Com. v. Dawson
Decision Date | 01 April 1985 |
Citation | 473 N.E.2d 213,19 Mass.App.Ct. 221 |
Parties | COMMONWEALTH v. Alvin DAWSON. |
Court | Appeals Court of Massachusetts |
Robert N. Tochka, Asst. Dist. Atty., for the Com.
Casimir S. Lopata, Boston, for defendant.
Before GRANT, DREBEN and KASS, JJ.
On July 2, 1980, the body of Elizabeth C. was found on the roof of an apartment building in Roxbury. She had been stabbed eight times, had both jaws broken and had abrasions on her face consistent with the imprint of a boot. The defendant and his nephew, Thomas, were indicted for first degree murder. At hearings on motions to suppress and during trial each defendant attempted to show that the other was the culprit. 1 There was also evidence of damaging admissions by each defendant as to his own involvement which could be understood to exclude the other defendant. After several days of trial, marked by striking variations from pretrial statements on the part of several key witnesses, the defendant pleaded guilty to second degree murder. 2 He was sentenced to life imprisonment at Massachusetts Correctional Institution, Walpole. Five months later he filed a pro se motion to withdraw his guilty plea and for a new trial under Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979), on the After appointment of new counsel and an evidentiary hearing, 3 the motion judge 4 filed a written memorandum containing his findings and rulings. He concluded that "the record contemporaneous with the acceptance of the defendant's guilty plea does not convince this court that the plea was voluntarily, knowingly and freely offered." He also "specifically" found, in light of the plea colloquy "as well as other evidence 5 presented during the hearings, ... that the defendant was confused at the time his plea was taken" (emphasis supplied). 6 This is an appeal by the Commonwealth from the ensuing order for a new trial.
grounds that his plea had not been voluntary and that he had not received the effective assistance of counsel.
The Commonwealth, citing Commonwealth v. Foster, 368 Mass. 100, 106, 108 n. 6, 330 N.E.2d 155 (1975), argues that if, as it claims, the contemporaneous record 7 satisfies the "minimal requirements in demonstrating voluntariness and understanding" of the plea, the judge committed error in allowing the plea to be withdrawn. 8 An examination of that record 9 leads us to conclude that the Commonwealth has not met its burden of showing that the guilty pleas "were understandingly and voluntarily made." Commonwealth v. Morrow, 363 Mass. 601, 604, 296 N.E.2d 468 (1973). Boykin v. Alabama, 395 U.S. 238, 242-243, 89 S.Ct. 1709, 1711-12, 23 L.Ed.2d 274 (1969). Commonwealth v. Fernandes, 390 Mass. 714, 719, 459 N.E.2d 787 (1984).
The plea colloquy reveals the defendant's minimal intelligence and education and indicates some confusion on his part. A portion of the colloquy, quoted by the motion Deficiencies in a record which might pass constitutional scrutiny with a defendant of normal or high intelligence must here be appraised with a more critical eye. See Commonwealth v. Huot, 380 Mass. 403, 409, 403 N.E.2d 411 (1980). This defendant's limited powers of comprehension demand a detailed inquiry, what has been called "a compendious reminder." Ciummei v. Commonwealth, 378 Mass. 504, 510, 392 N.E.2d 1186 (1979).
judge, is [19 Mass.App.Ct. 224] reproduced in the margin. 10 The motion judge pointed out this portion as an example, among others, showing that the defendant's answers concerning his participation in the murder were equivocal, that he did not remember what happened and that he only responded when pressed by the judge
When we turn to those portions of the plea colloquy, set out in the appendix to this opinion, which do not concern the facts of the crime itself we find no such inquiry as to whether the pleas were "understandingly and voluntarily made." Commonwealth v. Morrow, 363 Mass. at 604, 296 N.E.2d 468. We note first that the requirements of Mass.R.Crim.P. 12(c)(3)(A), 378 Mass. 868 (1979), were not met. The defendant was not informed of his right to confront witnesses or of his privilege against self-incrimination. Whether the judge need enumerate these rights where, as here, the defendant pleads guilty after several days of trial, is a question we need not consider. See United States v. Michaelson, 552 F.2d 472, 477 (2d Cir.1977). 11
There were more glaring omissions. The record shows no questioning of the defendant as to whether his plea was made voluntarily, as to whether there were any threats or inducements, or, as required by Mass.R.Crim.P. 12(c)(1), 378 Mass. 868 (1979), whether any agreement had been made which was contingent on the plea. This failure to focus on whether the plea was rendered freely is here fatal. Commonwealth v. Fernandes, 390 Mass. at 719, 459 N.E.2d 787.
The Commonwealth claims that the proceedings prior to the plea provide the requisite support to show understanding and voluntariness on the part of the defendant. It is true that "[s]trong evidence of the defendant's guilt with respect to a more serious charge increases the likelihood that [a] defendant's decision to plead to a lesser charge was intelligently made." Commonwealth v. Sullivan, 385 Mass. 497, 508, 432 N.E.2d 684 (1982). Although persuasive evidence 12 at trial or an inquiry Order for new trial affirmed.
(The remainder of the colloquy relates to the facts.)
1 Motions to sever were denied. But see Commonwealth v. Moran, 387 Mass. 644, 659, 442 N.E.2d 399 (1982), which indicates that severance may have been required.
2 On the same day that the defendant's plea was accepted,...
To continue reading
Request your trial-
Com. v. Duest
...proceeding, unlike that in Commonwealth v. Fernandes, 390 Mass. 714, 717-718, 459 N.E.2d 787 (1984), and Commonwealth v. Dawson, 19 Mass.App.Ct. 221, 224-225, 473 N.E.2d 213 (1985), would have included, as part of the judge's standard method of proceeding, 5 a colloquy that satisfied the ju......
-
Com. v. Dummer, 95-P-141
...were made in order to change his pleas to guilty. Commonwealth v. Fernandes, supra at 719, 459 N.E.2d 787. Commonwealth v. Dawson, 19 Mass.App.Ct. 221, 225, 473 N.E.2d 213 (1985). We have tolerated certain omissions from these requirements in the past. See Commonwealth v. Morrow, supra at 6......
-
Commw. v. DeCologero, 041000
...valid only if offered "voluntarily, with sufficient awareness of the relevant circumstances"). The defendant, citing Commonwealth v. Dawson, 19 Mass. App. Ct. 221 (1985), claims that the judge's failure to inquire into the voluntariness of the plea served to invalidate the plea. The defenda......
-
Commonwealth v. Dawson
...595 477 N.E.2d 595 394 Mass. 1102 Commonwealth v. Dawson (Alvin) Supreme Judicial Court of Massachusetts. APR 01, 1985 19 Mass.App. 221, 473 N.E.2d 213. ...