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Commonwealth v. Hernandez

Supreme Judicial Court of Massachusetts, Bristol

March 13, 2019


          Heard: November 8, 2018.

         Homicide. Firearms. Death. Practice, Criminal, Capital case, Death of party, Appeal.

         The Supreme Judicial Court granted an application for direct appellate review.

          Thomas M. Quinn, III, Assistant District Attorney (Shoshana Stern, Assistant District Attorney, also present) for the Commonwealth.

          John M. Thompson (Linda J. Thompson also present) for the defendant.

          Maura Healey, Attorney General, & Eric A. Haskell, Assistant Attorney General, for the Attorney General & another, amici curiae, submitted a brief.

          Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          CYPHER, J.

         In this appeal, the Commonwealth asks us to reconsider the viability of the common-law doctrine of abatement ab initio, whereby, as was the case here, a criminal conviction is vacated and the indictment is dismissed after the defendant dies while his direct appeal as of right challenging that conviction is in process. The justification for the adoption of the doctrine has never been explicated, and several compelling arguments weigh against it. Indeed, many other jurisdictions have, with increasing frequency in recent years, rejected the doctrine and followed alternative approaches. The Commonwealth urges us either to abandon the doctrine altogether or to recognize an exception to the doctrine where, as has been suggested may have been the case here, a defendant commits suicide to prevent the application of the doctrine and thereby collaterally to benefit surviving family members, heirs, or other beneficiaries.[1]

         We conclude that the doctrine of abatement ab initio is outdated and no longer consonant with the circumstances of contemporary life, if, in fact, it ever was. Rather, when a defendant dies irrespective of cause, while a direct appeal as of right challenging his conviction is pending, the proper course is to dismiss the appeal as moot and note in the trial court record that the conviction removed the defendant's presumption of innocence, but that the conviction was appealed and neither affirmed nor reversed because the defendant died. We conclude that this approach, which otherwise applies only prospectively, should apply in the present case.

         1. Background.

         Following a jury trial, the defendant was convicted of, among other things, murder in the first degree and sentenced to the mandatory term of life imprisonment with no eligibility for parole.[2] About two years later, the defendant died[3] while awaiting assembly of the record for his appeal.[4]

         The defendant's appellate counsel filed a suggestion of death and motion to abate in the trial court, requesting that the court dismiss the defendant's appeal, [5] vacate his convictions, and dismiss the underlying indictments. The Commonwealth opposed the latter two requests. After hearing, the judge, who was also the trial judge, issued a thorough and reasoned memorandum of decision concluding that she was bound by precedent emanating from this court to apply the doctrine of abatement ab initio. Consequently, she allowed defense counsel's motion, dismissed the defendant's notice of appeal, vacated his convictions, and dismissed the indictments. We granted the Commonwealth's application for direct appellate review.[6]

         2. State of the law.

         The doctrine of abatement ab initio provides that the death of a defendant "pending direct review of a criminal conviction abates not only the appeal but also all proceedings had in the prosecution from its inception." Durham v. United States, 401 U.S. 481, 483 (1971) (per curiam). "That is, the appeal does not just disappear, and the case is not merely dismissed. Instead, everything associated with the case is extinguished, leaving the defendant as if he had never been indicted or convicted" (quotation and citation omitted). United States v. Estate of Parsons, 367 F.3d 409, 413 (5th Cir. 2004) . The doctrine "is not grounded in the constitution or in statute, but is instead a court-created common law doctrine" (citation omitted) . People v. Griffin, 328 P.3d 91, 92 (Colo. 2014) . See Bevel v. Commonwealth, 282 Va. 468, 478 (2011) ("It does not appear that abatement of a criminal case is addressed by statute in any jurisdiction in the United States"); State v. Webb, 167 Wash.2d 470, 474 (2009) (lack of "authority holding as a constitutional matter that abatement of a conviction is required when a defendant dies pending an appeal").

         The origin of the doctrine "is unclear, with little or no evidence of its application prior to the late nineteenth century. . . . These early decisions were occasionally quite terse and provide little insight into the reasons the courts elected to abate a case or not, or even as to what aspect of the case was being abated -- the appeal only or the entire prosecution" (citation omitted). Bevel, 282 Va. at 475. "Despite the common acknowledgement that abatement ab initio is well-established and oft-followed . . ., few courts have plainly articulated the rationale behind the doctrine." Estate of Parsons, 367 F.3d at 413. Or, as another court put it, the "rule that an action abates with the death of a party is one of antiquity" and "[t]he reason for the rule has been lost in antiquity" (citations omitted). People v. Ekinici, 191 Misc.2d 510, 516-517 (N.Y. S.Ct. 2002). In many respects, this describes the evolution of the doctrine of abatement ab initio in Massachusetts.

         a. Abatement in Massachusetts.

