Com. v. Appleby

• Decision Date: 08 June 1983
• Citation: 450 N.E.2d 1070,389 Mass. 359
• Parties: COMMONWEALTH v. Kenneth A. APPLEBY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1070

450 N.E.2d 1070

389 Mass. 359

COMMONWEALTH v. Kenneth A. APPLEBY.

Supreme Judicial Court of Massachusetts,

Hampden.

Argued Jan. 4, 1983.

Decided June 8, 1983.

Lois M. Lewis, West Newton, for defendant.

Dianne M. Dillon, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

NOLAN, Justice.

The defendant, Kenneth A. Appleby, appeals from his convictions of rape and kidnapping. ¹ He raises numerous issues concerning the right to counsel at trial, procedure, and evidence. We affirm.

The facts are sordid. For present purposes, we need give only an outline of the evidence. Facts pertinent to the issues raised will appear in appropriate sections of this opinion. In the early morning hours of October 22, 1977, the victim, a resident of New York City, was abducted from that city by the defendant and another person, James Carey Junkin, and taken by car to a house in West Springfield, Massachusetts. During the trip, the victim was at various times blindfolded, handcuffed, gagged, beaten, and forced to swallow pills. He was unconscious for a good part of the trip. Once at the house, the victim was interrogated, shackled, disrobed, and forced by Appleby and Junkin to submit to repeated acts of fellatio and sodomy. He was eventually taken to a woodshed and left there at least overnight, still blindfolded and shackled. When released from the shed, he was again interrogated and drugged. Appleby made statements to the effect that he would use torture to dominate the victim. Finally, the victim was put into a car and driven to a city that he recognized as Hartford, Connecticut, when his blindfold was removed. He was given money for bus fare to New York City when he was freed. He returned to New York City by bus and he reported the incident to the New York City police within a few days. In December, 1977, the victim underwent surgery to remove a testicle which had been causing him pain since the incident.

The defendant was tried before a jury in the Superior Court in Hampden County from January 21, 1980, to February 8, 1980. Upon conviction, the defendant was sentenced to the Massachusetts Correctional Institution at Walpole for eighteen to twenty-five years for rape and eight to ten years for kidnapping, the sentences to be served concurrently. On a motion to revise and revoke the sentence on the rape conviction, a different Superior Court judge imposed a term of ten to twelve years. ² It appears that the motion to revise and revoke the sentence on the kidnapping conviction had been continued at the request of the defendant. The disposition as to the assault and battery indictments was not disturbed. After Appleby filed his appeal, we took the case on our own motion. G.L. c. 211A, § 10(A).

A. The Right to Counsel and the Motions for Continuance.

Appleby claims that the "trial court" ³ erred in denying his appointed counsel's requests to withdraw and in denying Appleby's request for other counsel. He also argues that the trial judge abused his discretion by failing to allow continuances of the trial in order to permit the defendant and the appointed counsel sufficient time to prepare.

The indictments in this case were returned in July, 1978. From that time until October 17, 1979, Appleby was represented by three different attorneys who apparently were privately retained. During this period, a number of discovery and procedural motions were filed. ⁴ Although the record is unclear as to why the first attorney withdrew, Appleby at some point fired the second and third attorneys. ⁵

On October 17, 1979, Attorney Peter Rutherford of the Massachusetts Defenders Committee was appointed to represent Appleby. There was, at first, a question whether Appleby was entitled to appointed counsel but, after an investigation by the probation department, it appears that a judge determined in early November, 1979, that Appleby was indigent. ⁶ Between October 17 and November 30, 1979, the defendant filed more motions, and at some point, trial was scheduled for January 7, 1980.

On November 30, Mr. Rutherford filed a "motion to disappear" on the ground he could not adequately represent Appleby because Appleby had expressed a lack of confidence in the attorney's ability. ⁷ A judge denied the motion, declaring his belief in Mr. Rutherford's ability. The judge then gave Appleby the choice to proceed pro se or to accept Mr. Rutherford's representation. ⁸ Later in the hearing Appleby asked if he would be permitted to file pro se motions, and the judge told him he would. The judge instructed Mr. Rutherford to stay in the case and to take an active role in advising Appleby. When Mr. Rutherford expressed doubts concerning the arrangement, the judge stated that in making his decision he had considered the feelings of Mr. Rutherford and Appleby and "the administration of the Court and the procedure of cases to trial and the potential for delay and miscarriage of justice." Appleby did not protest the judge's decision, and it was clear that trial was to commence on January 7, 1980.

