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SJC-12568

COMMONWEALTH vs. ABDULLAH YASIN.

Suffolk. March 5, 2019. - October 16, 2019.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, 

& Kafker, JJ.

Practice, Criminal, Motion for a required finding, Required 

finding, Interlocutory appeal, Waiver.

Civil action commenced in the Supreme Judicial Court for 

the county of Suffolk on May 9, 2018.

The case was reported by Kafker, J.

Houston Armstrong, Assistant District Attorney (Tara B. 

Burdman, Assistant District Attorney, also present) for the 

Commonwealth.

James L. Sultan (Kerry A. Haberlin also present) for the 

respondent.

Nancy A. Dolberg, Committee for Public Counsel Services,

for Committee for Public Counsel Services, amicus curiae, 

submitted a brief.

GAZIANO, J. At the close of the Commonwealth's case in the 

defendant's trial for murder in the first degree, the defendant 

moved for a required finding of not guilty pursuant to Mass. R. 
2

Crim. P. 25 (a), as amended, 420 Mass. 1502 (1995). 

Notwithstanding the plain language of rule 25 (a), which 

requires a judge to decide a motion for a required finding at 

the close of the Commonwealth's case "at that time," the judge 

reserved decision over the defendant's objection. The defendant

then was required to rest or put on his case. At the close of 

all the evidence, the defendant again sought a motion for a 

required finding, and the judge submitted the case to the jury 

pursuant to Mass. R. Crim. P. 25 (b) (1), as amended, 420 Mass. 

1502 (1995), also over the defendant's objection. After the 

jury returned a verdict of guilty of murder in the second 

degree, the defendant renewed his motion under rule 25 (a). In 

the alternative, he sought relief pursuant to Mass. R. Crim. 

P. 25 (b) (2), as amended, 420 Mass. 1502 (1995). At the 

defendant's suggestion, the judge allowed the defendant's 

rule 25 (a) motion, nunc pro tunc, to the close of the 

Commonwealth's case. The Commonwealth subsequently filed a 

petition for relief pursuant to G. L. c. 211, § 3, in the county 

court, and the single justice reserved and reported two 

questions to the full court.

We conclude that the judge erred in reserving decision on 

the defendant's rule 25 (a) motion filed at the close of the 

Commonwealth's case, and that the error violated the defendant's

right to due process. In addition, the error permeated the 
3

remainder of the trial. In allowing the motion for a required 

finding nunc pro tunc after the jury returned their verdict, the

judge abused her discretion and deprived the Commonwealth of its 

right to appeal from a postverdict acquittal. See Mass. R. 

Crim. P. 25 (c) (1), 389 Mass. 1107 (1983). Both parties, 

therefore, were harmed by judicial error. Because the initial 

error implicated the defendant's constitutional rights and 

infected the remainder of the trial, however, we are constrained 

to conclude that the Commonwealth may not appeal from the 

allowance of the motion.1

1. Background. In November 2016, the defendant was 

indicted on charges of murder in the first degree, G. L. c. 265, 

§ 1, and assault and battery by means of a dangerous weapon,

G. L. c. 265, § 15A (b), in the shooting death of Chaz Burton.

The defendant was tried before a Superior Court jury.2 At 

the close of the Commonwealth's case, he moved under Mass. R. 

Crim. P. 25 (a) for a required finding of not guilty as to the 

 

1 We acknowledge the amicus brief submitted by the Committee 

for Public Counsel Services.

2 The defendant was tried jointly with codefendant Fabian 

Llano, who was indicted on charges of murder in the first 

degree, G. L. c. 265, § 1; two counts of assault and battery by 

means of a dangerous weapon, G. L. c. 265, § 15A (b); and 

intimidation of a police officer, G. L. c. 268, § 13B. The 

codefendant was acquitted on the charge of murder and convicted 

of the other charges.
4

charge of murder.3 During a hearing on the motion, the judge 

observed that murder premised on a theory of extreme atrocity or 

cruelty was "totally unsupported" by the evidence. In addition, 

she noted that there was no evidence as to the identity of the 

shooter or the circumstances under which the shooter had acted. 