         It has been suggested on several occasions, including by the trial judge in her memorandum of decision, by a commentator on appellate procedure, see J.F. Stanton, Appellate Procedure § 5:56 (3d ed. Supp. 2017), and even by this court in a recent summary disposition, see Commonwealth vs. Luke, SJC-11629, order (July 21, 2016), that the doctrine of abatement ab initio represents the "longstanding" practice in Massachusetts. The first reported appellate case acknowledging the doctrine in Massachusetts, however, was issued in 1975. See Commonwealth v. Eisen, 368 Mass. 813, 813-814 (1975). It strains credulity then to suggest that the doctrine has been a long-standing or historic staple of Massachusetts common law, especially when contrasted with other jurisdictions. See, e.g., Griffin, 328 P.3d at 93 (doctrine first recognized by Supreme Court of Colorado in 1904); State v. West, 630 S.W.2d 271 (Mo.Ct.App. 1982) (tracing doctrine to Supreme Court of Missouri case from 1874).

         It also would be a stretch to suggest, as the defendant does here, that the doctrine of abatement ab initio was "formally" adopted by this court in Ei_s_en, 368 Mass. at 813. That decision, a rescript, is more notable for brevity than insight. We did not declare that we were adopting the doctrine, nor did we comment on the potential benefits or shortcomings of its approach or that of any other approach. We simply stated that "[w]hen a criminal defendant dies pending his appeal, normally the judgment should be vacated and the indictment dismissed. This is the general practice elsewhere" (emphasis added) . I_d. at 813-814, and cases cited. We concluded:

"The asserted general importance of certain issues and counsel's able presentation of his client's appeal do not justify a different result. Any personal interest in vindication which a member of the defendant's family may have is not sufficiently substantial to warrant our deciding the appeal. . . . Although given an opportunity to do so, neither the Commonwealth nor the defendant's counsel has advanced any other reason why a decision on this appeal should be made" (citations omitted).

Id. at 814. We remanded for dismissal of the indictment. Id.

         In the ensuing forty-four years, we have applied the doctrine to a direct appeal as of right from a conviction in two reported decisions, both rescripts, both even terser than Ei_s_en. First, in Commonwealth v. Harris, 379 Mass. 917 (1980), we essentially restated our holding and reasoning from Eisen and remanded for dismissal of the indictment. In Commonwealth v. Latour, 397 Mass. 1007 (1986), again citing Eisen, we stated that, "[w]hen a criminal defendant dies pending his appeal, the general practice is to dismiss the indictment" (emphasis added), and concluded, in even briefer terms than either Eisen or Harris, that "[t]here is nothing about the issues raised in this appeal that leads us to vary this general rule." Id. Accordingly, we remanded for dismissal of the complaint. Id.

         Those cases make up the universe of appellate jurisprudence on the doctrine before us.[7] In sum, abatement ab initio is "normally" or "generally" the rule, although it appears to be so for no other reason than because that was the practice elsewhere.

         b. Federal approach.

         The Federal courts apply the doctrine of abatement ab initio when a defendant dies during the pendency of an appeal as of right. In Durham, 401 U.S. at 481, which we cited in Eisen, 368 Mass. at 814, the defendant filed a petition for writ of certiorari seeking review of the decision of a Federal Court of Appeals affirming his criminal conviction. While the petition was pending, he died. Durham, supra. The United States Supreme Court, after noting that lower Federal courts had been "unanimous" and "correct" in holding that abatement ab initio applies when a defendant dies while direct review of a criminal conviction is pending, granted the writ, vacated the conviction, and remanded with directions to dismiss the indictment. I_d. at 483. Five years later, the Court overruled Durham in another per curiam decision that became known for its brevity:

"The Court is advised that the petitioner died at New Bern, N.C., on November 14, 1975. The petition for certiorari is therefore dismissed. To the extent that Durham . . . may be inconsistent with this ruling, Durham is overruled."

Dove v. United States, 423 U.S. 325 (1976) (per curiam). See United States v. Pauline, 625 F.2d 684, 685 (5th Cir. 1980) (Dove overruled Durham in "42 cryptic, enigmatic words"). The United States Courts of Appeals have, with the exception of one that has not addressed the issue, continued to apply the doctrine when a defendant dies pending a direct appeal as of right, having either expressly or implicitly concluded that Dove overruled Durham only with respect to the disposition of petitions for certiorari, a discretionary form of appeal.[8] There has been some divergence among the Federal courts concerning whether there should be an exception to abatement for restitution orders imposed for compensatory, as opposed to penal, purposes, [9] and whether the doctrine requires reimbursement of fines that have been paid prior to the defendant's death, [10] although both issues have been the subject of renewed scrutiny after the Supreme Court held in Nelson v. Colorado, 137 S.Ct. 1249, 1252 (2017), that due process requires the refund of fees, court costs, and restitution paid by a defendant when the underlying conviction has been invalidated and no retrial will occur. 11

         c. Other jurisdictions.

         Although it may have been arguable when Eisen was decided in 1975 that the doctrine of abatement ab initio was the majority approach, the "more recent trend offers courts options in deciding how an appeal should be handled upon the death of an appellant." Statev.Salazar, 123 N.M. 778, 785 (1997). Abatement ab initio is far from the "general practice" now, there being, depending on how granular one chooses to define the categories, anywhere from three to seven different approaches followed when a defendant dies during the pendency of a direct appeal of a conviction. Compare Statev.Hollister, 300 Kan. 458, 465-466 (2014) (discussing three general approaches), with Surlandv.State, 392 Md. 17, 19-20 (2006) (identifying five ...

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