NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
SJC-13428
COMMONWEALTH vs. KHALID KALILA.
Suffolk. November 6, 2023. – March 13, 2024.
Present: Gaziano, Lowy, Kafker, Wendlandt, & Georges, JJ.1
Practice, Criminal, Execution of sentence, Stay of proceedings, Affidavit. Appeals Court, Appeal from order of single justice.
Indictments found and returned in the Superior Court Department on June 28, 2018.
A motion for a stay of execution of sentence, filed on May 24, 2021, was heard by Michael D. Ricciuti, J., and a second motion for a stay of execution of sentence was heard in the Appeals Court by Kenneth V. Desmond, Jr., J.
After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.
J.W. Carney, Jr., for the defendant. Darcy Jordan, Assistant District Attorney (Lynn Feigenbaum, Assistant District Attorney, also present) for the Commonwealth.
1 Justice Lowy participated in the deliberation on this case prior to his retirement. 2
GAZIANO, J. In this case, we review the decision of a
single justice of the Appeals Court denying the defendant's
motion to stay execution of his sentence pending the appeal from
his convictions. The single justice upheld the decision of the
trial judge (trial judge or judge), and concluded that although
the defendant demonstrated a likelihood of success on his
appeal, he was nonetheless a flight risk and a danger to others.
In support of this conclusion, the single justice cited the
defendant's connections and frequent travel to a foreign country
as evidence that he was a flight risk. The single justice also
cited the impulsive, racially motivated, and violent acts for
which the defendant was convicted as evidence that he was a
danger to others.
There is no dispute that the defendant established a
reasonable likelihood of success on appeal. In fact, the
defendant's direct appeal was successful, and his convictions
have now been vacated. See Commonwealth v. Kalila, 103 Mass.
App. Ct. 582, 583 (2023). Notwithstanding this determination,
we discern no abuse of discretion in the single justice's denial
of the defendant's motion to stay execution of his sentence.
Applying the relevant factors, see Commonwealth v. Hodge (No.
1), 380 Mass. 851, 855-857 (1980), and Commonwealth v. Nash, 486
Mass. 394, 403 (2020), the single justice had an adequate basis
to determine that the defendant posed an unacceptable security 3
risk. Accordingly, we affirm the single justice's order denying
the defendant's motion to stay his sentence pending appeal.
Background. We set forth the facts as presented to the
trial judge and single justice in connection with the motion to
stay the defendant's sentence pending appeal.
The defendant was born in Morocco and lived there with his
family until the age of fourteen. He and his family then
emigrated to the United States in 2003, where he since has
resided. The defendant routinely visits Morocco with his family
and maintains dual citizenship with the United States and
Morocco. Indeed, the defendant's father resides in Morocco.
On January 30, 2018, the defendant and his brother were
drinking to celebrate their spouses' just-announced pregnancies.
The celebration ended at a restaurant and lounge in Boston,
where the defendant had an altercation with another patron.
Security personnel attempted to remove the defendant from the
premises. The defendant responded by striking one of the
security personnel, who was Black, with a glass at least twice
and yelling racial epithets. The victim was taken to a
hospital, where he required plastic surgery and more than
seventy stiches. As a result of his injuries, the victim
continues to suffer from loss of vision, nerve damage, and
permanent scarring. The defendant subsequently was arrested by
Boston police. 4
After his arrest, the defendant was released on $10,000
cash bail from the South Boston Division of the Boston Municipal
Court Department. As a condition of his release, the defendant
was ordered to have no contact with the victim and to refrain
from visiting the restaurant where the altercation occurred.
The defendant followed these conditions for the next three
years. During this time, the defendant also remained gainfully
employed and attended every court date.
In June 2018, a grand jury indicted the defendant for
mayhem, G. L. c. 265, § 14; assault and battery by means of a
dangerous weapon, G. L. c. 265, § 15A (b); assault and battery
by means of a dangerous weapon causing serious bodily injury,
G. L. c. 265, § 15A (c) (i); and violation of constitutional
rights with bodily injury, G. L. c. 265, § 37.
