Opinion
20-P-771
07-24-2020
COMMONWEALTH v. KIMYA FOUST.
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
In November of 2008, the defendant, Kimya Foust, pleaded guilty to voluntary manslaughter for the killing of Walter Jackson. Pursuant to an agreed-upon recommendation, she received a nineteen-to-twenty-year State prison sentence. She is presently serving that sentence at the Massachusetts Correctional Institution at Framingham. She now appeals from a single justice's order denying her petition to stay execution of the remainder of her sentence. She claims that the single justice, as well as the Superior Court judge who denied her initial motion to stay, abused their discretion in denying her requests for relief. We affirm.
On April 16, 2020, the defendant filed in the Superior Court a motion for new trial, pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), and an emergency motion to stay execution of her sentence, citing Mass. R. Crim. P. 31 (a), as appearing in 454 Mass. 1501 (2009), based on the Supreme Judicial Court decision in Christie v. Commonwealth, 484 Mass. 397 (2020). In a comprehensive and thoughtful decision and order, the motion judge, who was not the plea judge, denied the emergency motion to stay. The motion judge also denied the defendant's motion for reconsideration.
The present case involves the defendant's third motion for new trial. The first such motion was filed in 2010, and denied by the plea judge. The second such motion, filed in 2017, was heard and denied by the motion judge, as the plea judge had retired.
The defendant then filed an emergency motion for stay of execution of her 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 motion judge and denied the motion on June 10, 2020. The defendant filed a timely notice of appeal. On July 13, 2020, pursuant to Appeals Court Administrative Order 20-3(III)(3)(c), the defendant's expedited appeal from the single justice's order denying her emergency motion to stay the execution of her 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, 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 her appeal will raise at least two issues that have a reasonable possibility of success. First, she contends that there was an insufficient factual basis during the plea colloquy to demonstrate that the killing was intentional. Second, she argues that her plea was not knowing and voluntary because she did not receive notice of the intent element of the crime.
We have reviewed the transcript of the plea hearing, and the entire record before us. For the reasons stated by the motion judge and the single justice in each of their thorough decisions, and without prejudging the merits of these claims on full appeal, we conclude that neither issue has a reasonable possibility of success on appeal.
The motion judge determined, in relevant part:
"I am constrained to agree with the Commonwealth's argument that the current motion fails to raise significant issues that offer some reasonable possibility of success. . . . I agree with the Commonwealth that [the] second claim, about defendant's notice, was raised in the Second (2017) Motion and denied. . . . New trial claims are precluded when the defendant raises no new colorable factual or legal issues about those claims, and therefore this claim is estopped. Commonwealth v. Rodriguez, 443 Mass. 707, 709-711 (2005) (applying requirements of direct estoppel to rule 30 [b] motion); Commonwealth v. Williams, 431 Mass. 71, 74 (2000); Commonwealth v. Matthews, 45 Mass. App. Ct. 444, 445 n.2 (issues raised by prior motions for new trial barred). As to the sufficiency of the evidence claim, even putting aside for the moment the Commonwealth's waiver argument, I am not persuaded at this time that there is a reasonable probability of success, and thus find [the defendant] has not met the first prong of the analysis."
Even assuming, arguendo, that the defendant has shown "some reasonable possibility of a successful decision in the appeal" (citation omitted), Allen, 378 Mass. at 498, we are not persuaded that the defendant has established that she presents no danger to the community, and that she is not likely to commit additional criminal acts during the pendency of her appeal. See Hodge (No. 1), 380 Mass. at 855. We acknowledge the letters of support, affidavits, and additional materials presented in the defendant's filings. We further acknowledge the evidence of potential mitigating circumstances provided to the motion judge and the single justice, as well as the defendant's reasonably detailed plan for release. Nevertheless, this evidence is outweighed by other factors, including but not limited to the seriousness of the offense in this case, and the evidence of the defendant's extraordinary disciplinary history while incarcerated. Indeed, the evidence demonstrates a long history of violent, assaultive, verbally abusive, and threatening behaviors, and continued unwillingness and inability to conform to rules while incarcerated. We therefore discern no abuse of discretion in the single justice's denial of the defendant's motion.
As for the third consideration required under Christie, 484 Mass. at 401-402, we again discern no abuse of discretion in the determinations made by the single justice. We note the single justice's thorough and full consideration of the relevant factors, including but not limited to the defendant's age, medical condition (diabetes), mitigating factors, difficulties in social distancing during incarceration, unique difficulties faced by correctional institutions during this pandemic in keeping their populations safe, and the motion judge's determinations regarding the defendant's medical condition.
Order of single justice denying motion for stay of sentence affirmed.
By the Court (Kinder, Neyman & Shin, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 24, 2020.