Com. v. Hawley

• Decision Date: 05 March 1980
• Citation: 401 N.E.2d 827,380 Mass. 70
• Parties: COMMONWEALTH v. Charles W. HAWLEY (and four companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 827

401 N.E.2d 827

380 Mass. 70

COMMONWEALTH v. Charles W. HAWLEY (and four companion cases ¹ ).

Supreme Judicial Court of Massachusetts, Berkshire.

Argued Nov. 6, 1979.

Decided March 5, 1980.

Charles W. Hawley and Terry Lee Gibney, pro se.

Anthony J. Ruberto, Jr., Dist. Atty., and Daniel A. Ford, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, WILKINS and ABRAMS, JJ.

KAPLAN, Justice.

The defendants Charles W. Hawley and Terry Lee Gibney, jointly tried and convicted by a Berkshire County jury on indictments for perjury (G.L. c. 268, § 1), took their appeals pursuant to G.L. c. 278, §§ 33A- 33G, and we transferred the cases here on our own motion. Their joint assignments of error are numerous but we need not canvass them all. ² We hold that there was no error in the denial of their motions at the close of the Commonwealth's case for directed verdicts of acquittal, but that the judgments should be set aside because of improper statements by the prosecutor in his argument to the jury.

The perjuries were charged to have been committed in the course of the defendants' testimony at a hearing on March 4, 1977, upon their respective motions to withdraw their pleas of guilty of the manslaughter of one Adriel Bidwell. The pleas had been entered on February 4, 1976, at the commencement of their trial on indictments charging the murder of Bidwell in the first degree. We describe the outward appearance, so to speak, of the taking of the guilty pleas, and add some preceding and following events. Then we go on to the alleged seamy underside of these pleas, as the defendants' testimony attempted to describe it, on the motions to withdraw the pleas, which were denied. We pass then to the perjury indictments and trial deriving from that testimony.

1. Guilty Pleas; Hearing on Reduction of Sentences. Bidwell was murdered in July, 1975, and Hawley and Gibney (then aged eighteen and nineteen years), together with one Robert Dennis, were indicted for the crime on October 9, 1975. In that month, at arraignments, the court appointed Mr. William W. Simons as counsel for Hawley and Mr. George B. Crane for Gibney. They were experienced trial lawyers.

As empanelment of jurors began on February 3, 1976, Hawley told the trial judge, "I just don't have full faith in Mr. Simons" (without furnishing details), and asked for a new lawyer. This the judge refused. It appeared at this time and was known to Hawley and Gibney that Dennis (the one of the three who actually struck Bidwell) would probably testify for the Commonwealth. Simons and Crane had consulted with the assistant district attorney presenting the cases, Mr. William R. Flynn, and a "bargain" was struck that in exchange for pleas to manslaughter, Flynn would recommend eight- to fifteen-year sentences and would not oppose a request that they be served at the Berkshire County House of Correction. On February 4, after counsel explained the situation to them and they had consulted between themselves, Hawley and Gibney agreed to make the pleas on the bargained basis.

The same day, February 4, the lawyers met with the judge and informed him of the plea arrangements. A hearing was then held to receive the pleas. Flynn gave an account of the crime and recommended eight- to fifteen-year sentences. The judge made a thorough inquiry into the "voluntariness" of the proffered pleas. Among other things he inquired about inducements to plead guilty and whether the defendants had any complaints about their lawyers. Satisfied on these and other points, the judge said, as reported in the transcript: To Hawley "I still have an open mind on the eight to fifteen years. . . . In other words, I'll go along with any sentence being served in the Berkshire Jail, but it's open as far as the term of years." To Gibney "when I say I won't go along with it, I might lower it, but in all frankness I would rather doubt that. In other words, I'm not bound and I'm not binding myself to any number of years. I'll determine that tomorrow . . . ." Did the defendants still want to plead guilty to manslaughter (carrying a maximum sentence of twenty years)? The defendants said they did. Next day, after hearing counsel for the defendants, the judge imposed, not the "bargained" sentences, but sentences of eighteen to twenty years to M.C.I. Walpole, with a recommendation that they be served at the Berkshire County House of Correction. ³

The defendants applied to the Superior Court, Appellate Division, pursuant to G.L. c. 278, §§ 28A-28D, for reduction of sentences. The applications were heard on May 5, 1976. Mr. Matthew J. Ryan, Jr., the district attorney for the Western District (Berkshire and Hampden counties), appeared and argued against the reduction. Simons and Crane urged reduction at least to the level agreed with Flynn. On May 28 the Appellate Division refused relief. It appears that thereafter Simons and Crane ceased to represent the defendants.

