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SJC-11643

                       COMMONWEALTH   vs.   SEAN EVELYN.



            Suffolk.        November 3, 2014. - March 2, 2015.

  Present:     Gants, C.J., Spina, Cordy, Botsford, Lenk, & Hines,
                                  JJ.


Homicide. Practice, Criminal, Argument by counsel, Admissions
     and confessions, Waiver. Constitutional Law, Waiver of
     constitutional rights, Admissions and confessions. Due
     Process of Law, Fair trial. Supreme Judicial Court,
     Superintendence of inferior courts.



     Indictments found and returned in the Superior Court
Department on February 23, 2007.

    The cases were tried before Frank M. Gaziano, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Jeanne M. Kempthorne for the defendant.
     Donna Jalbert Patalano, Assistant District Attorney, for
the Commonwealth.
     Donald A. Harwood & David A.F. Lewis, for Committee for
Public Counsel Services & another, amici curiae, submitted a
brief.
                                                                   2


     GANTS, C.J.   After an altercation with Cushings Fortuna

(victim), the defendant returned to his vehicle, removed a gun

from a hidden compartment, chased the victim, and shot him dead.

At trial, the defendant's attorney in opening statement conceded

that the defendant committed the killing, and told the Superior

Court jury that the issue they had to decide was whether the

defendant was guilty of manslaughter or murder.   The jury

convicted the defendant of murder in the second degree and of

possession of a firearm without a license.1   The defendant

appealed his convictions, and we granted direct appellate

review.

     The defendant claims that his attorney's concession at

trial that the defendant was guilty of manslaughter was

tantamount to a guilty plea, and that a colloquy between the

judge and the defendant was therefore constitutionally required

to ascertain that the defendant made the concession knowingly

and voluntarily.   The defendant contends that, because such a

colloquy did not take place, he was deprived of due process and

the right against self-incrimination, and he asks that we vacate

his convictions and remand for a new trial.   We conclude that,

in these circumstances, no colloquy between the judge and the

defendant is required.   We note that the defendant in this case


     1
       The defendant was found not guilty on indictments charging
the possession of cocaine and of marijuana.
                                                                    3


expressly did not claim ineffective assistance of counsel and

there is nothing in the record to suggest that the defendant did

not consent to his attorney's strategic concession.2

     Background.   We summarize the evidence at trial.   On

December 31, 2006, the defendant (who was then twenty years old)

and his former girl friend, Shantel Baxter, drove his cousin

into Boston to drop him off at the South Station bus terminal.

At around 3:30 P.M., the defendant double-parked his vehicle on

Atlantic Avenue, and Baxter stayed with the vehicle while the

defendant walked with his cousin into the bus terminal.       At

approximately 4:04 P.M., as the defendant was about to leave the

bus terminal, the victim entered the terminal with his brother,

Patrick Fortuna,3 and his girl friend's cousin, Robertho

Francois, and confronted the defendant, getting "[r]ight in his

face."   The defendant "tr[ied] to walk away" in the direction of

his vehicle, but the victim and Patrick followed him.     As they

approached the defendant's vehicle, the victim pulled the

defendant up against an adjacent vehicle, grabbed the defendant

by the neck, said that the defendant owed him money, and was




     2
       We acknowledge the amicus brief submitted by the Committee
for Public Counsel Services and the Massachusetts Association of
Criminal Defense Lawyers.
     3
       Because the victim and his brother have the same last
name, we shall refer to the brother by his first name.
                                                                     4


"kneeing" the defendant and "calling [him] a pussy" and "a

bitch-ass nigger."

     Baxter came out of the defendant's car, physically "trying

to get between them" and "begging [the victim] to stop," but the

victim swung his elbow at her and "told [her] to get the fuck

off of him."   The victim "just kept squeezing [the defendant's]

neck," "kicking him," "spitting on him," and "yelling in his

face."   After the victim yelled that he needed the defendant's

telephone number, Baxter provided the number to Patrick in an

effort to get the victim to stop.    Then, Patrick said to the

victim, "All right.   Let's go."    Shortly afterwards, the victim

and Patrick, along with Francois (who had been watching from a

short distance), walked away from the defendant towards the bus

terminal.

