Com. v. Perry

• Decision Date: 14 June 1983
• Citation: 450 N.E.2d 615,389 Mass. 464
• Parties: COMMONWEALTH v. Joseph Stephen PERRY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 615

450 N.E.2d 615

389 Mass. 464

COMMONWEALTH v. Joseph Stephen PERRY.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued April 6, 1983.

Decided June 14, 1983.

Thomas J. Butters, Boston, for defendant.

Michael J. Traft, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.

ABRAMS, Justice.

The defendant, Joseph S. Perry, appeals from a Superior Court judge's denial of his motions to withdraw his plea of guilty of murder in the second degree and for a new trial. The defendant asserts that his plea was involuntary, due to his highly emotional state and poor understanding of English, his lack of understanding of the element of malice, his incorrect understanding of the penalty he faced for murder, and due to ineffective assistance of counsel. We transferred the case on our own motion. We reject the defendant's claims and affirm the orders of the Superior Court judge.

We summarize the facts. In February, 1980, August Viden was killed in Boston. The police were unable to trace his assailant. The defendant was a long time friend of Viden's wife, and lived with her after her separation from her husband in the spring of 1979. The defendant and Viden's wife moved to New Hampshire in the late spring or early summer of 1980. On the evening of August 25, 1980, the defendant confessed to the New Hampshire police, in some detail, that he had murdered Viden. He was arrested and transferred to a jail in Massachusetts. He was later indicted for murder in the first degree.

The defendant entered a plea of not guilty in the Superior Court. He moved to suppress his confession and other statements on the grounds that he was under the influence of alcohol, drugs, and stress at the time he made his confession, that he lacked the capacity to read the confession he signed, that there was a lapse of an inordinately long time between the reading of his Miranda warnings and his statements to New Hampshire police after he was charged with murder, and that the New Hampshire police took advantage of his trust in them. The judge denied the motion to suppress on February 10, 1981.

Later that day, the defendant changed his plea to one of guilty of murder in the second degree. The parties agree that the judge conducted a commendably thorough voir dire with the defendant on his understanding of and the voluntariness of his guilty plea. The judge accepted the plea and sentenced the defendant to life imprisonment at the Massachusetts Correctional Institution, Walpole.

Seven months later, the defendant filed a pro se motion to withdraw his guilty plea and for a new trial, based primarily on the ineffective assistance of his counsel, and on the defendant's poor understanding of English. ¹ The judge denied the motion after a hearing, and the defendant appealed. In the summer of 1982, almost a year after his initial motion to withdraw his plea, the defendant filed a motion to reconsider the denial of that motion, based on the defendant's emotional state at the time of his plea. The defendant amended the motion to reconsider to include three exhibits supporting his contention. The judge denied the motion, and the defendant appealed. The two appeals were consolidated.

The judge made findings of fact ² and ruled that the "pleas were understandingly and voluntarily made." He also ruled that "there was no showing that [Perry] lacked a fair understanding of the alternatives available to him, nor that [Perry] failed to make a rational choice in the light of that understanding." The judge further concluded that there was no showing of coercion or ineffective assistance of counsel.

Where, as here, the findings of the judge are based in large measure on his conclusions as to the credibility of the witnesses and where they are supported by the evidence, they are not lightly to be overturned on appeal. See Commonwealth v. Angivoni, 383 Mass. 30, ---, 417 N.E.2d 422 (1981); Commonealth v. Brown, 378 Mass. 165, 171, 390 N.E.2d 1107 (1979). We conclude that there was no error in the denial of the defendant's motions. ³

1. Educational and emotional background. The defendant asserts that we should evaluate his plea as involuntary due to his poor educational background and his emotional state at the time. While these may be important characteristics to consider, see Commonwealth v. Tavares, 385 Mass. 140, 145-146, 430 N.E.2d 1198 (1982); Commonwealth v. Meehan, 377 Mass. 552, 567-568, 387 N.E.2d 527 (1979), the facts as found by the judge do not support the defendant's contentions. ⁴

