NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
21-P-933 Appeals Court
COMMONWEALTH vs. DWAYNE GRIFFITH.
No. 21-P-933.
Hampden. July 14, 2022. - January 11, 2024.
Present: Ditkoff, Walsh, & Brennan, JJ.
Firearms. Motor Vehicle, Firearms. License. Death. Moot Question. Practice, Criminal, Appeal, Death of party.
Indictments found and returned in the Superior Court Department on July 26, 2018.
The cases were tried before by Francis E. Flannery, J.
Patrick Levin, Committee for Public Counsel Services, for the defendant. William Joyce, Assistant District Attorney, for the Commonwealth.
DITKOFF, J. In Commonwealth v. Hernandez, 481 Mass. 582,
583 (2019), the Supreme Judicial Court abandoned the doctrine of
abatement ab initio and held that, where a defendant dies before
the direct appeal of a criminal conviction is decided, "the
proper course is to dismiss the appeal as moot and note in the 2
trial court record that the conviction removed the defendant's
presumption of innocence, but that the conviction was appealed
from and neither affirmed nor reversed because the defendant
died." Here, we face the situation where the defendant died
after his convictions were affirmed in this court but while a
meritorious request for reconsideration or modification of that
decision was pending. We conclude that the proper resolution is
to dismiss the appeal and to have the trial court record note
the accurate information about the state of appellate
proceedings at the time of death, here that the convictions had
been affirmed but that the Commonwealth had conceded that the
decision should be reconsidered and the convictions reversed.
1. Background. a. The crime. On June 16, 2018, two
police officers observed the defendant "blow through" a stop
sign. The police activated the lights on their cruiser, but the
defendant kept driving. The police followed the defendant's
vehicle until the defendant parked in a driveway, got out of his
vehicle, and fled on foot. A foot chase ensued.
The police followed the defendant between houses, over a
fence, and back onto a street. The officers observed the
defendant "clenching" his waistband as he ran. At a certain
point, the defendant stumbled. Afterwards, he continued
running, no longer clenching his waistband. Eventually, an
officer caught up to the defendant and placed him under arrest. 3
The officers then retraced their steps and found a revolver
in a bush. The firearm was loaded with seven shells. One
officer could tell that it was loaded simply by looking at the
wheel of the revolver. The firearm was successfully test fired.
No evidence was presented at trial that the defendant lacked a
license to carry a firearm.1
b. Procedural history. On May 19, 2021, after a Superior
Court trial, a jury convicted the defendant of unlawfully
carrying a firearm, G. L. c. 269, § 10 (a), and unlawfully
carrying a loaded firearm, G. L. c. 269, § 10 (n). On May 26,
2021, the defendant pleaded guilty to an armed career criminal
sentencing enhancement, G. L. c. 269, § 10G (a).2 The defendant
promptly filed a notice of appeal.
On appeal, the defendant raised issues concerning a
supplemental jury instruction addressing the absence of certain
evidence and the constitutionality of the armed career criminal
enhancements. The defendant filed his brief prior to the United
States Supreme Court's decision in New York State Rifle & Pistol
1 The defendant's criminal record made it impossible for him to obtain a license to carry, see G. L. c. 140, § 131 (d) (i), but the jury was not informed of either his criminal record or its effect on his ability to obtain a license.
2 The Commonwealth charged the defendant as an armed career criminal with three prior violent crimes, G. L. c. 269, § 10G (c). The charge was reduced to one prior violent crime as part of a plea bargain. The defendant explicitly preserved his right to appeal the earlier jury verdicts. 4
Ass'n v. Bruen, 142 S. Ct. 2111 (2022) (Bruen). Nonetheless, he
also argued in his brief that the Second Amendment to the United
States Constitution requires the Commonwealth to prove
affirmatively that the defendant lacked a license to carry as an
element of the crimes of unlawfully carrying a firearm and
unlawfully carrying a loaded firearm.3
After oral argument, we released a decision pursuant to
Appeals Court Rule 23.0 affirming the convictions and rejecting
all three claims of error. Commonwealth v. Griffith, 101 Mass.
