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Commonwealth v. Berrios9/16/2005
Hampden.
December 9, 2004.
Present: Kantrowitz, Doerfer, & Kafker, JJ.
Practice, Criminal , Plea, Assistance of counsel. Evidence, Guilty plea.
Indictments found and returned in the Superior Court Department on May 16, 1995.
A motion to withdraw pleas of guilty was heard by Judd J. Carhart, J.
This is the Commonwealth's appeal from the allowance of the defendant's August, 2001, motion for a new trial. The defendant was charged with being an accessory before the fact to murder, and other related crimes arising out of a gang-related shooting on February 28, 1995, in Springfield. On January 17, 1996, the date his trial was scheduled to begin, a plea bargain was reached and the defendant pleaded guilty to being an accessory before the fact to murder in the second degree, thereby permitting him to be sentenced to life imprisonment with the possibility of parole in fifteen years.
Within a few months, the defendant began his collateral attack on the murder conviction. On April 11, 1996, he filed a pro se motion seeking certain documents to help him prepare post-conviction actions. On April 16, 1997, the defendant filed a pro se motion for new trial seeking to withdraw his guilty plea. The defendant was assigned counsel who, on August 13, 2001, filed a motion pursuant to Mass.R.Crim.P. 30, to withdraw guilty pleas and for a new trial (motion for a new trial) on behalf of the defendant. A hearing on his motion for a new trial was held before the judge who had accepted the guilty plea. Evidence was taken over four days in July and August, 2002. The judge made written findings of fact and, noting that he found the defendant to be a credible witness, concluded that under the special circumstances of this case, justice may not have been done, and allowed the defendant to withdraw his plea and stand for trial of being an accessory before the fact to murder. The judge agreed with the defendant's claim that the plea was not voluntary but disagreed with the claim that the defendant had received ineffective assistance of counsel. Both parties have appealed. We uphold the granting of the motion for a new trial but analyze the issues differently than did the motion judge.
I. Facts
A. Underlying Incident.
The defendant and others were congregating at the apartment of Sharleen Alvarez on February 28, 1995. All of them were either members of a gang know as Los Solidos or members of a related organization. Among those present were Robert Francis (also known as Skills), the defendant, Victor Figueroa, Johnny Sanchez, Daniel Rodriguez, Michael Borden (also known as Michael Brown or Mack), Jason Jiles, and Alvarez. See Commonwealth v. Francis, 432 Mass. 353, 355 (2000). At some point two more people, Luis Concepcion and David Jiles, burst in and excitedly reported that a car full of members of a rival gang, the Latin Kings, was in the parking lot of the Kentucky Fried Chicken restaurant which could be seen from the apartment window. According to Concepcion and David, the Latin Kings members were making hand signals showing disrespect to Los Solidos, a situation viewed as intolerable by certain members of Los Solidos. Two persons, Jason and Borden, were dispatched to deal with the situation. One of them shot Carlos Falcon in the head at point blank range as he was about to enter the car, killing him. Three of Falcon's companions were wounded in the same incident by the other Los Solidos member, who fired into the car. The key issue in his case was what role, if any, the defendant (who was not a shooter) played in the incident.
B. Events Leading Up to the Defendant's Guilty Plea
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