Com. v. Quinones

• Decision Date: 01 March 1993
• Citation: 608 N.E.2d 724,414 Mass. 423
• Parties: COMMONWEALTH v. Tony QUINONES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 724

608 N.E.2d 724

414 Mass. 423

COMMONWEALTH v. Tony QUINONES.

Supreme Judicial Court of Massachusetts Hampshire.

Argued Dec. 8, 1992.

Decided March 1, 1993.

John J. Stobierski, Greenfield, for defendant.

David S. Ross, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and O'CONNOR, JJ.

WILKINS, Justice.

On May 7, 1985, in the course of trial, the defendant pleaded guilty to murder in the second degree, and the trial judge sentenced him to a term of life imprisonment. He also pleaded guilty to assault with intent to murder and received a concurrent sentence of from eight to ten years. On February 25, 1986, the defendant filed a request for a transcript. On March 3, 1986, the clerk's office sent a copy of that request to the court stenographer. On April 11, 1986, the stenographer's motor vehicle was stolen. That vehicle contained her stenographic notes of the proceeding at which the guilty pleas were accepted, as well as both her notes of the earlier proceedings in the trial (jury empanelment, in-court proceedings, and view) and her notes of an interview between the defendant and his trial counsel. Neither the vehicle nor its contents has been recovered.

On May 14, 1990, the defendant filed a motion to withdraw his guilty pleas and for a new trial. ¹ In that motion, the defendant asserted that his guilty pleas were not the product of a knowing, intelligent, free, and voluntary waiver of his constitutional rights against self-incrimination, to trial, and to confront his accusers. He also alleged that his guilty pleas were a result of coercion by trial counsel and a result of his not understanding that, by pleading guilty, he lost any right to appeal from the denial of his pretrial motions to suppress evidence.

The trial judge held a hearing on that motion in August, 1990, and in October, 1990, he denied the motion, filing an extensive memorandum of decision. We transferred the defendant's appeal to this court. In his appeal, the defendant argues that the Commonwealth did not establish that he had been properly interrogated in the course of the taking of his guilty pleas, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). More specifically, the defendant argues that the evidence did not warrant the judge's findings and that the judge was not entitled to reconstruct the record of the plea proceeding by reliance on his memory and on his general practice in taking guilty pleas. In addition to his argument that the reconstructed record of the plea proceedings is inadequate to support the conclusion that the proceedings met constitutional requirements, the defendant argues that his pleas were involuntary based on evidence that he presented at the hearing on his motion to withdraw his pleas. He makes an independent claim that his trial counsel was ineffective in not pursuing certain theories of self-defense and provocation. We affirm the order denying the defendant's motion to withdraw his pleas.

We summarize and, in many instances, quote directly from the judge's findings of fact and reconstructed record which, the judge stated, were based on "the evidence presented at [the] hearing [on the motion], together with my own memory of the 1985 proceeding, my knowledge of my own practice in taking and accepting pleas of guilty, and my review of the papers that are available in the court files (including findings made by me after a hearing on the defendant's motions to suppress evidence)." The stenographer and defense counsel testified, but they provided evidentiary support for only a portion of the facts found by the judge. ²

On September 21, 1984, the defendant shot and killed William Diaz at an apartment complex in Northampton. "Diaz was shot in the back of the head as he and the other victim, Ivan Rivera, fled from the defendant. The shooting followed an altercation in and just outside [an apartment occupied by the defendant's mother and other members of his family] during which Diaz struck one of the defendant's sisters and either pushed or struck his mother." Diaz had been living in the apartment with one of the defendant's sisters. The defendant fled to New York where he was arrested on October 2, 1984. He was indicted on October 11, 1984, and he retained private counsel, who, when not compensated as agreed, was appointed by the court.

