Commonwealth v. Harris

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SJC-13046
COMMONWEALTH vs. RONNIE M. HARRIS.
April 29, 2021.
Practice, Criminal, Sentence, Execution of sentence, Stay of
proceedings.
The defendant, Ronnie M. Harris, was convicted of murder in
the second degree and other offenses in 1975, and we affirmed
the convictions after plenary review under the version of G. L.
c. 278, § 33E, then in effect. Commonwealth v. Harris, 376
Mass. 201 (1978) (Harris I). In 2019, the defendant filed a
motion for a new trial, which was denied. His appeal from that
ruling is pending in the Appeals Court.1 The defendant also
filed, in the Superior Court, a motion to stay execution of his
sentence pursuant to Mass. R. Crim. P. 31, as appearing in 454
Mass. 1501 (2009), arguing that his age and medical condition
placed him at a heightened risk of illness and death from COVID-
19.2 After that motion was denied, the defendant filed a similar
motion in the Appeals Court pursuant to Mass. R. A. P. 6 (b), as
appearing in 481 Mass. 1608 (2019), seeking a stay of his
1 Although he received plenary review of his conviction of
murder in the second degree, the defendant was not obligated to
seek leave to appeal pursuant to the gatekeeper provision of
G. L. c. 278, § 33E. See Greene v. Commonwealth, 385 Mass.
1008, 1009 (1982).
2 It appears that, due to delays in the Superior Court
clerk's office, the defendant was not aware that his motion for
a new trial had been denied when he filed his motion for a stay.
At the time, the defendant was not seeking to be released
pending any appeal, but to be released until the end of the
COVID-19 pandemic.
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sentence pending appeal from the denial of his motion for a new
trial. A single justice of the Appeals Court denied the motion,
and a panel of the Appeals Court affirmed the denial in an
unpublished memorandum and order. Commonwealth v. Harris, 98
Mass. App. Ct. 1110 (2020) (Harris II). We granted the
defendant's application for further appellate review and
requested supplemental memoranda concerning the parties'
positions as to the panel's decision and the question whether
and in what circumstances a judge or a single justice has
authority to grant a stay of execution of a sentence pending
appeal from the denial of a motion for a new trial, as opposed
to a direct appeal from a conviction. After considering those
memoranda along with the papers filed in the single justice and
panel sessions of the Appeals Court, we affirm.3
Before us is the defendant's appeal from the decision of
the single justice of the Appeals Court denying his motion for a
stay. We review that decision for error of law or abuse of
discretion. Commonwealth v. Nash, 486 Mass. 394, 412 (2020).
Here, the single justice of the Appeals Court both determined
that the motion judge did not err or abuse her discretion by
denying a stay and independently denied a stay after considering
the matter under the factors articulated in Christie v.
Commonwealth, 484 Mass. 397 (2020), and Commonwealth v. Hodge
(No. 1), 380 Mass. 851 (1980). See Nash, supra at 410-411
(appellate single justice may take either approach or both
approaches). We, however, "do[] not exercise [our] own
independent discretion to evaluate the request for a stay;
rather, [we] review[] the correctness of the single justice's
ruling." Id. at 412.
In Nash, 486 Mass. at 402-412, we recently clarified the
legal standards governing motions pursuant to Mass. R. Crim. P.
31 and Mass. R. A. P. 6 (b) to stay execution of sentences
pending appeals from criminal convictions, particularly 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."
Id. at 403. We particularly emphasized, as to the first factor,
that "the defendant must show that there is at least one
appellate issue of sufficient heft that would give an appellate
3 We acknowledge the amicus letter filed by the Committee
for Public Counsel Services, the Massachusetts Association of
Criminal Defense Lawyers, and the New England Innocence Project.
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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. at 404. As to the
COVID-19 factor, we clarified our decision in Christie, 484
Mass. at 400-401, 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 a
particularly high risk from the dangers of COVID-19 should not
be taken as a reason to deny a stay." Id. at 409. 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.
This case, however, stands on a significantly different
procedural footing from Nash. The defendant is not seeking a
stay of his sentence pending appeal from his conviction; his
conviction was affirmed over forty years ago. Rather, he is
seeking a stay pending appeal from the denial of his motion for
a new trial. The Rules of Criminal Procedure do not mention a
stay of execution of sentence in this procedural posture.
