COMMONWEALTH vs. MAX ALLEN & others (and a companion case).

COMMONWEALTH vs. MAX ALLEN & others [Note 1] (and a companion case).

7 Mass. App. Ct. 856

February 9, 1979

The defendants challenge the denial by a single justice of this court of their motions to stay execution of sentence pending appeal. See G. L. c. 279, Section 4, as amended through St. 1972, c. 740, Section 17. They were convicted on indictments charging conspiracy to commit arson and conspiracy to defraud an insurer and sentenced to terms of imprisonment. The defendants claim to have a "reasonable likelihood of success on appeal." DiPietro v. Commonwealth, 369 Mass. 964 (1976). They argue that the trial judge committed reversible error by improperly interfering with defense counsel's pretrial investigation of prospective jurors and by allowing a line of prejudicial questioning by the prosecution on cross-examination which was not cured by the judge's charge or instructions. These motions were addressed to the discretion of the single justice. G. L. c. 279, Section 4. Fine v. Commonwealth, 312 Mass. 252 , 261 (1942). Stranad v. Commonwealth, 366 Mass. 847 (1974). His action on these motions must be tested against his expressed or implied determination as to the reasonable likelihood of success on appeal. DiPietro, supra. While we intimate no opinion on the merits of the defendants' arguments on full appellate review, on

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the record before us, which was also before the single justice, "we cannot say that the `reasonable likelihood of success' is so clear as to warrant a finding that the single justice of this court abused his discretion." Commonwealth v. Roberts, 372 Mass. 868 (1977). Nor are we persuaded by the defendants' argument that, by not specifying his reasons for denying the motions, the single justice abused his discretion and violated the defendants' constitutional rights, as it is clear that he was not obliged so to specify. Lebowitch, petitioner, 235 Mass. 357 , 363 (1920).

Orders denying stay of execution affirmed.

FOOTNOTES

[Note 1] Michael R. Cappiello and Martin Koplow.