Com. v. Sullivan

• Decision Date: 04 March 1982
• Citation: 432 N.E.2d 684,385 Mass. 497
• Parties: COMMONWEALTH v. Henry H. SULLIVAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 684

432 N.E.2d 684

385 Mass. 497

COMMONWEALTH v. Henry H. SULLIVAN.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 4, 1981.

Decided March 4, 1982.

James R. Brunette, Asst. Dist. Atty. (Kevin Connelly, Asst. Dist. Atty., with him), for the Commonwealth.

William J. Leahy, Boston (Margaret H. Van Deusen, Boston, with him), for defendant.

Before HENNESSEY, C. J., and LIACOS, NOLAN and LYNCH, JJ.

LYNCH, Justice.

On July 8, 1971, the defendant, Henry H. Sullivan, was indicted for the murder in the first degree of Barbara Ann Bogdan. He pleaded not guilty. The case went to trial in the Superior Court for Suffolk County. After two and one-half days of testimony, but before the Commonwealth rested its case, the defendant offered to plead guilty to so much of the indictment as charged murder in the second degree. The trial judge, after a hearing, accepted the defendant's plea and, on January 19, 1972, sentenced the defendant to life imprisonment at the Massachusetts Correctional Institution at Walpole.

On May 22, 1980, the defendant filed, pro se, a motion for a new trial. Counsel was appointed to represent the defendant on the motion. After a hearing, a second judge of the Superior Court ¹ (the motion judge) granted the defendant's motion for a new trial. The Commonwealth appealed the grant of the defendant's motion to the Appeals Court. Mass.R.Crim.P. 30(c)(8), 378 Mass. 900 (1979). We transferred the case to this court on our own motion. We reverse and reinstate the original judgment of conviction.

1. The trial. Before the defendant offered to change his plea, the Commonwealth had introduced evidence tending to show the following.

On Saturday night, June 5, 1971, the defendant went to "Lucifer's," one of three bars in the Kenmore Club in Boston. There he became acquainted with a man who later accompanied him to "Yesterday's," another bar in the Kenmore Club. The defendant met the victim, Barbara Ann Bogdan, in Yesterday's. (The victim's brother testified that the victim and the defendant knew one another and had dated on several occasions.) The acquaintance and another witness testified that the defendant and the victim left Yesterday's together shortly after midnight, announcing that they intended to return. The victim left her coat in the Kenmore Club's cloakroom. Four witnesses testified to having seen the defendant and the victim together in Yesterday's; two additional witnesses testified that the couple passed them as they were standing in the doorway to Yesterday's, and that the defendant and the victim walked away from Yesterday's toward Commonwealth Avenue. Several of the witnesses testified that the defendant was sober. The witnesses' identification of the defendant was perhaps facilitated by the defendant's dress that Saturday night: the witnesses testified that he was wearing a white suit.

Early in the morning of Sunday, June 6, a passing bicyclist discovered the victim's body seated on a park bench in the Esplanade, a narrow strip of park that lies between the Charles River and Storrow Drive within a few blocks of Yesterday's. The body and the bench were spattered with blood. Police officers discovered the victim's wig on the far side of a four-foot fence about eight feet away.

The medical examiner who first examined the body and later performed an autopsy testified that the victim had suffered three deep lacerations to the back of her skull, and that those lacerations were consistent with the victim's head having struck with great force one of the cement posts supporting the park bench. His examination revealed an abrasion on the victim's chin consistent with a blow from a fist, and other abrasions inflicted upon the victim's left eye, shoulders, back, chest, hands, left knee and ankle, all resulting from external force. The victim's neck showed evidence of fingernail marks, indicating that "(a) great deal of pressure" had been applied to the victim's neck. Death resulted from asphyxiation: one of the victim's nylon stockings had been removed, pieces of such a stocking were found clinging to the neck of the victim's dress and to the park bench, and the medical examiner concluded that the manner in which the victim had died was consistent with strangulation by a nylon stocking.

The defendant did not report for work at his job at a meat packing plant on Monday, the day after the victim's death. When the defendant appeared for work on Tuesday, a coworker testified that the defendant was "very quiet, not his normal self" and that he was "very serious-minded." On Wednesday, the defendant was again absent and, in response to another coworker's inquiry on Thursday regarding his absences, the defendant replied, "I got problems."