The judge summarized the Commonwealth's case as, "some unknown 

person came down in the middle of [a] melee and shot [the 

victim] as he was apparently waving a knife" at others, after 

having stabbed "at least" two people. Based on the evidence of 

the victim's conduct, the judge said that "there [was] certainly 

evidence raised of self-defense, [and] defense of others, enough 

so that the Commonwealth then [had] to prove beyond a reasonable 

doubt that the perpetrator was not acting in self-defense" or in 

defense of others.4 The judge also said that the Commonwealth

 

3 The defendant did not challenge his conviction of assault 

and battery by means of a dangerous weapon.

4 In reviewing the defendant's motion for a required finding 

at the close of the Commonwealth's case, the judge asked the 

prosecutor,

"Since we have no idea who this shooter is and why he or 

she did what they did and the circumstances under which 

they acted, and understanding that an unlawful killing is 

one . . . where the Commonwealth can prove that the 

individual did not act in self-defense or defense of others 

but with the requisite intent for first degree murder, how 

are you going to be able to prove that, given that we have 

no idea who the shooter is and the circumstances under 

which the shooter acted? How can you argue to the jury 

that the shooter committed murder, which I think is a 
5

had failed to present any such evidence and thus that the 

Commonwealth had not proved that the killing was unlawful. She 

noted, as well, that the Commonwealth had presented no evidence 

that the defendant had aided or abetted the shooter. For all 

practical purposes, the judge thus deemed the evidence 

insufficient to convict the defendant of murder.

Acting under an apparent misapprehension of the 

requirements of Mass. R. Crim. P. 25 (a), however, the judge 

said that she was "inclined to reserve" decision on the 

defendant's rule 25 (a) motion filed at the close of the 

Commonwealth's case, in order to "let the jury decide it" and to 

avoid a retrial. The defendant objected, arguing that he was 

"entitled to a judgment of acquittal at [that] stage" of the 

trial. The Commonwealth did not object, and indeed made no 

comment concerning the reservation of decision.

At the close of all the evidence, the defendant again 

sought a directed verdict under Mass. R. Crim. P. 25 (a) with 

respect to the indictment charging murder in the first degree;

the judge reserved decision pursuant to Mass. R. Crim. P.

25 (b) (1). After four days of deliberation, the jury convicted 

the defendant of murder in the second degree and assault and 

battery by means of a dangerous weapon.

 

necessary prerequisite for the defendant[] to be found 

guilty under a theory of joint venture?"
6

The defendant subsequently moved to renew the rule 25 (a)

motion that he had filed at the close of the Commonwealth's 

case. He also moved, in the alternative, for a required finding 

of not guilty, or other relief, under Mass. R. Crim. P. 

25 (b) (2). At a hearing on the motion, the defendant argued 

that it was error for the judge to have reserved decision on the 

rule 25 (a) motion filed at the close of the Commonwealth's 

case, and requested that the judge allow the motion nunc pro 

tunc to the time it had been filed. The Commonwealth did not

object to, or otherwise address, the defendant's request to 

allow his rule 25 (a) motion nunc pro tunc, but did argue that 

it had presented sufficient evidence to overcome a motion for 

required finding of not guilty.

The judge explained that she had reserved decision on the

rule 25 (a) motion filed at the close of the Commonwealth's case 

because she had been "[c]onfident that the jury would see the 

deficiencies" in the Commonwealth's evidence. She explained 

further that "there was only one verdict that was legally 

possible in [her] view, and that was a verdict of not guilty on 

the murder charge." The judge outlined her view of 

"deficiencies" in the evidence, including insufficient evidence 

of an unlawful killing, of aiding and abetting, and of the 
7

shooter's identity.5 Reiterating an apparent misapprehension of 

 

5 The judge observed,

"This Court . . . disagrees with the Commonwealth when it 

appears to suggest that [the defendant's] kicking of [the 

victim] somehow contributed to his death. In short, a tie 

between [the defendant] and the shooter is critical, and 

the evidence showing beyond a reasonable doubt that [the 

defendant] assisted the shooter in some way in bringing 

about that death was required, and that evidence was simply 

missing.

