Arsenault v. Com.

• Decision Date: 02 February 1968
• Citation: 353 Mass. 575,233 N.E.2d 730
• Parties: Henry P. ARSENAULT v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 730

233 N.E.2d 730

353 Mass. 575

Henry P. ARSENAULT v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 2, 1968.

Decided Feb. 2, 1968.

Charles M. Burnim, Boston, for petitioner.

Willie J. Davis, Asst. Atty. Gen., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, CUTTER, KIRK and REARDON, JJ.

KIRK, Justice.

This proceeding on a writ of error was reserved and reported by the single justice on the petition, the answer, the return of the Chief Justice of the Superior Court, the transcript of the trial in the Superior Court, the findings of the single justice and one assignment of error. The assignment of error is that the judge in the Superior Court 'erred in receiving in evidence the fact that * * * (Arsenault) had pleaded guilty to the charge on trial in the Newton District Court while unrepresented by counsel.'

The case as it originally came to us on appeal under G.L. c. 278, §§ 33A--33G, is reported sub nomine Commonwealth v. Devlin, 335 Mass. 555, 141 N.E.2d 269, where the evidence of the circumstances preceding and attending the commission of the crime and the apprehension of the perpetrators is stated and the assignments of error are discussed and sisposed of.

We summarize the facts found by the single justice relating to the assigned error, augmented or amplified where appropriate by undisputed facts of record. On the evening of February 4, 1955, Arsenault was arrested in connection with the shooting to death, during an attempted robbery, of a young man in Newton. The arrest took place a few minutes after the crime. The following morning a probable cause hearing was held in the Newton District Court. During the hearing, at which Arsenault was not represented or assisted by counsel, he 'pleaded guilty' to two complaints charging, respectively, murder and assault with intent to rob. He was bound over for the grand jury who returned an indictment charging Arsenault with murder. On February 11, 1955, he was arraigned in the Superior Court and pleaded not guilty to the indictment. When arraigned, he was not represented by counsel. On February 21, 1955, on Arsenault's motion, counsel nominated by him was assigned to defend him under G.L. c. 277, §§ 47 and 55, and Rule 95 of the Superior Court (1954). Thereafter, at all material times, Arsenault was represented by and had the assistance of counsel. He was allowed funds for the employment of an investigator and psychiatrists. Upon the appointment of counsel he was granted thirty days within which to file special pleas. The Commonwealth filed particulars in response to his motion. On June 28, 1955, at the close of the evidence at the trial, his counsel filed and was given a hearing on a motion to quash the indictment, which was denied on the merits.

At the trial Arsenault testified in his own defense. Under direct examination he testified that he, with a codefendant, each with a gun in hand and a silk stocking as a face mask, and Arsenault having in addition a rope in a pocket inside his topcoat, entered a dwelling for the purpose of taking one Silverman's money, and that the gun which fired the fatal bullet was in his hand when the victim was shot. On cross-examination the district attorney read to Arsenault the complaint from the files of the Newton District Court charging him with murder and asked him hoe he had pleaded to it. Arsenault replied that he did not remember. He was asked to read the complaint, including the plea, and having done so said that his memory was not refreshed. The district attorney then incorporated part of the complaint and the plea in a question to Arsenault and asked him if it refreshed his memory and he replied that it did not, that he did not know what he had said. Eventually, in the Commonwealth's rebuttal, a witness who had been present at the probable cause hearing testified that he heard Arsenault plead guilty to both complaints. ¹ The jury found him guilty of murder in the first degree. He appealed to this court on assignment of errors, among which was the admission of his pleas made in the District Court. This court held the pleas admissible and affirmed the judgment. Commonwealth v. Devlin, 335 Mass. 555, 573, 141 N.E.2d 269. After respites, the sentence of death was commuted to life imprisonment by the Governor.

