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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 
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.