"There was no evidence of any kind of any interaction 

between [the defendant] and the shooter, whoever that 

shooter may have been. Indeed, there was no evidence the 

shooter was even a guest at the . . . birthday party, much 

less that he or she was part of the group that followed 

[the victim] into the hallway or that [the defendant] knew 

or even met that person. There was no evidence any gun was 

displayed at any time before the shooting or that [the 

defendant] had any advance knowledge that anyone was so 

armed. . . .

"[T]he evidence showed that . . . family and friends 

surrounded [the victim] in the hallway armed with stakes, a 

bottle, a shoe and a knife. If this were enough to support 

a joint venture as to murder, then one wonders why 

everybody involved in the melee was not charged with 

murder. That they were not suggests that the Commonwealth 

itself knew that this evidence was legally insufficient.

"Moreover, unlike several others charged in this case, [the 

defendant] himself was not armed at any time with any 

weapon. There was no evidence he was involved in any 

argument with [the victim] at the party much less that he 

even knew about one. There was no evidence he played any 

part in the fighting that occurred outside the building. 

And although he was in the hallway, there's no evidence he 

did anything in the hallway except be present there. This 

is in contrast to [the codefendant], who is convicted of 

throwing a trash can in the hallway. That [the defendant] 

kicked [the victim] after he had been fatally shot is not 

in and of itself enough to support the jury's finding of 

second degree murder, and yet that would appear to be the 

evidence upon which the jury relied."
8

the provisions of Mass. R. Crim. P. 25 (a), the judge said that 

she had "always thought that if [she] allowed a motion for a 

directed verdict at the close of the Commonwealth's case," her 

decision "could be appealed by the Commonwealth and could be 

reviewed" by an appellate court.

Ultimately, the judge allowed the defendant's rule 25 (a)

motion nunc pro tunc to the close of the Commonwealth's case. 

In the alternative, the judge allowed the defendant's motion 

under rule 25 (b) (2) for a required finding as to the murder

charge.6 The prosecutor did not object, and did not seek 

reconsideration of the judge's decision. Instead, the 

Commonwealth filed a notice of appeal in the Superior Court and 

entered its appeal in the Appeals Court. Because the appeal was 

prematurely filed, it was dismissed without prejudice.

 

6 Before issuing her ruling under Mass. R. Crim. 

P. 25 (b) (1), as amended, 420 Mass. 1502 (1995), the judge 

addressed defense counsel as follows,

"[Counsel], let me just ask you one more question. Going 

back to the distinction you've made between the required 

finding at the close of the Commonwealth's case that you 

say is unreviewable and this discretionary finding and 

this, frankly, surprising revelation to me that I'm not 

sure I agree with that it cannot be appealed, let's say you 

were wrong on that for a minute and that if I were to rule 

on the motion at the close of the Commonwealth's case, nunc 

pro tunc, or whatever, that that was reviewable, wouldn't 

it be a good idea for me to also visit or rule on the 

second part of your argument? In other words, if I were to 

allow this motion, I feel very confident that the 

Commonwealth would appeal."
9

The defendant filed a motion in the Superior Court to 

strike the Commonwealth's notice of appeal. He argued that the 

allowance of his rule 25 (a) motion, nunc pro tunc to the close 

of the Commonwealth's case, constituted an unreviewable

acquittal under principles of double jeopardy. The Commonwealth

then filed a petition pursuant to G. L. c. 211, § 3, in the 

county court, seeking relief from the judge's decision to allow 

the rule 25 (a) motion nunc pro tunc. The defendant opposed the

petition.

The single justice stayed the defendant's motion to strike

the notice of appeal in the Superior Court, and reserved and 

reported the following questions to the full court:

"1. Whether a judge may reserve ruling on a [Mass. R. 

Crim. P. 25 (a)] motion made at the close of the 

Commonwealth's case and, after the jury has returned a 

guilty verdict, allow that motion nunc pro tunc to the 

close of the Commonwealth's case, or whether such a ruling 

falls under [Mass. R. Crim. P. 25 (b)]?

