COMMONWEALTH vs. JOHN KEVIN HURLEY.

NOLAN, J. The defendant, John Kevin Hurley, requests that this court reinstate his appeal and reconsider his case

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under G. L. c. 278, Section 33E. The defendant has been convicted of murder in the first degree. On appeal from the denial of his motion for new trial, we held that the defendant was entitled to a new trial because he was denied the effective assistance of counsel. Commonwealth v. Cobb, 379 Mass. 456, 461-462, vacated sub nom. Massachusetts v. Hurley, 449 U.S. 809 (1980). We held that a conflict of interests resulted from an attorney's representation of both the defendant and a prosecution witness, who was an alleged accomplice to the murder. The Supreme Court of the United States vacated the judgment (in Commonwealth v. Cobb, supra) as it affected Hurley and requested that we reconsider the present case in light of Cuyler v. Sullivan, 446 U.S. 335 (1980). (Massachusetts v. Hurley, 449 U.S. 809 [1980].)

The defendant was admitted to bail after our decision in Cobb. Later, after the Supreme Court's decision, the Commonwealth moved to have the defendant's bail revoked. The defendant failed to appear at his bail revocation hearing. As a result, on October 16, 1980, the defendant having been found in default, a capias was issued for his arrest. Thereafter, this court dismissed the defendant's appeal. Commonwealth v. Hurley, 382 Mass. 690, 691 (1981). The defendant remained a fugitive from justice until May 26, 1981.

The importance of the issues involved persuades us to grant the defendant's motion to reinstate his appeal. Moreover, pursuant to our authority under G. L. c. 278, Section 33E, we order that the defendant be given a new trial. However, we order a new trial only if a judge in the Superior Court, after a hearing, finds that the Commonwealth's case has not been prejudiced by the defendant's default.

1. The defendant contends that this court should reinstate his appeal because he should not be denied the beneficial effect of the court's ruling in Commonwealth v. Cobb, supra, and those cases relying on the decision. See Commonwealth v. Hodge, 386 Mass. 165 (1982). We agree, as already indicated, that the defendant's appeal should be reinstated.

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We follow the generally accepted view that a defendant who is a fugitive from justice cannot insist that his appeal be heard. Commonwealth v. Green, 353 Mass. 687, 690 (1968). Commonwealth v. Rezendes, 353 Mass. 228 (1967). However, we have not yet considered when an appeal, dismissed because of a defendant's fugitive status, will be reinstated. [Note 1]

We conclude that the allowance of a motion for reinstatement of an appeal is within the discretion of this court. [Note 2] The United States Supreme Court, in Molinaro v. New Jersey, 396 U.S. 365, 366 (1970), noted that while a court need not adjudicate the merits of a criminal case after a convicted defendant who has sought review has escaped, the escape itself "does not strip the case of its character as an adjudicable case or controversy." Id.

The Commonwealth contends that the defendant, through his escape, has voluntarily waived his rights to appellate review and therefore is not entitled to reinstatement of his appeal. Although we have stated that by his voluntary act

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the fugitive has waived his appellate rights, Commonwealth v. Rezendes, supra, we have stressed that "[o]ur cases do not go beyond deciding that one who is in escape from custody cannot insist that his appeal be heard." Commonwealth v. Green, supra at 690. "The rationale behind dismissal of a fugitive's appeal . . . rests upon the inherent discretion of any court to refuse to hear the claim of a litigant who, by escaping, has placed himself beyond the jurisdiction and control of the court, and hence, might not be responsive to the judgment of the court." Commonwealth v. Borden, 256 Pa. Super. 125, 127 (1978), quoting Smith v. United States, 94 U.S. 97 (1876). Thus, once a defendant returns to our jurisdiction and control, voluntarily or forcibly, we conclude that it is within the inherent discretion of this court to reinstate the defendant's appeal. See United States v. Shelton, 508 F.2d 797, 798-799 (5th Cir.), cert. denied, 423 U.S. 828 (1975) (stating that Molinaro v. New Jersey, supra, invests a court with discretion to reinstate an appeal in certain cases).

While this court has discretion to grant a reinstatement, we note that a motion to reinstate an appeal is an extraordinary request and should not be granted lightly. See Estrada v. United States, 585 F.2d 742 (5th Cir. 1978). Furthermore, a defendant has no constitutional right to have his appeal reinstated. Estelle v. Dorrough, 420 U.S. 534, 536-537 (1975). Nonetheless, we conclude, in the present case, that the defendant's request for reinstatement should be granted.

