Com. v. McGuirk

• Decision Date: 08 September 1978
• Citation: 380 N.E.2d 662,376 Mass. 338
• Parties: COMMONWEALTH v. Roy E. McGUIRK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 662

380 N.E.2d 662

376 Mass. 338

COMMONWEALTH v. Roy E. McGUIRK.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 6, 1978.

Decided Sept. 8, 1978.

Stephen Hrones, Boston, for defendant.

Kathleen King Parker, Asst. Atty. Gen., for the Commonwealth.

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

ABRAMS, Justice.

The defendant Roy E. McGuirk was convicted of murder in the second degree on his plea of guilty. McGuirk now seeks to withdraw his guilty plea on the ground that it was involuntary because he was not informed that malice aforethought is an element of the offense to which he pleaded.¹ See Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976).

The defendant was indicted for murder in the first degree on October 1, 1974. On July 14, 1975, his guilty plea to murder in the second degree was accepted, and he was sentenced to a life term at the Massachusetts Correctional Institution at Walpole. On July 16, 1976, the defendant moved for a new trial which motion was denied after an evidentiary hearing on the voluntariness issue. The defendant appealed under G.L. c. 278, §§ 33A-33G. We affirm the denial of the defendant's motion for a new trial.

We summarize the facts.² At about 6 A.M. on June 29, 1974, the defendant returned to his apartment after an evening of partying. He had been drinking and had consumed three "speed" tablets, the last of which had been taken at 3:30 A.M. In his apartment he found Lynn Darcey, a young woman whom the defendant had at one time allowed to live there, and the victim, Nicholas Zoffreo, who was a stranger to the defendant. He was surprised by their presence and very angry that his apartment was being used without his permission. An argument developed among the defendant, Lynn Darcey, and the victim; the defendant struck the victim and continued beating him until he was dead.

On October 23, 1974, the defendant was arraigned. He was represented by appointed counsel, at present a member of the judiciary, who continued to represent the defendant through his guilty plea. It is conceded that the defendant received competent advice and representation at all times. At the arraignment, the indictment charging the defendant with murder in the first degree was read to him, and he pleaded not guilty.

At the time the case was reached for trial, and after consulting with his family and counsel, the defendant decided to plead guilty to murder in the second degree. At the change of plea hearing, the judge questioned the defendant concerning his age and educational background. The defendant stated that he was twenty-five years old and that he had completed three years of high school. The judge then asked the defendant, "Do you understand the charge against you?" The defendant replied that he did. The judge continued, "To make it perfectly clear, you are being charged with the crime of murder. The indictment charges that on the 29th day of June 1974 at Cambridge, you did assault and beat one Nicholas Zoffreo with intent to kill and murder him, and by such assault and beating did kill and murder Nicholas Zoffreo. Now, do you understand this charge against you?" McGuirk replied, "Yes, sir."

The judge then asked the defendant to relate the facts of the June 29 incident. The defendant explained his anger at finding his apartment being used in his absence and stated that an argument had ensued. The defendant then said: "Nicky came towards me; I thought he was going to hit me or something. I just started hitting on him, and I didn't stop until I realized what I just kept on hitting him, I didn't realize I killed him. I just panicked from there." The defendant admitted striking the first blow and also stated that he was sorry for what had happened for he was "not a person that goes around killing people like that." The detective who had investigated the homicide testified at the plea hearing. He related statements from an eyewitness that the defendant had thrown a fit of temper and had beat, kicked, and strangled the victim with a rope or wire and had suffocated him with pillows and blankets.³ The detective said that the defendant had made an admission to the person who had helped him dispose of the body in the Charles River that he had received rope burns as a result of the pressure used in garrotting the victim. After informing the defendant of the constitutional rights being waived by him and the maximum penalty for murder in the second degree and inquiring into the voluntariness of the plea, the judge accepted the guilty plea.