"2. May such a ruling be appealed by the Commonwealth?"

After argument before us, and while the matter was under 

advisement, the Commonwealth again entered an appeal in the 

Appeals Court. The defendant's motion to stay that appeal was 

allowed.

2. Discussion. a. Waiver. The Commonwealth did not 

object when the judge reserved decision on the motion for a 

directed verdict filed at the close of the Commonwealth's case. 
10

When the judge ultimately allowed the motion nunc pro tunc, the 

Commonwealth did not object to the entry nunc pro tunc, but did

object to the conclusion that the evidence was insufficient. 

Therefore, the defendant contends that the Commonwealth has 

waived any claims concerning the reservation of decision and the 

entry nunc pro tunc. In its petition to the county court, and 

in its brief before this court, the Commonwealth has not 

addressed the question of waiver.

As the defendant points out, "[i]t is a fundamental 

principle of appellate review that a prompt objection at trial 

is a prerequisite to the presentation of an issue for appellate 

review." Commonwealth v. Andrade, 481 Mass. 139, 141-142 

(2018), quoting Commonwealth v. Gallison, 383 Mass. 659, 669 

(1981). "Prompt objections by parties allow judges to cure any 

defects in the proceedings when they occur." Andrade, supra at 

141 n.2. "A party may not remain 'mute as to a particular 

procedure, abiding the event of decision and, finding the 

decision unfavorable, attack . . . that decision as procedurally 

defective'" (citation omitted). Commonwealth v. DelVerde, 401 

Mass. 447, 448 n.2 (1988).

We long have held that "we need not consider an argument 

that urges reversal of a trial court's ruling when that argument 

is raised for the first time on appeal." Commonwealth v. 

Bettencourt, 447 Mass. 631, 633 (2006). See, e.g., Commonwealth
11

v. Fredericq, 482 Mass. 70, 84 n.9 (2019) ("We will not here 

address the merits of that argument because the Commonwealth did 

not argue it below . . ."); Commonwealth v. Alexis, 481 Mass. 

91, 101 (2018) (argument waived because Commonwealth raised it 

for first time on appeal); Commonwealth v. Leslie, 477 Mass. 48, 

58 (2017) ("The Commonwealth failed to raise this argument 

below, and therefore it is waived"); Commonwealth v. Dery, 452 

Mass. 823, 825 (2008) ("we conclude that the Commonwealth 

forfeited any such claim when it failed to object"); 

Commonwealth v. Black, 403 Mass. 675, 677-678 (1989) 

(Commonwealth's argument "has no force" where Commonwealth

"failed to object" and "willingly" participated in proceedings 

"potentially dispositive of the case"). Thus, we ordinarily 

decline to consider on appeal the merits of an argument that was 

not presented in the trial court.

Nonetheless, we do "occasionally exercise our discretion"

to consider an issue that is raised for the first time on 

appeal. See Bettencourt, 447 Mass. at 633. We generally do so

only where "the questions presented are of some public 

importance" and where "the outcome of the case is not changed by 

our consideration of them" (citation omitted). Id. Contrast

Commonwealth v. Morrissey, 422 Mass. 1, 4 n.5 (1996) ("it is 

rare for us to consider an argument for reversal of a lower 

court which is first raised on appeal and is dispositive in 
12

favor of the party belatedly raising the issue" [citation 

omitted]). In addition, we may weigh whether the parties have 

"fully briefed" the relevant issues, see Commonwealth v. Daniel, 

464 Mass. 746, 755 (2013); Commonwealth v. Sheehy, 412 Mass. 

235, 237 n.2 (1992), and whether an otherwise waived argument is 

"essentially an extension" of an argument that was raised 

properly, see Commonwealth v. Powell, 468 Mass. 272, 275 n.5 

(2014).