     The defendant and Baxter got back into the defendant's

vehicle.    As they sat there, the defendant told Baxter (who was

in the passenger's seat) to "move the car," and a short time

later,4 he left the vehicle and headed back towards the bus

terminal.   When Baxter got into the driver's seat, she noticed




     4
       Baxter testified that she and the defendant sat in the car
for "a couple seconds" or "a couple minutes."
                                                                      5


that the "secret compartment" installed in the vehicle's

dashboard (which moments earlier had been shut) was now open.5

     The victim, Patrick, and Francois "were walking back toward

the bus station" when the victim "turn[ed] his head back," and

suddenly started to run, as did Patrick and Francois.      Gunshots

were fired.   Patrick ran in a different direction from that of

the victim and Francois, and the victim later turned right on

South Street while Francois turned left.   At that point,

Francois "turn[ed] around" and saw the "same man" that the

victim had assaulted follow the victim down South Street.      The

defendant caught up with the victim, and shot him three times:

once in the arm, once in the back, and once in the head.      The

victim fell to the ground, and the defendant fled.6   At

approximately 4:24 P.M., a Boston police officer arrived at the

scene, and determined that the victim did not have a pulse. The

victim was pronounced dead at 4:45 P.M., and the cause of death

was identified as gunshot wounds to the head and chest.

     At trial, defense counsel in his opening statement conceded

that the defendant had committed the killing but stated that the

     5
       Baxter testified that she did not see anything inside the
compartment. When police searched the defendant's vehicle after
seizing it in the aftermath of the shooting, they found a small
plastic bag containing cocaine in the compartment. A small bag
of marijuana was also found in one of the vehicle's "rear map
pockets."
     6
       A week after the shooting, Francois participated in a
police lineup and identified the defendant as the shooter.
                                                                   6


evidence would show that the defendant was guilty of

manslaughter, not murder in the first or second degree.7   He

declared:

     "[The defendant] no doubt did a terrible thing and no doubt
     he's guilty of very serious crimes. But the issue here is
     going to be did he act in a heat of passion, did he have
     the ability to reason, to think about what he was going to
     do, to premeditate, which is what's required for first
     degree murder . . . or did he act out of a rage that he and
     any reasonable person would have felt treated the way he
     was treated, assaulted and humiliated . . . ."

Defense counsel continued to pursue this strategy in his closing

argument, noting that "our law recognizes that there are times

when a person can be so provoked by what . . . somebody else

does to them, that even if they commit a terrible act of killing

that person, . . . they don't have the malice required for

murder."    He argued that "[t]he evidence in this case . . .

shows very clearly that [the defendant] acted out of heat of

passion," and therefore should be found guilty of manslaughter,

not murder.    The jury did not find the defendant guilty of


     7
       Before trial, the defendant had agreed to plead guilty to
manslaughter and the other three indictments, and a change of
plea hearing was conducted where a judge in the Superior Court
was presented with a joint sentencing recommendation by the
Commonwealth and the defendant. However, during the plea
colloquy, when the judge (who was not the trial judge) inquired
of the defendant whether he "[has] been fully, fairly, and
adequately represented by [his attorney] in this case," the
defendant replied, "Not really." The defendant explained that
he had not been aware of the two drug charges and had not known
he was going to be pleading guilty until he walked into the
court room. At that point, the judge declined to accept the
guilty plea and set the matter for trial.
                                                                   7


murder in the first degree, as argued by the prosecutor, but did

find the defendant guilty of murder in the second degree.

     Discussion.    The defendant asserts that, where defense

counsel concedes the defendant's guilt in opening statement, due

process "requires an intelligent and voluntary waiver by the

defendant in a non-capital case," "[n]o less than in the case of

a guilty plea, or an admission to sufficient facts, or a

stipulation of facts in a trial, or a waiver of jury trial."

     Before we address this claim, it is important to be clear

as to what the defendant is not claiming on appeal.

