Com. v. Berrios

• Citation: 856 N.E.2d 857,447 Mass. 701
• Decision Date: 20 November 2006
• Docket Number: SJC-09696
• Parties: COMMONWEALTH v. Luis BERRIOS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

856 N.E.2d 857

447 Mass. 701

COMMONWEALTH v. Luis BERRIOS.

SJC-09696

Supreme Judicial Court of Massachusetts, Hampden.

Argued October 6, 2006.

Decided November 20, 2006.

Dianne M. Dillon, Assistant District Attorney, for the Commonwealth.

Joseph F. Krowski, Brockton (Jason Howard with him) for the defendant.

Present: MARSHALL, C.J., GREANEY, COWIN, SOSMAN, & CORDY, JJ.

GREANEY, J.

We granted the Commonwealth's application for further appellate review to determine whether the defendant, who entered a guilty plea to being an accessory before the fact to murder in the second degree (among other charges), was properly granted a new trial. The charges were based on the defendant's involvement in a gang-related shooting that occurred in Springfield on February 28, 1995, in which one person was killed and three others wounded. The Superior Court judge, who accepted the defendant's guilty pleas, allowed the defendant's motion to withdraw the pleas and for a new trial on the ground that the pleas were not voluntary. The Appeals Court affirmed on a different ground, concluding that the defendant's pleas were not intelligently made due to the ineffective assistance of his plea counsel. Commonwealth v. Berrios, 64 Mass. App.Ct. 541, 556-557, 834 N.E.2d 309 (2005). We vacate the order allowing the defendant's motion to withdraw his pleas and for a new trial. The original convictions are to be reinstated.

1. We set forth the background and procedural history of the case.

a. This is the third appeal arising from the February 28, 1995, shooting. See Commonwealth v. Francis, 432 Mass. 353, 734 N.E.2d 315 (2000); Commonwealth v. Jiles, 428 Mass. 66, 698 N.E.2d 10 (1998). The facts underlying the shooting are stated in the Francis and Jiles decisions, and are described in the Francis case as follows:

"On the evening of February 28, 1995, Carlos Falcon and three other men were shot after leaving a Kentucky Fried Chicken (KFC) restaurant on State Street in Springfield. Falcon died as a result of being shot once in the back of the head. The other three men survived.

"Earlier that evening, members of two Springfield gangs known as Los Solidos and the Original Family Organization (OFO), a subordinate group whose members aspired to membership in Los Solidos, gathered in the apartment of Sharleen Alvarez located on the fourth floor at 659 State Street. Los Solidos members present were [Robert Francis], [the defendant], Victor Figueroa, Johnny Sanchez, Luis Concepcion, and David Jiles. OFO members present were Daniel Rodriguez (`president' of OFO and the Commonwealth's cooperating witness in [the trial of Francis]), Michael Borden [also known as Mack Brown], Jason Jiles,[¹] and Sharleen Alvarez.

"The Commonwealth presented evidence that warranted a finding that [Francis] was the `chief enforcer' of Los Solidos, responsible for taking care of the gang's guns, handling threats to the gang, and, during `wartime,' exercising control over the gang in cooperation with its `warlord.' There was testimony that, on the date of the shootings, Los Solidos were in a state of `war' with a rival gang, the Latin Kings.

"Rodriguez testified that, at some point that evening, Concepcion and David Jiles entered the apartment and told the group that members of the Latin Kings were at the KFC `throwing signs,' which meant that they were disrespecting Los Solidos by displaying their hand signal. When some of those present urged retaliation, [Francis] took charge, stating, `Everybody just calm down. We going [sic] take care of this.' He summoned Rodriguez, Borden, Jason Jiles, and [the defendant] into the bathroom, where he said, `If you can get those Kings, we got to do what we got to do.' Jason Jiles responded that he would take care of it. [Francis] then directed Rodriguez and [the defendant] to leave while [Francis] remained in the bathroom with Borden and Jiles.

"Returning from the bathroom, [Francis] told Rodriguez, `Don't worry about it. I'm gon' [sic] take care of it. Let me do my job.' Jason Jiles, in [Francis's] presence, picked up a .22 caliber semiautomatic handgun and said, `I'm going to do this.' [Francis] then instructed Jason Jiles to `[g]et a hoody,' referring to a hooded sweatshirt, which Jiles put on before leaving the apartment. Borden also left the apartment at this time, and when Rodriguez asked where [Borden] had gone, [Francis] told [Rodriguez] not to worry about it. Borden often carried a .38 caliber revolver. Rodriguez testified that, shortly thereafter, Jason Jiles returned to the apartment and said, `Those ain't Kings,' to which [Francis] responded, `They Kings. They Kings. Go do what you got to do and take care of it.' Jason Jiles again left the apartment.

