Com. v. Manning

Citation367 Mass. 605,327 N.E.2d 715
PartiesCOMMONWEALTH v. Leland J. MANNING.
Decision Date07 May 1975
CourtUnited States State Supreme Judicial Court of Massachusetts

Joan C. Stanley, Boston, for defendant.

Frances M. Burns, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and QUIRICO, BRAUCHER, HENNESSEY and KAPLAN, JJ.

KAPLAN, Justice.

Shortly after midnight on July 5, 1966, Donald G. MacVarish, Jr., was stabbed to death in the courtyard of the Church of Saints Peter and Paul on West Broadway in South Boston. The following day, Leland J. Manning was indicted by a grand jury for the first degree murder of MacVarish. 1 On August 1, counsel was appointed by the court to represent the defendant, who pleaded not guilty. Manning was kept under observation for a period at the Massachusetts Correctional Institution at Bridgewater; he was not, however, found incompetent to stand trial. Trial commenced January 16, 1967, but on the morning of January 20, while the prosecution was still presenting its case, the defendant sought permission to change his plea to guilty of murder in the second degree. The judge asked Manning the usual questions: whether he understood fully the nature of the procedure; whether he had had the benefit of counsel; whether the significance of the charges, and the possible penalties, had been explained to him; and whether he pleaded guilty voluntarily and not as the result of any threats or promises. The defendant made appropriate responses, and the trial judge accepted the plea. Manning was twenty-two years of age at the time, and had gone as far as the seventh grade in school. On being sentenced, Manning stated that he was sorry for what had happened, and on further questioning by the judge, he said he felt he had received a fair trial and was satisfied with the way he had been represented by counsel. He received the mandatory sentence of life imprisonment. 2

More than six years later, on September 21, 1973, Manning filed a motion for a new trial. He alleged that he was put under so much pressure to plead guilty by his attorney and by his family on January 20, 1967, that the plea change should be held coerced.

After a hearing on November 30, 1973, at which Manning, his sister, his mother, and his former attorney testified, and at which the transcript of the prior trial and plea change was introduced, the judge denied the motion. Manning appeals, arguing that the evidence proved the coercion, that it was error for the judge at the hearing to strike as irrelevant certain testimony concerning the payment of $1,000 by his family to his trial counsel, and that it was error to exclude certain other evidence. Having before us the judge's findings, rulings and decision, as well as the transcripts of the hearing on the motion and of the original trial, we find the judge's decision to be correct, and hence affirm his denial of a new trial.

The transcript of the original trial to the point at which Manning changed his plea reveals that the victim MacVarish, aged seventeen, and a female companion, Marion Benson, were sitting on the front steps of the church at about midnight, sharing a cigarette while on their way to the Broadway M.B.T.A. station from Columbia Stadium, where they had watched a fireworks exhibition. MacVarish was wearing shorts. Manning approached the couple and asked for a match; it appears from the testimony that the parties did not know each other. MacVarish said that he had a match, and rose to search his pockets for one. After a short period during which Manning said, 'I thought you said you had a match,' and MacVarish replied, 'I'm looking for one,' Manning slapped MacVarish in the face. Miss Benson, the source of the testimony to this point, thereupon fled around the corner of the church. Her further testimony was only that she heard noises and voices. 3

There was additional testimony, however, by one Anne Shyp, who was awakened by the noise from her sleep in a second floor apartment that overlooked the scene. She said she saw three boys, one, in shorts, being held down on the church steps by the two others. The one in shorts, McVarish, managed to get up, knock down the smaller one (Paul F. Hennessey, who had apparently joined Manning), and throw the 'stockier' one (Manning) over his back and into the street. All returned to the sidewalk, and there was some conversation Mrs. Shyp could not hear. Manning threw a punch at MacVarish and missed, whereupon MacVarish punched Manning, Knocking him down again. MacVarish then left, climbing a low wall to the church courtyard and walking across it to the rear. Maning went after him, also walking, while Hennessey stayed somewhat behind. At the rear of the courtyard Manning jumped on MacVarish and there was a tussle. The next thing Mrs. Shyp knew, MacVarish was lying on the ground, and Manning was leaving the yard. A car came along, and Hennessey and Manning got into it and rode away; before he got into the car, Manning yelled, 'He's dead now,' and Mrs. Shyp could see a shiny object in Manning's hand. Although the time of the incident was about midnight, the area was well lit, and Mrs. Shyp could not be shaken in her testimony as to what she saw despite lengthy cross-examination.

The next, and last, witness called before Manning changed his plea was Dr. Nathan Brenner, a police physician who reported on his physical examination of Manning in the early morning of July 5; he found an abrasion on the back of Manning's neck, consistent with his being thrown into the street as Mrs. Shyp had described. There were other minor injuries, but no serious facial injury, no injury to the head, and no other observable symptoms or injuries, and Manning made no complaint of any. Also introduced in evidence was MacVarnish's death certificate, indicating that death was caused by a stab wound penetrating the heart. Lawrence Berry, who according to the prosecutor's opening statement had also seen the fight, had not yet testified, nor had Hennessey or the medical examiner.

It is in the context of the trial situation as it stood at this point that the testimony on the motion for a new trial must be viewed. Manning's counsel had been putting up a defense which the judge at the hearing characterized as 'vigorous and intelligent,' but had been unable to shake the testimony of the prosecution witnesses, and he knew that more damaging evidence was to come; as the hearing judge concluded, 'the evidence . . . was convincing and might well have produced a verdict of guilty in the first degree.' Manning's sister testified at the hearing on the motion that on the morning of the twentieth '(h)e (counsel) told us that the medical examiner would be coming on next and that once he got on the stand . . . there would be no turning back for Lee and if we could speak to Lee and ask him to put in a plea of guilty'; she said she repeated that to Manning and told him the thought it was 'about the only thing he could do.' She also said that she had herself heard all the testimony, and '(m)ore or less' formed her own opinion as to how the case was going. 4 Manning's mother testified similarly; she said that counsel on the twentieth told her that Manning would most likely be found guilty, and that they should try to talk to him because 'there was no many wounds.' Manning testified that he had been drinking for a couple of days, and had told his counsel that he didn't know if he had committed the murder or not. He said there had been talk of a change of plea before the trial, and a couple of times earlier during the trial, both with his counsel and with his family, but that on the twentieth counsel had told him of several possible witnesses and warned him that he could receive the death penalty, and that his family also asked him to plead guilty; on the twentieth '(t)hey were asking me to plead guilty more than what they had been,' and he fugured he was 'doomed' or 'would never see daylight again' if he didn't plead guilty. But he admitted that in making his...

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