Pope v. Commonwealth

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SJC-12977
JOSEPH JABIR POPE & another1 vs. COMMONWEALTH.
April 29, 2021.
Practice, Criminal, Sentence, Execution of sentence, Stay of
proceedings.
Joseph Jabir Pope and Floyd Hamilton (defendants) appeal
from the denial, by a single justice of this court, of their
petition under G. L. c. 211, § 3. In their petition, they
sought to stay execution of their sentences pending decisions on
their motions for a new trial. We dismiss Pope's appeal as
moot, and we affirm the single justice's judgment as to
Hamilton.
In 1984, the defendants were indicted for murder and other
offenses. After their first trial, at which they were tried
together, ended in a mistrial, they were retried separately.
Each defendant was convicted of murder in the first degree and
armed robbery, and this court affirmed the convictions after
plenary review pursuant to G. L. c. 278, § 33E. Commonwealth v.
Hamilton, 411 Mass. 313, 327 (1991). Commonwealth v. Pope, 406
Mass. 581, 582 (1990). In 1996, Pope filed his first motion for
a new trial, which was denied. Hamilton filed his first motion
for a new trial in 2010; that motion was likewise denied. In
2020, each defendant filed a second motion for a new trial and a
motion to stay execution of sentence pending decision thereon.
The motions to stay were denied by different judges in the
Superior Court. The defendants' G. L. c. 211, § 3, petition
followed. The single justice denied relief without a hearing
and denied a subsequent motion for reconsideration. Pope's
motion for a new trial has since been denied by a judge in the
1 Floyd Hamilton.
2
Superior Court. Hamilton's motion for a new trial has yet to be
decided.
At the outset, we must address a threshold procedural
issue. Because the defendants have received plenary review of
their convictions of murder in the first degree, we must
consider whether the gatekeeper provision of G. L. c. 278,
§ 33E, applies in these circumstances. That provision states,
"If any motion is filed in the superior court after rescript, no
appeal shall lie from the decision of that court upon such
motion unless the appeal is allowed by a single justice of the
supreme judicial court on the ground that it presents a new and
substantial question which ought to be determined by the full
court" (emphasis added). This language expressly applies to any
motion filed by the defendant or the Commonwealth after
rescript, not only to motions for a new trial, barring an appeal
from any such motion without authorization from a single
justice. See, e.g., Lykus v. Commonwealth, 432 Mass. 160, 162
(2000) (gatekeeper provision applies to motion to correct
sentence); Commonwealth v. Davis, 410 Mass. 680, 683-684 (1991)
(gatekeeper provision applies to postconviction motion for funds
for scientific testing of physical evidence). However, we have
recognized that, following the trial court's denial of a stay
pending a ruling on a motion for a new trial, a motion for a
stay to a single justice under Mass. R. A. P. 6 (b) (1), as
appearing in 481 Mass. 1608 (2019), is an appropriate next step
to request a stay. See Commonwealth v. Charles, 466 Mass. 63,
77 n.16 (2013) ("Notwithstanding the fact that each case relates
to a stay of execution of a defendant's sentence pending the
disposition of a motion for a new trial, rather than pending an
appeal, we believe that Mass. R. A. P. 6 . . . sets forth the
proper procedure that is available after a judge acts on a
motion for a stay"). In the circumstances of this case, we do
not consider the defendants' G. L. c. 211, § 3, petition to be
an attempt to appeal per se from the judges' adverse rulings on
the motions for a stay, but the functional equivalent of a new
motion for a stay pursuant to rule 6 (b) (1). The defendants
were therefore not obligated to file a gatekeeper application
before requesting a stay from the single justice.
We now turn to the merits of this appeal. We review the
single justice's denial of relief under G. L. c. 211, § 3, for
abuse of discretion or clear error of law. See, e.g., Garcia v.
Commonwealth, 486 Mass. 341, 343 (2020), quoting Care &
Protection of Isabelle, 459 Mass. 1006, 1006 (2011). Because
Pope's motion for a new trial has since been denied, his request
for a stay pending decision on that motion has become moot. See
3
Rasten v. Northeastern Univ., 432 Mass. 1003, 1003 (2000), cert.
denied, 531 U.S. 1168 (2001). Accordingly, we focus on
Hamilton's request for a stay, as his motion for a new trial is
still pending in the Superior Court. There was no error or
abuse of discretion in denying a stay of execution of his
sentence.
