COMMONWEALTH v. LEWIS (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appealed to a single justice of this court, pursuant to Mass. R. A. P. 6 (b), as appearing in 481 Mass. 1608 (2019), from the order denying his motion for a stay of execution of his sentences pending resolution of his appeals. The stay was denied. Because we conclude that the single justice neither abused her discretion, nor committed an error of law, we affirm the order.

On September 18, 2017, the defendant was charged with one count of photographing an unsuspecting nude person, pursuant to G. L. c. 272, § 105 (b).² On March 2, 2018, the defendant also was charged with one count of possession of child pornography, pursuant to G. L. c. 272, § 29C. As the single justice recounted, the first charge arose out of an incident where a loss prevention officer at a Kohl's store observed the defendant “bend over near a young girl” who was wearing a dress.³ The loss prevention officer called the police who reviewed the surveillance video footage, which showed the defendant “crouching down behind a young girl while appearing to put his phone under her dress.” The officers then searched the defendant's cell phone, and found a video recording that seemed to be of the same girl in the surveillance video footage, showing the girl's underwear and bare legs. The second charge arose after the police found several photographs that appeared to be child pornography on the defendant's cell phone.

On February 7, 2019, the first day of trial on the charge of photographing an unsuspecting nude person, the Commonwealth moved to amend the complaint to a charge of photographing an unsuspecting nude child under the age of eighteen. The judge allowed the amendment over the defendant's objection. On February 8, 2019, the jury found him guilty, and the trial judge sentenced to him serve two and one-half years in the house of correction with two years to be served and the balance suspended until February 8, 2022. The defendant filed a notice of appeal on March 5, 2019.

On May 8, 2019, the defendant's jury trial began on the second case (possession of child pornography). On May 9, 2019, the jury returned a guilty verdict and the same trial judge sentenced the defendant to one year in the house of correction, to be served from and after the sentence imposed on the first conviction. The defendant filed a notice of appeal on June 6, 2019. On July 13, 2020, the defendant filed a motion to stay the execution of his sentences pending resolution of his appeals on both cases. On July 29, 2020, the trial judge held a hearing on the motion, and on August 7, 2020, she denied it with a margin endorsement. The defendant then sought a stay from a single justice of this court. The single justice conducted an independent review of the record and, after considering all relevant factors, in a thorough and thoughtful memorandum and order, reached the same conclusion as the trial judge and denied the motion on October 1, 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.

“When considering the merits of a motion to stay the execution of a sentence, a judge should consider two factors.” Christie v. Commonwealth, 484 Mass. 397, 400 (2020). “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, supra 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).

The defendant claims that he has a reasonable possibility of success on the merits of his appeal from both convictions. Regarding the charge of photographing an unsuspecting nude child, the defendant claims that the amendment of the charge on the day of trial -- from photographing an unsuspecting nude person, to photographing an unsuspecting nude child -- was a substantive amendment and should not have been allowed. Regarding the charge of possession of child pornography, the defendant claims that the conviction should be reversed because none of the photographs rose to the level of child pornography under G. L. c. 272, § 29C (vii). Specifically, the defendant maintains that there was insufficient evidence to establish that the subject of the photographs was under the age of eighteen. Furthermore, the defendant claims that, even if some of the photographs were sufficient to support a conviction, it is not possible to tell upon which photographs the jury based their verdict, and therefore the verdict must be set aside.

The single justice considered the entire record submitted by the parties, including the defendant's memorandum and the Commonwealth's opposition filed in the trial court. She concluded that even if the defendant could establish a reasonable possibility of success on the merits, his motion still fails because he is a security risk.

The defendant argues that, if released, he poses no significant security risk to the community, and that his health conditions put him at an increased risk of death or serious illness if he is infected with COVID-19. The single justice considered the affidavits of both appellate counsel and the defendant. The single justice acknowledged that the defendant's release plan is to reside with his mother, adult sister, two nephews, and great uncle in Springfield. The single justice also considered the trial judge's finding that, if released, the defendant would pose a security risk. The trial judge found that “the defendant is a danger to the community (particularly children), a high risk of flight and likely to reoffend while released.” As the single justice properly noted, quoting Cohen (No. 2), 456 Mass. at 132, “[S]ecurity considerations ‘involve determinations of fact and the exercise of sound, practical judgment, and common sense’ and ․ the ‘exercise of discretion by the trial court judge will be upheld unless it is shown that [she] abused that discretion.”⁴

In the end, the single justice concluded, as the trial judge found, that the asserted health risks to the defendant do not outweigh the “unreasonable risk to the community and high risk of flight” the defendant would pose if released. We discern no abuse of discretion by the single justice in the denial of the motion to stay the defendant's sentences.

Order of single justice denying stay of sentences affirmed.

FOOTNOTES

2.   This charge was later amended to photographing an unsuspecting nude child under the age of eighteen, pursuant to G. L. c. 272, § 105 (b).

3.   At trial, the victim's mother testified that, at the time of the incident, her daughter was six years old.

4.   The single justice further considered that, other than the charges in these cases, the defendant has no other convictions on his criminal record and no history of defaults. She further weighed the factual circumstances, nature, and seriousness of the crimes of which the defendant was convicted in this case, as they bear on his risk to others. She also considered the health risks to the defendant if he remains in custody, his age (twenty-nine years), and the defendant's medical records, which show that the defendant suffers from asthma and other medical issues that may put him at a higher risk for severe illness from COVID-19. The single justice also considered the special master's report for the week ending September 23, 2020.