Commonwealth v. Amirault

Liacos, C.J.

(dissenting). The court today enlarges its prior decision permitting the Commonwealth to appeal the *118 allowance of certain posttrial motions under the 1979 amendments to G. L. c. 278, § 28E (1990 ed.). See Commonwealth v. Therrien, 383 Mass. 529 (1981). 1 Thus, the court holds that the Commonwealth may appeal the allowance of a motion to revise or revoke a sentence brought pursuant to Mass. R. Crim. P. 29, 378 Mass. 899 (1979). I adhere to the view that our Legislature did not intend the 1979 “housekeeping” changes to § 28E to alter the long-established practice of allowing the Commonwealth to appeal from pretrial motions only. See id. at 539-542 (Liacos, J., dissenting). I also believe that the court today misapplies the principles announced in Therrien , from which decision I dissented, by reading into § 28E another rule of law which the drafters of that statute never contemplated. Accordingly, I dissent.

Section 28 E allows the Commonwealth to appeal the allowance of “a motion for appropriate relief under the Massachusetts Rules of Criminal Procedure.” In Therrien , the court construed these words to encompass a postverdict motion for a required finding of not guilty brought pursuant to Mass. R. Crim. P. 25 (b), 378 Mass. 896 (1979). In support of its conclusion, the court noted that Mass. R. Crim. P. 30, 378 Mass. 900 (1979), expressly allows the Commonwealth to appeal the allowance of a motion for a new trial or a motion for release from confinement imposed in violation of the laws of the Commonwealth. The court found that, “[i]n common parlance, such [posttrial] motions are motions for appropriate relief.” The court in Therrien reasoned that, because a criminal defendant may present the same legal questions under either rule 25 or rule 30, it “follows logically” that the Commonwealth should have the right to appeal the allowance of a motion brought under either of these rules. Therrien, supra at 535 . The court noted that its desire “to find harmony and not discord in the cooperative effort of the Legislature and this court to coordinate statutes and rules involving procedural matters” lent further support to *119 the conclusion that § 28E permits the Commonwealth to appeal from a posttrial motion. Id. at 534.

While the Therrien court refused to confine § 28 E to pretrial motions, it also warned that “the Commonwealth may not appeal the allowance of every defense motion. There are certain motions whose allowance must be treated as terminating the criminal prosecution without any right to appeal.” Id. at 535. This cautionary language squarely applies to the present case because none of the factors that supported the court’s decision in Therrien is present here.

First, the legal issues raised by a rule 29 motion cannot be litigated under an independent rule of criminal procedure permitting appeals by the Commonwealth. Thus, the Commonwealth’s asserted right to appeal the revision or revocation of a sentence does not “follow logically” from its right to appeal similar legal questions raised pursuant to a different procedural route. Therrien, supra. Next, a rule 29 motion is not — “in common parlance” — a motion for appropriate relief. The court’s analysis in Therrien evinced an understanding that only motions relating to the conduct of the trial itself, such as a rule 13 discovery motion or a rule 25 motion for a required finding of not guilty, qualify as such. Rule 29 motions, on the other hand, concern the modification of the punishment imposed on the criminal defendant after the issue of his or her guilt has been determined.

Finally, today’s decision does nothing to “coordinate statutes and rules involving procedural matters.” Therrien, supra at 534 . As already mentioned, no rule of criminal procedure permits the Commonwealth to appeal the revision or modification of a sentence. While language permitting the Commonwealth to appeal was added to rule 25 in 1983 after Therrien , rule 29 was never so amended. See Reporters’ Notes to Mass. R. Crim. P. 25 & 29, Mass. Ann. Laws, Rules of Criminal Procedure at 434 & 473 (Law. Coop. 1979 & Supp. 1993). The court’s stated desire “to find harmony and not discord” between statutes and rules, therefore, *120 should have prompted the court to disallow the Commonwealth’s appeal in the present case. Therrien, supra at 534 2 In sum, the court has ignored the limitations on the Commonwealth’s right to appeal set forth in Therrien . Today’s standardless decision signals, I fear, a willingness to allow the Commonwealth to appeal from every defense motion brought under the rules of criminal procedure unless double jeopardy principles prohibit further prosecution. Congress has explicitly adopted this rule with respect to Federal cases. See 18 U.S.C. § 3731 (1988). Our Legislature, however, has drafted § 28E so as to limit further the Commonwealth’s right to appeal. See Commonwealth v. Yelle, 390 Mass. 678, 684 (1984). The court’s continuing dilution of our statute is regrettable. I dissent.

Prior to these amendments, § 28E was construed to cover pretrial motions only. See Commonwealth v. McCarthy, 375 Mass. 409, 413 (1978).

Commonwealth v. Layne, 386 Mass. 291 (1982), does not support the court’s decision because the Commonwealth’s right to appeal was not challenged in that case.