Opinion
20-P-632
06-23-2020
COMMONWEALTH v. CARLOS RUIZ.
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 trafficking in eighteen or more, but less that thirty-six, grams of heroin, G. L. c. 94C, § 32E (c), on March 5, 2020. The charge was based on evidence seized during the execution of a search warrant at the defendant's apartment. The defendant was sentenced to State prison for not less than three years and six months, and not more than three years, six months, and one day and is currently serving his sentence at the Massachusetts Correctional Institution at Cedar Junction (MCI-Cedar Junction). He filed a timely notice of appeal; however, the appeal has not yet entered in this court.
On May 18, 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). After a hearing, the trial judge denied the defendant's motion in a memorandum of decision dated May 26, 2020. On June 1, 2020, the defendant filed an emergency motion for stay of execution of his sentence pursuant to Mass. R. A. P. 6 (b), as appearing in 481 Mass. 1608 (2019). A single justice of this court conducted an independent review of the record and, after considering all relevant factors, reached the same conclusion as the trial judge and denied the motion on June 5, 2020. The defendant's expedited appeal of the single justice's order denying his emergency motion to stay the execution of his sentence was referred to this panel. Discerning no abuse of discretion in the decision of the single justice, we affirm.
In relevant part, the trial judge stated:
"Based on the evidence presented at the trial and the relevant case law, the court does not find that the defendant has an issue worthy of presentation to an appellate court that offers some reasonable probability of a successful decision on appeal.The trial judge further concluded that, despite evidence that the defendant is obese and has high blood pressure, the defendant "presented no facts . . . demonstrating that he is at greater risk of contracting COVID-19 while incarcerated, or that the institution is not taking appropriate precautionary measures."
"Secondly, despite a lack of prior criminal history and on release while the case was pending, the defendant now faces the minimum mandatory sentence this court gave him should his appeal prove unsuccessful, which now shows that the defendant poses a significant flight risk. Although he has a place to stay with a friend and can quarantine there, the flight risk remains significant."
"When considering the merits of a motion to stay the execution of a sentence, a judge should consider two factors." Christie, 484 Mass. at 400. "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.'" Id., 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.'" Christie, supra, quoting Commonwealth v. Hodge (No. 1), 380 Mass. 851, 855 (1980).
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 Commonwealth v. Cohen (No. 2), 456 Mass. 128, 132 (2010).
In the present case, the defendant contends that his appeal will raise at least two issues that have a reasonable possibility of success. First, he contends that the judge erred in responding to a jury question that asked, "Can we take the defendants' body language into consideration . . . as evidence[?]" The judge replied, "While not evidence, the jury is entitled to consider any observations you made of the defendants' demeanor during the trial." The alleged error was preserved by a timely objection. Second, the defendant argues that the judge erred in failing to instruct the jury on the lesser included offense of simple possession as he had requested. Although the defendant asked for the instruction, it is not clear whether he objected when the judge did not give it during her final charge to the jury. We therefore cannot ascertain whether the error is preserved. However, because nothing turns on the standard of review, the issue need not be resolved here.
The judge wrote her answer on the paper containing the jury's question and sent it back to the jury room.
Without prejudging the merits of these claims on full appeal, we conclude that neither issue has a reasonable possibility of success on appeal. Recently, in Commonwealth v. Watt, 484 Mass. 742, 758 n.22 (2020), quoting Commonwealth v. Smith, 387 Mass. 900, 907 (1983), the Supreme Judicial Court stated, "We have long held that juries are 'entitled to observe the demeanor of the defendant[s] during the trial.'" We note that the judge relied on Smith in framing her answer to the jury's question. As to whether the jury should have been instructed on the lesser included offense of simple possession, we note that the judge concluded that there was no evidence to support the instruction. See Commonwealth v. Carrillo, 483 Mass. 269, 288, 294 (2019).
We acknowledge the defendant's submission of additional authority from other jurisdictions on this issue. See Mass. R. A. P. 16 (l), as appearing in 481 Mass. 1628 (2019).
Moreover, we are not persuaded that the defendant has established that he presents no risk of flight or danger to the community, and that he is not likely to commit additional criminal acts during the pendency of his appeal. See Hodge (No. 1), 380 Mass. at 855. The defendant has been convicted of trafficking in eighteen to thirty-six grams of heroin, a serious offense that poses a significant risk to the community at large. In addition, the defendant now faces a mandatory minimum sentence of three and one-half years in State prison. These facts support a conclusion that the defendant poses a risk to the public and of flight from the Commonwealth if released.
Finally, we address the defendant's specific health risk posed by COVID-19. The defendant is forty-three years old and there is evidence that he suffers from high blood pressure, hypertension, and obesity. Based on these conditions, the defendant contends that he "faces a serious risk of death or critical illness if he contracts COVID-19 in prison." We accept that the defendant's health conditions may make him more susceptible to serious complications should he contract COVID-19. Nevertheless, because the record before the single justice showed no reported cases of COVID-19 among inmates at MCI-Cedar Junction, where the defendant is incarcerated, we discern no abuse of discretion in the denial of the motion to stay the defendant's sentence.
As reported in the June 15, 2020, special master's weekly report, see Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court, 484 Mass. 431, 448 (2020), https://www.mass.gov/doc/sjc-12926-special-masters-weekly-report-6152020/download [https://perma.cc/6YD4-35Y8].
Order of single justice denying motion for stay of sentence affirmed.
By the Court (Vuono, Meade & Wolohojian, JJ.),
The panelists are listed in order of seniority
/s/
Clerk Entered: June 23, 2020.