App. Ct. 1124 (2022). In a passage in our decision that has not
aged well, we stated, "Nothing in the Supreme Court's opinion in
New York State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111
(2022), suggests that the Second Amendment poses any challenges
for State assignment of burdens of production."4 Five days
later, the defendant obtained leave to file a late application
for further appellate review, thus causing us to stay the
3 Flying in the face of the Supreme Judicial Court's later pronouncement that criminal defendants "did not have an adequate opportunity" to raise this claim prior to Bruen, Commonwealth v. Guardado, 491 Mass. 666, 686, S.C., 493 Mass. 1, 12 (2023), the defendant first raised this issue shortly after the jury verdicts in a motion to dismiss the armed career criminal charge.
4 In light of Guardado, we also question our determination in this case "that no substantial question of law is presented by the appeal" and thus that an unpublished decision was warranted. Rule 23.0 (1), of the Rules of the Appeals Court, as appearing in 97 Mass. App. Ct. 1017 (2020). 5
issuance of the rescript. See Mass. R. A. P. 23 (c), as
appearing in 481 Mass. 1653 (2019).
On April 13, 2023, the Supreme Judicial Court released its
opinion in Commonwealth v. Guardado, 491 Mass. 666, 690, S.C.,
493 Mass. 1, 12 (2023), holding that the Second Amendment
requires that, to prove the crimes of unlawfully carrying a
firearm and unlawfully carrying a loaded firearm, the
Commonwealth must affirmatively demonstrate the absence of
licensure. The court also held that criminal defendants whose
direct appeals were still pending at the time Bruen was issued
are entitled to the benefit of this holding, regardless of
whether they objected at trial. Id. at 693. By the end of that
day, we announced that we would reconsider our decision and
requested supplemental briefing from the parties.
To its credit, the Commonwealth conceded that there was
error, that it had not presented sufficient evidence to prove a
lack of licensure, and that the convictions should be reversed.
Shortly thereafter, we learned that the Commonwealth (through a
different district attorney's office) would file a motion for
reconsideration or modification, pursuant to Mass. R. A. P. 27,
as appearing in 481 Mass. 1656 (2019), in Guardado to explore
whether the proper remedy for such an error is an acquittal or a
new trial. Accordingly, we stayed proceedings pending the
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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
21-P-933 Appeals Court
COMMONWEALTH vs. DWAYNE GRIFFITH.
No. 21-P-933.
Hampden. July 14, 2022. - January 11, 2024.
Present: Ditkoff, Walsh, & Brennan, JJ.
Firearms. Motor Vehicle, Firearms. License. Death. Moot Question. Practice, Criminal, Appeal, Death of party.
Indictments found and returned in the Superior Court Department on July 26, 2018.
The cases were tried before by Francis E. Flannery, J.
Patrick Levin, Committee for Public Counsel Services, for the defendant. William Joyce, Assistant District Attorney, for the Commonwealth.
DITKOFF, J. In Commonwealth v. Hernandez, 481 Mass. 582,
583 (2019), the Supreme Judicial Court abandoned the doctrine of
abatement ab initio and held that, where a defendant dies before
the direct appeal of a criminal conviction is decided, "the
proper course is to dismiss the appeal as moot and note in the 2
trial court record that the conviction removed the defendant's
presumption of innocence, but that the conviction was appealed
from and neither affirmed nor reversed because the defendant
died." Here, we face the situation where the defendant died
after his convictions were affirmed in this court but while a
meritorious request for reconsideration or modification of that
decision was pending. We conclude that the proper resolution is
to dismiss the appeal and to have the trial court record note
the accurate information about the state of appellate
proceedings at the time of death, here that the convictions had
been affirmed but that the Commonwealth had conceded that the
decision should be reconsidered and the convictions reversed.
1. Background. a. The crime. On June 16, 2018, two
police officers observed the defendant "blow through" a stop
sign. The police activated the lights on their cruiser, but the
defendant kept driving. The police followed the defendant's
vehicle until the defendant parked in a driveway, got out of his
vehicle, and fled on foot. A foot chase ensued.
The police followed the defendant between houses, over a
fence, and back onto a street. The officers observed the
defendant "clenching" his waistband as he ran. At a certain
point, the defendant stumbled. Afterwards, he continued
running, no longer clenching his waistband. Eventually, an
officer caught up to the defendant and placed him under arrest. 3
The officers then retraced their steps and found a revolver
in a bush. The firearm was loaded with seven shells. One
officer could tell that it was loaded simply by looking at the
wheel of the revolver. The firearm was successfully test fired.