2. Motions to Withdraw Pleas. On February 22, 1977, some eleven months after the pleas, Hawley and Gibney moved to withdraw them. ⁴ In accompanying affidavits they alleged misconduct by Simons, Crane, Flynn, Ryan, and police (unnamed) of several towns; there were also claims that the trial judge had reneged on his supposed agreement to sentence them to eight to twelve years. ⁵

Several of the allegations of misconduct were related to the prosecutions of Eugene Graziano and Antonio Facente, and we divagate for a moment to speak of these two, noting that the attorney who represented them was now also representing the present defendants on their motions to withdraw pleas. Graziano and Facente had been convicted by a Springfield jury on February 2, 1973, of the murder in the second degree and armed robbery of William Griffin while they were trying to collect from him on a cocaine sale. On July 19, 1975, this court reversed the convictions because of improper restriction of the cross-examination of a prosecution witness, and at the same time disapproved inflammatory remarks by the prosecutor in his summation to the jury. Commonwealth v. Graziano, 368 Mass. 325, 331 N.E.2d 808 (1975); see also 371 Mass. 596, 358 N.E.2d 776 (1976). The two men were retried and on November 26, 1977 (five months after the perjury trial herein), were acquitted of the charges. Facente had been under charges since March 13, 1973, of intentionally burning insured property and submitting a false insurance claim (G.L. c. 266, §§ 10, 111A); his cases were ultimately dismissed on April 3, 1979.

Returning to the motions to withdraw pleas, Hawley testified on March 4, 1977, that Graziano was held at the Berkshire jail during the latter part of 1975 while Hawley was also detained there, and they conversed on several occasions. Hawley had seen Graziano a few times some five years earlier when Hawley was "helping out" at a Springfield gas station which Graziano used to frequent. Hawley did not know Facente except through the newspapers (the Graziano-Facente prosecution was widely publicized).

Hawley said that on November 20, 1975, police of Springfield, Westfield, and Agawam visited him at the Berkshire jail. The Springfield police ⁶ handed him a paper purportedly signed by Ryan (but now lost; its content was not made clear). These officers asked Hawley to agree to testify that Facente in July, 1972, offered him $100 to set fire to Facente's house (Hawley would have been fourteen years old at the time); also that Graziano told him at the Berkshire jail that he (Graziano) had shot Griffin in circumstances consistent with the prosecution's theory. If Hawley testified to such effect, he would serve little if any time in the Bidwell matter; if he did not, he would be sentenced to life imprisonment. Ryan had the power to harm or protect him. Hawley told the police he would think about their proposition.

Hawley testified he told Simons of the meeting sometime in January, 1976, and Simons advised him to accept the deal. In another conversation with Simons on February 3, 1976, Hawley recurred to the proposal of the Springfield police. He also said his mother had visited him about January 10, 1976, and said Dennis's father offered her $30,000 if Hawley would "take the rap" for Dennis and testify against Graziano. ⁷ Simons said, according to Hawley, that no lawyer in the State could risk attacking Ryan, that Hawley should go along with the police deal or he would find himself convicted of murder in the first degree with a life sentence.

According to Hawley, also on February 3, after his conversation with Simons, he encountered Flynn as he was walking to a rest room in the court house unescorted and without handcuffs. They talked alone in a hallway for about two minutes. Flynn asked whether Hawley was agreeing to give testimony. Hawley said no. Flynn said, "Okay, you'll pay." Hawley reported the conversation to Simons and Simons stated he would have to accept the deal or plead guilty.

Next day, Hawley testified, he told Simons that he would have to go to trial because he could not agree to the deal. In that case, Simons said, he would not represent Hawley, for if they went to trial Hawley would get "first degree life." However, in a stenographic record of a meeting between Hawley and Simons on February 4 a record made at the judge's suggestion there is a bland discussion of trial tactics; Simons asks, "Is there anything you feel I haven't done that you want me to do?" and, "Are you unhappy with anything I've done so far?"; Hawley answers, "No"; and the conversation ends with Simons asking, "Are you ready to start the trial?" and Hawley answering, "Yeah."

With respect to the plea bargaining with Flynn, Hawley said that on the morning of February 4 Simons told him the bargain was now eight to twelve years on manslaughter pleas, and that the judge had agreed to those pleas. After a private discussion, Hawley and Gibney yielded in order not to be "railroaded...