Com. v. Carter
| Decision Date | 13 November 1985 |
| Citation | 484 N.E.2d 1340,396 Mass. 234 |
| Parties | COMMONWEALTH v. Alvin CARTER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Ellen K. Wade (Sherry S. Leibowitz, Boston, with her), for defendant.
Charles J. Hely, Sp. Asst. Atty. Gen. (Stephanie Glennon with him), for Commonwealth.
Before HENNESSEY, C.J., and WILKINS, LIACOS, LYNCH and O'CONNOR, JJ.
The defendant, who pleaded guilty to murder in the second degree and other felonies, seeks to withdraw those pleas. His withdrawal request as to the murder indictment is based on the theory that the record of the proceedings at which he changed his pleas from not guilty to guilty does not show that the defendant admitted to facts sufficient for a determination of malice, which is essential to a conviction of felony-murder and thus also essential to any proper acceptance of the defendant's plea of guilty to murder. The defendant points out that to establish guilt on the felony-murder theory, the felony must either be "inherently dangerous to human life" or it must involve "circumstances demonstrating the defendant's conscious disregard of the risk to human life." Commonwealth v. Matchett, 386 Mass. 492, 508, 436 N.E.2d 400 (1982). See Commonwealth v. Moran, 387 Mass. 644, 651, 442 N.E.2d 399 (1982). The defendant argues that, although he admitted at the change of plea hearing that he knew one of his accomplices had a gun, he also said he believed the gun was not loaded. He asserts that knowledge that an accomplice intends to use an unloaded gun is sufficient to support neither a conviction of felony-murder nor an acceptance of a plea of guilty to murder. The plea judge denied the defendant's motion under Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979), for leave to withdraw his guilty pleas. We affirm that order. 1
At his change of plea hearing, the defendant heard a factual description of the crimes. He admitted that he and an accomplice approached a parked car with the intention of robbing its occupants, that he opened the passenger door, and that this accomplice fired at the driver when he resisted. The defendant denied that he grabbed one of the intended robbery victims. 2 On examination by the judge the defendant said that he did not have a weapon, but that he knew one accomplice did. He said further that his accomplices told him the gun did not have any bullets and that he did not know they had bullets.
We set forth certain governing principles. To be valid, it is constitutionally required that a guilty plea be grounded on facts in the record showing either that the defendant was informed of all the essential elements of the crime to which he was pleading or that he admitted facts sufficient to establish the existence of those elements. Henderson v. Morgan, 426 U.S. 637, 646, 96 S.Ct. 2253, 2258, 49 L.Ed.2d 108 (1976). Commonwealth v. Begin, 394 Mass. 192, 197, 474 N.E.2d 1120 (1985). Commonwealth v. Sullivan, 385 Mass. 497, 509, 432 N.E.2d 684 (1982). Commonwealth v. McGuirk, 376 Mass. 338, 343-344, 380 N.E.2d 662 (1978), cert. denied, 439 U.S. 1120, 99 S.Ct. 1030, 59 L.Ed.2d 80 (1979). Commencing in 1982, opinions of this court have made malice a distinct and essential element of felony-murder by requiring that the felony itself, or the manner in which it was committed, demonstrate the defendant's conscious disregard of the risk to human life. See Commonwealth v. Matchett, 386 Mass. 492, 508, 436 N.E.2d 400 (1982); Commonwealth v. Moran, 387 Mass. 644, 651, 442 N.E.2d 399 (1982); Commonwealth v. Watson, 388 Mass. 536, 543-544, 447 N.E.2d 1182 (1983); Commonwealth v. Currie, 388 Mass. 776, 785, 448 N.E.2d 740 (1983); Commonwealth v. Doherty, 394 Mass. 341, 353, 476 N.E.2d 169 (1985). These new felony-murder principles, on which the defendant relies, were announced after the defendant was sentenced and are applicable only to cases on direct appeal or as to which the time for direct appeal had not yet expired, if the issue was preserved at trial. Commonwealth v. Parham, 390 Mass. 833, 846, 460 N.E.2d 589 (1984). Commonwealth v. Moran, supra, 387 Mass. at 651 n. 3, 442 N.E.2d 399. The defendant pleaded guilty to murder in the second degree in 1981. He may not, therefore, rely on those felony-murder principles developed since his plea and sentencing. Our review of the denial of the defendant's motion thus requires us only to determine whether the plea hearing was infected with prejudicial constitutional error or whether, pursuant to Mass.R.Crim.P. 30(b), "it appears that justice may not have been done." See Commonwealth v. DeMarco, 387 Mass. 481, 484, 487, 440 N.E.2d 1282 (1982); Commonwealth v. Sullivan, 385 Mass. 497, 503, 432 N.E.2d 684 (1982); Commonwealth v. Penrose, 363 Mass. 677, 681, 296 N.E.2d 819 (1973); Commonwealth v. Nolan, 19 Mass.App. 491, 495, 475 N.E.2d 763 (1985).
Because we reject the premise of the defendant's argument, the standard of review in this case is not a significant factor. We have held that the "felony of armed robbery, committed with a loaded gun, may not 'be committed in a way not inherently dangerous to human life.' " Commonwealth v. Currie, supra, 388 Mass. at 785, 448 N.E.2d 740. See Commonwealth v. Watson, supra 388 Mass. at 544 & n. 7, 447 N.E.2d 1182; Commonwealth v. Matchett, supra 386 Mass. at 508, 436 N.E.2d 400. An unarmed felon could be guilty of murder in the course of the commission of an armed robbery, however, only if he knew that his accomplice was carrying a weapon. Commonwealth v. Watson, supra 388 Mass. at 544, 447 N.E.2d 1182. Where an unarmed felon knows that his accomplice in a robbery is carrying a gun, even if he believes the gun is unloaded and his accomplice has no ammunition, that robbery is inherently dangerous to human life. The use of a gun, even if it is unloaded, may provoke violent resistance from the intended victim or may spur others, such as police officers, to intervene with deadly force. See Commonwealth v. Tarrant, 367 Mass. 411, 415, 326 N.E.2d 710 (1975); Commonwealth v. Henson, 357 Mass. 686, 693, 259 N.E.2d 769 (1970). Contrary to an unarmed felon's expectation, a gun may come to be loaded in the course of events and, as occurred here, it may be used to cause death. Armed robbery with what one felon may believe to...
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