Whether a trial judge may reserve decision on a preverdict 

motion for a required finding under rule 25 (a), and then 

retroactively allow that motion nunc pro tunc, is a question of 

importance, the answer to which will affect the prosecution, 

defense, and adjudication of numerous trials in our courts. The

outcome of this case is not changed by our consideration of the 

Commonwealth's newly raised arguments, and the issues have been

fully briefed. Accordingly, in our discretion, we conclude that 

the circumstances of this case warrant review of issues that 

otherwise have been waived by the Commonwealth.

b. Reservation of rule 25 (a) decision. Because the 

defendant objected when the judge reserved decision on his 

motion under rule 25 (a) at the close of the Commonwealth's 

case, the defendant's claims of error are preserved. When 

reviewing preserved constitutional error, we must determine 

whether the error was "harmless beyond a reasonable doubt." See 
13

Commonwealth v. Tyree, 455 Mass. 676, 700-701 (2010).

Rules of procedure "have the force of law and may not be 

disregarded by an individual judge" (citation omitted). 

Commonwealth v. Brown, 395 Mass. 604, 606 (1985). "[T]o 

interpret a rule of criminal procedure, we begin with the plain 

language of the rule." Commonwealth v. Wright, 479 Mass. 124, 

133 (2018), quoting Commonwealth v. Hanright, 465 Mass. 639, 641 

(2013). When a defendant files a motion for a required finding

at the close of the Commonwealth's case, the plain language of 

Mass. R. Crim. P. 25 (a) requires that the motion "shall be 

ruled upon at that time."7 See Commonwealth v. Hurley, 455 Mass. 

53, 68 (2009) ("the judge must rule on that motion at that time 

and may not reserve it"). Indeed, we have said that rule 25 (a)

contains a "prohibition against reserving decision" on a motion

for a required finding filed at the close of the Commonwealth's 

case. See id.

On appeal, the parties agree that it was error for the 

judge to reserve decision on the defendant's motion for a 

required finding filed at the close of the Commonwealth's case. 

See Mass. R. Crim. P. 25 (a). With respect to prejudice caused 

by this judicial error, we previously have concluded that 

 

7 By contrast, when a motion for a required finding of not 

guilty "is made at the close of all the evidence, the judge may 

reserve decision" pursuant to Mass. R. Crim. P. 25 (b) (1). 

See, e.g., Commonwealth v. Therrien, 383 Mass. 529, 531 (1981).
14

because "the purpose" of a rule 25 (a) motion "is to protect '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,' we discern no prejudice to the 

Commonwealth" when a "judge reserve[s] judgment" on a rule 

25 (a) motion "made at the close of the Commonwealth's case" 

(emphases in original; citation omitted). See Commonwealth v. 

Preston, 393 Mass. 318, 321 n.2 (1984).

The defendant, on the other hand, was prejudiced by the

judicial error. Rule 25 (a) of the Massachusetts Rules of 

Criminal Procedure mandates that a judge "shall enter a finding 

of not guilty of the offense charged . . . if the evidence is 

insufficient as a matter of law to sustain a conviction on the 

charge." The rule thus "protects a defendant's right to insist 

that the Commonwealth present proof of every element of the 

crime with which [the defendant] is charged before he decides to 

rest or to introduce proof in a contradiction or exoneration."

Commonwealth v. Cote, 15 Mass. App. Ct. 229, 240 (1983). 

Accordingly, a judge is precluded from reserving decision on a 

rule 25 (a) motion that is filed at the close of the 

Commonwealth's case. See Hurley, 455 Mass. at 68; Preston, 393 

Mass. at 321 n.2; Cote, supra. See generally E.B. Cypher, 

Criminal Practice and Procedure § 37:13 (4th ed. 2014).
15

When the judge reserved decision on the defendant's motion 

for a directed verdict at the close of the Commonwealth's case, 

she deprived the defendant of his right to insist that the 

Commonwealth prove each element of murder beyond a reasonable 

doubt before he decided whether to rest or to present a defense. 

Such prejudice is manifest where, as here, the judge indicates 

at the time of the reservation that she strongly favors allowing 

the motion. Immediately prior to reserving a decision, the 

judge observed that the Commonwealth had presented no evidence 

to identify the killer or the circumstances under which the 

shooter acted, or to show that the killing was unlawful, given 

evidence that the shooter may have acted in self-defense or in 

defense of others. In addition, the judge noted that murder 

predicated on extreme atrocity or cruelty was "totally 

unsupported" by the evidence. In effect, the judge told the 

parties that the Commonwealth had presented insufficient 

evidence to convict the defendant of murder. After the judge 

made these statements, however, the trial proceeded, and the

defendant was put to the choice of deciding whether to rest or 

to present a defense.