Counsel undertook an investigation, meeting with the defendant on three or four occasions and with members of the defendant's family on several occasions. "It became apparent to [counsel] that the Commonwealth had a very strong case. There was never any doubt that the defendant had fired the shot that killed Diaz. The defendant had admitted that much from the beginning, and there had been a large number of witnesses to the shooting. The defendant's position was that he had been justified in shooting Diaz because Diaz had struck" the defendant's mother and sister and because he had acted in self-defense. However, "[t]he plausibility of self-defense as a viable justification for the killing was substantially undercut by the fact that the two victims had been running away from [the defendant] when the fatal shot was fired and by the fact that Diaz had been struck in the back of his head. There was no evidence that either victim was armed, and [the defendant] had admitted that he had not seen a weapon on either man prior to the shooting." Counsel "attempted to obtain expert testimony to the effect that the defendant's Hispanic culture had made him particularly sensitive to affronts against his family, but he was unable to do so. He finally concluded that the evidence of provocation, even if sufficient to require a judge to charge the jury on the law of voluntary manslaughter, was not sufficiently strong to convince a jury that malice had not been proved when considered in light of the fact that the victim had been shot in the back of the head while attempting to flee from the defendant." There was evidence that the defendant had lied to the police concerning the circumstances under which he had obtained the gun and that the defendant hid the gun in the cellar of an apartment block where a woman lived whom the defendant described as his "common law" wife.

On the day scheduled for trial, the defendant requested that new counsel be appointed for him. The judge concluded that trial counsel, who had performed ably in presenting the defendant's pretrial motions, was prepared to defend the defendant and that there was no good reason to appoint new counsel.

After the jury were empanelled, the prosecution inquired whether the defendant would be willing to plead guilty to murder in the second degree. A discussion followed in which family members participated with defense counsel and the defendant. Counsel explained the difference between murder in the first degree and murder in the second degree and the sentencing differences. "He also told them that in his opinion there was very little chance that a jury would return a verdict of anything less than murder in the second degree if the case were tried to a conclusion, and a substantial risk that the jury would return a verdict of guilty of murder in the first degree." The circumstances that led to the defendant's guilty pleas are set forth in the margin. ³

We pause at this point to indicate that the findings that we have just recited dispose of any factual basis for the claim that defense counsel coerced the defendant into pleading guilty. They also cast doubt on the defendant's claim that he did not know that he could not appeal the denial of his motions to suppress. These findings strongly support a conclusion that the defendant's guilty pleas were in fact knowing and voluntary, and they give no support to his claim that counsel was ineffective in a constitutional sense. The principal issues not addressed by these findings are whether the record of the acceptance of the guilty pleas was properly reconstructed and whether, as reconstituted, it meets the requirements of Boykin v. Alabama, supra, and its successors. We continue then with the judge's findings because they bear on these points.

"The defendant came into court and offered his plea of guilty in accordance with the agreement.... I conducted what I believe was a complete and careful plea colloquy with the defendant. I found him to be a young man of normal intelligence who, although of Hispanic origin and bilingual, had a very adequate command of the English language.

"I began by telling the defendant that although his proffered pleas were based upon an agreed upon recommendation as to the sentences to be imposed, I was not bound to accept that recommendation. I assured him, however, that if for any reason I decided to reject the recommendation and exceed it, I would give him an opportunity to withdraw his pleas of guilty if he desired to do so. The defendant acknowledged that he understood what I had told him.

"I then explained to the defendant the possible consequences of his pleas of guilty.... The defendant acknowledged that he understood.

"I then told the defendant that he still had a right to a trial on the charges of which he had been indicted. The jury had already been empanelled and sworn and were prepared to begin hearing the evidence in his case if he wished to avail himself of that right. I told him that if he did elect to go to trial the Commonwealth would have the burden of proving his guilt beyond any reasonable doubt, and that he could not be convicted of any offense unless all of the deliberating jurors unanimously agreed that he was guilty; but that by pleading guilty he was giving up and surrendering forever his right to a trial and admitting that he was guilty of the crimes to which he was pleading guilty. In response to a direct question the defendant assured me that he understood what I had told him and that he did wish to waive his right to a trial and plead guilty to...