm.
At the conclusion of the prosecution‘s case, petitioner moved for a required finding of not guilty on the firearm count, see
The defense case then proceeded. Petitioner‘s codefendant presented one witness, and both defendants then rested. During the short recess before closing arguments, the prosecutor brought to the court‘s attention a Massachusetts precedent under which (he contended) the victim‘s testimony about the kind of gun sufficed to establish that the barrel was shorter than 16 inches. He requested that the court defer ruling on the sufficiency of the evidence until after the jury verdict. The judge agreed, announcing orally that she was “reversing” her previous ruling and allowing the firearm-possession count to go to the jury. Id., at 75. Cor-
The jury convicted petitioner on all three counts, though it acquitted his codefendant of the accessory charge. Petitioner then submitted to a bench trial on an additional repeat-offender element of the firearm-possession charge; the judge found him guilty. Petitioner received a sentence of 10 to 12 years’ incarceration on the firearm-possession charge, concurrent with his sentence on the other counts.
Petitioner sought review in the Appeals Court of Massachusetts. That court affirmed, holding that the Double Jeopardy Clause was not implicated because the trial judge‘s correction of her ruling had not subjected petitioner to a second prosecution or proceeding. It also rejected petitioner‘s argument that the trial judge‘s initial ruling was final because Massachusetts Rule of Criminal Procedure 25(a) required the judge to decide petitioner‘s motion when it was made, without reserving decision;2 the court reasoned that the Rule does not preclude the judge from reconsidering. 58 Mass. App. 166, 170-171, 788 N. E. 2d 977, 982-983 (2003). The Supreme Judicial Court of Massachusetts denied further appellate review. 440 Mass. 1104, 797 N. E. 2d 380 (2003). We granted certiorari. 542 U. S. 903 (2004).
II
Although the common-law protection against double jeopardy historically applied only to charges on which a jury had rendered a verdict, see, e. g., 2 M. Hale, Pleas of the Crown
Our cases have made a single exception to the principle that acquittal by judge precludes reexamination of guilt no less than acquittal by jury: When a jury returns a verdict of guilty and a trial judge (or an appellate court) sets aside that verdict and enters a judgment of acquittal, the Double Jeopardy Clause does not preclude a prosecution appeal to reinstate the jury verdict of guilty. United States v. Wilson, 420 U. S. 332, 352-353 (1975). But if the prosecution has not yet obtained a conviction, further proceedings to secure one are impermissible: “[S]ubjecting the defendant to postacquittal factfinding proceedings going to guilt or innocence violates the Double Jeopardy Clause.” Smalis v. Pennsylvania, 476 U. S. 140, 145 (1986).
When the judge in this case first granted petitioner‘s motion, there had been no jury verdict. Submission of the firearm count to the jury plainly subjected petitioner to further “factfinding proceedings going to guilt or innocence,” prohibited by Smalis following an acquittal. The first question, then, is whether the judge‘s initial ruling on petitioner‘s motion was, in fact, a judgment of acquittal.
It certainly appeared to be.
The Commonwealth contends that the grant of a motion for a required finding of not guilty in a jury trial is a purely legal determination, the factfinding function being reserved to the jury. Brief for Respondent 14 (citing Commonwealth v. Lowder, 432 Mass. 92, 96-97, 731 N. E. 2d 510, 515 (2000)). Thus, the Commonwealth reasons, jeopardy did not terminate midtrial on any of the three counts, since neither judge nor jury had rendered a factual determination that would bring jeopardy to an end. We rejected identical reasoning in Martin Linen, supra, holding that jeopardy ends when, following discharge of a hung jury, a judge grants a motion for judgment of acquittal under Federal Rule of Criminal Procedure 29. Rule 29 created the judge-ordered “judgment of acquittal” in place of the directed verdict, which was at least fictionally returned by the jury at the judge‘s direction, rather than coming from the judge alone. But, we said in Martin Linen, change in nomenclature and removal of the jury‘s theoretical role make no difference; the Rule 29 judgment of acquittal is a substantive determination that the prosecution has failed to carry its burden. Thus, even when the jury is the primary factfinder, the trial judge still resolves elements of the offense in granting a Rule 29 motion in the absence of a jury verdict. See Martin Linen, supra, at 571-575.