"There was testimony by the Commonwealth's witnesses about the events outside the apartment. Just prior to the shooting, Carlos Falcon and three companions had left the KFC. The three men were seated inside Falcon's automobile, and Falcon was standing at the rear of the vehicle. A man matching the description of Borden approached and, after a brief verbal exchange, shot the three men in the vehicle with a .38 caliber revolver, wounding them. Jason Jiles, approaching from the rear, shot Falcon once in the back of the head with a .22 caliber handgun, killing him.

"Jason Jiles and Borden then returned to the State Street apartment, where they were congratulated by the others." (Footnote omitted.)

Commonwealth v. Francis, supra at 354-356, 734 N.E.2d 315.

Francis was convicted by a jury as an accessory before the fact of murder in the first degree by reason of deliberate premeditation; as an accessory before the fact on three indictments charging armed assault with intent to murder; and of assault and battery by means of a dangerous weapon, and his convictions were affirmed. Id. at 354, 734 N.E.2d 315. Jason Jiles was tried separately, and we affirmed his conviction of deliberately premeditated murder in the first degree for the shooting death of Falcon. Commonwealth v. Jiles, supra at 66-67, 698 N.E.2d 10. Jason Jiles also was found guilty on three indictments charging armed assault with intent to murder, and of assault and battery by means of a dangerous weapon, for the shootings of Falcon's three companions. Id. Borden was taken into custody after Francis's convictions and entered guilty pleas to charges of murder in the second degree and conspiracy to commit murder, and to three charges of assault and battery by means of a dangerous weapon. Commonwealth v. Francis, supra at 356 n. 2, 734 N.E.2d 315 b. On May 12, 1995, in connection with the shooting, a grand jury returned an indictment charging the defendant with conspiracy to commit murder. The defendant was arrested on this charge and signed a written statement dated May 15, 1995, in which he admitted to having ordered the shooting (confession). On May 16, 1995, the grand jury returned indictments charging the defendant with being an accessory before the fact to murder in the first degree; being an accessory before the fact to armed assault with intent to murder (three indictments); and being an accessory before the fact to assault and battery by means of a dangerous weapon (three indictments). In January, 1996, on the day scheduled for trial, the defendant, who was represented by counsel (whom we shall refer to as former counsel), entered a guilty plea to being an accessory before the fact to murder in the second degree, thereby permitting him to be sentenced to life imprisonment with the possibility of parole in fifteen years.² The sentence reflected the judge's acceptance of the parties' agreed-on recommendation.

During the defendant's plea colloquy, the substance and facial adequacy of which is not challenged, the prosecutor recited the facts he would prove at trial. Among these was the fact that it was the defendant, who was in a "position[ ] of authority" as a former president of Los Solidos, together with Francis, who called the meeting in the bathroom where orders were given to other gang members and prospective gang members to confront the Latin Kings across the street. There, the defendant made several statements, including statements that "everything is ready to go," and telling Jason Jiles to "go and do them." After Jason Jiles and Borden left the apartment and went to the Kentucky Fried Chicken restaurant, the defendant want to a window in the apartment and remarked, "It's going to happen now," and instructed the others to sit down. When Jason Jiles returned, the defendant congratulated him. The defendant agreed with the prosecutor's statement of facts, and admitted that he had "counsel[led] [Jason Jiles and Borden] to go shoot and kill the people in that car."

c. In 1997, the defendant, pro se, filed a motion to withdraw his guilty pleas and for a new trial. Subsequently, in August, 2001, the defendant, represented by new counsel (current counsel), filed a similar motion. The defendant argues in these motions, insofar as relevant to this appeal that his guilty pleas were involuntary because they were the product of coercion and "the result of ineffective assistance of [his former] counsel." The ineffective assistance of counsel claim is predicated on allegations of his former counsel's failure to investigate, failure to press a viable motion to suppress the defendant's confession as involuntary based on police brutality and misconduct, and conflict of interest. In addition, the defendant argues that he should be permitted to withdraw his guilty pleas because the prosecution withheld exculpatory evidence, namely, the handwritten notes of the assistant district attorney taken during a pretrial interview with a codefendant, Luis Concepcion.

The judge who had accepted the defendant's guilty pleas held an evidentiary hearing on the motions. The defendant testified, as did his former counsel, his mother, his girl friend, and the lawyer who represented Concepcion in January, 1996. Through...