On Friday, June 11, 1971, police officers arrested the defendant at his parents' home in Milton, where he was living. Some time later, the defendant's father gave the authorities a statement which led police officers to discover a white suit which the defendant later stipulated was his. The suit was covered with bloodstains matching the victim's (but not the defendant's) blood type; the medical examiner testified that the victim's blood type is found in only eight to ten percent of the population.

After the Commonwealth had introduced the evidence summarized above (including the defendant's bloodstained suit and photographs of the victim taken at the scene and in the mortuary), the defendant, on the advice of counsel, offered to plead guilty to so much of the indictment as charged second degree murder.

The trial judge then examined the defendant under oath. The defendant admitted to unlawfully killing the victim. He insisted that he had been intoxicated at the time of the incident. He stated that he had accompanied the victim to the Esplanade, that he had been embracing the victim with her consent, "and that's where (he) lost control of (him)self." The next thing that the defendant claimed to remember clearly was that the victim was dead; in response to further questions, however, he admitted remembering hitting the victim. The judge asked the defendant these questions: "Did you have any malice towards this young lady?" "Did you have any fight with her?" "Did you lose your head at all as a result of passion?" To each question, the defendant replied, "No." He also stated, "I don't believe I meant to do what I did."

The defendant acknowledged, however, that he understood that he had a right to a jury trial and that the jury could find him either innocent or guilty of manslaughter, guilty of murder in the second degree, guilty of murder in the first degree with recommendation of a life sentence, or guilty of murder in the first degree without recommendation. ² The defendant said that he understood the mandatory penalty for the crime to which he was pleading. He said that his parents had talked to him about his guilty plea, and that he was "very much" satisfied with the manner in which his attorneys had represented him. The defendant acknowledged that he was not confused by any of the questions asked of him by the judge. The judge accepted the defendant's plea and sentenced him, as the statute requires, to life imprisonment. G.L. c. 265, § 2, as amended by St.1979, c. 488, § 2.

2. The motion for a new trial. In an affidavit filed in support of his motion for a new trial, the defendant stated that, after he and the victim left the Kenmore Club, they proceeded to the Esplanade. There, they kissed; he asked her to take him to her room; she refused. The defendant told the victim that she was a "tease." Thereafter, according to the defendant, "some heated words followed between us and an altercation developed as a result of which I slapped her face and her head bumped on the rear of the cement up-riser that was attached to the bench we were sitting on." The defendant immediately fled, and was later arrested.

The defendant alleged that his attorneys had never informed him of the elements of the crimes of murder in the second degree or of manslaughter. He asserted that, if he had been so informed, he would have insisted on going forward with the trial on a theory of manslaughter. The defendant now claims that, during the incident, he was laboring under the heat of passion, that he lacked the requisite intent for the crime of murder (either in the first or second degree) and that the crime he admitted to having committed was, at most, manslaughter. In summary, the defendant based his motion for a new trial on the assertion that his plea of guilty to the charge of murder in the second degree was not knowlingly, intelligently and voluntarily made because he had never been informed, and was not aware, of the elements of the crime to which he offered to plead.

The motion judge made specific findings of fact, as required by Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979). Among those findings are the following.

At all times, the defendant's trial counsel acted and performed in a competent and effective manner. Specifically, counsel discussed with the defendant and his family, before trial, all of the possible crimes of which the defendant might be convicted on the basis of the evidence available to the Commonwealth, and the elements of those crimes.

Before trial, the defendant's counsel reached a reasonable professional conclusion, based on the evidence, that the likelihood of a manslaughter conviction was poor, and the risk of a first degree murder conviction was significant.

As the Commonwealth presented its case at trial, this reasonable professional conclusion was reinforced. Trial counsel reasonably concluded that (a) the chance of receiving a manslaughter instruction, much less a jury verdict of manslaughter, was remote to the point of virtual futility, and (b) the chance of receiving a conviction of murder in the first degree remained significant.

Trial counsel did not review with the defendant, either during trial or during the discussions which...