Commonwealth v. Kalila, 21-P-923

• Court: Appeals Court of Massachusetts
• Writing for the Court: MASSING, J.
• Parties: COMMONWEALTH v. KHALID KALILA.
• Docket Number: 21-P-923
• Decision Date: 11 January 2023

COMMONWEALTH
v.
KHALID KALILA.

No. 21-P-923

Appeals Court of Massachusetts, Suffolk

January 11, 2023

Heard: October 4, 2022.

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 Desmond, J.

J.W. Carney, Jr., for the defendant.

Darcy A. Jordan, Assistant District Attorney (Lynn Feigenbaum, Assistant District Attorney, also present) for the Commonwealth.

Present: Meade, Milkey, & Massing, JJ.

MASSING, J.

Convicted after a jury trial on indictments charging mayhem, assault and battery by means of a dangerous weapon, and violation of another's constitutional rights causing bodily injury, the defendant, Khalid Kalila, appeals from the

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denial of his request for the stay of his sentence pending appeal. Ultimately, this appeal turns on whether a single justice of this court abused his discretion in affirming the trial judge's finding that the defendant posed a security risk if released pending appeal -- specifically, a risk that the defendant, a dual citizen of the United States and Morocco with roots in both, would flee to Morocco to avoid punishment. Concluding that the single justice did not abuse his discretion, notwithstanding the asserted strength of the defendant's claim that he was improperly prevented from exercising a peremptory challenge, we affirm.

Background.

1. The crime.

On January 30, 2018, the defendant and his brother, accompanied by two friends, went out for drinks to celebrate learning that the brothers' spouses were pregnant. Their night on the town ended at a restaurant and lounge located in the Seaport area of Boston, where the defendant got involved in an altercation with another patron. As security personnel sought to remove the defendant from the premises, the defendant struck one of them two or three times with a glass he was holding in his hand, all the while yelling racial epithets and threats at the victim, who was Black. The victim was taken to the hospital with shards of glass embedded in his face, requiring over seventy stitches and plastic surgery. As a result of the attack, the victim sustained loss

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of vision in his left eye, nerve damage to the left side of his face, and permanent scarring.

2. Pretrial release.

The defendant was arrested and subsequently released on $10,000 cash bail, with conditions that he have no contact with the victim and stay away from the restaurant. Over the next three years the defendant abided by the conditions of his release, remained gainfully employed, and never missed a court date.

3. The peremptory challenge.

The appellate issue in this case concerns the trial judge's refusal to permit the defendant to exercise a peremptory challenge to remove a Black member of the venire. Juror no. 32 was a thirty-six year old man whose mother worked for the Boston Police Department in a civilian role in the internal affairs division (IAD). Neither party sought to remove the juror for cause. When defense counsel exercised a peremptory challenge, the judge, sua sponte, asked counsel the reason for the challenge. Counsel said that the strike was based on the juror's mother's employment with the police, which "would create, I think, a bad situation if we are challenging the credibility of the Boston Police."

The judge rejected the strike. The judge did not find that counsel's given reason was pretextual; indeed, the judge made it clear that he believed that the reason was "genuine." Rather, the judge determined that the reason given was not "adequate."

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The judge found that the juror was impartial and that his mother's work would not affect his assessment of witness testimony.^[1] Defense counsel responded that the judge's reasoning was relevant to a challenge for cause, but not to the adequacy of the reason given for a peremptory challenge. The judge maintained, "I find your reason is genuine, I don't find it's adequate," and disallowed the strike.^[2] Juror no. 32 ultimately sat on the jury that deliberated and found the defendant guilty.

When the defendant moved to strike juror no. 32, four jurors, including a Black woman, had been seated. The defendant had previously used one peremptory challenge to strike a white juror. Besides juror no. 32, the defendant exercised five peremptory challenges, striking four white women and one white man. The deliberating jury ultimately consisted of five Black jurors and nine white jurors. Deliberations began on the

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afternoon of the seventh day of trial and continued during the eighth and ninth days. The jurors were excused early on the afternoon of the ninth day because a juror was feeling sick. The guilty verdicts were announced shortly after 11 A.M. on the tenth day.

