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07/06/78 JAMES F. BLAIKIE v. DISTRICT ATTORNEY FOR

July 6, 1978

JAMES F. BLAIKIE, JR.
v.
DISTRICT ATTORNEY FOR THE SUFFOLK DISTRICT & OTHERS



Norfolk. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on August 4, 1976. On transfer to the Superior Court, the case was heard by Morse, J., and a motion for a new trial was heard by him. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Hennessey, C.j., Braucher, Wilkins, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Practice, Criminal, Agreement between prosecutor and defendant. District Attorney. Practice, Civil, Relief in the nature of mandamus, New trial.

The opinion of the court was delivered by: Liacos

A defendant in a murder case was not entitled to specific performance of an alleged plea bargain which would have permitted him to plead guilty to murder in the second degree where he had rejected the offer prior to trial and where he had not changed his position to his prejudice in reliance on the offer. [614-618]

A defendant in a criminal case was not entitled to a new trial of a civil action in which he sought to enforce an alleged plea bargain on the ground of newly discovered evidence, consisting of a magazine article purporting to describe negotiations culminating in the plea bargain, where the evidence was entirely hearsay and, even if accredited, did not support the claim. [618-619]

This appeal is from the judgment and two subsequent orders denying relief in the nature of mandamus, in a civil action brought by James F. Blaikie, Jr. (Blaikie). The civil action is based on an attempt to enforce an alleged plea bargain made prior to Blaikie's conviction of murder in the first degree, affirmed today in Commonwealth v. Blaikie, ante 601 (1978). *fn1 The specific issues for determination are whether the Judge below erred (1) by not ordering the district attorney for the Norfolk district to allow Blaikie to plead guilty to murder in the second degree and (2) by denying the motion for a new trial in the civil action to redetermine this issue.

We find no error.

1. The plea Discussions. We summarize the facts based on the record before us. In July, 1976, Blaikie was a defendant in several criminal cases pending in this Commonwealth: a Norfolk County indictment for murder in the first degree; five Suffolk County indictments for larceny, forgery, uttering, perjury, and selling insurance without a license; and a complaint in the Municipal Court of the City of Boston for selling mortgaged personal property. On the Norfolk County murder indictment, Blaikie entered a plea of not guilty.

The murder trial was postponed so that Blaikie could be heard on his civil complaint. Blaikie commenced this action in the Supreme Judicial Court for the county of Suffolk. A single Justice transferred the case to the Superior Court pursuant to G. L. c. 211, § 4A. The complaint contained allegations that certain assistant district attorneys for the Norfolk district and the Suffolk district, on behalf of the district attorneys for those districts, had agreed to have Blaikie plead guilty to murder in the second degree on the Norfolk County indictment and guilty to the other charges pending in Suffolk County and in the Municipal Court. In exchange for these pleas, Mr. Robert Banks, assistant district attorney for the Norfolk district and Miss Alice Richmond, assistant district attorney for the Suffolk district and special assistant attorney general, allegedly agreed to concur in the reduction of the Norfolk County indictment from murder in the first degree to murder in the second degree, and Miss Richmond allegedly agreed to recommend to the trial Judge that sentences on the Suffolk County indictments and the Municipal Court complaint be served concurrently with a life sentence on the charge of murder in the second degree. In the affidavit accompanying the civil complaint, the defendant's counsel admitted rejecting Assistant District Attorney Banks' more limited offer to allow Blaikie to plead guilty to murder in the second degree.

The Judge denied relief in the civil action. After an evidentiary hearing, he found that Blaikie failed to prove that the plea agreement covering concurrent sentences for the Suffolk County indictments and the Municipal Court complaint was, in fact, made. Blaikie had claimed that on July 23, 1975, prosecutor Richmond told his defense attorney that if Blaikie would plead guilty to murder in the second degree on the Norfolk County indictment, they would "wrap up all of the Suffolk County charges with it." The Judge found, however, that the term "wrap up" had no settled meaning, and it was just as likely to mean "a charge will be disposed of by a plea of guilty, instead of a trial, as it is that they mean there will be a guilty plea and a concurrent sentence." *fn2 Furthermore, the Judge concluded that Blaikie had not made a prejudicial change in his position in reliance on an ambiguous offer.

A trial of Blaikie on the Norfolk County murder indictment commenced on August 10, 1976, and ended in a mistrial on August 19, 1976. On October 6, 1976, a motion for new trial on the ground of newly discovered evidence was filed in the civil action. That motion was denied on October 20, 1976. On November 3, 1976, one day before the second murder trial, Blaikie filed a motion to vacate the order denying relief in the nature of mandamus. Blaikie asked the Judge in this motion to allow him to plead guilty to murder in the second degree in the Norfolk case pursuant to an alleged plea agreement. He also "waived that part of his plea-bargaining agreement . . . which referred to any indictments or complaints pending in Suffolk County . . . ." Following a hearing, the Judge ruled that it was not then open for Blaikie to accept only part of the claimed original offer. The Judge further ruled that even if the offer were open prior to the first trial, the Norfolk district attorney had since then revoked his offer, that a passage of reasonable time from August to November resulted in the termination of this offer, and that Blaikie had suffered no prejudicial change of position.

On appeal, Blaikie presses his request to have the Norfolk district attorney fulfil the provision of the alleged plea agreement allowing him to plead guilty to murder in the second degree. Blaikie argues that while the agreement relating to the Suffolk County indictments may have been ambiguous, the parties had never disputed the terms of the agreement relating to the Norfolk County murder indictment.

We find no merit to Blaikie's claim. The very result Blaikie seeks to obtain here, he had rejected prior to his first trial. It is not disputed that on July 30, 1976, Assistant District Attorney Banks called Blaikie's counsel and told him that Blaikie could "go forward on the second degree, without considering the . . . cases." Blaikie's attorney responded that this was "unacceptable." The scheduled first trial was postponed so that Blaikie could compel performance of the alleged agreement relating to both the Norfolk and Suffolk cases. In an attempt to secure performance of what he believed to be an agreement covering all the charges against him, Blaikie, through his counsel, rejected the alleged agreement pertaining only to the Norfolk County indictment. He ...


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