Osborne v. Com.

• Decision Date: 15 May 1979
• Citation: 378 Mass. 104,389 N.E.2d 981
• Parties: James A. OSBORNE v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 981

389 N.E.2d 981

378 Mass. 104

James A. OSBORNE v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 8, 1979.

Decided May 15, 1979.

J. Russell Hodgdon, Boston, for plaintiff.

Robert J. McKenna, Jr., Asst. Dist. Atty. (Kevin Connelly, with him), for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

WILKINS, Justice.

In 1969, after two days of trial, the petitioner (the defendant) ¹ pleaded guilty to murder in the second degree, assault with intent to commit rape, and armed robbery. He was sentenced to consecutive terms of life imprisonment on the indictments for murder and for assault with intent to commit rape, and to fifteen to twenty-five years on the indictment for armed robbery, to be served from and after the two consecutive life sentences. The defendant's appeals of his sentences to the Appellate Division of the Superior Court were dismissed, and in 1971 a motion for a new trial was denied. In 1972, the defendant filed a petition for a writ of error in the Supreme Judicial Court for the county of Suffolk. A special master held a hearing on the petition and filed a report recommending denial of the writ, but no action was taken on the report. In 1976, the defendant filed a second petition for a writ of error in the county court. The two proceedings were consolidated and were referred to another special master, who held another hearing (the 1977 hearing) and filed a report. A single justice reserved and reported the issues raised by that report.

The defendant challenges the voluntariness of his plea of guilty to murder in the second degree ² on the grounds that (1) he was not informed of the elements of the crime as required by Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), and (2) defense counsel's failure to investigate an insanity defense and to inform him that such a defense was available constituted ineffective assistance of counsel. ³ He also argues that defense counsel's outrageous argument on disposition deprived him of the effective assistance of counsel. We find no merit in the defendant's challenge to the voluntariness of his plea, but we agree that defense counsel's argument on disposition deprived the defendant of the effective assistance of counsel in the sentencing stage of his case. We therefore allow his convictions to stand but vacate his sentences (except the statutorily mandated life sentence for murder in the second degree) and remand the cases to the Superior Court for resentencing.

On February 24, 1969, the defendant beat to death a fifty-six year old woman who operated a small grocery store in East Boston. The victim had been struck in the head repeatedly with a soda bottle, most of her clothing had been torn off, and a portion of her brassiere had been used as a gag in her mouth. An eyewitness saw the defendant leaving the store and summoned the police, who were cruising in the area. They apprehended the defendant hiding under a car. The defendant's hand was badly cut, and the cuffs of his trousers contained particles of glass. Hairs and blood of the victim were on the defendant's person and clothing. The police found approximately $140 in his pocket, slightly more than the amount of money estimated by the victim's husband to have been in the cash register that night. The defendant was indicted for murder in the first degree, assault with intent to commit rape, and armed robbery.

Although it did not come out during the two days of trial, there was evidence before the second special master that the defendant had been drinking heavily on the day of the crimes and that he was an alcoholic at that time. The defendant now claims to have no memory of the incident.

The first attorney appointed to represent the defendant could not try the case because he had not yet been a member of the bar for ten years. Rule 95 of the Superior Court (1954), superseded by Rule 53 of the Superior Court (1974), as amended (1978). See Commonwealth v. Satterfield, --- Mass. ---, --- & n. 7 ^A, 364 N.E.2d 1260 (1977). When the attorney who took over the case (second attorney) became ill shortly before trial, a third attorney (trial counsel) was appointed to represent the defendant, and it is primarily his conduct of which the defendant complains. The second attorney remained as co-counsel but did not participate actively in the trial.

1. The defendant argues that his plea of guilty to murder in the second degree was involuntary under Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), because he was not informed that malice was an element of the crime. The guilty plea the defendant now challenges was made seven years before the Henderson decision. We need not decide whether the principles of the Henderson case apply retroactively because, even if they do, the defendant's plea was voluntary under those principles. See Commonwealth v. Soffen, --- Mass. ---, --- ^B, 386 N.E.2d 1030 (1979); Commonwealth v. McGuirk, --- Mass. ---, --- ^C, 380 N.E.2d 662 (1978).

