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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-926
COMMONWEALTH
vs.
EUTICHIO P. CALORE, JR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Eutichio P. Calore, Jr., appeals from an
order of a single justice of this court denying his motion to
stay the execution of his sentence pending his appeal.
Concluding that the single justice acted within her discretion
in light of the defendant's actions in this case, we affirm.
In the context of review of a single justice's denial of a
motion to stay execution of a sentence, "[i]t is well settled
that this court will not reverse an order of a single justice in
the absence of an abuse of discretion or clear error of law."
Commonwealth v. Scott, 98 Mass. App. Ct. 843, 852-853 (2020),
quoting Howard v. Boston Water & Sewer Comm'n, 96 Mass. App. Ct.
119, 123 (2019). See Commonwealth v. Dame, 473 Mass. 524, 539,
cert. denied, 580 U.S. 857 (2016). To grant a stay, a single
justice "must find that the defendant presents no risk of flight
or danger to the community, and that he is unlikely to commit
additional criminal acts during the pendency of his appeal."
Commonwealth v. Springfield Terminal Ry. Co., 77 Mass. App. Ct.
225, 228 (2010), quoting Commonwealth v. Senior, 429 Mass. 1021,
1022 (1999). In addition, the defendant must establish that the
underlying "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.'"
Christie v. Commonwealth, 484 Mass. 397, 400 (2020), quoting
Commonwealth v. Allen, 378 Mass. 489, 498 (1979).
Here, the defendant stands convicted of unlawfully carrying
a firearm, G. L. c. 269, § 10 (a), and unlawful possession of
ammunition, G. L. c. 269, § 10 (h) (1). The defendant's
description of the incident to the single justice was "driving
to a vacant area in Billerica Massachusetts known as the 'sand
pits,' where the Defendant fired [his] friend's firearm out the
window of his vehicle." The Commonwealth represented that a
witness, from her front doorstep, witnessed the defendant "point
a handgun out of the driver's window, and heard a loud bang."
The bang was corroborated by a video and audio recording and a
ballistician's testimony. 1 On this record, we discern no error
1 No transcripts were provided to the single justice, nor have
transcripts been provided to us, although we are informed that
the transcripts were completed in September 2023. We note that
the findings in the order denying the defendant's motion to
2
in the single justice's determination that "[t]he convictions
stemmed from an incident in which the defendant fired a firearm
from the window of a vehicle he was driving on a populated
street in a residential neighborhood." The jury's acquittal of
the defendant on the charge of discharging a firearm within five
hundred feet of a dwelling is no bar to the single justice's
factual determination, as she was not bound to find subsidiary
facts beyond a reasonable doubt. See Commonwealth v. Edwards,
444 Mass. 526, 543 (2005) ("preliminary questions of fact and
subsidiary facts need only be proved by a preponderance of the
evidence").
In any event, it is evident that the defendant acted
recklessly in pointing a firearm outside a moving vehicle near a
residence and then firing it, even if he waited until he was in
the "sand pits" to fire it. See Vega v. Commonwealth, 490 Mass.
226, 239 (2022) (pretrial detention on dangerousness grounds
permissible for unlawful possession of firearm); Christian v.
Commonwealth, 446 Mass. 1003, 1003-1004 (2006) (affirming denial
of motion to stay sentence for security reasons where defendant
was convicted of two counts of receiving stolen goods with value
exceeding $250). The single justice reasonably determined that
the defendant "could pose . . . a threat to the community if
suppress suggest that the witness lived close to the entrance to
the "sand pits."
3
released.". See Commonwealth v. Nash, 486 Mass. 394, 405 (2020)
(single justice must "employ his or her 'sound, practical
judgment and common sense,' to decide based on the available
information whether the defendant will be a danger" [citation
omitted]).
Furthermore, as the single justice stated, the defendant
faces a mandatory sentence of eighteen months in the house of
correction and has never served incarcerated time before, and
thus "could pose a flight risk." The single justice considered
the defendant's lack of a prior criminal history and his
apparent compliance with the conditions of pretrial release. 2
The single justice also considered the defendant's assertion
that he has "employment prospects and a supportive family,"
while properly noting the lack of an affidavit or any other
evidence to support these assertions. 3 See Commonwealth v.
Alvarez, 62 Mass. App. Ct. 866, 870 (2005). This is not a case
where the single justice failed to consider or grapple with such
factors. Contrast Nash, 486 Mass. at 414.
In sum, the single justice considered the relevant factors
and concluded that, based on the defendant's reckless behavior
2 We note, however, that the conditions of release were minimal,
just to refrain from abuse or harassment and to stay away from
the street where the crime occurred.
3 The single justice reviewed the motion to stay filed by the
defendant in the District Court and presumably noticed that
these assertions were conspicuously absent from that filing.
4
with a firearm and the mandatory incarceration he faces, he
poses an unacceptable risk of flight and danger to the
community, inadequately mitigated by his lack of a prior
criminal record and compliance with the minimal conditions of
pretrial release. "The judge has considerable leeway in making
that determination." Nash, 486 Mass. at 405. Regardless of
whether we would have come to the same conclusion if this motion
were presented to us de novo, we discern no abuse of discretion.
See Dame, 473 Mass. at 539.
Order of the single justice
affirmed.
By the Court (Rubin,
Ditkoff & Grant, JJ. 4),
Assistant Clerk
Entered: March 4, 2024.
4 The panelists are listed in order of seniority.
5