Commonwealth v. Mark Barry.
23-P-0589
Mass. App. Ct.Mar 11, 2025Background
- Mark Barry pleaded guilty in 2013 to two counts of possession of child pornography after being observed and stopped by Amtrak and MBTA police for surreptitiously photographing a young girl at South Station.
- During police encounters, Barry's phone was taken, and he ultimately consented to its search and made incriminating statements after being subjected to police questioning and Miranda warnings.
- In 2015, Barry moved to withdraw his guilty plea and for a new trial, asserting ineffective assistance of counsel for the failure to file a motion to suppress evidence and statements, and arguing his plea was not knowing and voluntary due to cognitive impairments from cerebral palsy.
- Despite a Superior Court judge previously ordering an evidentiary hearing, a subsequent motion judge denied the motion without such a hearing, relying solely on documentary evidence.
- Barry appealed the denial, emphasizing unresolved factual questions related to police conduct and his cognitive limitations.
Issues
| Issue | Barry's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Ineffective assistance re: suppression motion | Counsel should have moved to suppress evidence and statements for lack of reasonable suspicion and involuntary consent. | Counsel strategically forewent suppression based on sentencing risk; adequate suspicion existed. | Sufficient issue raised; evidentiary hearing required. |
| Seizure without legal justification | No articulable suspicion or probable cause existed during the stop/seizure. | Detention justified by concern over suspected criminal conduct. | Factual disputes about justification require hearing. |
| Validity of Miranda waiver and statement voluntariness | Waiver and statements were not voluntary due to his mental state and coercive or misleading police tactics. | Miranda warnings given, statements and consent were voluntary. | Unresolved factual disputes about coercion and voluntariness require hearing. |
| Voluntariness of plea given mental health | Intellectual disability prevented knowing and voluntary guilty plea. | Defendant's experience sufficed for intelligent waiver. | Factual questions about cognitive impact require hearing. |
Key Cases Cited
- Commonwealth v. DePeiza, 449 Mass. 367 (Standard for when a person is seized by the police)
- Commonwealth v. Mazza, 484 Mass. 539 (De novo review where the motion judge was not the plea judge and no evidence was taken)
- Commonwealth v. Barros, 435 Mass. 171 (Distinguishing between police requests and commands as seizures)
- Commonwealth v. Lys, 481 Mass. 1 (Standard for granting an evidentiary hearing on new trial motion)
- Commonwealth v. Gosselin, 486 Mass. 256 (Objective evaluation of likelihood that motion to suppress would succeed)
- Commonwealth v. Stewart, 383 Mass. 253 (Standard for when a new trial motion warrants an evidentiary hearing)