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Commonwealth v. Bogues

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
May 4, 2012
11-P-1260 (Mass. May. 4, 2012)

Opinion

11-P-1260

05-04-2012

COMMONWEALTH v. CHARLES F. BOGUES.


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

In March of 1997, the defendant pleaded guilty to second-degree murder, G. L. c. 265, § 1, and illegal possession of a firearm, G. L. c. 269, § 10.

The indictments stemmed from a gunfight that occurred on the afternoon of December 20, 1993, during which the defendant fired a shot from a .45 caliber handgun that killed Louis Brown, a fifteen year old passerby who was uninvolved in the armed altercation.

Subsequent to his guilty plea, the defendant has filed three motions to withdraw his plea on the second-degree murder charge. The first two motions were denied by the motion judge in decisions later affirmed by the Appeals Court in 2001 and 2008. The defendant now appeals from the May 18, 2011, denial of his third motion to withdraw his plea.

The defendant argues on appeal that (1) his plea was not intelligently made because the defendant was not informed at the plea colloquy by either his counsel or the plea judge of the possible mitigating issue of provocation, (2) his appellate counsel in 2006 provided ineffective assistance in failing to raise the alleged error in the plea colloquy in the defendant's second motion for a new trial, and (3) the defendant's plea was not intelligently made because the plea judge failed to explain the elements of first-degree murder to the defendant. The defendant argues that each of the alleged errors created a substantial risk of a miscarriage of justice requiring withdrawal of his guilty plea.

The defendant lists four bases for allowing withdrawal in his brief, but the third has been omitted here as it is effectively a repetition of the first argument.

Discussion. The defendant's claim that he was entitled to an explanation of provocation at his plea hearing is based on our holding in Commonwealth v. Yates, 62 Mass. App. Ct. 494, 496-499 (2004) (Yates). We held that the facts of that case suggested that the potentially mitigating issue of reasonable provocation would be a live issue at trial, and therefore the defendant was entitled to be informed of the issue of provocation at his plea colloquy. Ibid.

'Reasonable provocation is provocation that 'would have been likely to produce in an ordinary person such a state of passion, anger, fear, fright, or nervous excitement as would eclipse his capacity for reflection or restraint." Commonwealth v. Acevedo, 446 Mass. 435, 443 (2006), quoting from Commonwealth v. Walden, 380 Mass. 724, 728 (1980).

The Commonwealth argues persuasively that the defendant waived the Yates claim by failing to include it in his second motion to withdraw his plea in 2006. Yates had been on the books at that point for over a year, and the issue therefore 'could . . . reasonably have been raised in the [previous] motion.' See Mass.R.Crim.P. 30(c), as appearing in 435 Mass. 1501 (2001). Accord Commonwealth v. Balliro, 437 Mass. 163, 166 (2002).

Even if we assume arguendo that the claim has not been waived, we conclude that it fails because Yates is distinguishable from the present case. In Yates, a defendant who had been indicted for first-degree murder and pleaded guilty to second-degree murder alleged that the victim had said to him, directly after sexual intercourse: 'I've got AIDS and I tried to give you AIDS and I hope you've got it, motherfucker.' Id. at 496. The defendant then stabbed the victim to death. Ibid. Such facts mandated that provocation be explained to the defendant at his plea colloquy. Id. at 496, 498-499. In contrast, here, the victim did nothing to provoke the actions that led to his death. Massachusetts law has held that provocation cannot negate malice if the provocateur was someone other than the victim. Commonwealth v. Hinds, 457 Mass. 83, 90 (2010) ('the 'provocation must come from the victim''), quoting from Commonwealth v. Ruiz, 442 Mass. 826, 838-839 (2004). See also Commonwealth v. LeClair, 445 Mass. 734, 739-744 (2006) (second-degree murder defendant who claimed he was provoked to violence by the victim's brother was not entitled to voluntary manslaughter instruction where 'there [was] no view of the evidence that would permit a determination that the victim played even an inconsequential role in provoking her own death'). In this case it was undisputed that the victim was a passerby who was not a party to the gunfight that led to his death. Therefore, the facts of this case did not require that the defendant understand the issue of provocation for his plea to be intelligently made.

Although '[o]rdinarily, words alone do not give rise to adequate provocation', Commonwealth v. Groome, 435 Mass. 201, 220 (2001), sometimes words coupled with circumstances are enough, and a recognized exception to the rule is when 'the words convey [sufficiently] inflammatory information to the defendant.' Commonwealth v. LeClair, 429 Mass. 313, 316-317 (1999).

Further, several of the facts that the defendant claims suggested a live issue of provocation were not even mentioned at the plea colloquy, by either the Commonwealth or the defense. These added facts are therefore immaterial to the Yates analysis. See Commonwealth v. Begin, 394 Mass. 192, 198 (1985) (defendant admitted to facts constituting, at very least, crime to which he pleaded guilty; defendant not entitled to explanation of provocation based on 'the facts he adopted at the plea hearing'); Yates, 62 Mass. App. Ct. at 495, 499 n.5 (where facts adopted at plea hearing fairly raise provocation issue, judge must discuss mitigation; Begin case contrasted as situation where 'facts adopted at plea hearing did not raise issue of provocation'). The defendant had the opportunity to correct the Commonwealth in its recitation of the facts at the plea colloquy, and could have added these facts had he chosen to do so, but ultimately did not. They are therefore not material to his claim that he deserved an explanation of the issue of provocation.

The defendant states in his January, 2011, affidavit that '[i]t was only after I was directly fired upon, after seeing my friend shot just a few feet away from me, that in fear of my life and the life of my friend, that I fired my gun at this unknown gunman.' Also, the defendant states in his brief that his attacker had an 'Uzi-sub-machine gun type weapon' [sic]. Ultimately, neither the prosecutor nor the defendant mentioned at the plea hearing that the defendant's associates had been shot in the gunfight, or that an 'Uzi-sub-machine gun type weapon' was used by the defendant's co-combatant.
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For the foregoing reasons, we conclude that the defendant's guilty plea was intelligently made, and the circumstances did not require an explanation at the plea colloquy of the possible mitigating issue of provocation.

The defendant's claim of ineffectiveness of counsel on appeal depends on the presence of a viable Yates argument, and thus fails because we have determined that the plea was in fact intelligently made. See Commonwealth v. Boria, 460 Mass. 249, 253 (2011) (counsel has no duty to raise futile claim).

The defendant's third argument is also without merit. Here, the defendant pleaded guilty to second-degree murder in open court. The plea colloquy satisfied the requirement that he understand the elements of second-degree murder. He was not entitled to an explanation of the elements of first-degree murder, an offense to which he did not plead guilty. See Commonwealth v. Nikas, 431 Mass. 453, 455 (2000) (two constitutionally permissible ways to establish guilt without trial: (1) to admit guilt in open court; (2) to enter guilty plea accompanied by claim of innocence, known as Alford plea). Contrast North Carolina v. Alford, 400 U.S. 25, 37-38 (1970) (explanation of both the original charge and the reduced charge required when defendant pleaded guilty to reduced charge and 'consent[ed] to the imposition of a prison sentence [while] unwilling or unable to admit his participation in the acts constituting the crime').

Order denying third motion for new trial affirmed.

By the Court (Cypher, Green & Trainor, JJ.),


Summaries of

Commonwealth v. Bogues

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
May 4, 2012
11-P-1260 (Mass. May. 4, 2012)
Case details for

Commonwealth v. Bogues

Case Details

Full title:COMMONWEALTH v. CHARLES F. BOGUES.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: May 4, 2012

Citations

11-P-1260 (Mass. May. 4, 2012)