Commonwealth v. Begin , 394 Mass. 192 ( 1985 )

Nolan, J.

The defendant was indicted for murder in the first degree on October 11, 1974. On January 13, 1975, he pleaded guilty to murder in the second degree. After a hearing, a judge in the Superior Court accepted the plea and sentenced the defendant to life imprisonment.¹

On April 3, 1980, the defendant filed a motion for a new trial, arguing that his guilty plea was involuntary because he was not informed that malice aforethought is an element of the offense to which he pleaded. See Henderson v. Morgan, 426 U.S. 637 (1976). After a hearing, a Superior Court judge denied the defendant’s motion. The defendant appealed, and we transferred the case to this court on our own motion. We affirm the denial of the defendant’s motion for a new trial.

We summarize the facts.² At the hearing on the defendant’s plea, State police Detective Lieutenant George W. Powers testified that he was called to the home of the victim, Louise Wildman, in Belchertown, during the early morning hours of September 16, 1974. According to Powers, the victim lived in this house with her five children, three boys and two girls, who ranged in age from four years to eleven years. The victim was divorced, and the defendant had been living with her in the house for approximately two months.

Powers testified that he observed the victim’s body in the second floor hallway landing at the top of the stairs. The victim had been shot twice. One gunshot wound indicated that a bullet had entered the back of the victim’s right shoulder and had severed the carotid artery and the larynx, causing her to bleed to death. The second gunshot wound was located on the victim’s left arm. Two of the victim’s children also sustained gunshot wounds. According to Powers, a total of four gunshots had been fired. Powers estimated that the crime had occurred around 1 A.M.

Based on information received from some of the children, “an alarm was put out” for the defendant. He was arrested in Ware, after a high speed chase, at approximately 6:35 that morning. Subsequently, he was transported to the Belchertown police station where he was informed of his rights. After signing a waiver of those rights, the defendant confessed that he shot the victim with a “Winchester lever action rifle” after the couple had had an argument and she had slapped him in the face. He said that he could not remember shooting the children.

According to Powers, the defendant stated that he remained in the house for about one hour after the shooting and drank some brandy and beer. He then left and threw the rifle into a wooded area across the street from the house. The defendant told the police that he later drove to his former wife’s house and then to his son’s house, but was unable to gain entrance to either house. He parked his car in the woods and fell asleep. After waking, he proceeded to drive to Ware and was then arrested.

Prior to Powers’s testimony summarizing the relevant facts, the judge examined the defendant. In response to a series of questions posed by the judge, the defendant indicated that he understood the consequences of pleading guilty to the charges involved, and that he was pleading guilty freely, willingly, voluntarily, with full knowledge of what he was doing, and with full knowledge of the nature of the charges against him. The defendant responded in the affirmative when asked whether he understood that by pleading guilty he admitted as true all the facts essential and necessary to his convictions for the crimes involved.

The judge conducted a second examination of the defendant after Powers completed his testimony. He asked the defendant whether he wanted to comment upon Powers’s description of the incident:

The judge: “Now, you heard Mr. Powers describe what happened and certainly not all the details that he might have in his possession, but certainly the broad outline and in considerable detail.

“Is there anything that you want to say about that? Is it true what happened to the best of your knowledge and belief?”

The defendant: “Close.”

The judge: “Anything you want to add or subtract?”

The defendant: “Well, the drinking — I didn’t drink after the crime.”

The judge: “You didn’t?”

The defendant: “No.”

The judge: “Well, what actually happened where there was shooting, you don’t dispute that?”

The defendant: “No.”

After describing the punishment that he could impose if the defendant entered a guilty plea, the judge questioned the defendant with respect to his discussions with his attorneys:

The judge: “Have you discussed with your attorneys all the facts and other circumstances relating to your being involved in these crimes?”

The defendant: “Yes.”

The judge: “And have your attorneys discussed with you fully and completely the nature of the crimes with which you’re charged, your rights, your defenses, and the consequences of pleas of guilty?”

The defendant: “Yes.”

The judge also addressed defense counsel, inquiring whether they had discussed fully with the defendant “the nature of the charges against him, his rights, his defenses, and the possibilities of success or failure if the case is tried and the possible consequences to him if he plead[ed] guilty.” The defendant’s attorneys responded affirmatively. The judge then accepted the defendant’s plea and sentenced the defendant.

At the hearing on the defendant’s motion for a new trial, the defendant testified that he did not know the meaning of the term “malice aforethought.” He also stated that he had been instructed by his attorney to answer “yes” to any questions posed by the judge at the plea hearing, and that if there was anything he did not agree with they would “take care of’ it.

Under further questioning by the judge hearing the motion for a new trial, however, the defendant replied that he had been told to answer “yes” to only some of the questions. The motion judge then asked the defendant to account for the fact that he had answered “[c]lose” when asked whether the facts as stated by Powers reflected what had actually happened. The defendant explained that he was unable to answer “yes” because, in this respect, the account was not true.

With regard to the circumstances surrounding the shooting, the defendant testified that when he fired the gun he intended only to scare the victim, and that he shot “high.” He further testified that he shot toward the floor in order to scare the young boy. This testimony was inconsistent with Powers’s testimony at the plea hearing that the defendant stated that he could not remember shooting the children.