The defendant now argues that his plea is invalid under Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), because "(a)t the guilty plea hearing no inquiry was made as to whether the defendant understood the elements of the offense of Second-Degree Murder nor was he informed as to what such elements were."⁴ Specifically, the defendant argues that he was not told that malice aforethought is an element of murder in the second degree. We need not decide whether Henderson v. Morgan, is to be applied retroactively since we conclude that, even if the standards set forth in Henderson are applied to this case, the defendant's plea was not invalid.

In Henderson, the defendant, who had formerly been classified as retarded and committed to a State school for mental defectives,⁵ was released to become a laborer on the victim's farm. After an argument during which the victim threatened to return the defendant to State custody, the defendant decided to run away. That night the defendant entered the victim's room with a knife to collect his wages. The victim awoke and began screaming; the defendant then stabbed and killed her. At the arraignment on an indictment for murder in the first degree, the indictment, which charged that the defendant had "willfully" stabbed the victim, was read to him. He subsequently pleaded guilty to murder in the second degree. At the plea hearing, the defendant, in direct colloquy with the judge, stated that his plea was based on the advice of his attorneys and that he understood he was accused of killing the victim. However, there was no mention of the mental element of murder in the second degree under the relevant State law, N.Y. Penal Law § 1046 (McKinney 1967), "a design to effect the death of the person killed." Defense counsel, at sentencing, stated that the defendant meant no harm to the victim; rather, the defendant, with his uncontrollable temper, had panicked in the excitement and tension of the screaming and had then assaulted the victim. The judge, after an evidentiary hearing on the defendant's argument to withdraw his plea, specifically found that the defendant had not been advised on the requisite mental element at any time by his concededly competent counsel or the judge.

The Supreme Court, reviewing the totality of the circumstances, determined that the defendant's plea was involuntary in a constitutional sense because if the defendant is ignorant of a critical element of an offense, his plea of guilty to that offense cannot serve as an intelligent admission of guilt.

The Court assumed that the defendant would have pleaded guilty even if he had been informed of the intent requirement. It further assumed that there was abundant evidence of the defendant's guilt. Henderson v. Morgan, supra, 426 U.S. at 644, 96 S.Ct. 2253. But the Court noted that, although intent to kill could have been proved by the evidence even if the defendant's actual state of mind were consistent with innocence or manslaughter and even if a design to effect death almost inevitably would have been inferred from the evidence that the defendant repeatedly stabbed the victim, a jury would not have been required to draw that inference and, if they believed defense counsel's version, could have returned a verdict of manslaughter in the first degree defined under the relevant State law, N.Y. Penal Law § 1050 (McKinney 1967), to include a killing "(i)n the heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon." Henderson v. Morgan, supra at 645 n.16, 96 S.Ct. at 2258. The defendant's guilt had thus not been established by an admission of guilt because his statement that he had killed the victim did not necessarily admit that he was guilty of murder in the second degree as defined by the relevant State law and the intent element had not otherwise been established by facts stipulated to or admitted in the record. Therefore, the defendant's guilt was not established in any of the three constitutionally permissible ways: a verdict of guilty after trial, and admission of guilt in open court, or a plea of guilty accompanied by a claim of innocence in accordance with the standards of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

As we read Henderson, the plea was involuntary not simply because the record of the guilty plea hearing contained no explanation of the elements of murder in the second degree, but also because there was nothing that could "serve as a substitute for . . . a voluntary admission . . . that (defendant) had the requisite intent. Defense counsel did not purport to stipulate to that fact; they did not explain to him that his plea would be an admission of that fact; and he made no factual statement or admission necessarily implying that he had such intent." Henderson v. Morgan, supra, 426 U.S. at 646, 96 S.Ct. at 2258. The opinion, in our view, thus indicates that the deficiency in the Henderson case can be cured in at least one of three ways: (1) an explanation of the essential elements by the judge at the guilty plea hearing; (2) a representation that counsel has explained to the defendant the elements he admits by his plea;⁶ (3) defendant's statements admitting to facts constituting the unexplained element or stipulations to such facts. See Note, Due Process Guilty Pleas Constitutional Standards of...