Com. v. Duest

• Decision Date: 30 July 1991
• Docket Number: No. 90-P-568,90-P-568
• Citation: 572 N.E.2d 572,30 Mass.App.Ct. 623
• Parties: COMMONWEALTH v. Lloyd Paul DUEST.
• Court: Appeals Court of Massachusetts

Page 572

572 N.E.2d 572

30 Mass.App.Ct. 623

COMMONWEALTH v. Lloyd Paul DUEST.

No. 90-P-568.

Appeals Court of Massachusetts Middlesex.

Argued Dec. 17, 1990.

Decided June 4, 1991.

Further AppellateReview Denied

July 30, 1991.

Andrew Silverman, Committee for Public Counsel Services, Boston, for defendant.

Catherine E. Sullivan, Asst. Dist. Atty., for Com.

Before ARMSTRONG, FINE and LAURENCE, JJ.

ARMSTRONG, Justice.

The defendant appeals from an order denying his second motion that he be permitted to withdraw a guilty plea to an indictment for armed robbery. The plea was taken in 1971. The defendant has since been convicted of first degree murder in Florida and has been sentenced to death. See Duest v. State, 462 So.2d 446 (Fla.1985). The evidence in the Florida trial was to the effect that the defendant's avocation was "rolling gay guys" (id.) and that, on the night in question, he had left a gay bar with the victim in the victim's automobile, had stabbed the victim eleven times in the victim's apartment, and was found shortly thereafter driving the victim's car alone, with blood stains on his clothing and with the victim's missing jewelry box. Ibid.

The death penalty is imposed in Florida, after an advisory jury recommendation, ¹ where the judge finds the existence of one or more "aggravating circumstances," not outweighed by "mitigating circumstances." Fla.Stat. § 921.141(5), (6) (Supp.1990). The jury recommended death, and the judge found that five of the statute's aggravating circumstances applied to the defendant, which, because of the factual overlap of two such circumstances, ² he counted as four in all, with no offsetting mitigating circumstances. One of the aggravating circumstances was the defendant's prior conviction of "a felony involving the use of threat of violence to the person," Fla.Stat. § 921.141(5)(b), the evidence of which was the defendant's prior convictions in Massachusetts, in 1971, of armed robbery and armed assault with intent to murder.

The Supreme Court of Florida affirmed the conviction and the sentence on direct appeal, sustaining the trial judge's findings of two of the four aggravating circumstances (the other two, including one concerning the Massachusetts convictions, were not then challenged), and stating that, on the facts of "the instant case, even if we were to find that one or two of the aggravating circumstances found by the trial judge [were] inapplicable, it would still be appropriate to maintain the death penalty." 462 So.2d at 450.

Despite that portent, the defendant then attempted to undo the two Massachusetts convictions, by that time almost seventeen years old and long since served. Those convictions were based on guilty pleas, and the Commonwealth's burden of showing that the pleas were entered understandingly and voluntarily (see Commonwealth v. Morrow, 363 Mass. 601, 603, 296 N.E.2d 468 [1973]; Commonwealth v. Duquette, 386 Mass. 834, 841, 438 N.E.2d 334 [1982] ) was hampered by the loss or destruction of the stenographic notes that were made of the plea hearing (no transcript had been prepared). A record can be reconstructed (see Commonwealth v. Foster, 368 Mass. 100, 108 n. 6, 330 N.E.2d 155 [1975] ), however, and it was in this case possible to reconstruct a record of the 1971 proceedings through the findings of the judge who accepted the guilty pleas concerning his standard procedure at that time in accepting such pleas, coupled with the defendant's testimony at a roughly contemporaneous (two weeks later) trial of an alleged partner in the armed robbery. (That testimony had been stenographically transcribed.) The proceedings on the first motion for a new trial are described in detail in Commonwealth v. Duest, 26 Mass.App.Ct. 137, 524 N.E.2d 1368 (1988) (Duest I ).