On May 10, 2021, empanelment for the defendant's trial
commenced in the Superior Court. After four jurors had been
seated, including a Black woman, two white women, and one white
man, juror no. 32, a Black man, was called. During voir dire
examination, juror no. 32 stated he would not weigh the
testimony of a police officer differently from that of a
civilian. The juror also stated that his mother worked as a
civilian in internal affairs at Boston police department
headquarters. 5
On completion of individual voir dire, the defendant
exercised a peremptory challenge to remove juror no. 32 due to
the juror's familial connection with the Boston police
department. The defendant did not challenge another juror who
had a familial connection to the police.2 Nonetheless, the
defendant argued that juror no. 32 should be dismissed because
the defendant planned to challenge the testimony of two Boston
police officers during trial. The judge overruled the
challenge, stating that while the defendant's reason was
genuine, the defendant's proffered race-neutral explanation was
inadequate.3
At trial, the defendant denied using racial epithets and
claimed he acted in self-defense against the victim. The jury
rejected the defendant's testimony and returned verdicts of
guilty on all four charged offenses. The conviction of assault
and battery by means of a dangerous weapon causing serious
bodily injury ultimately was dismissed and vacated at the
defendant's sentencing hearing. The defendant was sentenced to
2 In particular, juror no. 17, a white woman, had a father who was a former police officer.
3 The judge further explained that he was overruling the defendant's objection because there was no reason why a Black juror should be challenged on the proffered grounds, where the juror credibly testified that he would not value a police officer's testimony differently from the testimony of another witness. 6
from three to four years in State prison for the mayhem
conviction; one year in a house of correction for his conviction
of violating constitutional rights with bodily injury, to be
served from and after his State prison sentence; and two years
of probation for his conviction of assault and battery by means
of a dangerous weapon.
On May 24, 2021, the defendant filed a motion for a stay of
execution of his sentence pending appeal pursuant to Mass. R.
Crim. P. 31 (a), as appearing in 454 Mass. 1501 (2009). In his
motion, the defendant argued that the judge's erroneous denial
of his peremptory challenge against juror no. 32 created a
strong likelihood that the defendant's conviction would be
overturned and further argued that the defendant did not pose a
security risk.
On June 14, 2021, the judge denied the defendant's motion
in a written opinion. The judge found that even if an appellate
court considered the denial of the defendant's peremptory strike
"as based on genuineness rather than adequacy grounds, the
defendant nonetheless has shown a likelihood of success of
appeal." However, the judge also found that the defendant
"present[ed] a profound risk of flight." The judge first noted
the serious crimes for which the defendant had been convicted,
which arose "from an extraordinarily violent and sudden attack
in which [the defendant] seriously slashed the face of a [B]lack 7
bar employee with a shard of heavy glass while repeatedly
threatening and hurling ugly racial epithets at the employee."
The judge then found that the defendant's significant sentence
created a compelling motive for the defendant to escape.
Further, given that the jury rejected the defendant's
exculpatory testimony as "incredible," the judge concluded that
it was "impossible to rely on [the defendant's] representations
that he will not seek to flee." Last, the judge found that the
defendant was an "extreme risk of flight" due to his status as a
dual citizen of the United States and Morocco, the time he had
spent in Morocco, the presence of his father in Morocco, and the
defendant's ability to access a foreign passport.4
The judge also inferred that the defendant was stockpiling
funds that would provide him the financial ability to flee. In
making this inference, the judge cited the defendant's payment
of bail on the night of his arrest, regular employment, history
of expensive foreign trips, and representation by private
counsel.
Following the judge's denial, on July 30, 2021, the
defendant filed a motion to stay with a single justice of the
Appeals Court pursuant to Mass R. A. P. 6 (b), as appearing in
4 Although the judge noted that the defendant's Moroccan passport currently was expired, he asserted that the defendant could replace the expired passport. 8
481 Mass. 1608 (2019). The single justice examined the judge's
denial utilizing the test articulated in Nash, 486 Mass. at 403.