The defendant relies heavily on a psychiatric evaluation of him, which states that several weeks before the plea "his insight and judgment [were] seriously deficient, particularly around his acknowledgement of his alcoholism and possibly around his handling of other matters currently." However, the psychiatrist found that the defendant was able to concentrate and think, and that there was no basis for an insanity defense nor were there any serious mental conditions. The psychiatrist concluded that the defendant was competent to stand trial. We have held that the competence necessary to plead guilty is similar to that for standing trial. Commonwealth v. Hubbard, 371 Mass. 160, 170, 355 N.E.2d 469 (1976). Commonwealth v. Leate, 367 Mass. 689, 696, 327 N.E.2d 866 (1975). See Allard v. Helgemoe, 572 F.2d 1, 3 (1st Cir.), cert. denied, 439 U.S. 858, 99 S.Ct. 175, 58 L.Ed.2d 166 (1978).

The defendant also argues that he was highly emotional at the time of his plea, and that his ability to plead was affected by medications he had taken. However, at the hearing on his motion, the defendant stated that he understood the judge's questions, and that, while he took antidepressant medication at night, he could understand the proceedings and was not on that medication at the time of his plea. The judge found that the defendant "was not so upset as to be incapable of understanding the proceedings in which he was participating."

Finally, although the defendant admitted to having problems with written English, he had completed up to the ninth grade and had very little problem with spoken English unless the words were "too big" for him. Since he told the judge when he did not understand the proceedings, it can be assumed that he understood the pleading process the rest of the time.

2. Element of malice. The defendant contends that he did not understand the element of malice for murder in the second degree. Not only does he refer to his emotional state and educational background in this regard, but he claims that malice was never clearly described to him. At the hearing on the motion, the defendant's trial attorney stated that he had advised the defendant that second degree murder was the "deliberate, premeditated killing of an individual without malice." This statement of the elements was erroneous, although, as it imported elements of first degree murder into the definition, it was harmless error only, for the defendant's willingness to plead on that basis suggested that the defendant might have pleaded guilty to more than murder in the second degree.

In any event, whatever the defendant's understanding of the elements from his attorney, the judge properly described the elements of murder in the second degree when he accepted the defendant's plea. The judge told him the Commonwealth must prove that he committed "an intentional, unlawful killing with malice," and that the killing was "without any justification," but was "with thought and with intention." The defendant told the judge he did not understand that definition. The judge responded that it meant that the defendant did not kill Viden accidentally, but that "you [the defendant] decided and determined that you were going to inflict very serious injury and death on him and you went ahead and did do that." The defendant then stated that he understood.

The judge's description of the elements of second degree murder was sufficient. The judge described malice in terms understandable to the defendant. The record supports the judge's conclusions that the defendant understood the definition and voluntarily pleaded guilty to murder in the second degree based on the judge's description of the crime. ⁵

3. Penalty for murder in the second degree. The defendant also states that he relied on inaccurate advice by his counsel regarding the penalties for first and second degree murder. At the hearing on the initial motion, the defendant's attorney stated that he told the defendant that second degree murder was punishable by life imprisonment with parole eligibility after fifteen years, and that he would probably serve only twelve years. He told the defendant that first degree murder was punishable by life imprisonment, and that the sentence might be communted by the Governor after the fifteenth year. The attorney also said that, initially, he told the defendant that the defendant could receive the death penalty, but later told him that it had been struck down as unconstitutional. The judge found that "the defendant had been adequately apprised by his attorney ... of the penalty for first-degree murder in this Commonwealth."

The attorney's analysis of the length of sentence the defendant might serve for second degree murder was not quite accurate. By statute, parole is only available to a person convicted of murder in the second degree who has served fifteen years in prison. See G.L. c. 265, § 2, as appearing in St.1982, c. 554, § 3; G.L. c. 127, § 133A, as amended through St.1982, c. 108, § 2. Counsel also spoke only from experience when he estimated the length of time in which a sentence for first degree murder might be commuted, as the statute sets no time limit. See G.L. c. 127, § 152. However, while his advice may have been incorrect, it was not unduly persuasive in favor of a second degree murder plea, nor did it inaccurately represent the relative differences...