Indeed, even where a motion for a new trial is allowed, Mass. R.
Crim. P. 30 (c) (8) (A), as appearing in 435 Mass. 1501 (2001),
provides that "the defendant shall not be discharged from
custody pending final decision on the appeal," although the
defendant may be admitted to bail in the judge's discretion.
See Commonwealth v. Watkins (No. 2), 486 Mass. 1021, 1022 n.2
(2021). It is a closer question whether Mass. R. A. P. 6 (b)
authorizes a single justice of an appellate court to stay
execution of a sentence pending a collateral appeal. We have
indicated that "[t]hose who are pursuing appellate proceedings
or a motion for a new trial may seek a stay of execution of
sentence pursuant to Mass. R. A. P. 6." Committee for Pub.
Counsel Servs. v. Chief Justice of the Trial Court (No. 1), 484
Mass. 431, 435-436 (2020), citing Commonwealth v. Charles, 466
Mass. 63, 83 (2013). However, the language in rule 6 addressing
stays presupposes that the defendant is taking a direct appeal
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from a criminal conviction, not an appeal from a ruling on a
postconviction motion. See Mass. R. A. P. 6 (b) (5), (6) (stay
automatically expires and trial court clerk to be notified upon
release of decision "affirming the conviction"). Moreover, we
have already recognized that the court rules themselves do not
authorize a judge to grant a stay pending a ruling on a motion
for a new trial; rather, a judge has inherent authority to grant
such a stay only in exceptional circumstances. See Charles,
supra at 74. Similarly, on appeal from a ruling on a motion for
a new trial, we think it prudent to authorize a stay only where
exceptional circumstances are present -- particularly where, as
here, the defendant's trial, conviction, and direct appeal all
took place many years ago -- regardless of whether the motion
for a stay is presented to a trial court judge or a single
justice of an appellate court.
There has been no finding of exceptional circumstances in
this case. Harris suggests in his supplemental memorandum that
the COVID-19 pandemic presents an exceptional circumstance.
However, we do not agree that the COVID-19 pandemic itself
presents 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 and appeals from the denial thereof. A
comparison with the Charles case is instructive. In Charles,
466 Mass. at 74, we ruled that exceptional circumstances were
present due to "the allegations of serious and far-reaching
misconduct by [Annie] Dookhan at the [William A. Hinton State
Laboratory Institute]" that "may have compromised thousands of
cases." Dookhan's misconduct "raise[d] significant questions
regarding the veracity of the drug analysis, which purportedly
served as the basis for [the defendant's] guilty pleas, and may
be dispositive of his motion for a new trial." Id. We
concluded that "the interest of justice [was] not served by the
continued imprisonment of a defendant who may be entitled to a
new trial," and so the judge had the inherent authority to allow
a stay pending decision on the defendant's motion. Id. at 74-
75.
The COVID-19 pandemic is different in both kind and scope.
As serious and extraordinary as it is, it is unimaginable that
the pandemic itself casts any doubt on the justice of any
conviction that predates it. Moreover, Dookhan's misconduct
affected only a subset of criminal cases, namely, drug cases
during her tenure at the Hinton drug laboratory -- a large
subset, but a definable class nonetheless. A ruling that the
pandemic alone presents an exceptional circumstance would invite
every prisoner in the Commonwealth, regardless of the nature of
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his or her conviction or the amount of time that has passed
since then, to file a motion for a new trial and, if it is
denied, seek a stay of execution of sentence (that is, immediate
release from confinement) pending appeal from that decision.
Although the pandemic, when combined with other factors, might
present an exceptional circumstance in a particular defendant's
case, it is incumbent on the defendant to make that showing. We
reiterate that the pandemic alone does not constitute an
exceptional circumstance. Moreover, neither the Superior Court
judge nor the single justice of the Appeals Court found that an
exceptional circumstance existed in this case. For that reason
alone, there was no error or abuse of discretion in the denial
of a stay pending appeal from the denial of Harris's motion for
a new trial.
The order of the single justice of the Appeals Court
denying Harris's motion for a stay of execution of sentence is
affirmed.
So ordered.
The case was submitted on briefs.
Inna Landsman for the defendant.
Benjamin Shorey, Assistant District Attorney, for the
Commonwealth.
Anthony D. Mirenda, Christopher E. Hart, & Christopher
Modlish for Committee for Public Counsel Services & others.