Commonwealth v. Griffith

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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
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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.
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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).
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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
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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).
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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.
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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).
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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.