Finding no abuse of discretion or error of law, the single
justice denied the defendant's motion.
Specifically, the single justice concluded that, under the
first Nash factor, the defendant presented "an issue which is
worthy of presentation to an appellate court, one which offers
some reasonable possibility of a successful decision in the
appeal." Under the second Nash factor, the single justice held
that the judge's finding that the defendant was a security risk
was reasonable due to his extreme risk of flight and the danger
he posed to others. The single justice reasoned that the
defendant's flight risk was demonstrated by his dual citizenship
and associated recurring travel to Morocco, the sentence that
the defendant faced, the jury's rejection of the defendant's
testimony at trial, and the seriousness of the crimes of which
he was convicted. The single justice further reasoned that the
defendant was a danger to others, as shown through his
"convictions for impulsive, racially motivated, and violent
acts." Last, after exercising his independent review and
discretion, the single justice reached the same conclusions as
the judge.5
5 The single justice also addressed the third Nash factor sua sponte. He "conclude[d] that the health risks to the 9
The defendant appealed from the single justice's order to a
full panel of the Appeals Court. The Appeals Court affirmed the
single justice's order denying the defendant's motion for a
stay. See Commonwealth v. Kalila, 102 Mass. App. Ct. 108, 120
(2023). After concluding that the first Nash factor was not at
issue, the Appeals Court focused on the second Nash factor --
whether the defendant posed a security risk. See id. at 112-
113. While acknowledging that the judge may have "placed undue
reliance on the fact that the defendant retained private
counsel" to infer that the defendant had the financial ability
to flee the country, the Appeals Court held that the single
justice did not abuse his discretion. Id. at 116. The Appeals
Court, in upholding the single justice's decision, cited the
defendant's frequent travel to Morocco, his visits abroad to see
his brother in Germany, his stable employment, and the judge's
opportunity to assess the defendant's credibility firsthand.
Id. at 115-116. The Appeals Court also held that, insofar as
the single justice made an independent determination that the
defendant posed a security risk, there likewise was no abuse of
discretion. See id. at 120.
Meanwhile, the defendant had filed a direct appeal from his
convictions to the Appeals Court. In his direct appeal, the
defendant do not outweigh the significant security risk the defendant would pose if released." 10
defendant argued that the judge's refusal to strike juror no. 32
constituted structural error. See Kalila, 103 Mass. App. Ct. at
583. As the defendant's direct appeal was pending, in May 2023,
this court granted the defendant's application for further
appellate review of the single justice's denial of the
defendant's motion to stay. See 492 Mass. 1101 (2023). After
oral arguments in the case before us, the Appeals Court, on
November 30, 2023, issued a decision on the defendant's direct
appeal, holding that the judge had erred in denying the
defendant's peremptory challenge and vacating the defendant's
convictions. See Kalila, supra.
Discussion. 1. Standard of review. We review the single
justice's denial of the defendant's motion to stay for error of
law or abuse of discretion. See Nash, 486 Mass. at 412, citing
Hodge, 380 Mass. at 853. An abuse of discretion occurs when a
judge makes a clear error in weighing the relevant factors such
that the decision "falls outside the range of reasonable
alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014). The role of an appellate court in this context is not
to exercise our independent discretion but merely to review the
correctness of the single justice's ruling. See Nash, supra at
412. We do not substitute our judgment for that of the single
justice simply because we would have reached a different result.
See Commonwealth v. Dilworth, 485 Mass. 1001, 1002 (2020). See 11
also L.L., supra, citing Bucchiere v. New England Tel. & Tel.
