Commonwealth v. Evelyn , 470 Mass. 765 ( 2015 )

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SJC-11643
COMMONWEALTH vs. SEAN EVELYN.
Suffolk. November 3, 2014. - March 2, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Lenk, & Hines,
JJ.
Homicide. Practice, Criminal, Argument by counsel, Admissions
and confessions, Waiver. Constitutional Law, Waiver of
constitutional rights, Admissions and confessions. Due
Process of Law, Fair trial. Supreme Judicial Court,
Superintendence of inferior courts.
Indictments found and returned in the Superior Court
Department on February 23, 2007.
The cases were tried before Frank M. Gaziano, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Jeanne M. Kempthorne for the defendant.
Donna Jalbert Patalano, Assistant District Attorney, for
the Commonwealth.
Donald A. Harwood & David A.F. Lewis, for Committee for
Public Counsel Services & another, amici curiae, submitted a
brief.
2
GANTS, C.J. After an altercation with Cushings Fortuna
(victim), the defendant returned to his vehicle, removed a gun
from a hidden compartment, chased the victim, and shot him dead.
At trial, the defendant's attorney in opening statement conceded
that the defendant committed the killing, and told the Superior
Court jury that the issue they had to decide was whether the
defendant was guilty of manslaughter or murder. The jury
convicted the defendant of murder in the second degree and of
possession of a firearm without a license.1 The defendant
appealed his convictions, and we granted direct appellate
review.
The defendant claims that his attorney's concession at
trial that the defendant was guilty of manslaughter was
tantamount to a guilty plea, and that a colloquy between the
judge and the defendant was therefore constitutionally required
to ascertain that the defendant made the concession knowingly
and voluntarily. The defendant contends that, because such a
colloquy did not take place, he was deprived of due process and
the right against self-incrimination, and he asks that we vacate
his convictions and remand for a new trial. We conclude that,
in these circumstances, no colloquy between the judge and the
defendant is required. We note that the defendant in this case
1
The defendant was found not guilty on indictments charging
the possession of cocaine and of marijuana.
3
expressly did not claim ineffective assistance of counsel and
there is nothing in the record to suggest that the defendant did
not consent to his attorney's strategic concession.2
Background. We summarize the evidence at trial. On
December 31, 2006, the defendant (who was then twenty years old)
and his former girl friend, Shantel Baxter, drove his cousin
into Boston to drop him off at the South Station bus terminal.
At around 3:30 P.M., the defendant double-parked his vehicle on
Atlantic Avenue, and Baxter stayed with the vehicle while the
defendant walked with his cousin into the bus terminal. At
approximately 4:04 P.M., as the defendant was about to leave the
bus terminal, the victim entered the terminal with his brother,
Patrick Fortuna,3 and his girl friend's cousin, Robertho
Francois, and confronted the defendant, getting "[r]ight in his
face." The defendant "tr[ied] to walk away" in the direction of
his vehicle, but the victim and Patrick followed him. As they
approached the defendant's vehicle, the victim pulled the
defendant up against an adjacent vehicle, grabbed the defendant
by the neck, said that the defendant owed him money, and was
2
We acknowledge the amicus brief submitted by the Committee
for Public Counsel Services and the Massachusetts Association of
Criminal Defense Lawyers.
3
Because the victim and his brother have the same last
name, we shall refer to the brother by his first name.
4
"kneeing" the defendant and "calling [him] a pussy" and "a
bitch-ass nigger."
Baxter came out of the defendant's car, physically "trying
to get between them" and "begging [the victim] to stop," but the
victim swung his elbow at her and "told [her] to get the fuck
off of him." The victim "just kept squeezing [the defendant's]
neck," "kicking him," "spitting on him," and "yelling in his
face." After the victim yelled that he needed the defendant's
telephone number, Baxter provided the number to Patrick in an
effort to get the victim to stop. Then, Patrick said to the
victim, "All right. Let's go." Shortly afterwards, the victim
and Patrick, along with Francois (who had been watching from a
short distance), walked away from the defendant towards the bus
terminal.
