Com. v. Yameen

• Decision Date: 25 January 1988
• Citation: 401 Mass. 331,516 N.E.2d 1149
• Parties: COMMONWEALTH v. Thomas K. YAMEEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1149

516 N.E.2d 1149

401 Mass. 331

COMMONWEALTH v. Thomas K. YAMEEN.

Supreme Judicial Court of Massachusetts, Essex and Suffolk.

Argued Nov. 2, 1987.

Decided Dec. 17, 1987.

Rehearing Denied Jan. 25, 1988.

Bruce T. Macdonald, Cambridge, for defendant.

David A. Grossbaum, Asst. Dist. Atty., for the Com.

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

HENNESSEY, Chief Justice.

The defendant was convicted by a jury of six in the District Court Department of operating a motor vehicle while under the influence of intoxicating liquor. ¹ The judge imposed a fine and a surfine and ordered the defendant forthwith to surrender his driver's license, pursuant to the automatic revocation provisions of G.L. c. 90, § 24(1)(b ) (1986 ed.). The judge stayed the fines pending the defendant's appeal, but declined to stay the revocation of the defendant's license.

The defendant appealed his conviction to the Appeals Court and filed a motion in that court requesting a stay of the license revocation pending appeal. A single justice denied this motion. The defendant then sought review of this ruling by a single justice of this court under G.L. c. 211, § 3 (1986 ed.). Relief was denied. Thereupon the defendant filed an appeal from the order of the single justice to the full bench of the Supreme Judicial Court. We granted the defendant's application for direct appellate review and consolidated his appeals from his conviction and from the single justice's order declining to stay the revocation of his license.

On appeal of his conviction for operating under the influence, the defendant assigns as error certain actions of the trial judge which are discussed below. The defendant also contends that the single justices of the Appeals Court and of the Supreme Judicial Court erred in denying his motions for a stay of the revocation of his license.

1. Motion for stay pending appeal. At the outset, we note that the issue as to the stay is moot as regards the defendant, since the one-year revocation period has passed. However, both parties urge us to reach this issue as one that is capable of repetition, yet evading review. "[W]e have on occasion answered questions in moot cases where the issue was one of public importance, where it was fully argued on both sides, where the question was certain, or at least very likely, to arise again in similar factual circumstances, and especially where appellate review could not be obtained before the recurring question would again be moot." Lockhart v. Attorney Gen., 390 Mass. 780, 783, 459 N.E.2d 813 (1984), and cases cited. These considerations make resolution of the present issue desirable. Defendants convicted of operating under the influence will continue to appeal their convictions. Because the revocation period generally will be shorter than the period of time necessary to complete the appellate process, this issue is apt to evade review. See First Nat'l Bank v. Haufler, 377 Mass. 209, 211, 385 N.E.2d 970 (1979) ("An issue apt to evade review is one which tends to arise only in circumstances that create a substantial likelihood of mootness prior to completion of the appellate process").

The single justice of the Appeals Court believed that he lacked statutory or inherent power to grant the requested stay. It is not clear on what basis the single justice of the Supreme Judicial Court denied the defendant's request for a stay. She stated that it was "not clear" that she had such power, but it is just as likely that she declined to act because she determined in her discretion that a stay was not warranted. The Commonwealth contends that the power to stay a license revocation resides only in the Registrar of Motor Vehicles and not in the judiciary. The defendant, of course, disagrees.

The Commonwealth argues that Mass.R.Crim.P. 31, 378 Mass. 902-903 (1979), which authorizes stays of sentences pending appeal, applies only to sentences of imprisonment or fines and not to a driver's license revocation; that under G.L. c. 90, § 24(1)(b ), the courts specifically are prohibited from staying a license revocation pending appeal; and that the courts do not have inherent power to stay a license revocation absent statutory authorization, much less in the face of a statutory interdiction of such stays.

We agree with the Commonwealth that Mass.R.Crim.P. 31 does not authorize a stay of a license revocation. By its terms, that rule applies only to sentences of imprisonment or fines. But we do not think that G.L. c. 90, § 24(1)(b), specifically prohibits a court from staying a license revocation pending appeal. That statute says only that "no appeal, motion for new trial or exceptions shall operate to stay the revocation of the license or the right to operate." This language does not purport to divest the judiciary of the power to issue a discretionary stay of a license revocation pending appeal, but comports with the normal criminal law practice that entry of an appeal does not automatically operate to stay the execution of a sentence. See Mass.R.Crim.P. 31(a) (where sentence of imprisonment imposed, "the entry of an appeal shall not stay the execution of the sentence unless the judge imposing it or a judge of the Supreme Judicial Court or the Appeals Court determines in his discretion that execution of said sentence shall be stayed pending the final determination of the appeal").

That the Legislature would purport to divest the judiciary of the power to grant a discretionary stay pending appeal in a driver's license revocation case is a proposition that we will not accept absent a clearer indication of legislative intent. To construe G.L. c. 90, § 24(1)(b ), as prohibiting a court from issuing a discretionary stay pending appeal would be inconsistent with the statutorily granted right of appeal from a conviction of operating under the influence, G.L. c. 211A, § 10 (1986 ed.). To allow a defendant to appeal his conviction yet mandate that his punishment could not be stayed while he did so would be to "pay lip service to the statutory provisions that establish the right for a licensee to appeal while eradicating any practical reason for taking the appeal.... A licensee whose license has been revoked or suspended immediately suffers the irreparable penalty of loss of [license] for which there is no practical compensation. This happens even if said licensee wins an appeal and a decision holding that the license was wrongfully revoked. The purpose and impetus for appealing[,] i.e., to prevent having an irrevocable and irreparable penalty imposed, is erased when the statute requires imposition of the penalty prior to and despite the outcome of the appeal.... The practical effect is to render the appeal a meaningless and merely ritualistic process." Smothers v. Lewis, 672 S.W.2d 62, 65 (Ky.1984) (statute denying courts the power to stay liquor license revocation pending appeal violates Kentucky Constitution's mandate of separation of powers; courts have inherent powers to stay execution of sentence pending appeal). We therefore conclude that a judge in his discretion may stay a license revocation pending appeal.

2. Motion for additional voir dire questions. The defendant contends that the trial judge erred in denying his motion for questions to be posed to prospective jurors, and that this ruling deprived him of a meaningful opportunity to discover biases of the prospective jurors regarding the consumption of alcoholic beverages and the offense of operating a motor vehicle while under the influence of intoxicating liquor. He argues that the judge's denial of his motion prevented the defendant from intelligently...