The same is true here. (Indeed, Massachusetts patterned its Rule 25 on Federal Rule 29 and adopted prior directed-verdict practice without change. See Lowder, supra, at 95, 731 N. E. 2d, at 514.) Massachusetts’ characterization of the required finding of not guilty as a legal rather than factual determination is, “as a matter of double jeopardy law, ...
III
Having concluded that the judge acquitted petitioner of the firearm-possession charge,3 we must turn to the more difficult question whether the Double Jeopardy Clause permitted her to reconsider that acquittal once petitioner and his codefendant had rested their cases.4
Was this apparently final ruling in fact final? We think, and petitioner does not dispute, see Tr. of Oral Arg. 5, that as a general matter state law may prescribe that a judge‘s midtrial determination of the sufficiency of the State‘s proof can be reconsidered. Cf. Pennsylvania v. Goldhammer, 474 U. S. 28, 30 (1985) (per curiam) (state law regarding appealability may affect defendant‘s expectation that a sentence is final for double-jeopardy purposes). We can find no instance in which a State has done this by statute or rule, but some
At the time of petitioner‘s trial, however, Massachusetts had not adopted any such rule of nonfinality. Its Rules of Criminal Procedure provided that only clerical errors in a judgment or order, or errors “arising from oversight or omission,” were subject to correction at any time.
It may suffice for an appellate court to announce the state-law rule that midtrial acquittals are tentative in a case where reconsideration of the acquittal occurred at a stage in the trial where the defendant‘s justifiable ignorance of the rule could not possibly have caused him prejudice.5 But when, as here, the trial has proceeded to the defendant‘s
Prosecutors are not without protection against ill-considered acquittal rulings. States can and do craft procedural rules that allow trial judges “the maximum opportunity to consider with care a pending acquittal motion,” Martin Linen, supra, at 574, including the option of deferring consideration until after the verdict. See, e. g.,
*
The judgment of the Appeals Court of Massachusetts is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE GINSBURG, with whom THE CHIEF JUSTICE, JUSTICE KENNEDY, and JUSTICE BREYER join, dissenting.
Does the Double Jeopardy Clause bar the States from allowing trial judges to reconsider a midtrial grant of a motion to acquit on one or more but fewer than all counts of an indictment? The Court unanimously answers “No.” See ante, at 470 (“[A]s a general matter state law may prescribe that a judge‘s midtrial determination of the sufficiency of the State‘s proof can be reconsidered.“). A State may provide for such reconsideration, the Court also recognizes, by legislation or by judicial rule, common-law decision, or exercise of supervisory power. See ante, at 470-471. According to the Appeals Court of Massachusetts, the Commonwealth has so provided through its decisional law. 58 Mass. App. 166, 171, 788 N. E. 2d 977, 983 (2003); see Commonwealth v. Haskell, 438 Mass. 790, 792, 784 N. E. 2d 625, 628 (2003) (“A judge‘s power to reconsider his own decisions during the pendency of a case is firmly rooted in the common law ....“). The view held by the Massachusetts court on this issue is hardly novel. See, e. g., United States v. LoRusso, 695 F. 2d 45, 53 (CA2 1982) (“A district court has the inherent power to reconsider and modify its interlocutory orders prior to the entry of judgment ....“); cf.
Nevertheless, the trial court here was locked into its on-the-spot error, the Court maintains, because “the availability of reconsideration [had not] been plainly established by pre-existing rule or case authority expressly applicable to midtrial rulings on the sufficiency of the evidence.” Ante, at 473. Otherwise, according to the Court, “[t]he Double Jeopardy Clause‘s guarantee [would] become a potential snare for those who reasonably rely upon it.” Ibid.
