Com. v. Hurley
| Decision Date | 09 January 1981 |
| Citation | 382 Mass. 690,414 N.E.2d 1006 |
| Parties | COMMONWEALTH v. John Kevin HURLEY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Gary A. Nickerson, Asst. Dist. Atty., for the Commonwealth.
Frederick C. Mycock, Barnstable, for the defendant.
Before HENNESSEY, C. J., and QUIRICO, KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.
RESCRIPT.
The defendant was convicted of murder in the first degree. We reversed the conviction, set aside the verdict, and ordered a new trial. Commonwealth v. Cobb, --- Mass. --- a, 405 N.E.2d 97 (1980). The Supreme Court of the United States granted the Commonwealth's petition for writ of certiorari, vacated the judgment, and remanded the case for further consideration in light of Cuyler v. Sullivan, 446 U.S. ----, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Massachusetts v. Hurley, --- U.S. ---, 101 S.Ct. 56, 66 L.Ed.2d 12 (1980). Shortly thereafter the Commonwealth moved to dismiss the appeal on the ground that the defendant, who had been admitted to bail following this Court's reversal of the conviction, was unavailable to pursue his appeal. The motion was referred to a single justice for examination and recommendation. After hearing on the motion the single justice recommended that the motion be allowed and the appeal dismissed. Upon consideration, the Full Court adopts the recommendation of the single justice.
The record shows that, after the Supreme Court issued its order, the defendant was notified to appear in Superior Court for a hearing regarding his bail status. The defendant was represented by counsel but failed to appear. He was defaulted. A capias issued and remains unexecuted. At the hearing on the motion to dismiss, defendant's counsel advised the single justice that defendant's whereabouts were unknown. In ordering defendant's appeal dismissed, we follow the long-standing practice of this court, as well as the Supreme Court of the United States, to dismiss the appeal of a defendant who has made himself unavailable during the pendency of his appeal. Commonwealth v. Rezendes, 353 Mass. 228, 230 N.E.2d 647 (1967). Estelle v. Dorrough, 420 U.S. 534, 537, 95 S.Ct. 1173, 1175, 43 L.Ed.2d 482 (1975). Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970).
Appeal dismissed.
a. Mass.Adv.Sh. (1980) 59.
To continue reading
Request your trial
-
Com. v. Rainwater
...405 N.E.2d 97, vacated sub nom. Massachusetts v. Hurley, 449 U.S. 809, 101 S.Ct. 56, 66 L.Ed.2d 12 (1980), appeal dismissed, 382 Mass. 690, 414 N.E.2d 1006 (1981). Similarly, this court and the bar of the Commonwealth have historically taken measures to assure persons charged with crime the......
-
Com. v. Goldman
...405 N.E.2d 97, vacated sub nom. Massachusetts v. Hurley, 449 U.S. 809, 101 S.Ct. 56, 66 L.Ed.2d 12 (1980), appeal dismissed, 382 Mass. 690, 414 N.E.2d 1006 (1981). In Commonwealth v. Hodge, 386 Mass. 165, 434 N.E.2d 1246 (1982), we refused to apply to art. 12 of the Massachusetts Declaratio......
-
Com. v. Holliday
...on other grounds sub nom. Massachusetts v. Hurley, 449 U.S. 809, 101 S.Ct. 56, 66 L.Ed.2d 12 (1980), appeal dismissed, 382 Mass. 690, 414 N.E.2d 1006 (1981) (no abuse of discretion in declining to order prosecution to turn over addresses of witnesses); Commonwealth v. Stewart, 365 Mass. 99,......
-
Com. v. Mosher
...456, 461, 405 N.E.2d 97, vacated sub nom. Massachusetts v. Hurley, 449 U.S. 809, 101 S.Ct. 56, 66 L.Ed.2d 12 (1980), appeal dismissed, 382 Mass. 690, 414 N.E.2d 1006 (1981). Where the defendant's counsel has labored under an actual or genuine conflict, therefore, we are unwilling to put a d......