Specifically, the defendant is not claiming that he received

ineffective assistance of counsel.   He does not claim that his

trial counsel did not discuss this strategic concession with him

before opening statement, or that he did not consent to this

course of action; the record is silent regarding his discussions

with trial counsel on this issue.8   Nor does he claim that it was

"manifestly unreasonable" for trial counsel to have made this

strategic choice.   See Commonwealth v. Glover, 459 Mass. 836,

843 (2011).   He admits that his trial counsel "perhaps even

correctly believed" that it served the defendant's interest to

concede guilt to the lesser included offense of manslaughter to

attempt to avert conviction on the murder indictment.    Rather,


     8
       His trial counsel was not his counsel for the aborted
guilty plea hearing.
                                                                    8


he claims that the absence of a colloquy by the judge, standing

alone, constitutes a violation of due process that requires that

the defendant's convictions be vacated.   We disagree.

    Where a defendant tenders a guilty plea, the judge must

engage the defendant in a colloquy before accepting the plea

because "[d]ue process requires that 'a guilty plea should not

be accepted, and if accepted must be later set aside,' unless

the contemporaneous record contains an affirmative showing that

the defendant's plea was intelligently and voluntarily made."

Commonwealth v. Furr, 454 Mass. 101, 106 (2009), quoting

Commonwealth v. Foster, 368 Mass. 100, 102 (1975).    See Boykin

v. Alabama, 395 U.S. 238, 242-243 (1969).   See also Commonwealth

v. Duquette, 386 Mass. 834, 842-843 (1982) (if admission to

facts sufficient to support finding of guilt "is to be given the

effect of a guilty plea, it must be supported by the same

demonstrations of voluntariness and intelligence that are

required of any other guilty plea").   The reason for requiring a

plea colloquy is that, by pleading guilty, the defendant waives

three constitutional rights -- the right to a jury trial, the

right to confront witnesses, and the privilege against self-

incrimination -- and "[w]e cannot presume a waiver of these

three important . . . rights from a silent record."      Boykin,

supra at 243.   See Commonwealth v. Fernandes, 390 Mass. 714,

715-716 (1984) ("Because a plea of guilty involves these
                                                                   9


constitutional rights, the plea is valid only when the defendant

offers it voluntarily, with sufficient awareness of the relevant

circumstances, . . . and with the advice of competent counsel").

See also Mass. R. Crim. P. 12 (c), as appearing in 442 Mass.

1511 (2004).9

     Where a defendant, instead of pleading guilty, agrees to

try a case to a judge on stipulated evidence in an effort to

preserve his or her right to appeal the judge's pretrial

rulings, we have also required a colloquy to ensure that the

defendant has knowingly and voluntarily waived the right to a

jury trial, the right to confront witnesses, and the privilege

against self-incrimination.   See Commonwealth v. Lewis, 399

Mass. 761, 763-764 (1987) (reversing conviction for absence of

colloquy where "parties stipulated to what the Commonwealth's

evidence would be" and defendant offered no evidence);

Commonwealth v. Castillo, 66 Mass. App. Ct. 34, 36-38 (2006)

(where defendant stipulated to material facts conclusive of

     9
       "After being informed that the defendant intends to plead
guilty or nolo contendere: . . . The judge shall inform the
defendant on the record, in open court: . . . that by a plea of
guilty or nolo contendere, or an admission to sufficient facts,
the defendant waives the right to trial with or without a jury,
the right to confrontation of witnesses, the right to be
presumed innocent until proved guilty beyond a reasonable doubt,
and the privilege against self-incrimination." Mass. R. Crim.
P. 12 (c) (3) (A), as appearing in 442 Mass. 1511 (2004). "The
judge shall conduct a hearing to determine the voluntariness of
the plea or admission and the factual basis of the charge."
Mass. R. Crim. P. 12 (c) (5).
                                                                   10


guilt in case tried to judge, stipulation was tantamount to

guilty plea, and failure of judge to engage defendant in plea

colloquy required reversal of convictions).    See also

Commonwealth v. Brown, 55 Mass. App. Ct. 440, 448-449 (2002);

Commonwealth v. Hill, 20 Mass. App. Ct. 130, 132-133 (1985).

    Where we have found a constitutional entitlement to a plea

colloquy, a defendant has waived at least one of the three

constitutional rights that are waived by a guilty plea.     "It is

axiomatic that, if the defendant does not plead guilty and does

not waive these rights, the judge need not conduct a plea

colloquy."    Commonwealth v. Lopez, 447 Mass. 625, 629 (2006),

citing Commonwealth v. Stevens, 379 Mass. 772, 774-776 (1980).

