Chin Kee v. Commonwealth of Massachusetts, 7193.

• Decision Date: 23 June 1969
• Docket Number: No. 7193.,7193.
• Citation: 407 F.2d 10
• Parties: CHIN KEE, Petitioner, Appellant, v. COMMONWEALTH OF MASSACHUSETTS, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

407 F.2d 10 (1969)

CHIN KEE, Petitioner, Appellant, v. COMMONWEALTH OF MASSACHUSETTS, Respondent, Appellee.

No. 7193.

United States Court of Appeals First Circuit.

February 14, 1969.

Certiorari Denied June 23, 1969.

John D. O'Reilly, III, Boston, Mass., by appointment of the Court, for appellant.

Richard L. Levine, Deputy Asst. Atty. Gen., with whom Howard M. Miller, Asst. Atty. Gen., was on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

Certiorari Denied June 23, 1969. See 89 S.Ct. 2143.

COFFIN, Circuit Judge.

On September 14, 1932, appellant was arraigned in the Superior Court of Middlesex County, Massachusetts, without counsel on an indictment charging him with first degree murder. Appellant entered a plea of not guilty and requested appointment of counsel. Counsel was appointed on October 5, 1932, and on October 31 the trial began. Appellant was convicted and sentenced to death. The sentence was commuted to life and subsequently to a term of sixty-five years to life. The conviction was affirmed on appeal. Commonwealth v. Chin Kee, 283 Mass. 248, 186 N.E. 253.

In 1968 appellant sought to attack his conviction on the ground that his arraignment without counsel violated his Sixth Amendment rights. His petition was denied by the Supreme Judicial Court. Chin Kee v. Commonwealth, 1968 Mass. Adv.Sh. 571, 235 N.E.2d 787 (1968).

In May of 1968 appellant filed a petition for habeas corpus in the federal district court. The district court reviewed the record and, finding persuasive the opinion of the Supreme Judicial Court, denied the petition. Chin Kee v. Commonwealth of Massachusetts, Misc. Civil No. 68-41-M, D.Mass., Aug. 1, 1968.

Appellant, bringing this appeal from the district court's denial of his petition, rests his attack solely on the Supreme Court's decision in Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961). In Hamilton the defendant had been arraigned without counsel, and as a result of his entering a general plea of not guilty, the absolute rights to utilize the insanity defense, to make pleas in abatement, and to move to quash the indictment were lost. In reversing the conviction the Court held that under Alabama practice arraignment is a critical stage in criminal proceedings thus requiring appointment of counsel at that time. The Court concluded, "When one pleads to a capital charge without benefit of counsel, we do not stop to determine whether prejudice resulted. * * * In this case * * * the degree of prejudice can never be known. Only the presence of counsel could have enabled this accused to know all the defenses available to him and to plead intelligently." 368 U.S. at 55, 82 S.Ct. at 159.¹

Appellant seeks to persuade us that as in Hamilton, supra, arraignment is a critical stage in criminal proceedings in Massachusetts practice as it prevailed at the time of his conviction, and that being so, reversal must follow without inquiry into actual harm resulting from absence of counsel. This is the question which we left open in Macey v. Scafati, 395 F.2d 768 (1st Cir. 1968).

Appellant's argument compels us to consider the significance of arraignment under Massachusetts law prevailing at the time of appellant's conviction. The Massachusetts Supreme Judicial Court noted that, unlike the Alabama practice affecting Hamilton,supra, arraignment was not a critical stage in Massachusetts as far as the insanity defense and motions to quash were concerned. 1968 Mass. Adv.Sh. at 576, 235 N.E.2d 787.² With respect to pleas in abatement the Supreme Judicial Court pointed out that they served the same purpose as motions to quash did in Alabama, attacking the "genuineness" or "validity" of grand jury procedures — such as the presence of unauthorized persons or absence of witnesses before the grand jury. The court acknowledged that a plea of not guilty waived matters in abatement, and that thereafter pleas in abatement could be filed "in the discretion of the court and not as a matter of right". Despite the technical non-appealability of a trial court ruling, the Supreme Judicial Court has considered constitutional issues raised by such pleas. Ibid. at 577, 235 N.E.2d 787 at 792.

Without specifying whether this diminution in ability to file pleas in abatement after a plea of not guilty had the effect of making arraignments a critical stage, the Supreme Judicial Court, after a thorough examination of the record, applying Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), declared itself convinced beyond reasonable doubt that appellant suffered no prejudice from absence of counsel at his arraignment. Ibid at 579, 235 N.E.2d 787.