The defendant and Baxter got back into the defendant's
vehicle. As they sat there, the defendant told Baxter (who was
in the passenger's seat) to "move the car," and a short time
later,4 he left the vehicle and headed back towards the bus
terminal. When Baxter got into the driver's seat, she noticed
4
Baxter testified that she and the defendant sat in the car
for "a couple seconds" or "a couple minutes."
5
that the "secret compartment" installed in the vehicle's
dashboard (which moments earlier had been shut) was now open.5
The victim, Patrick, and Francois "were walking back toward
the bus station" when the victim "turn[ed] his head back," and
suddenly started to run, as did Patrick and Francois. Gunshots
were fired. Patrick ran in a different direction from that of
the victim and Francois, and the victim later turned right on
South Street while Francois turned left. At that point,
Francois "turn[ed] around" and saw the "same man" that the
victim had assaulted follow the victim down South Street. The
defendant caught up with the victim, and shot him three times:
once in the arm, once in the back, and once in the head. The
victim fell to the ground, and the defendant fled.6 At
approximately 4:24 P.M., a Boston police officer arrived at the
scene, and determined that the victim did not have a pulse. The
victim was pronounced dead at 4:45 P.M., and the cause of death
was identified as gunshot wounds to the head and chest.
At trial, defense counsel in his opening statement conceded
that the defendant had committed the killing but stated that the
5
Baxter testified that she did not see anything inside the
compartment. When police searched the defendant's vehicle after
seizing it in the aftermath of the shooting, they found a small
plastic bag containing cocaine in the compartment. A small bag
of marijuana was also found in one of the vehicle's "rear map
pockets."
6
A week after the shooting, Francois participated in a
police lineup and identified the defendant as the shooter.
6
evidence would show that the defendant was guilty of
manslaughter, not murder in the first or second degree.7 He
declared:
"[The defendant] no doubt did a terrible thing and no doubt
he's guilty of very serious crimes. But the issue here is
going to be did he act in a heat of passion, did he have
the ability to reason, to think about what he was going to
do, to premeditate, which is what's required for first
degree murder . . . or did he act out of a rage that he and
any reasonable person would have felt treated the way he
was treated, assaulted and humiliated . . . ."
Defense counsel continued to pursue this strategy in his closing
argument, noting that "our law recognizes that there are times
when a person can be so provoked by what . . . somebody else
does to them, that even if they commit a terrible act of killing
that person, . . . they don't have the malice required for
murder." He argued that "[t]he evidence in this case . . .
shows very clearly that [the defendant] acted out of heat of
passion," and therefore should be found guilty of manslaughter,
not murder. The jury did not find the defendant guilty of
7
Before trial, the defendant had agreed to plead guilty to
manslaughter and the other three indictments, and a change of
plea hearing was conducted where a judge in the Superior Court
was presented with a joint sentencing recommendation by the
Commonwealth and the defendant. However, during the plea
colloquy, when the judge (who was not the trial judge) inquired
of the defendant whether he "[has] been fully, fairly, and
adequately represented by [his attorney] in this case," the
defendant replied, "Not really." The defendant explained that
he had not been aware of the two drug charges and had not known
he was going to be pleading guilty until he walked into the
court room. At that point, the judge declined to accept the
guilty plea and set the matter for trial.
7
murder in the first degree, as argued by the prosecutor, but did
find the defendant guilty of murder in the second degree.
Discussion. The defendant asserts that, where defense
counsel concedes the defendant's guilt in opening statement, due
process "requires an intelligent and voluntary waiver by the
defendant in a non-capital case," "[n]o less than in the case of
a guilty plea, or an admission to sufficient facts, or a
stipulation of facts in a trial, or a waiver of jury trial."
Before we address this claim, it is important to be clear
as to what the defendant is not claiming on appeal.
Specifically, the defendant is not claiming that he received
ineffective assistance of counsel. He does not claim that his
trial counsel did not discuss this strategic concession with him
before opening statement, or that he did not consent to this
course of action; the record is silent regarding his discussions
with trial counsel on this issue.8 Nor does he claim that it was
"manifestly unreasonable" for trial counsel to have made this
strategic choice. See Commonwealth v. Glover, 459 Mass. 836,
843 (2011). He admits that his trial counsel "perhaps even
correctly believed" that it served the defendant's interest to
concede guilt to the lesser included offense of manslaughter to
attempt to avert conviction on the murder indictment. Rather,
8
His trial counsel was not his counsel for the aborted
guilty plea hearing.
