Commonwealth v. Jenner

513 N.E.2d 1290, 24 Mass. App. Ct. 763, 1987 Mass. App. LEXIS 2168
CourtMassachusetts Appeals Court
DecidedSeptember 30, 1987
StatusPublished
Cited by9 cases

This text of 513 N.E.2d 1290 (Commonwealth v. Jenner) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Jenner, 513 N.E.2d 1290, 24 Mass. App. Ct. 763, 1987 Mass. App. LEXIS 2168 (Mass. Ct. App. 1987).

Opinion

Quirico, J.

On April 5, 1978, the grand jury returned seven indictments against the defendant charging him with a variety of offenses allegedly committed on March 9, 1978. On May 13,1981, the grand jury returned two more indictments against him for offenses allegedly committed on or about February 9, 1978. Further details of these indictments are set forth in the margin.1

The defendant was first brought to trial by jury on November 19, 1981, on indictments nos. 81-1440 charging him with the murder in the first degree of one Charles Karapoulis (the victim), and 81-1441 charging him with unarmed robbery of the victim. On November 24, 1981, after the prosecution had presented all of its evidence, and after discussions between the defendant, his then trial counsel, and the prosecutor, the parties informed the trial judge that they had reached the following plea agreement, subject to the court’s approval: (a) the defendant would plead guilty to so much of indictment no. 81-1440 as charged the crime of manslaughter, and he would [765]*765plead guilty to each of the eight other indictments pending against him, (b) the prosecutor would recommend that the defendant be sentenced to the Massachusetts Correctional Institution at Walpole (M.C.I., Walpole, now Cedar Junction) for a term of eighteen to twenty years on the manslaughter charge and for sentences of appropriate terms on the other indictments, with all sentences to run concurrently with each other, (c) it would be open to defense counsel to argue for the imposition of a sentence or sentences shorter than those to be recommended by the prosecutor, and (d) the judge would not be bound by the recommendations of counsel as to any sentence or sentences.

The judge then proceeded in accordance with the requirements of Mass.R.Crim.P. 12(c), 378 Mass. 867 (1979), under the title “Guilty Plea Procedure,” and upon completion of the hearing required thereby he stated that he would accept the pleas which had been tendered. After the pleas were duly stated by the defendant and recorded, the judge imposed on the defendant the following sentences to M.C.I., Walpole, all to be served concurrently: from eighteen to twenty years on each of indictments nos. 81-1440, 81-1441, 78-1329, 78-1330 and 78-1331, and eight to ten years each on indictments nos. 78-1332 and 78-1333. Indictments nos. 78-1334 and 78-1335 were placed on file. The defendant is in custody pursuant to those sentences.

The defendant has filed two motions that he be allowed to withdraw his pleas of guilty and that he be granted a trial on the indictments against him. The first motion, filed pro se on July 16, 1984, seeks relief on the ground that “his action in pleading guilty was not voluntary nor done in a rational understanding manner and, further, that he did not receive the effective assistance of counsel.” The second motion, filed by assigned counsel on April 26, 1985, seeks relief on the grounds that there was “an insufficient factual basis for accepting a plea of guilty to so much of indictment no. 1440 as charged manslaughter,” that the pleas of guilty “were premised upon the trial court’s erroneous representation to the defendant that there existed a sufficient factual basis to convict him of manslaughter,” and that he “was deprived of the effective assistance of counsel.”

[766]*766The first motion was denied by the trial judge on September 19, 1984, without a hearing thereon. The second motion, entitled “AMENDED MOTION FOR POST-CONVICTION RELIEF,” was heard by the judge on December 18, 1985, and denied by him on February 18, 1986, in a ten-page “MEMORANDUM OF DECISION.” The defendant seasonably appealed from the denial of both motions, and both appeals are now before us. For reasons discussed later in this opinion, we affirm the trial judge’s denial of both motions.

Since the principal argument by the defendant’s appellate counsel is that there was “an insufficient factual basis for accepting a plea of guilty to so much of indictment 1440 as charged manslaughter,” it may be helpful to review the evidence and information which were before the trial judge as of the time that he accepted that plea of guilty. Since this is a case where there was a partial trial and then a hearing and other proceedings as required by Mass.R.Crim.P. 12(c), the judge was not limited to considering only the evidence which had been presented by the prosecution in deciding whether to accept the plea of guilty of manslaughter. Huot v. Commonwealth, 363 Mass. 91, 101 (1973). See Commonwealth v. Sullivan, 385 Mass. 497, 508 (1982). We shall therefore review first the evidence which had been presented by the prosecution, and then the information which the judge obtained during the “Guilty Plea Procedure” under Mass.R.Crim.P. 12(c).

In February, 1978, the defendant and Robert J. Griffin, then both about twenty years old, lived at 65 Belmont Street in Marlborough, the defendant occupying some rooms as a subtenant of Griffin at an agreed rent of twenty dollars per week. On the evening of the second day of a snowstorm, which is often referred to as the “Blizzard of 1978,”2 Griffin and the defendant walked from their house to or toward the center of the city. While there they saw an elderly man leaving a lounge (liquor establishment), and they followed him for a few blocks [767]*767along several well-lighted streets near the center of the city, until he turned into an unlighted parking lot. When they followed him into the parking lot, he started to run and the two of them, also running, chased him as he ran. The man, later identified as Charles Karapoulis (the victim), fell, going face first into the snow. The defendant continued to run after the victim, who was then down in the snow, and jumped on his back in a straddling position with one leg on each side of him. While testifying to these events, Griffin demonstrated the position of the two men, with the prosecutor taking the position of the victim, and Griffin the position of the defendant. After jumping on the victim, the defendant struck the victim once, and Griffin told him not to do so. While the defendant was on the victim, the latter’s legs were moving for about a minute, but there was no movement by the victim after the defendant got off him. The defendant and Griffin left the victim face down in the snow, and they did not look back or return to the parking lot. As they were leaving the lot, the defendant told Griffin not to tell anyone what had happened there.

After leaving the victim and the parking lot, the defendant and Griffin headed toward their house but separated before arriving there. When Griffin arrived home later that evening, the defendant, who was already there, gave Griffin three hundred dollars and said, “We’re even,” or something to that effect. Since moving in with Griffin, the defendant had not been employed and had paid Griffin no rent. Griffin assumed the money was payment for rent plus an amount owed him by the defendant for some damage the defendant had caused to Griffin’s car.

About 5:30 p.m. on February 9, 1978, the Marlborough police went to the parking lot in response to a telephone call, and they found the frozen body of the deceased victim, face down in the snow, with only the feet and parts of his legs showing. The police removed the snow from the body, searched the victim’s body for identification, and found only a paper with some numbers on it. They called for a medical examiner, who in turn caused the body to be removed to a hospital morgue for examination.

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Cite This Page — Counsel Stack

Bluebook (online)
513 N.E.2d 1290, 24 Mass. App. Ct. 763, 1987 Mass. App. LEXIS 2168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-jenner-massappct-1987.