    Here, the defendant did not waive any constitutional right.

He exercised his right to a trial by jury, confronted witnesses

against him through cross-examination, exercised his privilege

against self-incrimination by not testifying, and stipulated to

no facts.    "Unlike the case of a guilty plea, the Commonwealth

was put to its proof beyond a reasonable doubt and met it."

Stevens, 379 Mass. at 774-776 (no colloquy was required where

defense counsel offered to stipulate to prosecution's evidence

in effort to preserve defendant's right to appeal pretrial

rulings but trial judge refused to accept offer, and defense

counsel instead offered no defense when prosecution's evidence

was presented at jury-waived trial).    See Commonwealth v.
                                                                  11


Ramsey, 466 Mass. 489, 491, 496 n.8 (2013) (case law requiring

colloquy where defendant submits to jury-waived trial on

stipulated facts did not apply where case was tried to jury and

where defendant admitted in his testimony that he possessed

drugs and firearm "as part of a litigation strategy to boost his

credibility" regarding his defense of necessity to firearms

charge); Commonwealth v. Charles, 456 Mass. 378, 383 (2010),

quoting Commonwealth v. Shea, 398 Mass. 264, 269 (1986) (where

defendant was indicted for possession with intent to distribute

but defense counsel encouraged jury to convict on simple

possession, defense counsel's concession that substances in

defendant's possession were "drugs" did not amount to tacit

stipulation as to nature of substances, because "defendant's

theory of his case cannot relieve the Commonwealth of its burden

of proving every element of a crime beyond a reasonable doubt").

Because defense counsel's concession did not constitute a waiver

of the defendant's constitutional rights, the trial judge was

not constitutionally required to conduct a plea colloquy

confirming that the defendant had waived his rights knowingly

and voluntarily.

    We recognize that, after a defendant's attorney concedes in

opening statement that the defendant is guilty of manslaughter,

there is virtually no chance that a jury would return a verdict

of anything less than manslaughter.   But that may also be true
                                                                  12


where a defendant testifies in his or her own defense and admits

to the killing, or where a defendant calls a witness to testify

to the victim's conduct that provoked the killing and the

witness testifies that the defendant subsequently killed the

victim.   The purpose of a plea colloquy is to ensure that the

waiver of certain fundamental constitutional rights is knowing

and voluntary; it is not to ensure that the defense strategy is

sound or that the defendant has consented to that strategy.

Where a defense attorney's concession is manifestly unreasonable

or where a defendant has not consented to that strategy, we have

relied on posttrial claims of ineffective assistance of counsel

as the remedy for a miscarriage of justice.10


     10
       A defense counsel's decision to concede voluntary
manslaughter to strengthen the possibility of sparing the
defendant a conviction of murder constitutes ineffective
assistance of counsel only where it was "'manifestly
unreasonable' when made," and where it prejudiced the defendant
by depriving him of a "substantial ground of defense."
Commonwealth v. Glover, 459 Mass. 836, 842-843 (2011), quoting
Commonwealth v. Acevedo, 446 Mass. 435, 442, 446 (2006). "When
the evidence implicating the defendant is strong, and a
concession does not undercut viable defenses, a tactical
concession of guilt by counsel in a murder prosecution is
securely within the realm of effective representation."
Commonwealth v. Arriaga, 438 Mass. 556, 581-582 (2003). We do
not consider here whether it is manifestly unreasonable to
pursue such a strategy (regardless of its merits) without the
defendant's consent, or whether prejudice should be presumed in
such circumstances. Compare Florida v. Nixon, 543 U.S. 175, 192
(2004) (in capital case, "[w]hen counsel informs the defendant
of the strategy counsel believes to be in the defendant's best
interest and the defendant is unresponsive, counsel's strategic
choice [to concede defendant's guilt at guilt phase of trial in
order to focus jury on reasons to spare defendant's life during
                                                                   13


    We also consider whether, under our supervisory authority,

we should require trial judges to conduct a colloquy with the

defendant before a defendant's attorney makes a concession of

guilt at trial.   We have exercised this supervisory authority to

require that a colloquy be conducted where a defendant waives

the right to a jury trial, even though it is not

constitutionally required, because "a supervisory rule requiring

a colloquy would aid in 'sound judicial administration' by

foreclosing many disputes about whether a waiver of the right to

a jury trial was knowingly and voluntarily made."   Commonwealth

v. Pavao, 423 Mass. 798, 800 (1996), quoting Ciummei v.

