COMMONWEALTH v. MCDONALD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On May 9, 2017, the defendant pleaded guilty to eight indictments: assault with intent to murder, attempted murder (two counts), strangulation (two counts), assault and battery by means of a dangerous weapon (ABDW), reckless endangerment of a child, and assault and battery on a child causing substantial bodily injury. The victim was his three year old nephew. In 2019, the defendant filed a motion for new trial through which he sought to vacate his conviction for one count of strangulation and to withdraw his guilty pleas for ABDW and the other count of strangulation. The plea judge allowed the motion in part, vacating one of the convictions for strangulation but denying the defendant's request to withdraw two of his guilty pleas.² On appeal, the defendant argues that the plea colloquy with regard to these two indictments did not demonstrate that the pleas were intelligently made. We are constrained to agree.

“Due process requires that a plea of guilty be accepted only where ‘the contemporaneous record contains an affirmative showing that the defendant's plea was intelligently and voluntarily made.’ ” Commonwealth v. Scott, 467 Mass. 336, 345 (2014), quoting Commonwealth v. Furr, 454 Mass. 101, 106 (2009). That the plea was made intelligently can be demonstrated in one of three ways, all of which rely on the plea colloquy. See Commonwealth v. Wentworth, 482 Mass. 664, 679 (2019). The first two ways are not at issue in this case, because the judge did not explain to the defendant the elements of ABDW or strangulation during the plea colloquy, nor did defense counsel state that he had explained these elements to his client.³ See id. The question then is whether the defendant's understanding of what the Commonwealth needed to prove can be shown by the third route: his admission to facts that “constitute the unexplained elements” (quotation omitted). Id.

1. ABDW. The ABDW indictment was based on the defendant's using his hand to strike the victim in the head, causing the victim's head to hit a coffee table. The table thus was the alleged dangerous weapon. ABDW is not a specific intent crime, and the Commonwealth need not prove that a defendant intended to inflict serious injury. Commonwealth v. Appleby, 380 Mass. 296, 307 (1980). However, where, as here, the putative weapon is not dangerous per se, the Commonwealth must prove that the defendant used it in a manner that was dangerous or potentially dangerous, and intended to do so. Id. at 308.

The cases have interpreted dangerous weapons broadly to include stationary objects, such as walls or floors, with which a defendant caused a victim to come into contact. See, e.g., Commonwealth v. Lefebvre, 60 Mass. App. Ct. 912, 912-913 (2004) (affirming conviction for ABDW based on defendants' throwing victim off highway overpass onto concrete flood control chute forty feet below). In each such case, however, the potential dangers posed by the object at issue with respect to the defendant's conduct were objectively foreseeable. For example, in affirming the ABDW conviction in Lefebvre, we highlighted that “the distance from the overpass [from which the victim was thrown] to the chute combined with the extent of the cement with which the victim was likely to collide, was surely likely to cause serious bodily harm.” Id. at 913-914. The Commonwealth has not pointed to any case where a stationary object amounted to a “dangerous weapon” solely because the defendant's striking of a victim with his hand happened to cause the victim to come into contact with that object.

During the plea colloquy, the prosecutor recited that the defendant had admitted “that he hit the child with enough force in the head that the child went forward and hit the coffee table in the room.” The defendant admitted to the truth of such statements. However, there were no facts, recited or admitted, that established how close the victim was to the table or other facts that otherwise could establish that the victim's head hitting the table was a likely consequence of the defendant's striking him. In these circumstances, the defendant's admitting to the recited facts does not sufficiently demonstrate that he understood what the Commonwealth needed to prove to establish that he both had used the table as a dangerous weapon and had intended to do so.

2. Strangulation. “Strangulation is defined as ‘the intentional interference of the normal breathing or circulation of blood by applying substantial pressure on the throat or neck of another.’ ” Commonwealth v. Rogers, 96 Mass. App. Ct. 781, 782-783 (2019), quoting G. L. c. 265, § 15D (a). In this case the defendant pleaded guilty to two counts of strangulation based on incidents that occurred months apart. The facts underlying the incident that occurred later in time were described in detail during the prosecutor's recitation. However, that was the indictment that subsequently was dismissed as duplicative. In her recitation, the prosecutor described the incident underlying the remaining strangulation indictment in only conclusory terms. Specifically, the prosecutor stated that the defendant “also admitted during the [police] interview that he had previously strangled the child a few months prior.” As with the phrase “assault and battery,” “[w]hile the phrase [‘strangulation’] may have entered common parlance, this does not mean that the specific elements of the offense are readily apparent from the phrase itself.” Commonwealth v. Jones, 60 Mass. App. Ct. 88, 91 (2003) (defendant's admission that he committed “assault and battery” not sufficient to show intelligent plea). The defendant's admission that “he had previously strangled the child” does not demonstrate that he understood what the Commonwealth needed to prove in order to convict him.⁴

Disposition. So much of the order entered April 11, 2019, as denied the defendant's motion to withdraw his guilty pleas as to indictment 6 (assault and battery by means of a dangerous weapon) and indictment 4 (strangulation) is reversed, and the judgments of conviction and sentences on those indictments are set aside.⁵ In lieu of retrying the assault and battery by means of a dangerous weapon charge, the Commonwealth may, in Superior Court, elect to have a judgment of conviction entered on the lesser included charge of assault and battery.

So ordered.

FOOTNOTES

2.   The judge concluded that the conviction he dismissed was duplicative of one of the attempted murder convictions (a point that the Commonwealth conceded).

3.   The Commonwealth argues that it is sufficient for the defendant himself to recite that his attorney told him what the Commonwealth needed to prove (which occurred here). However, the only support for that proposition cited by the Commonwealth amounts to dicta, and it lies in tension with other statements in the very same case. Compare Furr, 454 Mass. at 107 (“Because the judge neither explained the intent element of carjacking or the essence of joint venture liability nor asked the defendant whether his attorney had done so, we consider whether the intent element and the joint venture concept were explained adequately by the prosecutor's recitation of the facts” [emphasis added] ), with id. (noting that one of the ways Commonwealth can show intelligent plea is by pointing to “counsel's representation that [he] has explained to the defendant the elements he admits by his plea” [emphasis added] ).

4.   We are unpersuaded by the Commonwealth's argument that the defendant's admission to the specific facts regarding the later incident demonstrate that the defendant understood what the Commonwealth needed to prove with respect to the first.

5.   This will not alter the amount of time the defendant is incarcerated or the amount of time he will remain on probation.