Co., 396 Mass. 639, 641 (1986) ("it is plainly not an abuse of
discretion simply because a reviewing court would have reached a
different result").6
2. The single justice's review of the trial judge's denial
of the stay. A judge evaluates two factors in deciding a
defendant's request for a stay: (1) the defendant's likelihood
of success on appeal and (2) certain security concerns. See
Nash, 486 Mass. at 406.7 The defendant has the burden to prove
both factors by a preponderance of the evidence. See id. See
6 In addition to challenging the single justice's decision on his motion to stay, the defendant asserts in passing that the single justice's decision amounts to impermissible discrimination based on the defendant's national origin. A conclusory two sentences in the defendant's brief, not accompanied by either legal argument or factual detail, is insufficient to rise to the level of appellate argument, and thus is deemed waived. See Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019) (appellate issue must include rationale and legal authority). See also Atwater v. Commissioner of Educ., 460 Mass. 844, 853 n.8 (2011) (mere citation to article of Massachusetts Declaration of Rights without further development did not rise to level of acceptable appellate argument).
7 Due to the "extraordinary" nature of the COVID-19 pandemic and the "fundamental change in circumstances" that it brought, including "the particular danger of transmission of the [COVID- 19] virus to persons in custody who cannot realistically engage in social distancing," we adjusted the test to incorporate a third factor. Christie v. Commonwealth, 484 Mass. 397, 401-402 (2020). See Nash, 486 Mass. at 405. Under this third factor, judges consider pandemic-related health and safety risks to a defendant. See id. at 406. Here, the third Christie factor is not at issue. 12
also Care & Protection of Laura, 414 Mass. 788, 791 (1993),
citing Bourjaily v. United States, 483 U.S. 171, 175-176 (1987)
(preliminary questions of fact established by preponderance of
evidence).
To meet the first factor, a defendant needs to show that he
has presented an appealable issue "which is worthy of
presentation to an appellate court [and] offers some reasonable
possibility of a successful decision in the appeal." Nash, 486
Mass. at 403, quoting Commonwealth v. Levin, 7 Mass. App. Ct.
501, 503-504 (1979). As the first factor involves a "pure
question of law or legal judgment," the single justice's
decision on this factor receives no deference from a reviewing
court. See Commonwealth v. Allen, 378 Mass. 489, 498 (1979),
citing Levin, supra at 505. To establish a reasonable
possibility of success, a defendant need not prove that his
success on appeal is certain or "even more likely than not."
Nash, supra at 404. The appeal, however, may not be frivolous.
See Hodge, 380 Mass. at 587. Instead, the question to be
answered on this first factor is whether the defendant has
proved the existence of at least one appellate issue with
"sufficient heft" that would provide an appellate court "pause."
Nash, supra. The issue presented by the defendant must require
legitimate evaluation, where both parties can find meaningful
support for their position, and where the defendant would 13
receive a favorable outcome if he were successful. See id. In
this case, as stated, there is no dispute that the defendant has
presented an appellate issue of "sufficient heft." See id.
Under the second factor, to determine whether a defendant
poses a security risk, a judge must weigh considerations such as
"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." Nash,
486 Mass. at 405, quoting Hodge, 380 Mass. at 855. See Christie
v. Commonwealth, 484 Mass. 397, 401 (2020) (judges should
consider "the danger to other persons and the community arising
from the defendant's risk of reoffense"); Levin, 7 Mass. App. Ct
at 505 (weighing considerations such as possibility of flight
and further criminal acts, familial status, roots in community,
employment, prior criminal record, and demeanor). While the
first factor is a question of law, the second factor presents a
question of fact. Nash, supra, citing Levin, supra. Judges
have "considerable leeway" in determining this second factor.
Nash, supra.
Here, the single justice detailed various considerations
that supported the judge's conclusion that the defendant was a
flight risk, including the defendant's dual citizenship and
frequent travel to his country of origin, the serious crimes of
which the defendant was convicted, the significant sentence that 14
the defendant had begun to serve, and the jury's rejection of
the defendant's testimony at trial and its effect on his
credibility. The single justice also emphasized that the
defendant's convictions were based on "impulsive, racially
motivated, and violent acts," demonstrating a potential danger
to others. At the same time, the single justice also noted
considerations that weighed in the defendant's favor, such as
the defendant's minimal criminal history, community support, and
compliance with conditions of pretrial release. Ultimately, the
single justice held that, even accounting for mitigating
factors, it was not "outside the range of reasonable
alternatives" for the judge to find that the defendant
constituted a security risk. See L.L., 470 Mass. at 185 n.27.