Arsenault's present petition is founded on the holding of the Supreme Court of the United States in White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, reversing White v. State, 227 Md. 615, 177 A.2d 877. There is a close similarity between the White case and the case before us. At a preliminary hearing, White, not represented by counsel, pleaded guilty to murder. On arraignment, when represented by counsel, he pleaded not guilty. At his trial, White's earlier plea of guilty was admitted in evidence against him. In its reversal of the Maryland Court of Appeals which had held that the preliminary hearing was not a critical stage in a criminal prosecution in Maryland, the Supreme Court in a per curiam opinion said, 'Whatever may be the normal function of the 'preliminary hearing' under the Maryland law, it was in this case as 'critical' a stage as arraignment under Alabama law. For petitioner entered a plea before the magistrate and that plea was taken at a time when he had no counsel' (emphasis supplied). 373 U.S. 59, 60, 83 S.Ct. 1050, 1051. The Supreme Court held that the White case was governed by Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114.

At the outset it should be noted that Arsenault does not argue, and quite rightly, we think, that Hamilton v. State of Alabama, where under Alabama law the absence of counsel at the arraignment stage was deemed to be critical, has any application to the present case. Although Arsenault was without counsel when he pleaded not guilty at his arraignment in the Superior Court, the order of the judge relative to the filing of special pleas, entered as soon as counsel was appointed, affirmatively shows that all of the defences which could have been available to him were in fact made available to him. Some were used by him. We therefore do not have a case where 'the degree of prejudice can never be known.' Hamilton v. State of Alabama, 368 U.S. 52, 55, 82 S.Ct. 157, 159. Rather, we have a case where the fact of no prejudice is demonstrable as matter of record. See MACEY V. COMMONWEALTH, MASS., 226 N.E.2D 225;^A Anderson v. United States, 122 U.S.App.D.C. 277, 352 F.2d 945; Dean v. Maxwell, Warden, 174 Ohio St. 193, 196--197, 187 N.E.2d 884, 5 A.L.R.3d 1263.

We accordingly focus our attention on the applicability of White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, to the instant case. The precise question is whether the rule of the White case should be retroactive; i.e., applied to cases in which the judgment of conviction has been rendered and the availability of appeal has been exhausted. Tehan, Sheriff v. United States ex rel. Shott, 382 U.S. 406, 409, fn. 3, 86 S.Ct. 459, 15 L.Ed.2d 453. If the White case is retroactive it governs the case before us. The Supreme Court of the United States has not yet decided the issue. In Nadeau v. State, 232 A.2d 82 (Me., 1967), which bears a striking factual resemblance to the White case and the case before us, the Supreme Judicial Court of Maine, in a persuasive opinion, reached the conclusion that the White case should not be retroactive. ² We are of the same opinion. See Commonwealth v. Morrissey, 351 Mass. 505, 510--511, 222 N.E.2d 755.

In reaching our conclusion we must be guided by our understanding of the rationale underlying the decisions of the Supreme Court regarding the retroactivity of constitutional rules of criminal procedure established by that court for State courts. These decisions are: Linkletter v. Walker, Warden, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (exclusionary rule under Fourth Amendment established by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, held not retroactive and not applicable to State court convictions which had become final before its rendition). Tehan, Sheriff v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (prohibition under Fifth Amendment, established by Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, of comment at trial by prosecution or court on defendant's election not to take the stand, held not retroactive and not applicable to cases where final conviction secured in State courts prior to Griffin decision on April 28, 1965). Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (exclusionary rules under Fifth Amendment, relating to custodial interrogation in absence of counsel, established by Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, held not retroactive. The Escobedo exclusionary rule is available only to persons whose trials began after June 22, 1964, the date of the decision. The Miranda exclusionary rule is available only to persons whose trials had not begun 'as of June 13, 1966,' the date of the decision). Stovall v. Denno, Warden, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (exclusionary rules under Sixth Amendment, relating to pre-trial confrontation of accused by victim or witnesses, in absence of accused's counsel, established by United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, held not retroactive and applicable only to Wade and Gilbert and to 'all future cases which involve confrontations for identification purposes conducted * * * after this date (June 12, 1967)' (emphasis supplied.)).

It appears therefore that the cases where retroactivity has been discussed are cases where retroactivity has been denied. In Stovall v. Denno, Warden, however, the court...