Commonwealth v. Duest, 88-P-210.

• Decision Date: 27 June 1988
• Docket Number: No. 88-P-210.,88-P-210.
• Citation: 524 N.E.2d 1368,26 Mass. App. Ct. 137
• Parties: COMMONWEALTH vs. LLOYD PAUL DUEST.
• Court: Appeals Court of Massachusetts

26 Mass. App. Ct. 137

524 N.E.2d 1368

COMMONWEALTH vs. LLOYD PAUL DUEST.

No. 88-P-210.

Appeals Court of Massachusetts, Middlesex.

May 16, 1988.

June 27, 1988.

Present: GREANEY, C.J., SMITH, & WARNER, JJ.

Andrew Silverman, Committee for Public Counsel Services, for the defendant.

Cheryl A. Jacques, Assistant District Attorney, for the Commonwealth.

GREANEY, C.J.

On April 10, 1970, a grand jury in Middlesex County returned indictments charging the defendant with armed robbery, unlawfully carrying a firearm, and armed assault with intent to murder. On January 13, 1971, the defendant, represented by counsel, offered pleas of guilty to the three indictments. His offer of pleas to the charges of armed robbery and unlawfully carrying a firearm were accepted on January 13, 1971, by a judge of the Superior Court. The defendant's offer of a plea to the armed assault with intent to murder charge was not accepted. However, on January 18, 1971, the defendant's plea to that charge was accepted¹ and the defendant was sentenced to concurrent five to ten year terms at M.C.I., Walpole, on the armed robbery and armed assault with intent to murder charges. The defendant's conviction for unlawfully carrying a firearm was placed on file with his consent. The sentences appear to have been served.

On September 25, 1987, the defendant filed a motion seeking to withdraw all three guilty pleas. See Mass. R. Crim. P. 30(b), 378 Mass. 900 (1979). The motion was heard by the judge who had presided at the plea proceedings. After consideration, the judge entered a memorandum of decision denying the motion. The defendant has appealed. We are concerned only with the pleas to the charges of armed robbery and unlawfully carrying a firearm.² We consider two issues: (1) whether the Commonwealth has demonstrated a basis to sustain those pleas under governing constitutional principles and (2) whether the judge erred in denying the defendant's motion, brought pursuant to G.L.c. 233, § 13B, to be brought from the State of Florida, where he is now incarcerated, to Massachusetts to testify at the hearing on the motion.

1. (a) The criminal episode. On March 4, 1970, at approximately 9:00 P.M., employees of the First National Stores supermarket in Reading were robbed at gunpoint by two men wearing masks. An accomplice waited outside the store in a stolen yellow Ford Mustang automobile, which was used as the getaway vehicle. As police officers pursued the Mustang, one of the criminals leaned out the window and fired shots from a pistol at the police cruiser. Richard Duest and Frank Stewart were arrested shortly after the chase ended. The defendant surrendered to the police the next day.

(b) The pleas. As has been indicated, on January 13, 1971, the defendant, represented by counsel, offered pleas of guilty to the three charges.³ The offer of pleas to the armed robbery and carrying a firearm charges were accepted by a judge of the Superior Court. The defendant's offer of a plea to the armed assault with intent to murder charge was not then accepted. However, on January 18, 1971, the plea to that charge was accepted and the defendant was sentenced on all three charges.

(c) The defendant's testimony at the trial of Frank Stewart. On January 27, 1971, fourteen days after his pleas to the armed robbery and firearm charges, the defendant appeared as a witness for the defense at the trial of a codefendant, Frank Stewart, who was charged with armed robbery, armed assault with intent to murder, and illegal possession of a firearm. See Commonwealth v. Stewart, 365 Mass. 99 (1974). The defendant testified under oath before a Superior Court judge and jury as follows. On March 4, 1970, at about 9:00 P.M., he and his cousin, Richard, drove in a yellow Mustang convertible (which the defendant admitted stealing) to the First National in Reading. The defendant, who had previously "cased" the store (by watching to see who managed it, how late they stayed, and how often the police went by), went there to "hold it up."

The defendant and his cousin entered the store wearing masks. The defendant's cousin stuck a fully loaded P-38 Luger pistol in the store manager's ribs and, according to the defendant, told the manager "to get the fuck over to the safe or Richard Duest would blow his head off." The defendant took the money out of the safe and placed it into a large sack which the defendant described as "an insulation to a sleeping bag ... which was about five feet long, two feet wide." The two men fled the store and drove the stolen yellow Mustang to another location, where they switched to the defendant's own yellow Mustang.