The first motion for a new trial was put on the basis that the defense counsel in 1971 was in a situation of actual conflict of interest by representing simultaneously the defendant and his cousin, Richard Duest. According to the defendant's affidavit, Richard and one Frank Stewart had been the two robbers who went into the supermarket and held the manager at gunpoint, whereas he (the defendant) had remained in the car thinking Richard Duest and Stewart intended to effect a larceny by stealth--not an armed robbery. The second basis was that he had not pleaded knowingly to either charge because his attorney had misexplained the elements, telling him that his understanding that no force would be used was of no legal relevance either to the armed robbbery charge or the assault with intent to murder, and that the judge had done nothing to correct his resulting misimpressions. The defendant's version of the 1971 plea proceedings was disbelieved by the judge, who described his standard practice as including an itemization of the elements of the charged offenses and as refusing to accept a plea unless he found that the defendant was knowingly and voluntarily acknowledging the factual basis for each offense. Particularly damning was the transcript of the alleged accomplice's trial, which had the defendant testifying under oath that he himself was one of the two robbers who entered the supermarket and emptied the safe with the manager held at gunpoint. That transcript was of significance because it undercut the defendant's 1987 assertion that there was no factual basis for the 1971 armed robbery plea and that the judge would have discovered as much if he had (as he stated was his practice) ensured in the colloquy that the defendant was acknowledging each element. ³ In Duest I, supra, this court affirmed the trial judge's order refusing to vacate the armed robbery plea. With the consent of the Commonwealth, however, the guilty plea to assault with intent to murder was vacated, based on the clarification that occurred after 1971 in the judicially accepted definition of the intent element. See Commonwealth v. Henson, 394 Mass. 584, 590-592, 476 N.E.2d 947 (1985); Commonwealth v. Ennis, 398 Mass. 170, 172-175, 497 N.E.2d 950 (1986); Duest I, 26 Mass.App.Ct. at 138-139 n. 2, 524 N.E.2d 1368.

The decision of this court on the first motion for a new trial was released in June of 1988, and the defendant's application for further appellate review was rejected in October of that year. See 403 Mass. 1102, 529 N.E.2d 1345 (1988). On April 20, 1989, the defendant filed a second motion to withdraw his guilty plea on the armed robbery indictment, supported by an affidavit executed in February (i.e., the defendant's third affidavit, see note 3, supra, concerning the proceedings in 1971). The motion purported to be based on "newly discovered evidence," which consisted of the defendant's more detailed recollection of what had taken place at his 1971 plea proceeding. The defendant's recollection, according to his affidavit, had been refreshed by the judge's findings on the previous motion (wherein the judge had stated he had no recollection whatever of what transpired at the 1971 plea proceeding but could only recount his standard method of proceeding), and, in particular, he now recalled two additional facts: first, that his 1971 attorney (who had died before the first motion was filed) had joined with his codefendant (and cousin) Richard Duest to coerce him into pleading guilty, over his objections, and under implied threat of physical harm, in order to win a more lenient sentence for Richard in a "package deal" with the prosecutor; second, that the judge had neglected to ask him whether his guilty plea was the result of threats or coercion or whether he had had satisfactory discussion with his attorney, disappointing the defendant who had been "hoping that the judge would see that my lawyer was not helping me and that I did not really want to plead guilty."

Certain aspects of the third affidavit might strain any judge's credulity--the time elapsed from the submission of the plea, the claim that the defendant, eighteen years old when he pleaded, could now recall questions the judge did not ask, the materially different versions of the defendant's conversation with his attorney between the first and second affidavits (which had the attorney misdescribing the intent elements of both offenses) and the third affidavit (which had the attorney using coercion to obtain the defendant's guilty plea)--but the judge did not directly reach the question of the defendant's credibility. Instead, he put his denial of the motion on the basis that the evidence offered in support of the motion was not, in fact, "newly discovered," in the sense that it was "unknown and unavailable at the time of the [first motion] despite the diligence of the moving party." Commonwealth v. Williams, 399 Mass. 60, 64, 503 N.E.2d 1 (1987). The judge did not err by so ruling. See Bond v. Cutler, 7 Mass. 205, 207 (1810) ("[A] want of recollection of a fact, which, by due attention might have been remembered, cannot be a reasonable ground for granting a new trial. For a want of recollection may always be pretended, and may be hard to be disproved."). Modern cases are to the same effect. "[R]ecollection after a trial is concluded does not constitute newly discovered evidence because by its general nature it deals with the known while discovery deals with the unknown. Information within the personal knowledge of a defendant does not become newly discovered evidence by reason of later recollection." State v. Sims, 99 Ariz. 302, 310-311, 409 P.2d 17 (1965), citing State v. Daymus, 93 Ariz. 332, 334, 380 P.2d 996 (1963). "[I]t must be taken as firmly established in this jurisdiction that facts or evidence not introduced or otherwise made use of at trial because they were forgotten until after the trial do not constitute newly discovered evidence because of which a new trial may be granted." LaVigne v. Commonwealth, 353 S.W.2d 376, 378 (Ky.1962). "The evidence relied upon in appellee's motion [for relief from judgment] ... was not evidence ...