Commonwealth v. Jamie T. Hempel.

• Court: Massachusetts Appeals Court
• Decided: September 15, 2023
• Docket: 22-P-0913
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-913

COMMONWEALTH

vs.

JAMIE T. HEMPEL.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant, Jamie T. Hempel, was

found guilty of home invasion, assault with intent to murder,

assault and battery by means of a dangerous weapon (an axe), and

three charges of assault by means of a dangerous weapon. He

appeals from an order of a single justice of this court denying

his motion for a stay of execution of his sentence pending

appeal of his convictions. Discerning no error of law or abuse

of discretion, we affirm.

The standard for deciding whether to stay a criminal

sentence pending appeal is set forth in detail in Commonwealth

v. Nash, 486 Mass. 394, 402-412 (2020), and the cases cited

therein, and need not be recited here. To summarize, "a

defendant bears the burden of proving two factors -- likelihood of success on appeal and security -- in order to prevail." Id.

at 406.

The defendant duly filed a motion for a stay in the

Superior Court, see Mass. R. A. P. 6 (b) (1), as appearing in

481 Mass. 1608 (2019), but the motion was never acted upon.

Accordingly, the single justice necessarily conducted an

"independent assessment of the defendant's motion." Nash, 486

Mass. at 410. We review the single justice's denial of the stay

for error of law or abuse of discretion. See id. at 412, citing

Commonwealth v. Hodge (No. 1), 380 Mass. 851, 855 (1980).

The defendant's appellate issue concerns whether the trial

judge followed appropriate procedures in permitting the

defendant to forgo his attorney's assistance toward the end of

his trial and, instead, conduct his own examination of one

witness and make his own closing argument. For the purposes of

this appeal, we assume, without deciding, that the issue has

"sufficient heft that would give an appellate court pause."

Nash, 486 Mass. at 404.

Turning to the security factors, the single justice was

required to consider "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." Hodge (No. 1), 380 Mass. at 855.

"The judge also may consider the seriousness of the crime of

2 which the defendant was convicted, the strength of the evidence

presented at trial, and the severity of the sentence that the

judge imposed." Nash, 486 Mass. at 405. Assessment of the

security factors is a question of fact, which requires the judge

"to decide based on the available information whether the

defendant will be a danger or a flight risk if at liberty during

the pendency of the appeal. The judge has considerable leeway

in making that determination." Id.

We discern no error of law or abuse of discretion in the

single justice's implicit determination that the defendant would

pose a danger to the community or a risk of flight if released

pending appeal. The defendant was convicted of numerous crimes

arising from a frightening, violent home invasion incident

involving multiple victims. He received a lengthy State prison

sentence. Prior to the home invasion, he had a substantial

arrest record, but only one previous criminal conviction in

Massachusetts. Seventeen G. L. c. 209A abuse prevention orders

were entered against him from 1996 to 2015, indicating repeated

judicial findings that he had placed household or family members

in fear of imminent serious physical harm or otherwise abused

them. See G. L. c. 209A, § 1 (definition of "abuse").

Furthermore, after a G. L. c. 276, § 58A, hearing in this case,

a judge ordered the defendant to be detained without bail

pending trial due to dangerousness. A different judge

3 subsequently set bail, subject to GPS monitoring, only because

the maximum period for detaining the defendant for dangerousness

had expired. See G. L. c. 276, § 58A (3). The defendant did

not post bail and remained incarcerated pending trial. In

postconviction proceedings, forensic tests of the axe yielded

results that the defendant argues are exculpatory, but that the

Commonwealth contends are inconclusive and consistent with the

jury's verdicts.

Based on these facts, which are relevant to the assessment

of security risks, we conclude that the single justice did not

make a clear error of judgment in weighing the relevant factors,

such that his decision to deny the stay was unreasonable. See

L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Order denying motion for stay of execution of sentence affirmed.

By the Court (Massing, Grant & Brennan, JJ. 1),

Clerk

Entered: September 15, 2023.

1 The panelists are listed in order of seniority.