The motion judge, who had a transcript of the hearing at which the defendant changed his plea, found that there was a representation by defense counsel that counsel had explained to the defendant the necessary elements of the crime. The motion judge further found that the defendant made an affirmative response admitting as true the facts as stated, and that the facts stated included the necessary elements of the crime. He found that the defendant admitted shooting the victim repeatedly from the back.

The defendant contends that his plea of guilty to murder in the second degree was involuntary under the standards set forth in Henderson v. Morgan, 426 U.S. 637 (1976). Because the defendant pleaded guilty in 1975 and the Court decided Henderson in 1976, the question arises whether Henderson is retroactive. We need not reach that issue, however, because, even assuming that the principles set forth in Henderson apply retroactively, the defendant’s plea was valid. See Osborne v. Commonwealth, 378 Mass. 104, 107 (1979). See also Commonwealth v. Earl, 393 Mass. 738 (1985).

In Henderson, supra at 647, the Supreme Court decided that the defendant’s guilty plea was involuntary and therefore reversed the judgment of conviction of murder in the second degree. The relevant New York statute defined murder in the second degree as the “killing of a human being . . . committed with a design to effect the death of the person killed, or of another, but without deliberation and premeditation.” Id. at 645 n. 14. The trial judge had found as fact that the defendant never was informed that this intent element was an essential element of murder in the second degree. Id. at 640. The Supreme Court decided that in the circumstances it was impossible to conclude that the defendant’s plea was voluntary, because he did not receive “real notice of the true nature” of the charge to which he pleaded guilty. Id. at 645, 646.

The Court recognized that the Henderson case was unique, in view of the judge’s express finding that the element of intent was not explained to the defendant. Id. at 647. The Court suggested that the defendant’s low mental capacity was also a factor bearing upon its disposition of the case. Id. The Court opined that the defendant’s mental capacity provided a reasonable explanation for defense counsel’s failure to explain the elements of the crime, and also lent “a modicum of credibility” to the argument that the homicide committed was manslaughter, rather than murder.

Under Henderson, therefore, a defendant must receive “real notice of the true nature” of the charge to which he pleads guilty. Commonwealth v. Sullivan, 385 Mass. 497, 509 (1982). In Commonwealth v. McGuirk, 376 Mass. 338, 343-344 (1978), cert. denied, 439 U.S. 1120 (1979), we noted that the requirements mandated by Henderson can be satisfied in one of at least three ways: “(1) an explanation of the essential elements by the judge at the guilty plea hearing; (2) a representation that counsel has explained to the defendant the elements he admits by his plea; (3) defendant’s statements admitting to facts constituting the unexplained element or stipulation to such facts.”

The motion judge was correct in concluding that the defendant admitted as true the facts as stated by Powers, and that the facts stated included the necessary elements of murder in the second degree. Unlike the New York law applicable in Henderson, an intent to kill is not a necessary element of murder in the second degree under Massachusetts law. Instead, the Commonwealth must prove that there was an unlawful killing with malice aforethought. Commonwealth v. McCauley, 355 Mass. 554, 559 (1969). The necessary element of malice can be inferred from the use of a deadly weapon. Commonwealth v. Soffen, 377 Mass. 433, 441 (1979). “Malice aforethought includes any unexcused intent to kill, to do grievous bodily harm, or to do an act creating a plain and strong likelihood that death or grievous harm will follow.” Commonwealth v. Huot, 380 Mass. 403, 408 (1980). The defendant admitted firing his rifle first in the direction of the victim and then her son. “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.” Osborne v. Commonwealth, 378 Mass. 104, 108 (1979). We cannot accept the defendant’s argument that the facts he adopted at the plea hearing would support a manslaughter theory. The defendant asserts that the victim slapped him in the face before he went into the bedroom, took the lever action rifle and fired it repeatedly. We decline to accept the defendant’s argument that a jury could find reasonable provocation in these circumstances. See Commonwealth v. Rembiszewski, 363 Mass. 311, 321 (1973); S. C., 391 Mass. 123 (1984) (characterizing as “extravagant” the defendant’s suggestion that scratches by the victim, his wife, “could serve as provocation for a malice-free but ferocious attack by the defendant with a deadly instrument”).

In addition to the defendant’s admissions, we agree with the motion judge’s conclusion that the requirements of the Henderson case were satisfied by virtue of the representations by the defendant’s attorneys that the nature of the crimes to which the defendant pleaded had been explained to him. The record clearly shows that defense counsel responded affirmatively when asked whether they had fully discussed with the defendant the nature of the charges against him. The judge at the plea hearing credited this testimony, and we are unwilling to accept the defendant’s argument that defense counsel’s answer to the judge’s question was insufficient to show that the defendant had been apprised of the elements of murder in the second degree.

The denial of the defendant’s motion for a new trial is affirmed.

So ordered.

1 The defendant also pleaded guilty to two indictments charging assault and battery with a dangerous weapon arising out of the same incident. He does not challenge the validity of his plea with respect to those indictments.

2 The record includes the transcripts of the defendant’s guilty plea hearing and the motion for a new trial, and the judge’s findings on the defendant’s motion for a new trial. The motion judge was not the judge who had accepted the plea originally.