Opinion
14-P-371
12-17-2014
COMMONWEALTH v. CONRAD MURPHY.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Conrad Murphy, appeals from the denial of his motion for postconviction relief that he filed almost twenty-four years after pleading guilty to five counts relating to his savage and unprovoked attack on a sixteen year old teenager in his Cambridge home. He argues that one of the convictions is duplicative as a lesser included offense and must be vacated. We affirm.
1. Background. On the evening of June 3, 1989, the victim, then sixteen years old, went to the home of the defendant, then nineteen, to wait for her mother to return home because the victim had lost her key. The defendant was an acquaintance who lived in the same housing complex. While they were waiting, the defendant called the victim into a bedroom to look through a window and confirm whether the victim's mother had returned home. The victim did not see her mother and returned to a front room, where she was watching television. The defendant called again, and the victim again looked through the window but did not see her mother. The defendant then blocked her exit and began striking her head and face with the claw end of a hammer. The victim screamed, and the defendant said, "Shut up" and "I'll kill you." They struggled and fell to the ground.
Because of the extensive passage of time, records providing a factual basis for the defendant's guilty plea, and a transcript of the plea hearing, are unavailable. The Commonwealth reconstructed the facts from the victim's grand jury testimony and a sentencing memorandum, which the motion judge accepted.
When the victim attempted to get up, she fell onto the bed. The blood in her eyes obscured her vision. The defendant had stopped striking the victim at this time. While repeating threats to kill the victim, the defendant removed the victim's pants, exposed his genitals, and rubbed himself between the victim's legs as she lay on her back. The defendant then rolled the victim onto her stomach and again placed his genitals between the victim's legs. The victim pleaded for her release. The defendant responded, "The only place you're going is to the cemetery because I'm getting ready to kill you." The victim began screaming, and the defendant then struck her again in the jaw with the hammer. The victim eventually escaped and found refuge in a neighbor's home. She later underwent emergency surgery for extensive injuries to her face and head. The defendant fled Massachusetts but was apprehended in New York City.
A Middlesex County grand jury returned five indictments alleging mayhem, indecent assault and battery on a person over the age of fourteen, assault with intent to rape, assault with intent to murder, and assault and battery by means of a dangerous weapon. On December 11, 1989, the defendant pleaded guilty on all five charges. Over two decades later, the defendant filed a motion for postconviction relief, which was denied by a different judge (motion judge).
2. Discussion. The defendant argues that the motion judge erred in denying his motion to vacate his conviction of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A, because it is a lesser included offense of the second branch of the mayhem statute, G. L. c. 265, § 14, and the convictions arise from a single incident.
The second branch of the mayhem statute applies to "whoever, with intent to maim or disfigure, assaults another person with a dangerous weapon, substance or chemical, and by such assault disfigures, cripples or inflicts serious or permanent physical injury upon such person." Commonwealth v. Drew, 67 Mass. App. Ct. 261, 262 (2006).
A crime is a lesser included offense if its elements are a subset of another charged offense. Commonwealth v. Porro, 458 Mass. 526, 531 (2010). A lesser included offense is necessarily accomplished by committing the greater offense. Ibid. If a defendant is charged with two criminal offenses based on the same conduct, and if the Legislature has not declared its intent that a defendant be punished separately for both offenses, then conviction on lesser and greater offenses violates the prohibition against double jeopardy. Commonwealth v. Negron, 462 Mass. 102, 103-104 (2012). A guilty plea does not bar a defendant from challenging his conviction later on double jeopardy grounds. Id. at 105.
In contrast, and of relevance here, even if one offense is a lesser included offense of another, a defendant may be convicted if each offense is based on separate and distinct acts. Commonwealth v. King, 445 Mass. 217, 225-226 (2005). Assault and battery by means of a dangerous weapon is a lesser included offense of the second branch of the mayhem statute, but duplicative convictions do not arise if the offenses derive from separate and distinct acts, with a gap in time between attacks on a victim. Commonwealth v. Drew, 67 Mass. App. Ct. 261, 264-265 (2006). When reviewing a double jeopardy claim where no transcript of the tender of plea is available, an appellate court may presume that the judge would not have accepted the plea unless separate offenses were shown. See Commonwealth v. Rabb, 431 Mass. 123, 132 (2000).
Here, the motion judge properly found that the criminal act giving rise to the mayhem indictment, namely, the first attack with the claw end of the hammer that disfigured the victim's face, was separate and distinct from the act giving rise to the indictment for assault and battery by means of a dangerous weapon, namely, the subsequent attack on the bed when the defendant hit the victim in her jaw with the hammer. See Commonwealth v. Drew, 67 Mass. App. Ct. at 264-265. Sufficient time passed between the two incidents to allow a judge accepting a tender of plea to consider them as separate and distinct acts. See ibid. Considering the absence of a complete record in this case after the defendant's lengthy delay, we conclude that the sentencing judge would not have accepted the defendant's plea in 1989 if there were not sufficient facts to show that the defendant committed two separate and distinct acts that could sustain the two convictions. See Commonwealth v. Rabb, 431 Mass. at 132. The subsequent denial of the defendant's motion was not improper.
For these reasons and for substantially those in the brief of the Commonwealth, we affirm the order denying the motion for postconviction relief.
So ordered.
By the Court (Kantrowitz, Graham & Katzmann, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: December 17, 2014.