Com. v. Therrien

• Decision Date: 12 May 1971
• Parties: COMMONWEALTH v. Alfred J. THERRIEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 687

269 N.E.2d 687

359 Mass. 500

COMMONWEALTH v. Alfred J. THERRIEN.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 1, 1971.

Decided May 12, 1971.

Joseph A. Todisco, Natick (Samuel B. Cinamon and Michael R. Pizziferri, Boston, with him), for the defendant.

Terence M Troyer, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and SPALDING, SPIEGEL, REARDON and BRAUCHER, JJ. SPALDING, Justice.

These are appeals under G.L. c. 278, §§ 33A--33G, from convictions under indictments charging murder in the first degree, assault with intent to murder, assault with a dangerous weapon, armed robbery while masked, and theft of a motor vehicle.

There was evidence at the trial from which the jury could find that the defendant and another set out to rob someone. While driving through Framingham on the evening of June 3, 1967, they observed a woman alone in Natoli's Farm Market. The defendant, carrying an M--1 carbine and a pistol, approached the woman, Mrs. Pasqualina L. Natoli. He told her it was a holdup. Thinking it was some kind of a joke, she laughed. In response the defendant shot her in the heart. She fell near the entrance of the store and died shortly thereafter. The two robbers then fled. Remembering that they had foregotten to take any money, the defendant told his accomplice to go back and get it. While the accomplice was coming out of the store with the cash register, a car pulled up. A youth named Richard Adams got out and walked toward Mrs. Natoli. The defendant, across the street, took aim with the carbine and shot Adams in the groin. He later recovered from this wound. The two then drove off. They stopped to open the cash register, found and divided $34 and threw the register away. While driving through Weston on their way to Boston, they were observed by police in a cruiser. The police gave chase and stopped the defendant's car. When one of the officers got out of the cruiser, the defendant jumped out of his car, aimed the carbine at him and told him to 'freeze.' The other officer got out of the car and the defendant pulled the trigger, but the gun misfired. He put another cartridge in the chamber and pulled the trigger again. Again the gun misfired. By this time the officers were shooting at him. He got back in the car, put it in reverse, and slammed into the police cruiser. He then sped off, sideswiping cars he met so that the pursuing police would have to stop and aid them. After a while the defendant and his accomplice abandoned the car and stole another, in which they escaped to Connecticut. The defendant was arrested the following day in Connecticut and at a police station there confessed to the substance of the foregoing.

The defendant and his alleged accomplice were indicted in July, 1967. On March 13, 1968, after eight jurors had been chosen, they pleaded guilty to all the indictments except that charging them with murder in the first degree, to which they pleaded guilty to murder in the second degree. The district attorney recommended that this latter plea not be accepted and asked that a police officer be heard. Following the statement of this officer, the judge accepted the pleas saying: 'I would doubt whether a jury would impose the death penalty on these people because of their age (the defendant was twenty and his alleged accomplice sixteen), anyway. * * * In all probability, there would be a recommendation for clemency which would result in a life sentence.' He then sentenced both defendants to life imprisonment. ¹

On May 10, 1968, both defendants filed motions asking leave to withdraw their pleas of guilty. On March 14, 1969, following a hearing, these motions were granted. The judge at the hearing asked the defendant several times if he realized that by withdrawing his plea he was subjecting himself to trial on a first degree murder charge. The defendant answered in the affirmative. While the defendant's motion was phrased in constitutional terms and included charges of fear, coercion, and inadequate representation of counsel, the judge found no basis for such claims. He, himself, elicited from the defendant his chief motivation: 'I now think I can be found not guilty.' In allowing the motion, the judge commented: 'The law cannot protect fools from themselves * * * far be it from me to deny you your right to be tried for first degree murder. * * * I had serious misgivings myself as to whether I should entertain your pleas to second degree murder, but I was swayed, perhaps by your youth. Let me tell you, I wouldn't do it again * * *.'