On appeal, the defendant argues that the single justice
abused his discretion when he endorsed the judge's "speculation"
that the defendant has the means, both financially and through
his support network, to flee the country. Specifically, the
defendant claims that the considerations on which the judge
relied in reaching these inferences, including the defendant's
steady employment, his strong family support, his posting of
$10,000 bail on the night of his arrest, and his hiring of
private counsel, were improper.8
8 The defendant also asserts that the judge and the single justice appear to have presumed, in error, that the defendant 15
A judge properly may consider a defendant's financial
resources in evaluating whether he is a flight risk. See
Brangan v. Commonwealth, 477 Mass. 691, 693 (2017) (judge "must
consider a defendant's financial resources" in setting amount of
bail under G. L. c. 276, § 58); Allen, 378 Mass. at 498 (factors
used to govern bail before trial "may properly be considered" in
deciding motion to stay). Here, the judge referenced financial
resources in rejecting the defendant's motion for a stay.
Specifically, the judge wrote:
"At argument, the court expressed to Kalila's counsel that the release terms the defense proposed -- [global positioning system monitoring], a curfew[,] and $10,000 bail (the amount Kalila originally posted) -- were inadequate, but counsel offered nothing to supplement them. That was troubling; Kalila posted $10,000 bail on the night of his arrest, has been regularly employed in a management job . . . , has a history of regularly taking expensive foreign trips, and is represented by private counsel, all of which suggests that Kalila has access to significant financial resources to make good on flight, but offered none to further secure his release. That he may be conserving funds to flee is thus a serious risk."
In doing so, the judge did not consider merely the
defendant's actual financial resources as permitted by law.
Instead, he found "troubling" that the defendant posted bail on
could not be extradited from Morocco to the United States. However, this rationale does not feature in either the judge's or the single justice's written decisions. In any event, whether the defendant could be extradited after he already fled bears little, if any, weight in the determination whether the defendant may flee in the first place. 16
the night of his arrest, maintained regular employment, had a
history of foreign trips, and retained private counsel yet
offered no additional funds in seeking his motion for a stay.
It was error for the judge to use all of this information to
speculate that the defendant was stockpiling funds to flee.
However, the single justice did not endorse these
considerations. In fact, these considerations do not appear in
the single justice's written opinion. The single justice's
stated reasons -- including the defendant's dual citizenship,
recurring trips abroad, "impulsive, racially motivated, and
violent acts," and lack of credibility at trial -- were all
proper and, when taken together, sufficient to find that the
defendant constituted a security risk. We thus conclude that
the single justice did not abuse his discretion. See L.L., 470
Mass. at 158 n.27.
The defendant also argues that his strong likelihood of
success on appeal should be considered in assessing whether he
constitutes a security risk. Specifically, the defendant
asserts that "[t]he single justice abused his discretion here by
failing to weigh the strength of the defendant's appeal under
factor 1 and its bearing on the defendant's flight risk under
factor 2." This is not the proper analysis for these two
factors. 17
As recognized by the Appeals Court, Nash did not "signal[]
a new approach to the traditional two-factor test." Kalila, 102
Mass. App. Ct. at 113. In Nash, 486 Mass. at 407 n.17, we noted
that judges may consider the totality of the circumstances in
weighing a third factor against the other two factors if it
serves the ultimate objective underlying that third factor -- to
"safely and responsibly manag[e] confinements pending appeal for
the duration of the pandemic." The creation of a third factor,
however, was not intended to modify the way judges should assess
the first two factors in all cases going forward. The third
factor is unique from the other factors in both its purpose and
application. It was created in response to the "extraordinary
times" of the COVID-19 pandemic. See note 7, supra; Christie,
484 Mass. at 401. See also Nash, supra at 396 ("we held that
the pandemic is a factor for judges to consider when ruling on
requests for stay"). Our approval of a totality of the
circumstances test was likewise an extraordinary measure for
extraordinary times.