Writing for the United States Supreme Court in Smith v. 

Massachusetts, 543 U.S. 462, 471-472 (2005), Justice Antonin

Scalia explained that "when, as here, the trial has proceeded to 

the defendant's presentation of his case, the possibility of 
16

prejudice arises." A "false assurance of acquittal on one count 

may induce the defendant to present defenses to the remaining 

counts that are inadvisable." Id. at 472. "The seeming 

dismissal" of an indictment "may induce a defendant to present a 

defense to the undismissed charge[] when he would be better 

advised to stand silent." Id. See Cote, 15 Mass. App. Ct. at 

240.

In an affidavit, defense counsel averred that, after "many 

hours" of preparing the defendant to testify at trial, the 

defendant was "prepared to do so" and likely would have been an

"effective trial witness." Based on the judge's statements 

prior to reserving decision on the rule 25 (a) motion, however,

counsel "formed the opinion that the trial judge agreed that the 

evidence was legally insufficient"; counsel therefore concluded 

that it would be imprudent to put the defendant on the stand.

The Commonwealth does not dispute these assertions of prejudice. 

See Tyree, 455 Mass. at 701.

Because the judge erroneously reserved decision on the 

motion for a required finding at the close of the Commonwealth's 

case, the defendant was prejudiced and was deprived of due 

process.

c. Allowance of rule 25 (a) motion nunc pro tunc. On 

appeal, the Commonwealth contends that the judge erred in

allowing the motion for a required finding nunc pro tunc to the 
17

close of the Commonwealth's case, because the nunc pro tunc 

doctrine may be used only to correct clerical errors in the 

record. The defendant maintains that a judge may, in his or her 

discretion, prevent a miscarriage of justice by entering a 

judgment nunc pro tunc to a prior date.8

Making an entry nunc pro tunc has been described as a power 

"inherent in the courts" that has been "exercised . . . from the 

earliest times." A.C. Freeman, A Treatise on the Law of 

Judgments 72-73 (4th ed. 1892) (Freeman). See Green v. Clerk of 

the Mun. Court of the Dorchester Dist. of Boston, 321 Mass. 487, 

491 (1947). "The function of a nunc pro tunc order in general is 

to put upon the record and to render efficacious some finding, 

direction or adjudication of the court made actually or 

inferentially at an earlier time, which by accident, mistake or 

oversight was not made matter of record, or to validate some 

proceeding actually taken but by oversight or mistake not 

 

8 The defendant argues that the retroactive allowance of his 

rule 25 (a) motion filed at the close of the Commonwealth's 

case, even if erroneously entered nunc pro tunc, nonetheless 

constituted an unreviewable acquittal under the double jeopardy 

clause of the Fifth Amendment to the United States Constitution. 

Accordingly, he argues, the Commonwealth's pending appeal must 

be dismissed. Because we conclude that an appeal by the 

Commonwealth is independently foreclosed, see Mass. R. Crim. P. 

25 (c) (1), as amended, 420 Mass. 1502 (1995), we need not reach 

the constitutional claim.
18

authorized,"9 or "to prevent a failure of justice resulting, 

directly or indirectly from delay in court proceedings 

subsequent to a time when a judgment, order or decree ought to 

and would have been entered, save that the cause was pending 

under advisement."10 Perkins v. Perkins, 225 Mass. 392, 396 

(1917).11

 

9 Entries made nunc pro tunc have been used, for example, to 

amend the court's record so as to correct docketing errors 

caused by the parties, see Donald v. Commonwealth, 452 Mass. 

1029, 1030 (2008); Tavares v. Commonwealth, 443 Mass. 1014, 1014 

n.1 (2005), and to remedy "clerical" omissions and errors. See 

Commonwealth v. Taylor, 113 Mass. 1, 4 (1873); State v. Maher, 

35 Me. 225, 227 (1853). See generally F.J. Lippitt, Criminal 

Law as Administered in Massachusetts 275 (1879).