8
he claims that the absence of a colloquy by the judge, standing
alone, constitutes a violation of due process that requires that
the defendant's convictions be vacated. We disagree.
Where a defendant tenders a guilty plea, the judge must
engage the defendant in a colloquy before accepting the plea
because "[d]ue process requires that 'a guilty plea should not
be accepted, and if accepted must be later set aside,' unless
the contemporaneous record contains an affirmative showing that
the defendant's plea was intelligently and voluntarily made."
Commonwealth v. Furr, 454 Mass. 101, 106 (2009), quoting
Commonwealth v. Foster, 368 Mass. 100, 102 (1975). See Boykin
v. Alabama, 395 U.S. 238, 242-243 (1969). See also Commonwealth
v. Duquette, 386 Mass. 834, 842-843 (1982) (if admission to
facts sufficient to support finding of guilt "is to be given the
effect of a guilty plea, it must be supported by the same
demonstrations of voluntariness and intelligence that are
required of any other guilty plea"). The reason for requiring a
plea colloquy is that, by pleading guilty, the defendant waives
three constitutional rights -- the right to a jury trial, the
right to confront witnesses, and the privilege against self-
incrimination -- and "[w]e cannot presume a waiver of these
three important . . . rights from a silent record." Boykin,
supra at 243. See Commonwealth v. Fernandes, 390 Mass. 714,
715-716 (1984) ("Because a plea of guilty involves these
9
constitutional rights, the plea is valid only when the defendant
offers it voluntarily, with sufficient awareness of the relevant
circumstances, . . . and with the advice of competent counsel").
See also Mass. R. Crim. P. 12 (c), as appearing in 442 Mass.
1511 (2004).9
Where a defendant, instead of pleading guilty, agrees to
try a case to a judge on stipulated evidence in an effort to
preserve his or her right to appeal the judge's pretrial
rulings, we have also required a colloquy to ensure that the
defendant has knowingly and voluntarily waived the right to a
jury trial, the right to confront witnesses, and the privilege
against self-incrimination. See Commonwealth v. Lewis, 399
Mass. 761, 763-764 (1987) (reversing conviction for absence of
colloquy where "parties stipulated to what the Commonwealth's
evidence would be" and defendant offered no evidence);
Commonwealth v. Castillo, 66 Mass. App. Ct. 34, 36-38 (2006)
(where defendant stipulated to material facts conclusive of
9
"After being informed that the defendant intends to plead
guilty or nolo contendere: . . . The judge shall inform the
defendant on the record, in open court: . . . that by a plea of
guilty or nolo contendere, or an admission to sufficient facts,
the defendant waives the right to trial with or without a jury,
the right to confrontation of witnesses, the right to be
presumed innocent until proved guilty beyond a reasonable doubt,
and the privilege against self-incrimination." Mass. R. Crim.
P. 12 (c) (3) (A), as appearing in 442 Mass. 1511 (2004). "The
judge shall conduct a hearing to determine the voluntariness of
the plea or admission and the factual basis of the charge."
Mass. R. Crim. P. 12 (c) (5).
10
guilt in case tried to judge, stipulation was tantamount to
guilty plea, and failure of judge to engage defendant in plea
colloquy required reversal of convictions). See also
Commonwealth v. Brown, 55 Mass. App. Ct. 440, 448-449 (2002);
Commonwealth v. Hill, 20 Mass. App. Ct. 130, 132-133 (1985).
Where we have found a constitutional entitlement to a plea
colloquy, a defendant has waived at least one of the three
constitutional rights that are waived by a guilty plea. "It is
axiomatic that, if the defendant does not plead guilty and does
not waive these rights, the judge need not conduct a plea
colloquy." Commonwealth v. Lopez, 447 Mass. 625, 629 (2006),
citing Commonwealth v. Stevens, 379 Mass. 772, 774-776 (1980).