We are drawn to the reasoning in White v. State, 514 P.2d 814, 816 (Alaska 1973). In deciding to grant the defendant's motion to reinstate, that court stressed the defendant's meritorious grounds for appeal in light of recent decisions by the Supreme Court of Alaska. Similarly, in the instant case, the defendant's claim on appeal is meritorious. The recent decision of Commonwealth v. Hodge, 386 Mass. 165 (1982), decided after the defendant's original appeal, has a favorable impact on his case. See Commonwealth v. Pires, 389 Mass. 657, 659-662 (1983).

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On the other hand, the court in White v. State, supra at 816, also weighed the possible prejudice to the State's case, before deciding to allow the motion to reinstate. That court found that since the delay between the date of dismissal and the motion to reinstate was a period of less than two months, no prejudice could be found. Id. In the present case, the defendant remained a fugitive for a period of approximately eight months. Moreover, three years have passed since the appeal was dismissed on January 9, 1981. For these reasons we cannot conclude on the present record that the Commonwealth has not been prejudiced. Therefore, our decision to grant the defendant a new trial is made contingent upon a finding by the Superior Court that the Commonwealth has not been prejudiced by the defendant's actions.

2. The United States Supreme Court has requested that we reconsider the issue whether the defendant has been denied the effective assistance of counsel in light of Cuyler v. Sullivan, 446 U.S. 335 (1980). Massachusetts v. Hurley, 449 U.S. 809 (1980). The defendant also requests that we reconsider his case pursuant to our powers under G. L. c. 278, Section 33E. In the interests of justice, we conclude that the defendant should be granted a new trial. We base this decision on art. 12 of the Massachusetts Declaration of Rights and therefore, we find it unnecessary to consider the case exclusively in light of Cuyler v. Sullivan, supra. See Herb v. Pitcairn, 324 U.S. 117, 125-126 (1945). We acknowledge that when determining whether the defendant's right to effective assistance of counsel was denied in Commonwealth v. Cobb, 379 Mass. 456, 459 (1980), we relied on the Sixth and Fourteenth Amendments to the United States Constitution. We are also aware that the defendant contends for the first time in his motion for reconsideration under G. L. c. 278, Section 33E, that he was denied the effective assistance of counsel under art. 12. Nevertheless, we conclude that, in the interests of justice, we must address the defendant's State constitutional claims.

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General Laws c. 278, Section 33E, invests this court with extraordinary powers on review of capital cases. Commonwealth v. Brown, 376 Mass. 156, 168 (1978). In addition, the statute "consigns the facts as well as the law to our consideration, gives us the power and the duty exercised by a trial judge upon a motion for a new trial, and requires us to consider the whole case broadly to determine whether there was any miscarriage of justice." Commonwealth v. Geraway, 364 Mass. 168, 175 (1973), quoting Commonwealth v. Cox, 327 Mass. 609, 614 (1951). We conclude that in this case such a miscarriage of justice occurred.

Cuyler v. Sullivan, 446 U.S. 335 (1980), interprets the right of effective assistance of counsel in the Sixth Amendment to require that a defendant "demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Id. at 348. With respect to the effective assistance of counsel, art. 12 provides greater safeguards than the Bill of Rights of the United States Constitution. Commonwealth v. Hodge, 386 Mass. 165, 169-170 (1982). In Commonwealth v. Hodge, supra, we stressed that the right to the effective assistance of counsel was a fundamental right. Such a fundamental right should not depend on a defendant's ability to meet the nearly impossible burden of proving that a genuine conflict of interest resulted in an adverse effect on his trial counsel's performance. Id. at 170. Therefore, since the defendant has already demonstrated that a genuine conflict of interest existed, he need not be required to prove an adverse effect on his trial counsel's performance, much less actual prejudice. See Commonwealth v. Cobb, supra at 460-461.

As we noted in Commonwealth v. Cobb, supra at 459, the facts of this case present "a more egregious situation than Commonwealth v. Geraway, 364 Mass. 168 (1973), where a borderline conflict of interest was found sufficient to warrant a discretionary reversal of a conviction under G. L. c. 278, Section 33E." After consideration under G. L. c. 278, Section 33E, we believe that the interests of justice require that the defendant receive the benefit of our holding in

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Commonwealth v. Hodge, supra, which was predicated primarily on our reasoning in Commonwealth v. Cobb, supra. [Note 3]

For these reasons we remand this case to the Superior Court for a hearing to determine whether the Commonwealth's case has been prejudiced by the defendant's flight. If the Commonwealth can make no showing of prejudice other than the mere passage of time (whether the showing made is sufficient rests in the sound discretion of the trial judge), the defendant is entitled to a new trial.

So ordered.