COURT MAY ALLOW MISTRIAL AFTER VERDICT

In Commonwealth v produit viagra sans ordonnance. Brangan, the Supreme Judicial Court (SJC) ruled that “the trial judge’s order granting the defendant’s motion for a mistrial was not appealable” by the Commonwealth. The background was as follows. The defendant was convicted of armed robbery of a bank while masked. There was evidence that “the robber passed a note to the bank teller stating that he had a weapon and demanding that she give him money…. The defendant was arrested after his thumbprint was found on the note. At trial, a police officer testified that, in addition to the defendant’s thumb print, the note was marked by a ‘right hand writer’s palm’ print. While the palm print was unusable for purposes of seeking a match with the defendant, the officer opined that, because of the position and orientation of the print, the person who wrote the note was likely left-handed. This was an opinion without foundation. During the Commonwealth’s closing argument, the prosecutor, in an attempt to link the defendant to the writer’s palm print,” asserted that during “‘the whole trial,’” the defendant was taking “‘notes left-handed.’” The defendant objected to the prosecutor’s statement on the basis that evidence of the defendant’s left-handedness was not introduced through a witness at trial. The judge struck the statement and gave curative instructions to the jury.” At the end of the prosecutor’s closing, defense counsel moved for a mistrial and the judge took the motion under advisement.” After the jury returned its guilty verdict, “the judge informed counsel that the defendant’s motion for a mistrial remained pending.” After a non-evidentiary hearing, the judge allowed the motion for a mistrial and ordered a retrial, on the ground that the prosecutor’s comments in closing argument were prejudicial error which no curative instruction could have mitigated. In its appellate challenge, the Commonwealth argued that although the allowance of a defendant’s motion for a mistrial is generally not appealable by the Commonwealth, such an appeal was appropriate here because the judge waited until after the verdict to order a retrial, thus rendering the defendant’s motion “akin to a motion for relief from a guilty verdict under the Massachusetts Rules of Criminal Procedure.”

In its decision rejecting the Commonwealth’s argument, the SJC opined that “because the defendant’s motion cannot be characterized as a motion for relief from a guilty verdict pursuant to the Rules of Criminal Procedure, the denial of which could be appealed, “the Commonwealth had no right to appeal the judge’s order granting the defendant’s motion for a mistrial and ordering that the defendant be retried.” In the Court’s view, “there was no question that the judge intended to grant a mistrial…. The fact that the mistrial was granted after the verdict was not a result of when the motion was brought or any other action of the defendant, but instead was due to the trial judge’s decision to take the defendant’s motion under advisement.” The Court asserted that “to allow such motion to be appealed simply because it was granted post-verdict would be to change the character of the motion.”

 

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