10 Nunc pro tunc entries are commonly made "to prevent a 

failure of justice" that otherwise would result, "directly or 

indirectly," because of a "delay in court proceedings" arising 

from "a judgment, order or decree" that "ought to and would have 

been entered," except that "the cause was pending under 

advisement." See, e.g., Perkins v. Perkins, 225 Mass. 392, 396 

(1917). See also Almeida Bus Lines, Inc. v. Department of Pub. 

Utils., 348 Mass. 331, 338 (1965); Miller v. Emergency Hous.

Comm'n, 330 Mass. 693, 700 (1953); Diggs v. Diggs, 291 Mass. 

399, 402 (1935). See generally A.C. Freeman, A Treatise on the 

Law of Judgments 73 (4th ed. 1892). The harmful delay must have 

been caused by the court rather than by a party to the case. 

See Zuker v. Clerk-Magistrate of the Brookline Div. of the Dist. 

Court Dep't of the Trial Court, 423 Mass. 856, 862 (1996); 

Agawam v. County of Hampden, 130 Mass. 528, 539 (1881); Terry v. 

Briggs, 12 Cush. 319, 319-320 (1853); Commonwealth v. Comm'rs of 

Highways for the County of Hampden, 6 Pick. 501, 507 (1828); 

Perry v. Wilson, 7 Mass. 393, 395 (1811).

11 Certain aspects of the common-law nunc pro tunc doctrine 

have been codified. In civil matters, nunc pro tunc entries may 

be made under G. L. c. 235, § 4, a statute that is "declaratory 

of the common law." See Almeida Bus Lines, Inc., 348 Mass. at 

337. "Clerical mistakes" in both civil and criminal cases may 

be corrected nunc pro tunc under Mass. R. Civ. P. 60 (a), 365 
19

We review a judge's choice to enter a decision nunc pro 

tunc for abuse of discretion. See Santos v. Chrysler Corp., 430 

Mass. 198, 217 (1999). An abuse of discretion occurs when a

judge makes "a clear error of judgment in weighing the factors 

relevant to the decision, such that the decision falls outside 

the range of reasonable alternatives" (quotation and citation 

omitted). See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 

(2014).

Of central importance here, a judge may not use his or her 

authority to issue an order nunc pro tunc so as to contravene a 

statutory mandate or a mandate established by court rule. See, 

e.g., Commonwealth v. Asase, 93 Mass. App. Ct. 356, 360 (2018). 

Compare Commonwealth v. White, 429 Mass. 258, 263 (1999). See 

generally Freeman, supra at 264. Because the defendant's motion 

under rule 25 (a) was filed at the close of the Commonwealth's 

case, the judge was required to rule on it "at that time." See 

Mass. R. Crim. P. 25 (a). See, e.g., Hurley, 455 Mass. at 68. 

When the judge belatedly allowed the motion, nunc pro tunc to 

 

Mass. 828 (1974), and Mass. R. Crim. P. 42, 378 Mass. 919 

(1979), respectively. See Reporters' Notes to Rule 42, Mass. 

Ann. Laws Court Rules, Rules of Criminal Procedure, at 1878

(LexisNexis 2018) ("Rule 42 is limited to the correction of 

'clerical mistakes' or errors 'arising from oversight or 

omission' and does not apply to the correction of errors of 

substance, such as an illegal sentence or improperly obtained 

conviction").
20

the close of the Commonwealth's case, she thus contravened the 

plain dictates of Mass. R. Crim. P. 25 (a). See Asase, supra.

The judge's application of the nunc pro tunc doctrine was 

additionally egregious given that the timing of filing and 

acting on motions for a required finding, explicitly set forth

in Mass. R. Crim. P. 25, implicates a defendant's due process

rights, on the one hand, see Cote, 15 Mass. App. Ct. at 240, and 

the Commonwealth's right to appeal from a postverdict acquittal, 

on the other hand, see Commonwealth v. Therrien, 383 Mass. 529, 

536 (1981). These competing concerns illustrate the harm caused 

to both a defendant and the Commonwealth when a judge

contravenes the mandates of Mass. R. Crim. P. 25 (a) and later 

enters a ruling nunc pro tunc after the jury verdict.