Shortly thereafter, the defendants moved to dismiss so much of the indictment as charged murder in the first degree, arguing that the above outlined procedure constituted former jeopardy on that charge. After a hearing, the motion was denied. The two cases were then severed for trial. The defendant was found guilty on all indictments. With respect to the murder indictment the jury recommended that the death penalty be not imposed.

1. The defendant's principal contention is that his trial on the charge of murder in the first degree was barred by the double jeopardy provisions of the Fifth Amendment of the United States Constitution, or alternatively, by our statutes and case law. There is no doubt that the Fifth Amendment is applicable to the States by reason of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. COMMONWEALTH V. BERRYMAN, MASS. , 268 N.E.2D 354.^A We also recognize that an acceptance of a guilty plea by a judge acts as former jeopardy as to the crime pleaded to as surely as does a finding of guilty by a jury. Commonwealth v. Goddard, 13 Mass. 455. Anno. 75 A.L.R.2d 683, 686--691. 'By pleading guilty, all facts well charged in the indictment were admitted, trial by jury was waived, and nothing was left to be done but pass sentence.' Commonwealth v. L'Italien, 352 Mass. 424, 426, 226 N.E.2d 192, 194. Two further questions are raised by this argument, however. Either resolved against the defendant is dispositive of the issue. The first is whether the defendant was actually ever placed in jeopardy of a first degree murder conviction before his trial, and the second is whether, if there was jeopardy, it was waived by him when he retracted his plea.

In answering the first question we turn to the language of the case on which the defendant seems to place his heaviest reliance, Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199. There the United States Supreme Court reversed a first degree murder conviction on the grounds that the jury before which the defendant had been previously tried had before it a first degree murder indictment and yet returned only a verdict of second degree murder. The court held this verdict was sufficient to inferentially acquit the defendant of first degree murder. In reaching its conclusion the court said: 'The constitutional prohibition against 'double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offence. * * * At Green's first trial the jury was authorized to find him guilty of either first degree murder * * * or, alternatively, of second degree murder * * *. Green was in direct peril of being convicted * * * for first degree murder at his first trial. * * *' (emphasis supplied) (at pp. 187--190, 78 S.Ct. at pp. 223--225).

Unlike the jury in the Green case, the judge here did not have the option to find the defendant guilty of first degree murder. His only choice was to accept or reject the plea to second degree murder. Had he rejected it, the defendant would then have been tried to a jury on the first degree murder charge. No one would reasonably argue that a jury trial following rejection of a guilty plea to second degree murder would be barred because of former jeopardy on the ground that the judge by rejecting the plea had inferentially found the defendant guilty of first degree murder. Also we are of opinion that acceptance by the judge of a defendant's plea to second degree murder does not constitute an inferential finding of not guilty of first degree murder for the purposes of double jeopardy. The question of guilt of first degree murder was one which the judge did not have the power to decide, and one which was never before him. ¹ Therefore the defendant was never placed in jeopardy by the judge's consideration of his guilty plea of anything more than that to which he pleaded guilty. That the judge chose to accept the plea (whether or not based on considerations of youth and probable outcome of a jury trial) does not change this conclusion. ²

Even if we are to conclude, which we do not, that jeopardy attaches in such a case, we are of opinion that the defendant voluntarily and knowingly waived the defence of former jeopardy as a bar to further proceedings on the first degree murder indictment by retracting his plea to second degree murder. As the New York Court of Appeals has said in a case closely resembling the present, '(The withdrawal of the guilty plea to second degree murder) removed * * * the only prop which sustained alike the conviction, as also the constructive acquittal, of the defendant of the higher crime. * * * (T)he withdrawal of the plea involved the waiver of all which depended on the plea, and this included a waiver of the benefit of the implication which existed, so long as the plea remained, of an acquittal of the higher crime.' People v. Cignarale, 110 N.Y. 23, 32, 17 N.E. 135, 143.

This conclusion violates no fundamental principles of justice. The defendant was carefully advised on the consequences of all his actions and motions at all stages, both by his counsel and by the judge. That his maneuver here did not succeed is a further illustration that 'a criminal prosecution is more than a game.' ³

2. The defendant's argument that the search of his apartment was unlawful is...