Opinion
11-P-341
04-24-2012
COMMONWEALTH v. ALAN A. BECKER.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was the subject of indictments charging two counts of altering or forging an assignment of a motor vehicle certificate of title, two counts of possessing or using an altered or forged certificate of title, and one count of making false statements in an application for a license to operate a motor vehicle.
The defendant was also charged with failing to register as a sex offender, but the Commonwealth filed a nolle prosequi on that count.
Background. On October 25, 2010, a jury trial commenced in the Superior Court. At the close of the Commonwealth's case, the defendant moved for required findings of not guilty. Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979). The judge postponed a ruling on the motion. The judge explained that it was his understanding that the defendant intended to testify; therefore he would reserve his decision until the conclusion of the defendant's case. The judge specifically stated that the defendant's 'rights are reserved in respect to that motion.' In response, defense counsel stated, 'obviously [in my direct examination] there are some areas that I would not get into if some of the charges are going to be dismissed.' The judge responded that '[y]our [client's] rights are protected as of this time.' The prosecutor assured defense counsel that she would not cross-examine the defendant. The defendant testified in his defense.
In fact, the prosecutor did indeed cross-examine the defendant.
At the end of the second day of trial, after the defendant's direct and part of his cross-examination, the judge heard arguments on the defendant's previously filed motion for required findings of not guilty. Defense counsel argued, among other things, that the Commonwealth failed to present sufficient evidence on the two counts of possessing or using an altered or forged certificate of title. The judge reserved judgment on the motion and sent the case to the jury the next day. The jury found the defendant guilty on one of the possessing or using counts as well as on the false license application count. The jury found the defendant not guilty on the other charges. Following the verdicts, the defendant renewed his motion, requesting a finding of not guilty on the possessing or using count, and also sought a new trial on the remaining count. In a written memorandum of decision, the judge allowed the motion on the possessing or using count but denied the motion for a new trial on the false license application charge. After imposition of sentence, the defendant appealed from the judgment on that charge.
Discussion. The defendant claims that the judge committed error in his failure to rule on his rule 25(a) motion for required findings of not guilty at the close of the Commonwealth's case. We agree.
'The language of rule 25(a) is unequivocal. It provides, in relevant part: ' If a defendant's motion for a required finding of not guilty is made at the close of the Commonwealth's evidence, it shall be ruled upon at that time." Commonwealth v. Smithson, 41 Mass. App. Ct. 545, 548 (1996). The requirement of a prompt ruling 'protects a defendant's right to insist that the Commonwealth present proof of every element of the crime with which he is charged before he decides whether to rest or to introduce proof in a contradiction or exoneration.' Commonwealth v. Cote, 15 Mass. App. Ct. 229, 240 (1983).
'In light of the explicit and mandatory language of the rule, the trial judge should have ruled on the motion at the time it was made.' Commonwealth v. Smithson, supra, citing Commonwealth v. Cote, supra at 241. As in Smithson, the judge here committed error in not ruling on the defendant's motion at the close of the Commonwealth's case.
In his memorandum of decision on the rule 25(a) motion, the judge acknowledged that he was aware of the language of the rule requiring that he rule on the motion at the close of the Commonwealth's case. The judge stated, however, that 'some motions require[] time to properly consider, and unless you send the jury home for a few days, such time is not available. This was such a motion.' We reject the judge's explanation. 'Rules of court have the force of law and may not be disregarded by an individual judge.' Commonwealth v. Brown, 395 Mass. 604, 606 (1985), quoting from Empire Apartments, Inc. v. Gray, 353 Mass. 333, 337 (1967). The language of the rule is clear and provides no exceptions.
Our analysis does not end here because we must determine the effect of the error on the trial. In that regard, the Commonwealth argues that because there was no objection, the standard of review is whether the error created a substantial risk of a miscarriage of justice. The defendant responds that there was indeed an objection, as the judge assured the defendant at the time he refused to rule on the motion that the defendant's rights were 'protected' and 'reserved.' Therefore, the defendant claims that there was sufficient objection, and that the standard of review is whether the error was so prejudicial as to warrant a new trial.
It is clear from the record that the judge was aware that the defendant objected to the procedure, considering his statements to the defendant that his rights were 'protected' and 'reserved.' See Commonwealth v. Tanner, 66 Mass. App. Ct. 432, 440 n.5 (2006). We have reviewed the record, including the defendant's testimony, and for the reasons stated in the appellant's brief, in particular pages six through twelve, we rule that the judge's error caused prejudice to the defendant and that the conviction cannot stand.
Other issue. The defendant also claims that the judge committed error by allowing in evidence photocopies of the defendant's Massachusetts and New York driver's licenses. We reject the claim. The defendant stipulated to their admissions and the Commonwealth proved that the originals of both licenses once existed.
We address the defendant's additional claim, as the issue is likely to arise again upon retrial.
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Judgment reversed.
Verdict set aside.
By the Court (Cypher, Smith & Fecteau, JJ.),