For these reasons, we conclude that the judge abused her 

discretion in allowing the defendant's motion nunc pro tunc to 

the close of the Commonwealth's case.

d. Applicable provision of Mass. R. Crim. P. 25. "[I]n 

determining whether the Commonwealth may take an appeal from a 

judicial action, we look to the true nature of the action rather 

than to what it has been termed or to its particular form" 

(citation omitted). See, e.g., Commonwealth v. Brangan, 475 

Mass. 143, 147 (2016). See also Preston, 393 Mass. at 322-323 

("We have long held that pleadings are to be treated 'according 

to their nature and substance' rather than their technical form"
21

[citation omitted]). We therefore are "not bound by labels or 

checkmarks on a form" (citation omitted). Brangan, supra.

To discern the "true nature" of a defendant's motion, we 

have considered whether "the defendant brought [the]

motion . . . as soon as procedurally possible, and well before 

the jury returned their verdict." Id. We also have examined

whether the motion was allowed after the jury verdict as a 

result of "any other action of the defendant" and whether the 

time of the allowance "instead [was] due to the trial judge's 

decision to take the defendant's motion under advisement." Id. 

In considering these nonexhaustive factors, we also have looked

to the judge's statements, writings, and actions. See id. at 

147-148.

Here, as stated, the defendant filed a motion for a 

required finding under Mass. R. Crim. P. 25 (a) at the close of 

the Commonwealth's case; this was both "as soon as procedurally 

possible" and "well before the jury returned their verdict." 

See Brangan, 475 Mass. at 147. See also Mass. R. Crim. P. 

25 (a). The postverdict disposition of that motion was in no 

way attributable to the defendant. When the judge reserved her 

decision, the defendant objected, explaining that he was 

entitled to a finding at that time. Moreover, the judge's 

stated reasons for reserving the decision over the defendant's 

objection were based upon an evident misapprehension of the 
22

requirements of Mass. R. Crim. P. 25 (a). The reservation did 

not suggest in any way an intention later to deny the

defendant's motion. To the contrary, the judge "tipped [her]

hand" in stating at the hearing that the evidence failed to 

demonstrate a number of elements of the offense. In essence, at 

the close of the Commonwealth's case, the judge deemed the 

evidence insufficient to convict the defendant of murder.

In these circumstances, "[t]o allow [a] motion to be 

appealed simply because it was granted postverdict would be to 

change the character of the motion" filed preverdict. Brangan, 

475 Mass. at 148. Accordingly, we conclude that the defendant's 

preverdict motion must be viewed under Mass. R. Crim. P. 25 (a), 

rather than under Mass. R. Crim. P. 25 (b). Therefore, any 

appeal by the Commonwealth is foreclosed by court rule. See 

Mass. R. Crim. P. 25 (c) (1); Berkwitz, petitioner, 323 Mass. 

41, 47 (1948) ("rules of court . . . have the force of law and 

are just as binding on the court and the parties as would be a 

statute").

3. Conclusion. As to the first reported question, a judge 

may not reserve decision on a motion for a required finding of 

not guilty under Mass. R. Crim. P. 25 (a) that is filed at the 

close of the Commonwealth's case. Nor may a judge allow such a 

motion, nunc pro tunc, after the jury have rendered their

verdict. In the circumstances of this case, the defendant's 
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preverdict motion must be viewed under Mass. R. Crim. P. 25 (a), 

rather than under Mass. R. Crim. P. 25 (b). Therefore, we 

answer the second reported question in the negative: the 

Commonwealth may not appeal from the judge's ruling.

The matter is remanded to the county court for entry of an 

order affirming the allowance of the motion for a directed 

verdict, pursuant to Mass. R. Crim. P. 25 (a), and for entry of 

an order in the Appeals Court dismissing the Commonwealth's 

appeal.

So ordered.