A judge evaluating a motion to stay thus has two distinct
factors to consider, as stated supra: (1) the likelihood of
success on appeal, and (2) certain security concerns, such as
possibility of flight and potential danger to the community.
See Nash, 486 Mass. at 406 ("Under the traditional, pre-pandemic
standard for determining motions to stay, . . . a defendant 18
bears the burden of proving two factors -- likelihood of success
on appeal and security -- in order to prevail"). If, after
examining the first factor, the answer to that threshold
question is yes, then the judge should proceed to an examination
of the second factor; if the answer is no, the motion to stay is
denied.
Nonetheless, the defendant here asserts that the type of
error involved in his underlying appeal -- structural error --
makes the defendant less of a security concern because it
requires reversal without a need to demonstrate prejudice. See
Commonwealth v. Oberle, 476 Mass. 539, 545 (2017). We are not
convinced for two reasons. To begin with, the defendant's best
outcome from his appeal is a new trial. The possibility of a
conviction after the defendant's new trial certainly is not
remote. A prior jury, in convicting the defendant of all
charges, rejected the defendant's claims that he did not use
racial epithets and acted in self-defense. We therefore agree
with the Appeals Court that "the nature of the error gives [the
defendant] no reasonable expectation of an acquittal -- or any
less incentive to flee." Kalila, 102 Mass. App. Ct. at 118.9
9 This reasoning, of course, is not applicable to appeals challenging the sufficiency of evidence or other issues resulting in acquittal. See Kalila, 102 Mass. App. Ct. at 117. That issue is not raised in this case, and we need not reach it. 19
Next, the second Nash factor requires judges to consider the
danger a defendant poses to the community. See Nash, 486 Mass.
at 405. The nature of the error underlying the appeal here does
not make the defendant any less dangerous.
Based on the foregoing, the single justice did not abuse
his discretion in concluding that the judge likewise did not
abuse his discretion.
3. The single justice's independent determination. A
single justice has the option to review a judge's denial of a
motion to stay in two ways. Nash, 486 Mass. at 410. Either the
single justice may review the matter for an error of law or
abuse of discretion, or the single justice may review it anew.
See id. (reviewing motion anew provides defendant with "a second
bite at the apple"). It is not uncommon for a single justice to
review a judge's decision under both methods. See id. at 410-
411. Here, the single justice stated, at the end of his
decision, that, "after exercising [his] independent review and
discretion, [he] reach[ed] the same conclusion [as the judge]."
Having analyzed the single justice's appellate review of the
judge's decision, we now analyze the single justice's decision
as if he made it anew.
For purposes of our analysis, there is only one noteworthy
difference between the single justice's review of the judge's
decision and the single justice's independent determination. 20
The single justice had two additional pieces of evidence before
him that the judge did not: an affidavit of the defendant's
wife in which she asserts that the financial resources of the
defendant's family are limited and an affidavit of the
defendant's brother in which he states that their father did not
live in Morocco full time. Neither affidavit is sufficient to
render the single justice's decision denying the motion to stay
unreasonable, given the single justice's stated reasons for
finding that the defendant constituted a security risk -- the
defendant's dual citizenship status and associated travel, the
jury's determination that the defendant was not credible, and
the serious and impulsive nature of the crime of which the
defendant was convicted. See Nash, 486 Mass. at 405 (judge has
"considerable leeway" in determining second factor). We thus
conclude that the single justice did not abuse his discretion
insofar as he engaged in any independent review of the
defendant's motion.
Conclusion. For the reasons discussed, we conclude that
the single justice did not commit an abuse of discretion by
denying the defendant's motion to stay the execution of his
sentence pending appeal. Accordingly, we affirm the single
justice's order denying that motion.
So ordered.