Opinion
20-P-557
06-01-2020
COMMONWEALTH v. PATRICK JALEN MCGOWAN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted by a Superior Court jury of aggravated rape, G. L. c. 265, § 22 (a); armed assault with intent to rob, G. L. c. 265, § 18 (b); and assault with a dangerous weapon, G. L. c. 265, § 15B (b). On May 8, 2019, he was sentenced to State prison for five to seven years on the rape conviction, a three-to-five-year concurrent term on the armed assault conviction, and two years of probation for the assault with a dangerous weapon conviction to follow his term of imprisonment. The defendant's direct appeal from his convictions has not yet been entered in this court.
On April 9, 2020, based on the Supreme Judicial Court decision in Christie v. Commonwealth, 484 Mass. 397 (2020), the defendant filed in the Superior Court an emergency motion to stay execution of his sentence pursuant to Mass. R. Crim. P. 31 (a), as appearing in 454 Mass. 1501 (2009). The trial judge denied the defendant's motion in a memorandum of decision dated April 24, 2020. On May 4, 2020, the defendant filed an emergency motion for stay of execution of his sentence in this court pursuant to Mass. R. A. P. 6, as appearing in 481 Mass. 1608 (2019). A single justice denied the motion in an order dated May 7, 2020. The defendant's expedited appeal of the single justice's order denying the emergency motion to stay was referred to this panel on May 12, 2020. Discerning no abuse of discretion in the decision of the single justice, we affirm.
Background. We summarize the facts. On August 3, 2016, the victim ran into a Boston Police station and reported that she had just been raped at gunpoint in an alley in the Jamaica Plain section of Boston. The victim, a sex worker, reported that she had advertised an escort service on the website Backpage.com. The defendant saw the advertisement and contacted the victim through the listed telephone number. The victim and the defendant agreed to meet outside an apartment complex in Jamaica Plain. The victim drove to that location with two friends who waited in the car as the victim and the defendant walked around the side of the apartment building.
As they walked, the defendant grabbed the victim's arm and pulled her into an alley. The defendant displayed a handgun and ordered the victim to undress. The defendant turned the victim around and penetrated her from behind. As he did so he demanded that she tell him where her car and her money were. The defendant also demanded that the victim turn over her cell phone. She refused. The defendant turned the victim around and punched her in her abdomen.
The victim, once free of the defendant's grasp, ran back to the car and immediately told her friends that she had been raped. The victim appeared distraught and was out of breath, and one of the straps to her top was ripped off such that her bra was visible. The victim went directly to the police station and reported the rape. Subsequent testing of a swab taken from the victim during a rape kit examination revealed the presence of the defendant's deoxyribonucleic acid. In an interview following his arrest, the defendant claimed that he had never visited the website Backpage.com and denied that he would have sex with a woman he had just met. The defendant testified at trial and admitted that he had contacted the victim through Backpage.com, and that he had sex with her in the alley. The defendant testified, however, that the sexual encounter with the victim was consensual.
Discussion. "When considering the merits of a motion to stay the execution of a sentence, a judge should consider two factors. First is whether the appeal presents 'an issue which is worthy of presentation to an appellate court, one which offers some reasonable possibility of a successful decision in the appeal.' Commonwealth v. Allen, 378 Mass. 489, 498 (1979), quoting Commonwealth v. Levin, 7 Mass. App. Ct. 501, 504 (1979). See [Commonwealth v. Cohen (No. 2), 456 Mass. 128, 132 (2010)]. Second, the judge should consider 'the possibility of flight to avoid punishment; potential danger to any other person or to the community; and the likelihood of further criminal acts during the pendency of the appeal.' Commonwealth v. Hodge (No. 1), 380 Mass. 851, 855 (1980)." Christie v. Commonwealth, 484 Mass. 397, 400 (2020).
Because of the risk to inmates posed by COVID-19, the Supreme Judicial Court recently added a third factor. "In these extraordinary times, a judge deciding whether to grant a stay should consider not only the risk to others if the defendant were to be released and reoffend, but also the health risk to the defendant if the defendant were to remain in custody. In evaluating this risk, a judge should consider both the general risk associated with preventing COVID-19 transmission and minimizing its spread in correctional institutions to inmates and prison staff and the specific risk to the defendant, in view of his or her age and existing medical conditions, that would heighten the chance of death or serious illness if the defendant were to contract the virus." Christie, 484 Mass. at 401-402. We review the denial of a motion to stay execution of sentence for abuse of discretion. See Cohen (No. 2), 456 Mass. at 132.
The defendant contends that the jury heard inadmissible evidence in violation of the first complaint doctrine and irrelevant evidence related to the victim's motive to raise money, and that the jury saw medical records that included improper references to the sexual assault. Without prejudging the merits of these claims on full appeal, we have reviewed these claimed evidentiary errors, none of which were preserved by objection at trial, and see no substantial risk of a miscarriage of justice. See Commonwealth v. Hanino, 82 Mass. App. Ct. 489, 493 (2012). Nor do we discern an abuse of discretion in the trial judge's decision not to conduct an individual voir dire of all jurors based on extraneous statements overheard by a single juror. On the record before us, we see no substantial risk of extraneous influence on the jury that would have required the trial judge to, sua sponte, individually question each juror. See Commonwealth v. Kendrick, 404 Mass. 298, 303 (1989) (individual questioning not required absent showing of substantial risk of extraneous influence). For these reasons, the defendant has failed to show a reasonable possibility of success on appeal.
Moreover, we are not persuaded that the defendant has established that he presents no risk of flight or danger to the community, or that he is unlikely to commit additional criminal acts during the pendency of his appeal. See Commonwealth v. Hodge (No. 1), 380 Mass. 851, 855 (1980). The defendant has been convicted of aggravated rape, a crime of violence. While awaiting trial on that charge, he committed an unarmed robbery. These facts support a conclusion that the defendant poses a risk to the public if released.
Finally, we address the defendant's specific health risk posed by COVID-19. The defendant is twenty-three years old and has asthma. As a result, according to a physician, the defendant "may be at greater risk of developing pulmonary complications if he contracts COVID-19." We accept that the defendant's asthma may make him more susceptible to pulmonary complications, but where the record before the single justice showed no reported cases of COVID-19 among inmates at the facility where the defendant is incarcerated, we discern no abuse of discretion in the denial of the motion to stay the defendant's sentence.
Order of single justice denying motion to stay affirmed.
By the Court (Kinder, Lemire & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk
Entered: June 1, 2020.