No evidence was presented at trial that the defendant lacked a
license to carry a firearm.1
b. Procedural history. On May 19, 2021, after a Superior
Court trial, a jury convicted the defendant of unlawfully
carrying a firearm, G. L. c. 269, § 10 (a), and unlawfully
carrying a loaded firearm, G. L. c. 269, § 10 (n). On May 26,
2021, the defendant pleaded guilty to an armed career criminal
sentencing enhancement, G. L. c. 269, § 10G (a).2 The defendant
promptly filed a notice of appeal.
On appeal, the defendant raised issues concerning a
supplemental jury instruction addressing the absence of certain
evidence and the constitutionality of the armed career criminal
enhancements. The defendant filed his brief prior to the United
States Supreme Court's decision in New York State Rifle & Pistol
1 The defendant's criminal record made it impossible for him to obtain a license to carry, see G. L. c. 140, § 131 (d) (i), but the jury was not informed of either his criminal record or its effect on his ability to obtain a license.
2 The Commonwealth charged the defendant as an armed career criminal with three prior violent crimes, G. L. c. 269, § 10G (c). The charge was reduced to one prior violent crime as part of a plea bargain. The defendant explicitly preserved his right to appeal the earlier jury verdicts. 4
Ass'n v. Bruen, 142 S. Ct. 2111 (2022) (Bruen). Nonetheless, he
also argued in his brief that the Second Amendment to the United
States Constitution requires the Commonwealth to prove
affirmatively that the defendant lacked a license to carry as an
element of the crimes of unlawfully carrying a firearm and
unlawfully carrying a loaded firearm.3
After oral argument, we released a decision pursuant to
Appeals Court Rule 23.0 affirming the convictions and rejecting
all three claims of error. Commonwealth v. Griffith, 101 Mass.
App. Ct. 1124 (2022). In a passage in our decision that has not
aged well, we stated, "Nothing in the Supreme Court's opinion in
New York State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111
(2022), suggests that the Second Amendment poses any challenges
for State assignment of burdens of production."4 Five days
later, the defendant obtained leave to file a late application
for further appellate review, thus causing us to stay the
3 Flying in the face of the Supreme Judicial Court's later pronouncement that criminal defendants "did not have an adequate opportunity" to raise this claim prior to Bruen, Commonwealth v. Guardado, 491 Mass. 666, 686, S.C., 493 Mass. 1, 12 (2023), the defendant first raised this issue shortly after the jury verdicts in a motion to dismiss the armed career criminal charge.
4 In light of Guardado, we also question our determination in this case "that no substantial question of law is presented by the appeal" and thus that an unpublished decision was warranted. Rule 23.0 (1), of the Rules of the Appeals Court, as appearing in 97 Mass. App. Ct. 1017 (2020). 5
issuance of the rescript. See Mass. R. A. P. 23 (c), as
appearing in 481 Mass. 1653 (2019).
On April 13, 2023, the Supreme Judicial Court released its
opinion in Commonwealth v. Guardado, 491 Mass. 666, 690, S.C.,
493 Mass. 1, 12 (2023), holding that the Second Amendment
requires that, to prove the crimes of unlawfully carrying a
firearm and unlawfully carrying a loaded firearm, the
Commonwealth must affirmatively demonstrate the absence of
licensure. The court also held that criminal defendants whose
direct appeals were still pending at the time Bruen was issued
are entitled to the benefit of this holding, regardless of
whether they objected at trial. Id. at 693. By the end of that
day, we announced that we would reconsider our decision and
requested supplemental briefing from the parties.
To its credit, the Commonwealth conceded that there was
error, that it had not presented sufficient evidence to prove a
lack of licensure, and that the convictions should be reversed.
Shortly thereafter, we learned that the Commonwealth (through a
different district attorney's office) would file a motion for
reconsideration or modification, pursuant to Mass. R. A. P. 27,
as appearing in 481 Mass. 1656 (2019), in Guardado to explore
whether the proper remedy for such an error is an acquittal or a
new trial. Accordingly, we stayed proceedings pending the
resolution of that question. In the meantime, however, the 6
defendant and the Commonwealth agreed that we should stay
execution of the defendant's sentence, which we did on May 2,
2023.
