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09/08/78 COMMONWEALTH v. ROY E. MCGUIRK

September 8, 1978

COMMONWEALTH
v.
ROY E. MCGUIRK



Middlesex. Indictment found and returned in the Superior Court on October 10, 1974. A motion for leave to withdraw a plea of guilty and for a new trial was heard by Moynihan, J. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Hennessey, C.j., Quirico, Kaplan, Wilkins, & Abrams, JJ.

SYLLABUS BY THE COURT

Practice, Criminal, Plea. Homicide.

The opinion of the court was delivered by: Abrams

A defendant's guilty plea to a charge of second degree murder was not involuntary by reason of his not being told that malice aforethought is an element of the offense, where the defendant's admission at the plea hearing to a protracted beating of the victim constituted an admission of the malice element necessary for murder in the second degree. [341-348]

The defendant Roy E. McGuirk was convicted of murder in the second degree on his plea of guilty. McGuirk now seeks to withdraw his guilty plea on the ground that it was involuntary because he was not informed that malice aforethought is an element of the offense to which he pleaded. *fn1 See Henderson v. Morgan, 426 U.S. 637 (1976).

The defendant was indicted for murder in the first degree on October 1, 1974. On July 14, 1975, his guilty plea to murder in the second degree was accepted, and he was sentenced to a life term at the Massachusetts Correctional Institution at Walpole. On July 16, 1976, the defendant moved for a new trial which motion was denied after an evidentiary hearing on the voluntariness issue. The defendant appealed under G. L. c. 278, §§ 33A-33G. We affirm the denial of the defendant's motion for a new trial.

We summarize the facts. *fn2 At about 6 a.m. on June 29, 1974, the defendant returned to his apartment after an evening of partying. He had been drinking and had consumed three "speed" tablets, the last of which had been taken at 3:30 a.m. In his apartment he found Lynn Darcey, a young woman whom the defendant had at one time allowed to live there, and the victim, Nicholas Zoffreo, who was a stranger to the defendant. He was surprised by their presence and very angry that his apartment was being used without his permission. An argument developed among the defendant, Lynn Darcey, and the victim; the defendant struck the victim and continued beating him until he was dead.

On October 23, 1974, the defendant was arraigned. He was represented by appointed counsel, at present a member of the judiciary, who continued to represent the defendant through his guilty plea. It is conceded that the defendant received competent advice and representation at all times. At the arraignment, the indictment charging the defendant with murder in the first degree was read to him, and he pleaded not guilty.

At the time the case was reached for trial, and after consulting with his family and counsel, the defendant decided to plead guilty to murder in the second degree. At the change of plea hearing, the Judge questioned the defendant concerning his age and educational background. The defendant stated that he was twenty-five years old and that he had completed three years of high school. The Judge then asked the defendant, "Do you understand the charge against you?" The defendant replied that he did. The Judge continued, "To make it perfectly clear, you are being charged with the crime of murder. The indictment charges that on the 29th day of June 1974 at Cambridge, you did assault and beat one Nicholas Zoffreo with intent to kill and murder him, and by such assault and beating did kill and murder Nicholas Zoffreo. Now, do you understand this charge against you?" McGuirk replied, "Yes, sir."

The Judge then asked the defendant to relate the facts of the June 29 incident. The defendant explained his anger at finding his apartment being used in his absence and stated that an argument had ensued. The defendant then said: "Nicky came towards me; I thought he was going to hit me or something. I just started hitting on him, and I didn't stop until I realized what -- I just kept on hitting him, I didn't realize I killed him. I just panicked from there." The defendant admitted striking the first blow and also stated that he was sorry for what had happened for he was "not a person that goes around killing people like that." The detective who had investigated the homicide testified at the plea hearing. He related statements from an eyewitness that the defendant had thrown a fit of temper and had beat, kicked, and strangled the victim with a rope or wire and had suffocated him with pillows and blankets. *fn3 The detective said that the defendant had made an admission to the person who had helped him dispose of the body in the Charles River that he had received rope burns as a result of the pressure used in garrotting the victim. After informing the defendant of the constitutional rights being waived by him and the maximum penalty for murder in the second degree and inquiring into the voluntariness of the plea, the Judge accepted the guilty plea.

The defendant now argues that his plea is invalid under Henderson v. Morgan, 426 U.S. 637 (1976), because "t the guilty plea hearing no inquiry was made as to whether the defendant understood the elements of the offense of Second-Degree Murder nor was he informed as to what such elements were." *fn4 Specifically, the defendant argues that he was not told that malice aforethought is an element of murder in the second degree. We need not decide whether Henderson v. Morgan is to be applied retroactively since we conclude that, even if the standards set forth in Henderson are applied to this case, the defendant's plea was not invalid.

In Henderson, the defendant, who had formerly been classified as retarded and committed to a State school for mental defectives, *fn5 was released to become a laborer on the victim's farm. After an argument during which the victim threatened to return the defendant to State custody, the defendant decided to run away. That night the defendant entered the victim's room with a knife to collect his wages. The victim awoke and began screaming; the defendant then stabbed and killed her. At the arraignment on an indictment for murder in the first degree, the indictment, which charged that the defendant had "willfully" stabbed the victim, was read to him. He subsequently pleaded guilty to murder in the second degree. At the plea hearing, the defendant, in direct colloquy with the Judge, stated that his plea was based on the advice of his attorneys and that he understood he was accused of killing the victim. However, there was no mention of the mental element of murder in the second degree under the relevant State law, N.Y. Penal Law § 1046 (McKinney 1967), "a design to effect the death of the person killed." Defense counsel, at sentencing, stated that the defendant meant no harm to the victim; rather, the defendant with his uncontrollable temper, had panicked in the excitement and tension of the screaming and had then assaulted the victim. The Judge, after an evidentiary hearing on the defendant's argument to withdraw his plea, specifically found that the defendant had not been advised on the requisite mental element at any time by his concededly competent counsel or the Judge.

The Supreme Court, reviewing the totality of the circumstances, determined that the defendant's plea was involuntary in a constitutional sense because if the defendant is ignorant of a critical element of an offense, his plea of guilty to ...


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