Opinion
19-P-741
03-26-2020
COMMONWEALTH v. Adrian HINDS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted on two indictments charging assault and battery by means of a dangerous weapon causing serious bodily injury. He was sentenced to a term of ten to twelve years in State prison on one count, to be followed by a probationary term of five years on the other count. He appealed and moved to stay execution of his sentence pending appeal. The trial judge denied the motion, and the defendant then sought a stay from a single justice of this court. See Mass. R. A. P. 6 (b), as appearing in 481 Mass. 1608 (2019). That motion, too, was denied, and the defendant appeals. For the following reasons, we determine that the trial judge should reconsider the matter.
The essential issue before us is "whether the single justice erred in ruling that the trial judge's action on the motion to stay was not an abuse of discretion." Commonwealth v. Mattier (No. 1), 474 Mass. 227, 228 (2016). "When considering the merits of a motion to stay the execution of a sentence, two factors are considered: (1) whether the defendant's appeal presents an issue which is worthy of presentation to an appellate court, one which offers some reasonable possibility of a successful decision, ... and (2) whether the defendant's release poses a security risk" (quotations and citations omitted). Id. Here, as in Mattier, "[t]he single justice and the trial judge, as they were entitled to do, denied relief without explanation." Id. We therefore review the two factors identified in Mattier.
Accordingly, we see no basis on which to address the question posed in some other cases: "whether the single justice committed error of law in declining to make an independent exercise of discretion on the issue of the stay of execution, in place of that made by the trial judge" (quotation omitted). Mattier, 474 Mass. at 228.
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The first factor -- reasonable possibility of success on appeal -- "is a pure question of law or legal judgment" (quotation and citation omitted). Mattier, 474 Mass. at 228. Here, the defendant claims a reasonable possibility of demonstrating on appeal that the trial judge abused his discretion where, at or near the end of jury selection, he declined to allow the defendant to exercise his one remaining peremptory challenge. Our analysis of this question has included careful consideration of the transcript of jury empanelment, which we note was not available to the judge or the single justice at the time they denied the defendant's motions for a stay pending appeal.
The transcript includes the judge's explanation that (1) defense counsel had not exercised the peremptory challenge in timely fashion; (2) the judge could not "keep going back, correcting [counsel's] mistakes," this being counsel's second somewhat belated attempt to challenge the same juror; and (3) the judge was "trying to keep this trial from spinning out of control" and instead proceeding "in an orderly fashion." We have also considered the importance of the right at stake, see Commonwealth v. Wood, 389 Mass. 552, 564 (1983) ("the erroneous denial of the right to exercise a proper peremptory challenge is reversible error without a showing of prejudice"); the extent to which the attempted challenge was untimely; and the extent to which allowing the challenge might have delayed or disrupted the proceedings. Without suggesting that these are the only factors bearing on the issue, and "[w]ithout in any way prejudging the merits of the defendant's direct appeal," Mattier, 474 Mass. at 228, we conclude that the defendant's argument offers some reasonable possibility of success on appeal.
The second factor relevant to a stay pending appeal -- whether the defendant's release poses a security risk -- "involves factual determinations," and therefore is a question on which "a single justice will more likely decline to exercise [her] own, independent discretion" and instead "review the determination of a trial judge for any abuse of discretion." Commonwealth v. Cohen (No. 2), 456 Mass. 128, 133 & n.7 (2010). In this case, we, too, are inclined to defer in the first instance to the trial judge's exercise of discretion regarding security concerns. Relevant considerations include "the possibility of flight to avoid punishment; potential danger to any other person or to the community; and the likelihood of further criminal acts during the pendency of the appeal." Commonwealth v. Hodge (No. 1), 380 Mass. 851, 855 (1980).
Here, the record does not disclose whether the stay was denied because of a conclusion (1) that the defendant had not shown reasonable possibility of success on appeal, or (2) that his release would pose a security risk. Accordingly, the matter must be remanded to the trial court for a determination of the security risks, if any, posed by the defendant's release, and a new determination whether (and, if necessary, with what conditions upon release) a stay of execution of his sentence should be allowed, in light of our conclusion with respect to the defendant's reasonable possibility of success on appeal.
Conclusion. The order of the single justice is vacated, and a new order shall enter remanding the matter to the trial court for reconsideration in accordance with this memorandum and order.
So ordered.
Vacated and remanded.