Commonwealth v. James M. Murphy, Third.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

21-P-831

COMMONWEALTH

vs.

JAMES M. MURPHY, THIRD. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On October 28, 2014, the defendant pleaded guilty in the

District Court to a complaint charging him with vandalizing with

a "noxious or filthy substance" in violation of G. L. c. 266,

§ 103. 2 The charge arose from the defendant's urinating through

the door of his jail cell while he was being held at the Quincy

police department. He subsequently filed a motion for a new

trial seeking to vacate his plea and now claims that because of

the Supreme Judicial Court's recent decision in Commonwealth v.

1 We use the spelling of the defendant's name as it appears in
the criminal complaint and the court docket.
2 The defendant was also charged with disorderly conduct in

violation of G. L. c. 272, § 53; and intimidation of a witness
in violation of G. L. c. 268, § 13B. The intimidation of a
witness charge was dismissed at the request of the Commonwealth
prior to the date of the plea hearing. The disorderly conduct
charge was placed on file without a change of plea. We note
there was no "guilty finding" as the Commonwealth states in its
brief.
Perez Narvaez, 490 Mass. 807 (2022), wherein the court held that

urine does not constitute a noxious or filthy substance within

the meaning of G. L. c. 266, § 103, there was no factual basis

for the charge. The Commonwealth concedes that the plea must be

vacated, and we agree. 3

The underlying facts presented by the Commonwealth at the

change of plea hearing are as follows. 4 On July 17, 2013, the

defendant was arrested for disorderly conduct outside the United

First Parish Church in Quincy. He was transported to the police

station and placed in a holding cell where he was observed on

video surveillance urinating through an opening in the door of

the jail cell onto the floor.

As previously noted, the defendant pleaded guilty in 2014,

and seven years later, on August 4, 2021, he filed a motion to

withdraw his guilty plea, which was denied. The defendant

appealed, and on July 20, 2022, the appeal was stayed pending

the issuance of the Supreme Judicial Court's decision in Perez

Narvaez, 490 Mass. at 807.

There is no question that the outcome of this appeal is

controlled in all respects by the court's decision in Perez

3 Notwithstanding the Commonwealth's concession, we have
conducted our own independent review of the issue. See
Commonwealth v. Poirier, 458 Mass. 1014, 1015 (2010).
4 We have not been provided with a transcript of the change of

plea hearing. The facts as described are taken from the
parties' submissions and are not disputed.

2
Narvaez. It is well settled that a judge may only accept a

guilty plea if there are "sufficient facts on the record to

establish each element of the offense." Commonwealth v. Hart,

467 Mass. 322, 325 (2014), quoting Commonwealth v. DelVerde, 398

Mass. 288, 297 (1986). Here, the Commonwealth was required to

allege sufficient facts to show that the defendant intentionally

threw or placed "oil of vitriol, coal tar, or other noxious or

filthy substance" on or in a building, office, shop, dwelling,

or vessel with the intent to injure, deface, or defile said

structure. G. L. c. 266, § 103. Because the Supreme Judicial

Court has squarely held that urine is not a noxious or filthy

substance under c. 266, § 103, the facts presented in support of

the guilty plea were insufficient. Consequently, the order

denying the defendant's motion to withdraw his guilty plea is

reversed and the judgment is vacated.

So ordered.

By the Court (Vuono, Singh &
Englander, JJ. 5),

Clerk

Entered: November 6, 2023.

5 The panelists are listed in order of seniority.

3