Commonwealth v. Muldoon

• Decision Date: 25 June 2018
• Docket Number: 15-P-580
• Citation: 104 N.E.3d 685 (Table),93 Mass.App.Ct. 1116
• Parties: COMMONWEALTH v. Emmett MULDOON.
• Court: Appeals Court of Massachusetts

93 Mass.App.Ct. 1116
104 N.E.3d 685 (Table)

COMMONWEALTH
v.
Emmett MULDOON.

15-P-580

Appeals Court of Massachusetts.

Entered: June 25, 2018.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In 1996, the defendant pleaded guilty to indictments that charged aggravated rape, armed home invasion, burglary with assault on an occupant, armed robbery, and assault and battery by means of a dangerous weapon. On February 18, 2014, almost eighteen years later, the defendant moved to withdraw his guilty pleas and for an evidentiary hearing. He argued that his pleas were entered neither knowingly nor voluntarily as a result of his attorney's ineffectiveness and that the indictments charging armed home invasion and what he labels unarmed burglary must be vacated because the evidence does not support either charge. The judge, who was not the plea judge, denied the motion without a hearing in a written memorandum of decision. The defendant appealed and moved for reconsideration; the motion judge denied the latter motion. The defendant's appeal from the denial of the motion for reconsideration has been consolidated with his appeal from the denial of the original motion.

Background. We briefly summarize the evidence presented at the plea hearing and before the grand jury, reserving certain details for discussion with the issues raised. Sometime before 1:15 A.M. on May 15, 1995, the defendant used tin snips to cut a screen and enter a first-floor Quincy apartment in which three young women lived. Once inside, the defendant took a bottle of beer from the refrigerator and went into the victim's bedroom. He slashed at least five pairs of the victim's underwear and drank the bottle of beer, remaining in her room for some period of time in the dark.

The victim returned home from work and, after talking to her boy friend on the telephone for about twenty minutes, went into her bedroom around 1:30 A.M. Before she could reach the light switch, the defendant grabbed her from behind, put his hand over her nose and mouth, and put a knife to her throat. The victim grabbed the knife and recognized it as one from her kitchen. She acceded to the defendant's exhortations to let go of the weapon. Over the course of approximately the next thirty minutes, the defendant bound the victim's hands and physically assaulted her as he raped her twice anally, twice vaginally and once orally. The victim heard the knife drop and was able to grab it as she struggled with the defendant, stabbing him at least twice. The defendant punched her in the face; she could hear bones crunching. She continued to hold onto the knife even as it slipped and sliced into her hand. She managed to get to the bedroom door, open it, and run screaming into the hallway.

A roommate came out of another bedroom and saw the defendant in the hallway with his pants down around his knees. There was a shattering and crashing of glass; the defendant had fled through the victim's bedroom window.

The police arrived at the scene. There was a trail of blood on the floor of the apartment and in the victim's bedroom, blood on the bed, an empty beer bottle, and a knife on the floor. At the spot where the roommate had seen the defendant with his pants around his knees, police found a wallet containing the defendant's driver's license.

The victim's face was beaten so badly it looked like she "didn't have a nose." She was hospitalized and underwent major surgery to her right hand, which she could not use for five months.

Within an hour, police found and arrested the defendant at the Braintree address on his driver's license. He had a significant wound to his leg and a wound to his left wrist. In his possession were the victim's paycheck and $291 he had stolen from her. He told police, "I fucked up," and "I only went in for the money. I had to punch her to get out."

Discussion. A guilty plea can be withdrawn only if "it appears that justice may not have been done." Commonwealth v. DeMarco, 387 Mass. 481, 487 (1982), quoting from Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979). In the face of an adequate plea colloquy, the defendant bears the heavy burden of demonstrating that he did not knowingly and voluntarily proffer the pleas. On appeal, we can reverse a judge's determination that a defendant failed to meet that burden only where the judge abused his discretion. See, e.g., Commonwealth v. Bowen, 63 Mass. App. Ct. 579, 583-584 (2005). Here, the defendant does not challenge the colloquy, but argues instead that plea counsel's ineffectiveness and the lack of evidence on two indictments warrant relief and that the motion judge should have held an evidentiary hearing on the motion.

1. Ineffective assistance of counsel. The defendant challenges counsel's failure to investigate a defense based on the defendant's alleged impaired mental state, and counsel's failure to seek suppression of evidence seized after police made a warrantless entry onto his property and to seek suppression of the eyewitness identification.

a. Mental state. The defendant claims that counsel should have investigated an insanity defense and sought an evaluation for criminal responsibility in view of the evidence showing that, at the time of the crimes and the plea, the defendant was suffering from "organic brain impairment related to long-term alcohol use and traumatic [head] injury" and that he was in the early stages of multiple sclerosis. The evidence to which the defendant refers is largely contained in his affidavit filed in support of his motion to vacate his plea, more than eighteen years after the plea.

The affidavit recites that he was (1) struck on the head by a car when he crossed the street at the age of eight; (2) kicked in the head multiple times during a fight in 1971; (3) hit multiple times on the head during his childhood with baseballs and during ice hockey; and (4) involved in an automobile accident in 1994, and lost consciousness when an airbag deployed. Apart from the medical records related to the auto accident -- that indicate the defendant was unsure whether he lost consciousness but also that he had no loss of consciousness -- there is no record support for the defendant's claims.

There is, however, evidence to the contrary. The day after his arrest for these offenses the defendant was admitted to Bridgewater State Hospital for an evaluation. That record shows that the defendant acknowledged that he had a drinking problem and a heart problem, but he otherwise reported that he has "always been in good health" and that "he has never had any surgeries nor has he had head injuries, loss of consciousness or seizures." The report's author indicated that there was no evidence of mental illness, a description similar to that of the defendant's own therapist at the time,...