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Appeals Court of Massachusetts.

COMMONWEALTH v. Roger Lawrence NAY.


Decided: October 29, 2021

By the Court (Rubin, Milkey & Henry, JJ.1)


In 2013, defendant Roger Nay pleaded guilty to second-degree murder.2 Six years later, he sought to withdraw his plea and filed a motion for a new trial, alleging ineffective assistance of plea counsel. Following a two-day evidentiary hearing, a Superior Court judge issued an order denying the motion for a new trial. Before us now is the defendant's appeal from that order. We affirm largely for the same reasons set forth by the judge in her thoughtful decision.

Background. In 2011, victim Craig Fish was stabbed to death. The subsequent police investigation uncovered several pieces of evidence pointing to the defendant's involvement in the murder. For example, multiple individuals told the police that the defendant confessed to the murder. Indeed, the defendant's girlfriend testified before the grand jury that on the night of the murder, the defendant returned from an evening walk and told her he stabbed the victim to death. She further testified that she noticed the defendant flick a red chunk of an unknown substance from his shoulder and observed that there were brown stains on his pants. A fellow inmate of the defendant informed the police that the defendant said he killed the victim in retaliation because the victim had beaten the defendant's cousin, leaving him comatose.

A Hampden County grand jury returned an indictment charging the defendant with murder, and Attorney Greg T. Schubert was appointed to represent him. Attorney Schubert met with the defendant multiple times, reviewed all the Commonwealth's discovery, and advised the defendant that he had a triable case.

Approximately one year after Attorney Schubert's appointment, he withdrew due to a billing dispute with the Committee for Public Counsel Services (CPCS), relative to another case, and Attorney Jeffrey S. Brown was appointed, at which point the two attorneys met to transfer the case file. Over the next year, Attorney Brown met with the defendant and reviewed the discovery with him numerous times, including all inculpatory and exculpatory evidence provided to the defendant.

During this time, the defendant expressed to Attorney Brown his desire to plead guilty. Indeed, the defendant wrote a letter to Attorney Brown, stating, “I was wondering if you have had a chance to speak with the DA about a plea bargain for me. I really don't want to go to trial & lose & end up with life without the chance of parole.” The letter also referenced a prior conversation in which the defendant asked Attorney Brown to speak with the prosecutor about a plea arrangement.

Following his client's instructions, Attorney Brown secured a plea arrangement with the Commonwealth, which he reviewed with the defendant. At the plea hearing, the Commonwealth presented a detailed summary of the evidence expected to be presented at trial. The judge then held a colloquy with the defendant to confirm that he was admitting the facts as alleged and that his plea was knowing and voluntary.

During the subsequent portion of the hearing addressing sentencing, Attorney Brown noted several weaknesses in the case, including the lack of forensic evidence found at the scene or at the defendant's residence, contradictory witness statements and identifications, and potential third-party culprits. For example, Attorney Brown noted that there were at least three or four potential suspects who wanted to harm the victim, and indeed, there was evidence that the victim had been beaten by three other individuals shortly before the murder. Many of the potential weaknesses already had been cited by the Commonwealth in its proffer. Attorney Schubert subsequently submitted an affidavit expressing, among other things, his shock on learning the defendant pleaded guilty.

Discussion. The defendant contends that plea counsel was ineffective by failing adequately to inform the defendant of the weaknesses in the case before he pleaded guilty, and that had he known of the deficiencies, he would have gone to trial.3 This argument fails on the facts that the judge found following an evidentiary hearing. The judge credited Attorney Brown's testimony that he met with the defendant and reviewed all the discovery in the case with him several times. Specifically, the judge noted that “the discovery included all of the exculpatory information referenced during the plea hearing and the hearing on the defendant's motion to withdraw his pleas of guilty.” The judge further found that “the defendant was not truthful in stating under oath that Attorney Brown did not inform him of the exculpatory evidence and that he was otherwise unaware of it.”

The judge also found that throughout the representation, the defendant insisted that he wanted to plead guilty. This finding, and the judge's finding that “the credible evidence clearly established that Attorney Brown did not pressure the defendant to plead guilty,” are well supported by the record. In fact, to the extent these findings are based on credibility determinations, they are essentially unreviewable. See Commonwealth v. Boncore, 412 Mass. 1013, 1014 (1992) (“[c]redibility is for the fact finder, not an appellate court”).

Furthermore, “[a] motion for a new trial is addressed to the sound discretion of the judge,” and we review “only to determine whether there has been a significant error of law or other abuse of discretion” (citation omitted). Commonwealth v. Cavitt, 460 Mass. 617, 625 (2011). Here, no such error has occurred. Taken together, the facts paint the picture of a competent attorney diligently preparing his client and acting in accordance with his client's instructions. Accordingly, Attorney Brown's conduct in preparing the defendant did not fall “measurably below that which might be expected from an ordinary fallible lawyer,” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), and the defendant's guilty pleas were thus intelligent and voluntary. See Commonwealth v. Williams, 71 Mass. App. Ct. 348, 354 (2008).

To be sure, as the parties acknowledge, there were potential nontrivial weaknesses in the Commonwealth's case. However, the relevant question is not whether the case was triable, but whether plea counsel's representation was constitutionally deficient. The defendant has failed to demonstrate that the judge erred in concluding that it was not.

Order denying motion for new trial affirmed.


2.   The defendant also pleaded guilty to making a bomb threat, disorderly conduct, resisting arrest, and two counts of threatening to commit a crime. However, his appeal focuses solely on the second-degree murder conviction.

3.   In the motion and in his appellate brief, the defendant made two additional arguments: (1) his plea was not voluntary due to the effects of his psychiatric medications and (2) his plea counsel's representation was ineffective because he did not file a motion to dismiss the indictment on the grounds that CPCS interfered with the defendant's right to counsel. At oral argument, however, the defendant's appellate counsel foreswore reliance on these arguments. Thus, we do not consider them here.

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