They were eventually followed by a police cruiser. A chase ensued, during which Richard Duest, at the defendant's instructions, fired a full clip of bullets from the pistol at the pursuing police cruiser. After the defendant's vehicle hit a snowbank, the defendant grabbed the money and fled. The defendant hid in some bushes until the police left the area. He testified that Frank Stewart was not involved in the incident. The Mustang automobile was found. On the vehicle's front seat was a German Luger pistol, model P-38, with the ammunition clip empty and intact. Frank Stewart and Richard Duest were apprehended in the area. Before concluding his testimony at Stewart's trial, the defendant answered "yes" to the question set forth in the margin.⁴ That question concerned the same crimes to which the defendant entered pleas.

(d) The motion to withdraw pleas and affidavits. On September 25, 1987, the defendant filed his motion to withdraw the guilty pleas. The motion was accompanied by several affidavits. In the motion itself, the defendant made two principal allegations. First, he contended that he had not voluntarily, intelligently, and knowingly pleaded to the armed robbery charge because he had not been adequately advised of, and consequently did not understand, the mental element of that crime. Second, he alleged that joint representation of himself and his cousin, Richard Duest, by the same lawyer resulted in a violation of his right to the effective assistance of counsel.

In his affidavit, dated September 23, 1987, the defendant admitted that he, his cousin, Richard Duest, and Frank Stewart had gone to the First National supermarket. The defendant's role was to drive the getaway vehicle. The defendant claimed, however, that he did not know that an armed robbery was to occur, but rather believed that his cousin and Stewart simply intended to sneak into the store without being observed and steal the contents of the safe. The defendant stated that his sole intent was to participate in the commission of a larceny. According to his affidavit, he never understood "that what he actually intended to occur in the store (i.e., a larceny) was relevant to his legal culpability for what actually transpired (i.e., a robbery)." As to the assistance of counsel claim, the defendant alleged that his lawyer never explained to him that his culpability might not be the same as the culpability of his cousin and Stewart. The defendant stated that his counsel was more interested in discussing how much time the defendant would be willing to serve in exchange for pleas of guilty.

Also accompanying the motion was the affidavit of Richard Duest, dated September 22, 1987. Richard stated that he and Frank Stewart had robbed the supermarket while the defendant remained in the getaway vehicle waiting to drive them away. Richard also stated that he had fired the shots at the pursuing police cruiser in an attempt to stop the chase.⁵ His claims about the quality of his lawyer's representation generally repeat the defendant's assertions, with Richard also alleging that their joint counsel's "main interest seemed to be how much time we were willing to accept on a guilty plea."

A third affidavit by the defendant's present counsel, dated September 24, 1987, furnished copies of the indictments and docket sheets and identified the court reporter who had taken down the plea proceedings, one Richard Ross. Counsel set forth his efforts to locate the stenographic notes of the guilty pleas, stating that he (counsel) "was also told that Mr. Ross had retired many years ago; that his stenographic notes had been retained by the Clerk's office for six years and then destroyed."⁶

(e) The hearing on the motion. On October 27, 1987, the judge who had accepted the defendant's pleas heard his motion to withdraw them. The defendant was not present at the hearing. It is agreed that the stenographic notes of the plea hearings cannot be found, that they have probably been destroyed, and that an inquiry at the office of the defendant's then counsel (who is deceased) could locate no file or materials pertinent to the case. The prosecutor who represented the Commonwealth could not be identified, and other possible sources (such as the probation file) have provided no meaningful information about the plea proceedings.

At the hearing, the Commonwealth offered the transcript of the defendant's testimony at Stewart's trial, the police reports, statements of the store employees who were the victims of the robbery, and a copy of the defendant's Massachusetts criminal record. Legal argument of the prosecutor and the defendant's counsel was confined to the issues that will be discussed later in this opinion. At the conclusion of the hearing, the judge took the motion under advisement.

(f) The defendant's second affidavit. On November 27, 1987, after the hearing, the defendant filed a second affidavit. That affidavit was in response to the Commonwealth's reliance on the defendant's testimony at the Stewart trial. In the affidavit the defendant stated that he had lied in his testimony at the Stewart trial. The defendant indicated that around January 23 or 24, 1981, while he was at M.C.I., Walpole, a friend of Stewart "held a knife to my neck and told me I was going to testify at Frank Stewart's...