Com. v. Hurley

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before HENNESSEY; NOLAN
• Citation: 391 Mass. 76,461 N.E.2d 754
• Parties: COMMONWEALTH v. John Kevin HURLEY.
• Decision Date: 07 February 1984

Page 754

461 N.E.2d 754 391 Mass. 76 COMMONWEALTH
v.
John Kevin HURLEY. Supreme Judicial Court of Massachusetts,
Barnstable. Argued Dec. 5, 1983.
Decided Feb. 7, 1984.

Page 755

Frederick C. Mycock, Barnstable, for defendant.

W. James O'Neill, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN and O'CONNOR, JJ.

NOLAN, Justice.

The defendant, John Kevin Hurley, requests that this court reinstate his appeal and reconsider his case [391 Mass. 77] under G.L. c. 278, § 33E. The defendant has been convicted of murder in the first degree. On appeal from the denial of his motion for new trial, we held that the defendant was entitled to a new trial because he was denied the effective assistance of counsel. Commonwealth v. Cobb, 379 Mass. 456, 461-462, 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). We held that a conflict of interests resulted from an attorney's representation of both the defendant and a prosecution witness, who was an alleged accomplice to the murder. The Supreme Court of the United States vacated the judgment (in Commonwealth v. Cobb, supra ) as it affected Hurley and requested that we reconsider the present case in light of Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). (Massachusetts v. Hurley, 449 U.S. 809, 101 S.Ct. 56, 66 L.Ed.2d 12 (1980).)

The defendant was admitted to bail after our decision in Cobb. Later, after the Supreme Court's decision, the Commonwealth moved to have the defendant's bail revoked. The defendant failed to appear at his bail revocation hearing. As a result, on October 16, 1980, the defendant having been found in default, a capias was issued for his arrest. Thereafter, this court dismissed the defendant's appeal. Commonwealth v. Hurley, 382 Mass. 690, 691, 414 N.E.2d 1006 (1981). The defendant remained a fugitive from justice until May 26, 1981.

The importance of the issues involved persuades us to grant the defendant's motion to reinstate his appeal. Moreover, pursuant to our authority under G.L. c. 278, § 33E, we order that the defendant be given a new trial. However, we order a new trial only if a judge in the Superior Court, after a hearing, finds that the Commonwealth's case has not been prejudiced by the defendant's default.

1. The defendant contends that this court should reinstate his appeal because he should not be denied the beneficial effect of the court's ruling in Commonwealth v. Cobb, supra, and those cases relying on the decision. See Commonwealth v. Hodge, 386 Mass. 165, 434 N.E.2d 1246 (1982). We agree, as already indicated, that the defendant's appeal should be reinstated.

[391 Mass. 78] We follow the generally accepted view that a defendant who is a fugitive from justice cannot insist that his appeal be heard. Commonwealth v. Green, 353 Mass. 687, 690, 234 N.E.2d 534 (1968). Commonwealth v. Rezendes, 353 Mass. 228, 230 N.E.2d 647 (1967). However, we have not yet considered when an appeal, dismissed because of a defendant's fugitive status, will be reinstated. ¹

We conclude that the allowance of a motion for reinstatement of an appeal is within the discretion of this court. ² The

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United States Supreme Court, in Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 498-99, 24 L.Ed.2d 586 (1970), noted that while a court need not adjudicate the merits of a criminal case after a convicted defendant who has sought review has escaped, the escape itself "does not strip the case of its character as an adjudicable case or controversy." Id.

The Commonwealth contends that the defendant, through his escape, has voluntarily waived his rights to appellate review and therefore is not entitled to reinstatement of his appeal. Although we have stated that by his voluntary act [391 Mass. 79] the fugitive has waived his appellate rights, Commonwealth v. Rezendes, supra, we have stressed that "[o]ur cases do not go beyond deciding that one who is in escape from custody cannot insist that his appeal be heard." Commonwealth v. Green, supra, 353 Mass. at 690, 234 N.E.2d 534. "The rationale behind dismissal of a fugitive's appeal ... rests upon the inherent discretion of any court to refuse to hear the claim of a litigant who, by escaping, has placed himself beyond the jurisdiction and control of the court, and hence, might not be responsive to the judgment of the court." Commonwealth v. Borden, 256 Pa.Super. 125, 127, 389 A.2d 633 (1978), quoting Smith v. United States, 94 U.S. 97, 4 OTTO 97, 24 L.Ed. 32 (1876). Thus, once a defendant returns to our jurisdiction and control, voluntarily or forcibly, we conclude that it is within the inherent discretion of this court to reinstate the defendant's appeal. See United States v. Shelton, 508 F.2d 797, 798-799 (5th Cir.), cert. denied, 423 U.S. 828, 96 S.Ct. 45, 46 L.Ed.2d 44 (1975) (stating that Molinaro v. New Jersey, supra, invests a court with discretion to reinstate an appeal in certain cases).

While this court has discretion to grant a reinstatement, we note that a motion to reinstate an appeal is an extraordinary request and should not be granted lightly. See Estrada v. United States, 585 F.2d 742 (5th Cir.1978). Furthermore, a defendant has no constitutional right to have his appeal reinstated. Estelle v. Dorrough, 420 U.S. 534, 536-537, 95 S.Ct. 1173, 1175-1176, 43 L.Ed.2d 377 (1975). Nonetheless, we conclude, in the present case, that the defendant's request for reinstatement should be granted.

We are drawn to the reasoning in...