The Supreme Judicial Court, in its effort to make a fair comparison of Massachusetts procedures and those governing Hamilton, understated the differences insofar as pleas in abatement (i. e., motions to quash in Alabama) are concerned. For while it is true that under both Alabama and Massachusetts practices the entry of a general plea meant that pleas in abatement could be filed subsequently only in the discretion of the trial judge, there is a crucial difference between the two practices. Under Massachusetts law, in contrast to Alabama, a defendant never possessed an absolute right to file a plea in abatement.³ Instead, the acceptance of a plea in abatement was a matter for the discretion of the trial judge who could refuse to accept such a plea unless it was supported by "* * * an affidavit or other evidence." Rev.Laws of 1902, c. 218, § 62 (now Mass.Gen.Laws, c. 277, § 74). See Commonwealth v. Monahan, 349 Mass. 139, 207 N.E.2d 29 (1965); Commonwealth v. Geagan, 339 Mass. 487, 159 N. E.2d 870, cert. denied, 361 U.S. 895, 80 S.Ct. 200, 4 L.Ed.2d 152 (1959).⁴ Thus, unlike the situation in Alabama, a plea of not guilty did not transfer what had been an unrestricted right to challenge grand jury procedures into a matter for the discretion of the court. The defense had been "available" only at the discretion of the court; it remained subject to its discretion — although perhaps a wider discretion.

In short, at Massachusetts arraignments, a plea of not guilty waived no right to plead insanity or attack the indictment but arguably broadened the court's prior discretion to refuse a challenge to validity of the grand jury. The area of possible prejudice is extremely circumscribed. Obviously, we are not talking about defendants whose later counsel sought to file pleas in abatement and were refused permission. Such defendants were affirmatively denied one of the benefits of counsel, and have ready recourse for relief. Cf. Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed. 2d 193 (1963). Nor are we concerned with defendants whose counsel could be shown to have failed to file pleas in abatement because they believed there was no substantive basis for such a plea. In such event defendant's rights have been intentionally waived. Fay v. Noia, 372 U.S. 391, 438, 439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 2d 1461 (1938). Nor, of course, are we concerned with defendants who, if the true facts were known, had no substantive basis to support a plea in abatement.

Our ultimate, and only concern, is thus with a defendant whose counsel believed he had, and did have, a valid basis for a plea in abatement, but nevertheless failed to seek discretionary filing because of fear that the court would exercise its discretion against him. Such counsel, who did not even try to file, would be so culpably negligent as to be guilty of malpractice. In this connection, particularly in the light of the number of motions we see zealously filed in other areas of the law with no apparent basis whatever, we see no danger that any significant number of attorneys will qualify for such condemnation by failing to file motions in which they have any confidence. Yet the area of possible prejudice is, as we see, whittled down to only those defendants so inadequately represented. For all others, the waiver effect of a plea of not guilty creates no risk. Indeed, were this stage to be deemed critical and were this dimension of possible prejudice be deemed sufficient automatically to invalidate the plea, all other classes of defendants would receive an undeserved benefit at the expense of the state.

The question whether such a proceeding can be called a critical stage becomes a close one. But we assume, for purposes of this case, that it is and that the appellant should have been represented by counsel. This means that, within the teaching of Hamilton, we look not to actual prejudice. The key question is whether, at a stage so marginally critical, the theoretical possibility of appellant's counsel, under the specific circumstances of this case, having been somewhat tactically disadvantaged by the Massachusetts practice then governing the filing of pleas in abatement is enough to compel the granting of the writ.

Hamilton's prescription was stark. But it emerged from a consideration of "pitfalls * * * which face an accused in Alabama who is arraigned without having counsel at his side." 368 U.S. at 55, 82 S.Ct. 157 at 159. There were suggestions in the petition for certiorari that an insanity plea could reasonably have been made or at least explored; that the indictment was subject to reasonable challenge; and that a disastrous incompatibility between the defendant and his counsel might have been avoided by an earlier joint appearance before the court. Additionally, the Court referred to the use of a motion to quash to challenge systematic racial exclusion in drawing a grand jury — not an unheard of possibility in times past. In such a case a reviewing court could not say that the possibility of prejudice was so remote that it was persuaded beyond a reasonable doubt that absence of counsel was harmless error...