Recently, in Commonwealth v. Nash, 486 Mass. 394, 402-412
(2020), we clarified the standards governing a defendant's
motion, pursuant to Mass. R. Crim. P. 31 (a), as appearing in
454 Mass. 1501 (2009), for a stay of execution of sentence
pending appeal from his or her conviction during the COVID-19
pandemic. A judge considering such a motion must consider three
factors: "(1) the defendant's likelihood of success on appeal,
(2) certain security factors [e.g., the risk of flight and the
danger to any other person or to the community], and (3) certain
risks associated with the pandemic." Nash, supra at 403, 405.
We devoted particular attention to the first and third factors.
As to the first factor, while a defendant must show "some
reasonable possibility of a successful decision in the appeal,"
this does not mean that success on appeal is "certain or even
more likely than not." Id. at 404. "[T]he defendant must show
that there is at least one appellate issue of sufficient heft
that would give an appellate court pause -- in other words, one
or more issues that require a legitimate evaluation, that would
engender a dialectical discussion among an appellate panel where
both sides find some substantive support, and that would, if
successful, lead to a favorable outcome for the defendant." Id.
As to the COVID-19 factor, we clarified our decision in Christie
v. Commonwealth, 484 Mass. 397, 400-401 (2020), in which we
first directed judges to consider the risks posed by the COVID-
19 pandemic when deciding a motion for a stay of execution
pending appeal. We stated that "[i]t is not incumbent on a
defendant seeking a stay to prove that COVID-19 is present, let
alone rampant, at the facility where he or she is incarcerated,
or that the defendant is at an especially high personal risk
because of his or her age or medical condition." Nash, supra at
406-407. It is not appropriate to use the COVID-19 factor
against the defendant: for example, the fact "that an
individual defendant is not known to be at particularly high
risk from the dangers of COVID-19 should not be taken as a
reason to deny a stay." Id. at 409. In sum, the COVID-19
factor should be applied so as to fulfill "[o]ur objective in
Christie[, which] was to reduce temporarily the prison and jail
populations, in a safe and responsible manner, through the
judicious use of stays of execution of sentences pending
appeal." Id. at 406.
4
Hamilton's motion for a stay, however, stands on a
different procedural footing from Nash. He is not seeking a
stay pending appeal from his convictions; indeed, his
convictions were affirmed on direct appeal nearly thirty years
ago. Rather, he seeks a stay pending the Superior Court's
decision on his motion for a new trial. "Mass. R. Crim. P. 31
(a) 'does not authorize a judge to stay execution of a penal
sentence when an appeal is not pending.'" Charles, 466 Mass. at
74, quoting Commonwealth v. McLaughlin, 431 Mass. 506, 518
(2000). Nonetheless, a judge has inherent authority to stay a
sentence pending a motion for a new trial in "exceptional
circumstances." Charles, supra.
For the reasons explained in Commonwealth v. Harris, 487
Mass. , (2021), the COVID-19 pandemic itself does not
present an exceptional circumstance warranting exercise of a
judge's inherent power to grant a stay where a defendant files a
motion for a new trial. Rather, a defendant must show that
exceptional circumstances exist in his or her particular case.
As noted in Harris, the pandemic, when combined with other
factors, might present an exceptional circumstance in a
particular defendant's case. Hamilton has not addressed the
issue whether exceptional circumstances are present and has made
no such particularized showing in this case. For that reason
alone, neither the Superior Court judge nor the single justice
erred or committed an abuse of discretion by denying a stay of
his sentence pending decision on his motion for a new trial.
Accordingly, Pope's appeal from the single justice's
judgment is dismissed as moot, and, with respect to Hamilton's
appeal, the judgment is affirmed.
So ordered.
The case was submitted on briefs.
Ruth Greenberg & Jeffrey G. Harris for the petitioners.
Paul B. Linn, Assistant District Attorney, for the
Commonwealth.
Katharine Naples-Mitchell for Mary T. Bassett & others.
Amy M. Belger for Davanni Curran.