Brown v. Com.

• Decision Date: 27 February 1957
• Citation: 335 Mass. 476,140 N.E.2d 461
• Parties: Ivan W. BROWN v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 461

140 N.E.2d 461

335 Mass. 476

Ivan W. BROWN v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 8, 1957.

Decided Feb. 27, 1957.

Edward J. Barshak, Boston, for Brown.

La Rue Brown, Boston, Mark D. Howe, Cambridge, amici curiae.

Samuel W. Gaffer, Asst. Atty. Gen., for the Commonwealth.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and CUTTER, JJ.

WILKINS, Chief Justice.

The plaintiff in error, whom we shall call the peitioner, is serving three sentences of not exceeding seven nor less than five years, which were imposed in the Superior Court for Middlesex County on May 13, 1952. One indictment was for assault and battery by means of a dangerous weapon. Two indictment, one of which contained two counts, were for robbery while armed. All the indictments arose out of three taxicab operator robberies committed by a passenger on April 7, 18, and 21, 1952.

On February 7, 1956, the petitioner sued out a writ of error in this court, assigning as error that he, an indigent person, was tried in violation of his rights (1) under art. 12 of the Declaration of Rights of the Constitution of Massachusetts in that the trial judge failed to determine the need of counsel and to fulfill that need by assigning counsel; and (2) under the Fourteenth Amendment to the Constitution of the United States by reason of the conduct of the trial. G.L.(Ter.Ed.) c. 250, § 9. The single justice reserved and reported the case without decision upon the petition, assignments of error, the return, the answer, and his findings of fact.

The facts appear in the single justice's findings. The petitioner was born in New Hampshire and was twenty-two years of age at the time of the trial. His father died when he was two years of age. When he was three or four years of age his mother became ill and he 'went to an institution for a time.' Thereafter he was in a foster home for two or three years and in an orphanage for about five years. When he was about thirteen years of age, following a court appearance, he was sent to an industrial school where he remained for about five years until 1947. He attended school through the sixth grade.

The petitioner had 'various duties' in the army air force, serving overseas eighteen months, and was once brought before a 'one-officer court,' but no testimony was taken. In 1950 he pleaded guilty in Barnstable County to a charge of unauthorized use of motor vehicle. There was no trial. Because of this incident he received an 'undesirable discharge' from the army.

Later the petitioner married, and 'held several jobs,' living in Michigan and on Cape Cod. In Michigan he pleaded guilty to a charge of using profane language, but up to the time of the trial of these three indictments he had not been in court while a full trial occurred.

Prior to judgment the petitioner did not know that there was a provision of law for the summoning of witnesses at the expense of the Commonwealth, ¹ 'or of any of the other rights or privileges asserted in the assignments of error.' In 1952 he knew of two possible witnesses who at the time of the hearing before the single justice he believed would have been available to support an alibi for two of the three armed robbery charges. One of them testified at a later trial in Suffolk County in which he was represented by counsel.

The applicable rule under art. 12 of the Declaration of Rights is stated in Pugliese v. Commonwealth, Mass., 140 N.E.2d 476, in reliance upon Allen v. Commonwealth, 324 Mass. 558, 562, 87 N.E.2d 192, 195. There is a requirement of 'assignment of counsel in noncapital cases only when the defendant, by reason of youth, inexperience or incapacity of some kind, or by reason of some unfair conduct by the public authorities, or of complication of issues, or of some special prejudice or disadvantage, stands in need of counsel in order to secure the fundamentals of a fair trial.'

We must first take up a contention of the Commonwealth that the single justice erred in admitting in evidence and in considering the transcript of the trial proceedings. Reliance is placed upon the undoubted general rule that findings of fact at a trial cannot be reivewed on writ of error, which is confined to matters of fact not heard and decided at the trial under review. In Blankenburg v. Commonwealth, 260 Mass. 369, 376, 157 N.E. 693, Chief Justice Rugg, after stating the general principle, listed three examples of matters of fact which could be reviewed: minority of the defendant, Johnson v. Waterhouse, 152 Mass. 585, 26 N.E. 234, 11 L.R.A. 440; insanity of the defendant, Hathaway v. Clark, 7 Pick. 145; and death of the defendant and lack of authority of a purported agent to accept service. Hanzes v. Flavio, 234 Mass. 320, 327, 125 N.E. 612. 'To the foregoing instances there have been added in recent years instances where the contention was made that the defendant had been wrongfully deprived of the assistance of counsel at the trial or was denied opportunity to prepare a defence. Allen v. Commonwealth, 324 Mass. 558, 87 N.E.2d 192; Lindsey v. Commonwealth, 331 Mass. , 116 N.E.2d 691; Jones v. Commonwealth, 331 Mass. , 117 N.E.2d 820. Those additions were made upon the same theory as that of the older cases, to wit, that issues of fact are not concluded by the trial where there was no legally sufficient opportunity to litigate them at the trial.' Aronson v. Commonwealth, 331 Mass. 599, 602, 121 N.E.2d 669, 671. A more recent instance is Drolet v. Commonwealth, 335 Mass. ----, 140 N.E.2d 165. We hold that an examination of the transcript was proper and essential to a determination of the issue whether the petitioner, because he was without counsel, for some reason failed to secure the fundamantals of a fair trial.

There was evidence that the petitioner committed each robbery with the aid of what appeared to be a gun and what the victim thought was a gun. There was admitted in evidence a signed statement made to the police by the petitioner with respect to the second and third robberies. We do not find it necessary to set forth the findings concerning this matter or concerning certain others of the assignments of error.

One Atkinson, who was the victim of the April 21 robbery, testified on direct examination for the Commonwealth and identified the petitioner, as a passenger who directed him to stop and at gun point robbed him of $28. On cross-examination, the petitioner asked Atkinson if he was absolutely sure 'that is the gun I held you up with' and 'how can you identify the gun as the one,' saying, 'That's all you know, that that's the gun the officer took from me when he picked me up, is that right?' The witness remained positive in his identification of the gun although he had 'just seen this part.' In answer to further questions the witness stated that he did not know that there was no chamber in it, and 'That is the gun they took away from the parking space.' The following colloquy then occurred.

'The judge: Mr. Brown, how many guns did you have on you when you were arrested?

'The petitioner: I had that one.

'The judge: I suppose that would be a reasonable inference.

'The petitioner: Yes sir, but I am trying to----

'The judge: If you had two or three on you, he might have difficulty. You were arrested a few minutes afterwards, weren't you?

'The petitioner: Yes sir.

'The judge: You only had one gun?

'The petitioner: Yes sir.

'The judge: Don't you think it is reasonable for him to infer?

'The petitioner: Oh yes. Still I had the gun regardless. That's all sir.'

At the close of the Commonwealth's case the ensuing colloquy occurred:

'The judge: Are you going to take the stand, Mr. Brown? Do you want to testify?

'The petitioner: No sir.

'The judge: Have you any witnesses?

'The petitioner: No sir.'

The assistant district attorney in accordance with his practice where a defendant was not represented intended not to argue, and said, 'In view of the fact, if your Honor please,...