Opinion
20-P-766
07-21-2020
COMMONWEALTH v. DENZEL MCFARLANE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant, Denzel McFarlane, appeals from an order of the single justice of this court denying his emergency motion, pursuant to Mass. R. A. P. 6, as appearing in 481 Mass. 1608 (2019), for a stay of execution of his sentence. Discerning no error of law or abuse of discretion, we affirm.
The defendant also appeals from the single justice's order denying reconsideration.
Background. On February 11, 2020, a jury convicted the defendant of one count of possession of a firearm without a license, G. L. c. 269, § 10 (a); one count of possession of ammunition without a license, G. L. c. 269, § 10 (h); and one count of improper storage of a firearm, G. L. c. 140, § 131L (a), (b). The District Court judge sentenced the defendant to eighteen months of incarceration in the Hampden County house of correction on the unlawful possession of a firearm charge. The defendant subsequently filed a motion for a new trial. On May 6, 2020, the defendant filed an "amended" emergency motion to stay his sentence, which the District Court judge denied. The defendant then filed an emergency motion to stay his sentence, pursuant to Mass. R. A. P. 6 (b). The single justice reached the same conclusion as the District Court judge and denied the motion in an order entered on June 11, 2020. The defendant's expedited appeal from the single justice's order denying his emergency motion to stay the execution of his sentence, and from his subsequent motion for reconsideration, was referred to this panel.
The defendant is currently serving his sentence at the Ludlow facility.
On the remaining convictions, he was sentenced to one year of probation from and after his term of incarceration.
The defendant had previously filed a motion to revise and revoke his sentence, which the District Court judge denied.
The single justice first ordered the District Court judge to issue factual findings to support his order, which he did.
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.'" Christie v. Commonwealth, 484 Mass. 397, 400 (2020), quoting Commonwealth v. Allen, 378 Mass. 489, 498 (1979). "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.'" Id., quoting Commonwealth v. Hodge (No. 1), 380 Mass. 851, 855 (1980).
Because of the risk to inmates presently posed by COVID-19, the Supreme Judicial Court has mandated consideration of 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."Id. at 401-402. We review the denial of a motion to stay execution of sentence for abuse of discretion. See Commonwealth v. Cohen (No. 2), 456 Mass. 128, 132 (2010).
With regard to the first factor, the defendant argues that "potentially exculpatory evidence" related to one of the Commonwealth's witnesses, Springfield Police Officer Daniel Moynahan, which was not disclosed to him -- namely, that there was a pending civil suit against Moynahan for claims of police brutality and false arrest -- necessitates a new trial so as to allow defense counsel to more fully raise the issue of Moynahan's credibility through cross-examination regarding the civil action. See Brady v. Maryland, 373 U.S. 83 (1963). Without prejudging the merits of this claim on full appeal, the determination that the proposed line of cross-examination (on a collateral issue unrelated to the defendant's case) would not have been material was not an error of law or an abuse of discretion. Indeed, the Commonwealth's principal witness, Springfield Police Officer Brian Phillips, who accompanied Moynahan, testified (1) regarding his observations of the firearm tucked between the driver's seat and the center console of the vehicle driven by the defendant and (2) that the defendant admitted that he did not have a license for the firearm and that he (and not the passenger) owned the firearm.
Moynahan testified that the defendant admitted to possessing the weapon; the defendant denied ever making such an admission.
See Brady, 373 U.S. at 87 (exculpatory evidence must be "material").
On the record before us, we also cannot say that it was an abuse of discretion to conclude that the defendant's other arguments, which he summarily sets forth in his reply brief, did not rise to the level required under factor one.
With regard to the second factor, the defendant contends that he does not pose a risk of flight or danger to the community due to his family ties in the Springfield area, his history of nonviolent crimes, and his plan to live with his girlfriend in Connecticut if his sentence is stayed. The defendant's lengthy Massachusetts criminal history includes convictions resulting in incarceration, two probation violations, and other charges, one of which was a crime of violence (assault and battery). Furthermore, in connection with the firearm charges at issue in this case, the defendant allowed a loaded firearm to be improperly stored, within reach of a small child. At least two abuse prevention orders have issued against the defendant, and the defendant defaulted on many court appearances, including in this case. Additionally, as the defendant concedes, his plan involves leaving Massachusetts. On this record, the single justice did not abuse her discretion by determining that the defendant poses a risk of flight or danger to the community.
While out on bail for the charges in this case, the defendant was charged with operating a vehicle with a suspended license. He had been previously incarcerated twice for this crime.
As the District Court judge stated, and the single justice considered, the defendant still has a significant amount of time left on his mandatory minimum sentence.
Finally, with regard to the third factor, the defendant, a thirty year old man, claims that he is particularly vulnerable to contracting the virus because he suffered from asthma as a child. The single justice considered that an underlying condition of asthma may make the defendant more susceptible to serious complications should he contract the virus; however, the record did not show that the defendant has suffered from asthma as an adult. Furthermore, the Commonwealth has provided three affidavits detailing the present efforts to ensure proper testing, prevention, and treatment of COVID-19 in the house of correction where the defendant will serve his sentence. We discern no abuse of discretion in the denial of the motion to stay.
Orders of single justice denying motions to stay sentence and for reconsideration affirmed.
By the Court (Maldonado, Henry & Wendlandt, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 21, 2020.