Syllabus

SMITH v. MASSACHUSETTS

CERTIORARI TO THE APPEALS COURT OF MASSACHUSETTS No. 03-8661. Argued December 1, 2004-Decided February 22, 2005 Petitioner was tried before a Massachusetts jury on charges related to a shooting, including unlawful possession of a firearm. At the conclusion of the prosecution's case, petitioner moved for a not-guilty finding on the firearm count because "the evidence [was] insufficient as a matter of law to sustain a conviction," Mass. Rule Crim. Proc. 25(a). The trial judge granted the motion, finding no evidence to support the requirement of the unlawful possession count that the firearm have a barrel shorter than 16 inches. The prosecution rested, and the trial proceeded on the other counts. Before closing argument, the prosecution argued that under Massachusetts precedent, the victim's testimony that the defendant shot him with a "pistol" or "revolver" sufficed to establish barrel length. The judge "reversed" her previous ruling, allowing the firearm count to go to the jury. The jury convicted petitioner on all counts. In affirming, the Massachusetts Appeals Court held 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, and held that Rule 25 did not prohibit the judge from reconsidering her decision.

Held:

1. Submitting the firearm count to the jury plainly subjected petitioner to further "factfinding proceedings going to guilt or innocence," which are prohibited following a midtrial acquittal by the court, Smalis v. Pennsylvania, 476 U. S. 140, 145. The ruling here met the definition of an acquittal consistently used in this Court's double-jeopardy cases. In United States v. Martin Linen Supply Co., 430 U. S. 564, this Court rejected reasoning identical to the Commonwealth's claim that jeopardy did not terminate midtrial because the judge's determination was legal rather than factual. How Massachusetts characterizes the ruling is not binding on this Court. Smalis, supra, at 144, n. 5. What matters is that, as the Massachusetts Rules authorize, the judge "evaluated the [Commonwealth's] evidence and determined that it was legally insufficient to sustain a conviction." Martin Linen, supra, at 572. Pp. 466-469.

2. The Double Jeopardy Clause forbade the judge to reconsider the acquittal later in the trial. While the Clause may permit States to create a procedure for reconsidering a midtrial determination of insuffi

Syllabus

ciency of proof, Massachusetts had no such procedure at the time of petitioner's trial. Its Rules allowed only clerical errors, or those "arising from oversight or omission," to be corrected at any time. Mass. Rule Crim. Proc. 42. A few Commonwealth cases have provided that interlocutory rulings are subject to reconsideration, but these cases, without more, do not extend that principle to a not-guilty finding under Rule 25, which purports not to be interlocutory but to end the case. A seeming dismissal may induce a defendant to present a defense to the undismissed charges when he would be better advised to stand silent. The Double Jeopardy Clause cannot be allowed to become a potential snare for those who reasonably rely on it. If, after a facially unqualified midtrial acquittal on one count, the trial has proceeded to the defendant's introduction of evidence on the remaining counts, the acquittal must be treated as final, unless the availability of reconsideration has been plainly established by pre-existing rule or case authority expressly applicable to midtrial rulings on the sufficiency of the evidence. Pp. 469-475.

58 Mass. App. 166, 788 N. E. 2d 977, reversed and remanded.

SCALIA, J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, SOUTER, and THOMAS, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which REHNQUIST, C. J., and KENNEDY and BREYER, JJ., joined, post, p. 475.

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

Opinion of the Court

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 Mass. Gen. Laws Ann., ch. 140, § 121 (West 2002) (definition of "firearm"); ch. 269, § 10(a) (West 2000). The indictment in petitioner's case so charged. Petitioner's girlfriend was tried before the same jury as an accessory after the fact.

neys General, Troy King, Attorney General of Alabama, Gregg D. Renkes, Attorney General of Alaska, Terry Goddard, Attorney General of Arizona, M. Jane Brady, Attorney General of Delaware, Mark J. Bennett, Attorney General of Hawaii, Lisa Madigan, Attorney General of Illinois, Tom Miller, Attorney General of Iowa, Mike McGrath, Attorney General of Montana, Jon Bruning, Attorney General of Nebraska, Brian Sandoval, Attorney General of Nevada, Kelly A. Ayotte, Attorney General of New Hampshire, Wayne Stenehjem, Attorney General of North Dakota, Jim Petro, Attorney General of Ohio, W. A. Drew Edmondson, Attorney General of Oklahoma, Hardy Myers, Attorney General of Oregon, Gerald J. Pappert, Attorney General of Pennsylvania, Patrick C. Lynch, Attorney General of Rhode Island, Mark L. Shurtleff, Attorney General of Utah, William H. Sorrell, Attorney General of Vermont, Jerry W. Kilgore, Attorney General of Virginia, and William E. Thor, State Solicitor General, and Darrell V. McGraw, Jr., Attorney General of West Virginia; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson.

Opinion of the Court

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 Mass. Rule Crim. Proc. 25(a) (2002), in part because the Commonwealth had not proved that the gun barrel was less than 16 inches. At sidebar, after hearing argument from the prosecutor, the trial judge granted the motion, reasoning that there was "not a scintilla of evidence" that petitioner had possessed a weapon with a barrel length of less than 16 inches. App. 21. The trial court marked petitioner's motion with the handwritten endorsement "Filed and after hearing, Allowed," and the allowance of the motion was entered on the docket. Consolidated Brief and Record Appendix for Defendant in No. 00-P-1215 (Mass. App. Ct.), p. A.21; App. 3. The sidebar conference then concluded, and the prosecution rested.1 The judge did not notify the jury of petitioner's acquittal on the firearm count.

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

1 Although, before the judge ruled, the prosecutor had said that he would "be requesting to reopen and allow [the victim] to testify to" the barrel length, App. 22, he made no motion to reopen before resting his

case.

Opinion of the Court

responding notations were made on the original of petitioner's motion and on the docket.

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

2 The Rule provides in pertinent part:

"The judge on motion of a defendant or on his own motion shall enter a finding of not guilty of the offense charged in 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 sustain a conviction on the charge. 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." (Emphasis added.)