Here, the defendant did not waive any constitutional right.
He exercised his right to a trial by jury, confronted witnesses
against him through cross-examination, exercised his privilege
against self-incrimination by not testifying, and stipulated to
no facts. "Unlike the case of a guilty plea, the Commonwealth
was put to its proof beyond a reasonable doubt and met it."
Stevens, 379 Mass. at 774-776 (no colloquy was required where
defense counsel offered to stipulate to prosecution's evidence
in effort to preserve defendant's right to appeal pretrial
rulings but trial judge refused to accept offer, and defense
counsel instead offered no defense when prosecution's evidence
was presented at jury-waived trial). See Commonwealth v.
11
Ramsey, 466 Mass. 489, 491, 496 n.8 (2013) (case law requiring
colloquy where defendant submits to jury-waived trial on
stipulated facts did not apply where case was tried to jury and
where defendant admitted in his testimony that he possessed
drugs and firearm "as part of a litigation strategy to boost his
credibility" regarding his defense of necessity to firearms
charge); Commonwealth v. Charles, 456 Mass. 378, 383 (2010),
quoting Commonwealth v. Shea, 398 Mass. 264, 269 (1986) (where
defendant was indicted for possession with intent to distribute
but defense counsel encouraged jury to convict on simple
possession, defense counsel's concession that substances in
defendant's possession were "drugs" did not amount to tacit
stipulation as to nature of substances, because "defendant's
theory of his case cannot relieve the Commonwealth of its burden
of proving every element of a crime beyond a reasonable doubt").
Because defense counsel's concession did not constitute a waiver
of the defendant's constitutional rights, the trial judge was
not constitutionally required to conduct a plea colloquy
confirming that the defendant had waived his rights knowingly
and voluntarily.
We recognize that, after a defendant's attorney concedes in
opening statement that the defendant is guilty of manslaughter,
there is virtually no chance that a jury would return a verdict
of anything less than manslaughter. But that may also be true
12
where a defendant testifies in his or her own defense and admits
to the killing, or where a defendant calls a witness to testify
to the victim's conduct that provoked the killing and the
witness testifies that the defendant subsequently killed the
victim. The purpose of a plea colloquy is to ensure that the
waiver of certain fundamental constitutional rights is knowing
and voluntary; it is not to ensure that the defense strategy is
sound or that the defendant has consented to that strategy.
Where a defense attorney's concession is manifestly unreasonable
or where a defendant has not consented to that strategy, we have
relied on posttrial claims of ineffective assistance of counsel
as the remedy for a miscarriage of justice.10
10
A defense counsel's decision to concede voluntary
manslaughter to strengthen the possibility of sparing the
defendant a conviction of murder constitutes ineffective
assistance of counsel only where it was "'manifestly
unreasonable' when made," and where it prejudiced the defendant
by depriving him of a "substantial ground of defense."
Commonwealth v. Glover, 459 Mass. 836, 842-843 (2011), quoting
Commonwealth v. Acevedo, 446 Mass. 435, 442, 446 (2006). "When
the evidence implicating the defendant is strong, and a
concession does not undercut viable defenses, a tactical
concession of guilt by counsel in a murder prosecution is
securely within the realm of effective representation."
Commonwealth v. Arriaga, 438 Mass. 556, 581-582 (2003). We do
not consider here whether it is manifestly unreasonable to
pursue such a strategy (regardless of its merits) without the
defendant's consent, or whether prejudice should be presumed in
such circumstances. Compare Florida v. Nixon, 543 U.S. 175, 192
(2004) (in capital case, "[w]hen counsel informs the defendant
of the strategy counsel believes to be in the defendant's best
interest and the defendant is unresponsive, counsel's strategic
choice [to concede defendant's guilt at guilt phase of trial in
order to focus jury on reasons to spare defendant's life during
13
We also consider whether, under our supervisory authority,
we should require trial judges to conduct a colloquy with the
defendant before a defendant's attorney makes a concession of
guilt at trial. We have exercised this supervisory authority to
require that a colloquy be conducted where a defendant waives
the right to a jury trial, even though it is not
constitutionally required, because "a supervisory rule requiring
a colloquy would aid in 'sound judicial administration' by
foreclosing many disputes about whether a waiver of the right to
a jury trial was knowingly and voluntarily made." Commonwealth
v. Pavao, 423 Mass. 798, 800 (1996), quoting Ciummei v.