Commonwealth, 378 Mass. 504, 509 (1979).   Cf. Commonwealth v.

Davis, 376 Mass. 777, 784-785 (1978) (adopting "prophylactic

measure" of requiring judge to conduct colloquy where defendant

waives right to conflict-free counsel by agreeing to joint




penalty phase of trial] is not impeded by any blanket rule
demanding the defendant's explicit consent"), with Commonwealth
v. Velez, 77 Mass. App. Ct. 270, 277 & n.9 (2010) ("While
Massachusetts has not had the opportunity to apply these
principles . . . , courts in other jurisdictions have held that
unauthorized concessions of guilt can constitute a lack of
adversary testing within the meaning of United States v. Cronic,
[466 U.S. 648 (1984)]," which triggers presumption of
prejudice), and State v. Harbison, 315 N.C. 175, 180 (1985),
cert. denied, 476 U.S. 1123 (1986) ("ineffective assistance of
counsel, per se in violation of the Sixth Amendment [to the
United States Constitution], has been established in every
criminal case in which the defendant's counsel admits the
defendant's guilt to the jury without the defendant's consent").
                                                                   14


representation, even though colloquy is not constitutionally

required).

    We think it more prudent to leave the decision whether to

conduct a colloquy regarding a concession of guilt to the sound

discretion of the trial judge than to exercise our supervisory

authority to require it in all instances.   Strategic decisions

to concede that a defendant is guilty of lesser included

offenses are not uncommon, especially in drug cases, where a

defendant may concede the possession of drugs to preserve the

credibility of his claim that he or she did not intend to

distribute.   Nor is it uncommon for a defendant to admit guilt

to an offense, such as possession of drugs, to preserve the

credibility of the defendant's claim that he or she did not

commit a more serious crime, such as illegal possession of a

firearm.   As noted earlier, such concessions are not limited to

a defense attorney's opening statement or closing argument; they

may be made in a defendant's trial testimony, or by a defense

witness that the defendant calls to the stand knowing that the

witness will testify to the defendant's participation in one of

the offenses charged.

    Requiring a colloquy in all such cases would mean that the

judge must be informed in advance of all such concessions, and

conduct a colloquy that may invite discussion regarding the

defendant's trial strategy.   Such an inquiry may be warranted to
                                                                  15


determine "whether the defendant understands the significance of

his apparent choice," Stevens, 379 Mass. at 776, where (unlike

here) there is some indication that the defendant expressly

opposes his or her attorney's trial strategy, or the concession

appears to be a manifestly unreasonable trial strategy.    But

because we can foresee instances where such a concession may not

be known in advance (such as where a defendant admits to

committing a lesser included offense during cross-examination)

and other instances where a wise trial judge, when told of an

anticipated concession, may decide that the more prudent course

is to proceed without a colloquy, we decline to exercise our

supervisory authority to impose a hard and fast rule that would

require a colloquy whenever a concession of guilt is made.11

     Conclusion.   Because no colloquy was required regarding

defense counsel's concession of guilt to the lesser included



     11
        Cf. Commonwealth v. Ortiz, 466 Mass. 475, 477 (2013)
(rejecting "defendant's claim that under current rules of
practice, a stipulation between the Commonwealth and the
defendant as to an element of a crime, no matter when the
stipulation is agreed to, must be in writing and signed by him
or the subject of a colloquy between the defendant and the trial
judge," but in light of Mass. R. Crim. P. 11 [a] [2] [A], as
appearing in 442 Mass. 1509 [2004], which directs that any
stipulation to the existence of a material fact contained in a
pretrial conference report be signed by the defendant himself,
asking "this court's standing committee on the rules of criminal
procedure to consider whether it would be appropriate to adopt
by rule a requirement similar to rule 11 [a] [2] [A] that would
apply to stipulations first entered into at or immediately
before trial").
                                                           16


offense of manslaughter in opening statement and closing

argument, the defendant's convictions are affirmed.

                                   So ordered.
