Commonwealth v. Mattier , 474 Mass. 227 ( 2016 )

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SJC-11946
COMMONWEALTH vs. BRANDEN E. MATTIER.
Suffolk. January 7, 2016. - May 2, 2016.
Present: Gants, C.J., Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Practice, Criminal, Execution of sentence, Sentence.
Indictments found and returned in the Superior Court
Department on August 29, 2013.
A pretrial motion to suppress evidence was heard by Kenneth
W. Salinger, J.; the cases were tried before Jeffrey A. Locke,
J.; and a motion for stay of execution of sentence was
considered by Locke, J.
A motion for stay of execution of sentence filed in the
Supreme Judicial Court was referred to Spina, J., and was
considered by him.
Rebecca A. Jacobstein, Committee for Public Counsel
Services, for the defendant.
Randall E. Ravitz, Assistant Attorney General (Gina
Masotta, Assistant Attorney General, with him) for the
Commonwealth.
HINES, J. The defendant, Branden E. Mattier, was convicted
by a jury on three indictments charging conspiracy, G. L.
2
c. 274, § 7; attempted larceny, G. L. c. 274, § 6; and identity
fraud, G. L. c. 266, § 37E, respectively. The charges stemmed
from an attempt by the defendant and his half-brother to defraud
One Fund Boston, Inc. (One Fund),1 of approximately $2 million by
claiming that a long-deceased aunt had been injured in the 2013
bombing at the finish line of the Boston Marathon. The judge
imposed a State prison sentence of from three years to three
years and one day on the conspiracy charge and concurrent
sentences of three years' probation for the attempted larceny
and identity fraud charges, to run from and after the committed
sentence.
The defendant appealed from his convictions and filed in
the trial court a motion for stay of the execution of his
sentence pending appeal. The judge denied the motion. After
his appeal was docketed in the Appeals Court, the defendant
filed a motion for stay of the execution of the sentence in that
court. We granted the defendant's application for direct
appellate review of his appeal, and thereafter, the defendant
filed a motion for stay in this court. The matter was referred
to the single justice, who denied the motion. The defendant
filed this appeal from the single justice's order, together with
1
One Fund Boston, Inc., was established as a charitable
organization to collect and distribute funds to assist the
victims of the April, 2013, Boston Marathon bombing.
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a motion for an expedited ruling.2 In response to the
defendant's motion for an expedited ruling on his appeal from
the single justice's order denying the stay, we now address
separately the merits of that aspect of his appeal.
Analysis. We review the single justice's order denying a
motion for stay to determine (1) "whether the single justice
committed error of law in declining to make an independent
exercise of discretion on the issue of the stay of execution, in
place of that made by the trial judge"; and (2) whether the
single justice erred in ruling that the trial judge's action on
the motion to stay was not an abuse of discretion. Commonwealth
v. Hodge (No. 1), 380 Mass. 851, 852 (1980). The single justice
and the trial judge, as they were entitled to do, denied relief
without explanation. See Commonwealth v. Cohen (No. 2), 456
Mass. 128, 132-133 (2010).
When considering the merits of a motion to stay the
execution of a sentence, two factors are considered: (1)
whether the defendant's appeal presents "an issue which is
worthy of presentation to an appellate court, one which offers
some reasonable possibility of a successful decision,"
Commonwealth v. Allen, 378 Mass. 489, 498 (1979), quoting
2
The defendant's appeal from the convictions has not been
consolidated with his appeal from the single justice's order
declining to stay execution of his sentence.
4
Commonwealth v. Levin, 7 Mass. App. Ct. 501, 504 (1979); and (2)
"whether the defendant's release poses a security risk,"
Commonwealth v. Charles, 466 Mass. 63, 77 (2013). The first
prong is a "pure question of law or legal judgment." Allen,
supra, citing Levin, supra at 505. Without in any way
prejudging the merits of the defendant's direct appeal, we are
not persuaded that he has met his burden to establish a
"reasonable possibility of . . . success[]" such that the single
justice's denial of the motion to stay was an abuse of
discretion.3
To prevail on this aspect of his appeal from the single
justice's order, the defendant must demonstrate a reasonable
possibility of success on his challenge to the conspiracy
conviction, the crime for which the judge imposed the committed
portion of the sentence. The defendant makes two arguments in
his attempt to meet this burden: (1) the evidence supporting
the conspiracy conviction was secured as the result of an
unlawful arrest on the identity fraud charge and should not have
been admitted at trial; and (2) the remaining evidence offered
by the Commonwealth to prove the conspiracy charge was
"virtually non-existent." Where, as here, the success of the
3
Because of our conclusion regarding the reasonable
likelihood of success, we do not analyze whether the defendant
poses a security risk.
5
defendant's appeal from the conspiracy conviction depends in
large part on the validity of the identity fraud conviction, the
defendant's burden is to demonstrate as well a reasonable
possibility of success on his appeal from the identity fraud
conviction and that reversal of the identity fraud conviction
vitiates the conspiracy conviction. We are not persuaded that
he has done so.
The defendant contends that the conviction fails as a
matter of law on two grounds: (1) the forgery of a physician's
letter submitted as part of the fraudulent One Fund claim does
not meet the statutory requirement that the defendant "pose as
[another] person"; and (2) the defendant did not obtain anything
of value while posing as that physician. Building on this
argument, the defendant contends that the evidence seized as a
result of the warrantless arrest on the identity fraud and
attempted larceny charges must be suppressed. The motion to
suppress was erroneously denied, so the argument goes, because
in the absence of conduct implicating the identity fraud
statute, the police had no probable cause for the arrest on that
charge and the warrantless arrest for attempted larceny, a
misdemeanor, cannot stand.
We conclude that regardless of the merits of the appeal
from the identity fraud conviction, the denial of the stay was
not an abuse of discretion where the evidence was lawfully
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seized on an alternative ground. More specifically, the
information contained in the affidavit in support of the search
warrant application established probable cause to arrest the
defendant for attempted larceny and authorized the search of the
defendant at the time of the arrest. In particular, the
affidavit contained the following information establishing
probable cause for the attempted larceny arrest: (1) On June
12, 2013, the defendant submitted a claim on behalf of Onevia
Bradley for injuries alleged to have occurred at the site of the
Boston Marathon bombing on April 15, 2013; (2) the claim
incorporated a forged letter purporting to be from Peter A.
Burke, M.D., at the Boston Medical Center; and (3) Bradley died
on May 19, 2000. We conclude, based on the affidavit, that the
police had probable cause for the arrest and that the subsequent
search was lawful. Also, the warrant expressly authorized the
seizure of mobile devices and the search of the defendant at the
residence where the arrest took place.
Last, where the defendant's cellular telephone was lawfully
seized, the cellular telephone text messages implicating the
defendant in the conspiracy as charged were properly admitted at
trial. Thus, the defendant's failure to make the requisite
showing as to the conspiracy conviction is fatal to his claim
for a stay pending appeal.
Accordingly, we conclude that the single justice did not
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err in finding that the trial judge did not abuse his discretion
in denying the defendant's motion for stay. Nor do we discern
any abuse of discretion by the single justice in electing not to
exercise independent discretion in review of the trial judge's
order. We therefore affirm the decision of the single justice.
So ordered.