On August 12, 2023, the defendant was fatally shot on the
streets of Springfield in an apparent murder. Defense counsel
informed us of the death, and we asked for briefing on the
proper disposition of the appeal in light of this sad
development.
2. Proper disposition of the appeal after the defendant's
death. Historically, Massachusetts followed the doctrine of
abatement ab initio. See Hernandez, 481 Mass. at 585-587.
Under that doctrine, if a criminal defendant dies prior to the
adjudication of his direct appeal, the case is remanded to the
trial court for the dismissal of the indictment or complaint.
See id. at 583. Accord Commonwealth v. Harris, 379 Mass. 917,
917 (1980). Where, as here, the defendant's criminal
convictions have already been affirmed by this court but review
of this court's decision is pending, the result is different.
In that situation, the decision of this court stands, and the
application for further appellate review is dismissed.
Commonwealth v. De La Zerda, 416 Mass. 247, 251 (1993). Cf.
Commonwealth v. Squires, 476 Mass. 703, 707 (2017) (departing
from that practice where live codefendant's appeal on further
appellate review also pending). 7
The Supreme Judicial Court abolished the doctrine of
abatement ab initio in Hernandez, 481 Mass. at 583. There, the
defendant was convicted of murder in the first degree and died
while awaiting assembly of the record on appeal. Id. at 583-
584. The court examined the doctrine in detail and was "unable
to discern a reasoned analysis for the adoption of the abatement
ab initio doctrine and, in any event, . . . [was] presented with
substantial reasons it should be changed." Id. at 599. The
court then held the following:
"[U]pon the death of the defendant, the appeal shall be dismissed as moot and the trial court shall be instructed to place in the record a notation stating that the defendant's conviction removed the defendant's presumption of innocence, but that the conviction was appealed from and it was neither affirmed nor reversed on appeal because the defendant died while the appeal was pending and the appeal was dismissed."
Id.
Citing Hernandez, the Commonwealth urges us to dismiss the
appeal and order that the Hernandez notation be placed on the
Superior Court record. This we cannot do. It would be improper
for us to instruct the trial court to note "that the conviction
was appealed from and it was neither affirmed nor reversed on
appeal" for the simple reason that the conviction was affirmed
on appeal (and wrongly so). The holding in Hernandez does not
directly address the current situation, and we cannot blindly
follow it where the circumstances are materially different. 8
The defendant, by contrast, asks us "to vacate
Mr. Griffith's conviction and order the indictment dismissed as
moot." This, also, we cannot do. To do this, we would be
required not merely to resurrect the doctrine of abatement ab
initio but to expand it. (As explained above, even under that
doctrine, a conviction stands once affirmed by this court. See
De La Zerda, 416 Mass. at 251.) As the Supreme Judicial Court
has decided that there are "substantial reasons" to abandon the
doctrine, Hernandez, 481 Mass. at 599, we cannot restore it,
much less expand it.
Instead, we follow the overarching principle that guided
the Supreme Judicial Court in Hernandez, 481 Mass. at 602, that
"[t]he record will accurately reflect the case as it was at the
time of death; it will reflect the status quo." This we can do.
On August 12, 2023, the day the defendant died, his
convictions had been affirmed by this court, but we had decided
to reconsider that decision, and the Commonwealth had conceded
that the convictions should be reversed. The only question
remaining was whether the indictments could be retried.5 The
5 After the defendant's death, the Supreme Judicial Court held that the Commonwealth could retry defendants tried before Bruen, regardless of whether sufficient evidence of nonlicensure was presented at trial. Commonwealth v. Guardado, 493 Mass. 1, 3 (2023). 9
record of the trial court can, and should, reflect this accurate
description of the status quo at the time of death.
3. Conclusion. The defendant's appeal is dismissed as
moot, and we instruct the trial court to record a notation
stating that the defendant's convictions of unlawfully carrying
a firearm as an armed career criminal and of unlawfully carrying
a loaded firearm were affirmed on appeal, the Commonwealth then
conceded that the convictions should be vacated, but the
defendant died while reconsideration by the Appeals Court was
pending, and the appeal was dismissed.
So ordered.