4. Trial judge's denial of the stay.

After his conviction, the defendant filed a motion for a stay of execution of the sentence. He argued that he had a reasonable possibility of success on appeal based on the denial of his peremptory challenge, and that he was not a flight risk and did not pose a threat to commit another crime or otherwise endanger the community. He suggested that the $10,000 bail he had previously posted remain in place, and offered to "surrender his passports to the probation department within [twenty-four] hours of his release."

While the judge agreed that the appellate issue presented an adequate likelihood of success, he found that the defendant presented a "profound" risk of flight because he had strong family ties to Morocco:

"[The defendant] is an extreme risk of flight to Morocco. He was born there and is a dual citizen of the United States and Morocco, having emigrated to the United States in 2003. He met his wife in Morocco, showing that she, too, has strong ties there. [The defendant] has routinely taken his wife and children to Morocco in the past, showing that he is able to bring his entire family, including small children (now aged [five], [two] and [ten] months), overseas and escape punishment. Indeed, [the defendant]

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has regularly taken his wife and children to spend summers in Morocco; escaping there now would appear consistent with this routine. Further, [the defendant]'s father lives in Morocco, having moved back to Morocco from the United States after his wife died, illustrating the continued pull of life in Morocco on [the defendant] and his extended family. Additionally, [the defendant] and his brothers, who are very close, 'take time to visit their father in Morocco' .... Fleeing to Morocco thus would not cut [the defendant]'s family ties, it would enhance them." (Footnote omitted.)

Having observed the defendant testify at trial, the judge "found his testimony to be incredible," and "thus [found] that it is impossible to rely on his representations that he will not seek to flee." Moreover, the judge further found, the defendant appeared to have the financial resources to do so: he "posted $10,000 bail on the night of his arrest, has been regularly employed in a management job (director of facilities for [a large property management company]), has a history of regularly taking expensive foreign trips, and is represented by private counsel."

The judge acknowledged that the defendant had complied with the conditions of pretrial release and had appeared for trial, but found that the conviction altered his incentives:

"Even though [the defendant] complied with release conditions and appeared at trial, the facts are now markedly different; [the defendant] knows his defense failed and he must serve [four] to [five] years in prison, such that the incentive to flee has grown far stronger than prior to the verdict. Escaping would be a rash and impulsive act, but one generally consistent with the trial evidence, even if [the defendant]'s counsel has informed

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him that counsel is confident the verdict will be reversed."

5. Single justice's denial of the stay.

The defendant next sought a stay pending appeal in this court under Mass. R. A. P. 6, as appearing in 481 Mass. 1608 (2019). The single justice saw no error or abuse of discretion in the trial judge's decision to deny the stay. With respect to the likelihood of success factor, the single justice agreed with the trial judge that the defendant's peremptory challenge claim was sufficient. With respect to risk of flight, the single justice reviewed the facts that the trial judge had considered -- including the defendant's minimal criminal history, the letters submitted to the trial judge showing community support for the defendant, and the fact that the defendant complied with all of the conditions of his pretrial release -- and determined that the judge's assessment of the security risk was reasonable.^[3] Having concluded that the trial judge did not abuse his discretion in denying the stay, the single justice stated, "[A]fter exercising my independent review and discretion, I reach the same conclusion here."

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Discussion.

1. Review of trial judge's denial of the stay.

We need not engage in a lengthy recitation of the standard for deciding whether to stay a criminal sentence pending the defendant's appeal from the judgments of conviction; the standard is set forth in detail in Commonwealth v. Nash, 486 Mass. 394, 402-412 (2020), and the cases cited therein. To summarize, "Under the traditional, pre-[COVID-19] pandemic standard ... a defendant bears the burden of proving two factors -- likelihood of success on appeal and security -- in order to prevail." Id. at 406. Additional considerations come into play to address the consequences of the COVID-19 pandemic for incarcerated individuals. See Id. at 406-409; Christie v. Commonwealth, 484 Mass. 397, 401-402 (2020) . The defendant did not raise any...