On January 7, 1980, Appleby was arrested at the Canadian border in the State of Washington. ⁹ When he did not appear at trial that morning, a default warrant was issued. At a hearing on that date before a second Superior Court judge, Mr. Rutherford renewed his motion to withdraw on substantially the same grounds as before, and the motion was again denied. Appleby waived extradition from Washington and was present for a hearing before the same judge on January 14. At this hearing, and at hearings held by that judge on January 17 and 18, and by the trial judge on January 21 and 22, Mr. Rutherford presented motions to withdraw and Appleby presented motions to appoint different counsel. Mr. Rutherford and Appleby emphasized that a breakdown of the attorney-client relationship between them had occurred and that they were not prepared for trial. The motions were all denied.

As of January 14, 1980, Appleby had not quarreled with the notion that he was representing himself with Mr. Rutherford as standby adviser, although Appleby said he wanted another lawyer and had decided to proceed pro se only because he did not want Mr. Rutherford to represent him. ¹⁰ He did not request a continuance, however. At the January 17 hearing, Appleby stated that Mr. Rutherford, or any attorney from the Massachusetts Defenders Committee, would be unable to represent him adequately because they could not understand, and might be repulsed by, the homosexual and sadomasochistic aspects of the case. He claimed that such an understanding was necessary because "[t]his is a positive defense. It's consensual relationship." When Appleby said that he did not wish to represent himself, the judge instructed Mr. Rutherford that he was to represent Appleby.

In his remarks on January 21 ¹¹ and 22, the trial judge said that he had read the more than fifty motions that had been filed by Appleby and his various attorneys. His opinion was that Appleby had apparently caused many of his own problems and "seem[ed] to be creating this delay." He noted that Appleby had "had many hearings before many judges on the same matters we're talking about today." The judge further noted that Mr. Rutherford, whom he characterized as a highly competent attorney, was in the case for all purposes as of January 17, 1980. The judge said that Appleby had the right to conduct his own defense but that Mr. Rutherford was his attorney and, rather than being a passive adviser, Mr. Rutherford would be expected to make suggestions for the conduct of trial as though he were participating in it as counsel.

At a lobby conference the next day, Appleby and Mr. Rutherford again voiced their objections to the situation. When Appleby stated that he did not consider Mr. Rutherford to be his attorney and did not want Mr. Rutherford to speak on his behalf, the judge instructed Mr. Rutherford "to stand by as counsel, and ... to give ... advice at all times." The empanelment of the jury was commenced following this conference.

1. Assistance of counsel. The assistance of counsel is "deemed necessary to insure fundamental human rights of life and liberty." Johnson v. Zerbst, 304 U.S. 458, 462, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461 (1938). It is a right accorded to every defendant, rich or poor, and zealously safeguarded by the Sixth and Fourteenth Amendments to the United States Constitution. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). However, a defendant may proceed to defend himself without counsel when he voluntarily and intelligently elects to do so. Faretta v. California, supra. An indigent defendant has the right to appointed counsel, Gideon v. Wainwright, supra, but he has no right to dictate who shall be appointed to represent him. Commonwealth v. Drolet, 337 Mass. 396, 400-401, 149 N.E.2d 616 (1958). "While a defendant may not be forced to proceed to trial with incompetent or unprepared counsel, ... a refusal without good cause to proceed with able appointed counsel is a 'voluntary' waiver." Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir.1976). In the present case, we conclude that Appleby's failure to proceed with Mr. Rutherford as of November 30, 1979, was without good cause and constituted a waiver of his right to counsel. ¹²

The only issue for decision at the hearing on November 30, 1979, was whether Mr. Rutherford, on his own motion, should be allowed to withdraw. Although Appleby was evidently dissatisfied with Mr. Rutherford, he did not request that a new lawyer be appointed at that time. The judge found that Mr. Rutherford was a competent attorney. There was no indication that either Appleby or Mr. Rutherford could not be prepared for trial on January 7, 1980. Indeed, from the number of motions filed between the time Mr. Rutherford was appointed on October 17,...