I agree that, as a trial unfolds, a defendant must be accorded a timely, fully informed opportunity to meet the State‘s charges. I would so hold as a matter not of double jeopardy, but of due process. See Gray v. Netherland, 518 U. S. 152, 171 (1996) (GINSBURG, J., dissenting) (“Basic to due process in criminal proceedings is the right to a full, fair, potentially effective opportunity to defend against the State‘s charges.“). On the facts presented here, however, as the Massachusetts Appeals Court observed, see 58 Mass. App., at 171, 788 N. E. 2d, at 983, defendant-petitioner Smith suffered no prejudice fairly attributable to the trial court‘s error.
The trial judge in Smith‘s case acted impatiently and made a mistake at the close of the Commonwealth‘s case. Cutting short the prosecutor‘s objections, see App. 20-22, she granted Smith‘s motion for a “required finding of not guilty” on one of the three charges contained in the indictment, unlawful possession of a firearm, id., at 20.1 She did so on the ground that the Commonwealth had failed to prove an essen-
The trial judge corrected her error the same day it was made. She did so in advance of closing arguments and her charge to the jury. See App. 71-74. The trial judge retracted her initial ruling and denied the motion for a required finding of not guilty because the prosecutor had called to her attention a decision of the Supreme Judicial Court of Massachusetts directly on point, Commonwealth v. Sperrazza, 372 Mass. 667, 363 N. E. 2d 673 (1977). In that case, Massachusetts’ highest court held that a jury may infer a barrel length of less than 16 inches from testimony that the weapon in question was a revolver or handgun. Id., at 670, 363 N. E. 2d, at 675. Here, there was such testimony. The victim in Smith‘s case had testified that the gun he saw in the defendant‘s hand was a “.32 or .38” caliber “pistol.” App. 12. The trial court‘s new ruling based on Sperrazza was entered on the docket, Smith did not move to reopen the case, and the jury convicted him on all charges.
Smith urges that our decision in Smalis v. Pennsylvania, 476 U. S. 140 (1986), controls this case. I disagree. In Smalis, the Court held that the Double Jeopardy Clause bars appellate review of a trial court‘s grant of a motion to acquit, because reversal would lead to a remand for further trial proceedings. Id., at 146. An appeal, including an interlocutory appeal, moves a case from a court of first instance to an appellate forum, and necessarily signals that the trial court has ruled with finality on the appealed issue or issues. A trial court‘s reconsideration of its initial decision to grant a motion, on the other hand, occurs before the court of first
Nor is
The Appeals Court of Massachusetts determined that Rule 25(a) did not place the incorrect midtrial ruling beyond the trial court‘s capacity to repair its error. Rule 25(a)‘s demand for an immediate ruling rather than reservation of the question,2 the Appeals Court said, “protects a defendant‘s right
Notes
The dissent misses the point of Swisher v. Brady, 438 U. S. 204 (1978), which found no double-jeopardy bar to a judge‘s review of a master‘s findings. This was not a “recogni[tion of] the distinction between appeals and continuing proceedings before the initial tribunal,” post, at 478, but rather a recognition that the initial jeopardy does not end until there is a final decision. See 438 U. S., at 216 (“[I]t is for the State, not the parties, to designate and empower the factfinder and adjudicator. And here
The Court hypothesizes that dismissal of one count might affect a defendant‘s course regarding the undismissed charges. Ante, at 472. The Appeals Court addressed that prospect concretely: Defendant Smith “has not suggested that the initial allowance of the motion affected his trial strategy with regard to the other charges.” 58 Mass. App. 166, 171, 788 N. E. 2d 977, 983 (2003). Further, there is not even the slightest suggestion that Smith‘s codefendant, who was acquitted by the jury, “alter[ed] [her case] in harmful ways.” But see ante, at 472, n. 6.