The circumstances under which the defendant pleaded guilty in this case were substantially different from those in the Henderson case. There the defendant, a man of below-average intelligence, was not informed that, under New York law, intent to kill was a necessary element of murder in the second degree. He made no statement implying the requisite intent, nor did he hear the prosecution's case against him. The trial judge found as a fact that the element of intent to kill was not explained to the defendant. Henderson, supra, 426 U.S. at 647, 96 S.Ct. 2253. Thus, the defendant's plea was involuntary because he did not receive "real notice of the true nature of the charge against him." Id. at 645, 96 S.Ct. at 2257, quoting from Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 85 L.Ed. 859 (1941).

The defendant in this case was of normal or above-average intelligence. He sat through two days of trial during which he heard most of the prosecution's case against him. At the plea hearing, the clerk asked the defendant how he pleaded to the indictment that charged "that you did assault and beat (the victim) with intent to murder her and by such assault and beating did kill and murder (her)." The defendant replied, "I plead guilty to so much of the indictment as calls for second degree murder." He also pleaded guilty to the other charges. The judge asked him if he in fact committed the acts alleged in the three indictments, to which he replied, "I vaguely remember it. It's coming back to my memory now." The judge then asked the defendant whether he understood that by pleading guilty he was admitting all the necessary elements of the crimes, and he answered affirmatively. The defendant also told the judge that trial counsel and co-counsel had discussed the plea fully with him. The judge found that the defendant was "clearly aware of the charges against him." At the 1977 hearing before the special master, the defendant testified that he did not recall whether his first attorney had explained the charges to him but that he understood what he was on trial for.

The requirements of the Henderson case are satisfied if the defendant admits facts constituting the unexplained element. Henderson, supra, 426 U.S. at 646, 96 S.Ct. 2253. Commonwealth v. McGuirk,--- Mass. ---, --- - --- ^D, 380 N.E.2d 662 (1978). In addition to murder, the defendant pleaded guilty to armed robbery and to assault with intent to commit rape. Murder committed in the course of either of these felonies is, by statute, murder in the first degree. G.L. c. 265, §§ 2, 17, 24. Malice aforethought is conclusively established by the commission of the felonies. Commonwealth v. Watkins, --- Mass. ---, --- - --- ^E, 379 N.E.2d 1040 (1978). Commonwealth v. Balliro, 349 Mass. 505, 512, 209 N.E.2d 308 (1965). The defendant thus admitted facts constituting murder in the first degree. We are not inclined to vacate his plea simply because he was allowed to plead guilty to a lesser crime than the one he admitted having committed. The defendant's plea meets the standard of the Henderson case because the defendant admitted facts constituting, at the very least, the crime to which he pleaded guilty.

2. The defendant contends that he was denied effective assistance of counsel because trial counsel failed to investigate the possibility of an insanity defense and to inform him of the availability of that defense. As we stated in Commonwealth v. Adams, --- Mass. --- ^F, 375 N.E.2d 681 (1978), the test of counsel's conduct is whether it was "within the range of competence demanded of attorneys in criminal cases." Id. at --- ^G, 375 N.E.2d at 685, quoting from McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). See also Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878, 883 (1974) (whether counsel's behavior fell "measurably below that which might be expected from an ordinary fallible lawyer").

Trial counsel's alleged failure to inform the defendant of the availability of an insanity defense is immaterial. The defendant testified at the 1977 hearing that his first attorney had discussed with him the possibility of a "temporary insanity plea." Before accepting the guilty plea, the judge asked the defendant whether he had ever been treated for a mental condition and whether he had any mental illness of which he was aware. The defendant answered "No" to both questions. The defendant was aware of the existence of the defense of insanity and its possible applicability to his case.

There remains the issue whether trial counsel's conduct in not investigating an insanity defense was within the range of competence demanded of attorneys in criminal cases. The issue is whether counsel should have investigated an insanity defense before advising the defendant to plead guilty, and not counsel's failure to present an insanity defense at trial. ⁴

In order to...