Commonwealth, 378 Mass. 504, 509 (1979). Cf. Commonwealth v.
Davis, 376 Mass. 777, 784-785 (1978) (adopting "prophylactic
measure" of requiring judge to conduct colloquy where defendant
waives right to conflict-free counsel by agreeing to joint
penalty phase of trial] is not impeded by any blanket rule
demanding the defendant's explicit consent"), with Commonwealth
v. Velez, 77 Mass. App. Ct. 270, 277 & n.9 (2010) ("While
Massachusetts has not had the opportunity to apply these
principles . . . , courts in other jurisdictions have held that
unauthorized concessions of guilt can constitute a lack of
adversary testing within the meaning of United States v. Cronic,
[466 U.S. 648 (1984)]," which triggers presumption of
prejudice), and State v. Harbison, 315 N.C. 175, 180 (1985),
cert. denied, 476 U.S. 1123 (1986) ("ineffective assistance of
counsel, per se in violation of the Sixth Amendment [to the
United States Constitution], has been established in every
criminal case in which the defendant's counsel admits the
defendant's guilt to the jury without the defendant's consent").
14
representation, even though colloquy is not constitutionally
required).
We think it more prudent to leave the decision whether to
conduct a colloquy regarding a concession of guilt to the sound
discretion of the trial judge than to exercise our supervisory
authority to require it in all instances. Strategic decisions
to concede that a defendant is guilty of lesser included
offenses are not uncommon, especially in drug cases, where a
defendant may concede the possession of drugs to preserve the
credibility of his claim that he or she did not intend to
distribute. Nor is it uncommon for a defendant to admit guilt
to an offense, such as possession of drugs, to preserve the
credibility of the defendant's claim that he or she did not
commit a more serious crime, such as illegal possession of a
firearm. As noted earlier, such concessions are not limited to
a defense attorney's opening statement or closing argument; they
may be made in a defendant's trial testimony, or by a defense
witness that the defendant calls to the stand knowing that the
witness will testify to the defendant's participation in one of
the offenses charged.
Requiring a colloquy in all such cases would mean that the
judge must be informed in advance of all such concessions, and
conduct a colloquy that may invite discussion regarding the
defendant's trial strategy. Such an inquiry may be warranted to
15
determine "whether the defendant understands the significance of
his apparent choice," Stevens, 379 Mass. at 776, where (unlike
here) there is some indication that the defendant expressly
opposes his or her attorney's trial strategy, or the concession
appears to be a manifestly unreasonable trial strategy. But
because we can foresee instances where such a concession may not
be known in advance (such as where a defendant admits to
committing a lesser included offense during cross-examination)
and other instances where a wise trial judge, when told of an
anticipated concession, may decide that the more prudent course
is to proceed without a colloquy, we decline to exercise our
supervisory authority to impose a hard and fast rule that would
require a colloquy whenever a concession of guilt is made.11
Conclusion. Because no colloquy was required regarding
defense counsel's concession of guilt to the lesser included
11
Cf. Commonwealth v. Ortiz, 466 Mass. 475, 477 (2013)
(rejecting "defendant's claim that under current rules of
practice, a stipulation between the Commonwealth and the
defendant as to an element of a crime, no matter when the
stipulation is agreed to, must be in writing and signed by him
or the subject of a colloquy between the defendant and the trial
judge," but in light of Mass. R. Crim. P. 11 [a] [2] [A], as
appearing in 442 Mass. 1509 [2004], which directs that any
stipulation to the existence of a material fact contained in a
pretrial conference report be signed by the defendant himself,
asking "this court's standing committee on the rules of criminal
procedure to consider whether it would be appropriate to adopt
by rule a requirement similar to rule 11 [a] [2] [A] that would
apply to stipulations first entered into at or immediately
before trial").
16
offense of manslaughter in opening statement and closing
argument, the defendant's convictions are affirmed.
So ordered.