Opinion
10-P-1284
10-31-2011
COMMONWEALTH v. ROBERT ALDRICH.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is the defendant's appeal from the denial of his motion for stay of execution of sentences. See Mass.R.A.P. 6(b), as appearing in 454 Mass. 1601 (2009). The conditions of any such stay are familiar. See Commonwealth v. Senior, 429 Mass. 1021 (1999). We affirm.
The single justice, as permitted, denied the motion without specifying his reasons. See Commonwealth v. Allen, 7 Mass. App. Ct. 856, 857 (1979). Because the single justice had the option of conducting an independent review of the motion or reviewing the decision of the trial judge for an abuse of discretion, see Commonwealth v. Cohen, 456 Mass. 128, 132-133 (2010), we review both options.
The issues presented in the single justice motion and the trial motion differed, although there was some overlap.
Based on an independent review of the motion before him, the single justice could have rejected the defendant's assertion that he had two claims worthy of appellate review. See Senior, supra at 1021-1022. As to the defendant's claim that he was denied the right to present a defense, the partial transcript, submitted by the defendant, did not include pages critical to the establishment of such a claim. As to the defendant's claim that a police officer's threats denied him the right to testify, the defendant's supporting affidavit does not indicate threats were made to specifically prevent the defendant from testifying. And, although the affidavit indicates threats were made to prevent the defendant from electing a trial and from challenging another officer's credentials, it also indicates the defendant was not swayed by those threats. Because the single justice could have found that the defendant's claims, as presented, were not worthy of appellate review, we conclude that the single justice could have denied the motion without committing an error of law or abusing his discretion.
The defendant elected a trial and the defendant's affidavit states he cross-examined the officer on her credentials.
The single justice also could have concluded that the trial judge did not abuse his discretion in denying the motion below. As the record before the trial judge indicated that the defendant had a long criminal history and was facing a severe sentence, the trial judge could have concluded that the defendant presented a risk of flight and was likely to commit additional criminal acts. See Commonwealth v. Hodge, 380 Mass. 851, 855 (1980); Commonwealth v. Levin, 7 Mass. App. Ct. 501, 506 (1979). Based on these security considerations, the single justice could have found that the trial judge did not abuse his discretion.
The trial judge, as permitted, denied the motion without specifying his reasons. See Commonwealth v. Cohen, 456 Mass. 128, 133 (2010).
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As we discern no error, we affirm the order of the single justice denying the motion for stay of execution of sentences.
So ordered.
By the Court (Mills, Smith & Wolohojian, JJ.),