Com. v. Barnes

• Citation: 399 Mass. 385,504 N.E.2d 624
• Parties: COMMONWEALTH v. Kenneth BARNES. (and nine companion cases).
• Decision Date: 10 March 1987
• Court: United States State Supreme Judicial Court of Massachusetts

Page 624

504 N.E.2d 624

399 Mass. 385

COMMONWEALTH v. Kenneth BARNES. (and nine companion cases).

Supreme Judicial Court of Massachusetts Hampden.

Argued Jan. 5, 1987.

Decided March 10, 1987.

Terry Scott Nagel, Springfield, for defendant.

Ariane D. Vuono, Asst. Dist. Atty., for Com.

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

NOLAN, Justice.

Kenneth Barnes was convicted on indictments charging larceny, burglary, burglary and assault upon an occupant, and assault and battery. Barnes challenges his convictions on the ground that his decision to conduct his own defense was constitutionally deficient. He also claims that the judge impermissibly foreclosed his cross-examination of a witness. Finally, he contends that his confession to the burglary and larceny charges should have been suppressed because it resulted from an arrest based upon a pretext, and thereby violated his Fourth Amendment rights. We took the case on our own motion. We conclude that there is no merit in his first two claims of error, and reject the suppression issue as not properly before us.

We set forth the relevant facts. On the morning of February 14, 1984, Barnes was arrested by Springfield police officers on an eleven-year-old traffic warrant. ¹ The police found Barnes in the apartment where he had been living since November, 1983. Barnes was brought to the police station where the police read him a statement given them a few days earlier by Roger Pierce, a seventeen-year-old neighbor of Barnes. In the statement, Pierce confessed that he and Barnes had committed five break-ins in the apartment complex where they both lived. Four of these break-ins occurred in the apartment of Robert and Arvis Dodge. Pierce further admitted that, during two of the break-ins, he and Barnes had assaulted the Dodges.

The Dodges, father and son, were recluses of limited intelligence and had not reported the crimes to the police. After obtaining Pierce's confession, police went to the Dodges' apartment to question them about the crimes. The Dodges confirmed that they had been victims of robberies and assaults but were unable to identify the men involved or provide the dates on which the crimes occurred.

When confronted with Pierce's statement, Barnes confessed that he had participated in the break-ins. He denied, however, that he had assaulted the Dodges. Barnes signed a statement in which he admitted committing larceny and burglary on five occasions.

After arraignment, Barnes's attorney moved to suppress that statement on the ground that Barnes had not been advised of his Miranda rights and had not properly waived those rights. After a hearing on June 13 and 14, 1984, the motion was denied and the case set for trial. On Wednesday, October 31, 1984, during the jury empanelment, Barnes's attorney informed the judge that he was experiencing some difficulty in communicating with his client. The problem was that Barnes did not understand the juror challenge process. Barnes apparently believed that, if jurors were challenged, they would not be replaced, leaving him with less than a twelve-person jury. The judge thereupon ordered a recess to allow the attorney to explain the system to Barnes.

When the court resumed, Barnes's attorney told the judge that Barnes wished to represent himself while retaining the attorney as an advisor. The judge briefly inquired about Barnes's comprehension of his rights and the problems involved in self-representation. In order to provide Barnes the opportunity to discuss with his attorney the wisdom of his decision, the judge dismissed the jury before it was sworn and set the trial date for Monday, November 5.

In the morning before the trial commenced, the judge more fully explained the disadvantages to Barnes of his course of action and then had Barnes sign a waiver of counsel form. Barnes made no opening statement and did not call any witnesses in his defense. He did cross-examine the prosecution witnesses and gave a very short summation. The jury returned guilty verdicts on eleven of sixteen indictments. The judge sentenced Barnes to a term of eighteen to twenty years on one conviction for burglary and assault upon an occupant. The sentences on nine convictions were ordered to run concurrently. One conviction was placed on file.

After his convictions, Barnes continued his active role in his own defense despite the availability of court-assigned appellate counsel. Barnes filed numerous pro se motions for relief. When counsel sought to withdraw these motions, Barnes petitioned the court to dismiss the attorney. In April, 1985, Barnes was ordered to undergo an examination to determine his competency to waive counsel. The examining psychiatrist concluded that Barnes was competent, but Barnes decided not to exercise his right to waive counsel. Counsel filed a motion for a new trial, which was denied.

Barnes contends that he is entitled to a new trial because the trial judge failed to conduct a hearing or inquiry on his competency to waive counsel. According to Barnes, the judge had notice that he might be incompetent to waive counsel as a result of an earlier court-ordered psychiatric examination to assess his competency to stand trial and his criminal responsibility. ² Therefore, Barnes insists that the decisions in Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429 (1966) (per curiam), and Commonwealth v. Wertheimer, 19 Mass.App.Ct. 930, 472 N.E.2d 266 (1984), mandate a separate examination of his competency to waive counsel. We do not agree.

In Westbrook, the Supreme Court observed that while the "petitioner received a hearing on the issue of his competence to stand trial, there appears to have been no hearing or inquiry into the issue of his competence to waive his constitutional right to the assistance of counsel and proceed, as he did, to conduct his own defense." Id., 384 U.S. at 150, 86 S.Ct. at 1320. The Court's review of the record required that the issue of the petitioner's competency to waive counsel should be "re-examined in light of our decision ... in Pate v. Robinson, 383 U.S. 375 [86 S.Ct. 836, 15 L.Ed.2d 815 (1966)]." Id. at 151, 86 S.Ct. at 1320.

The Pate Court held that the trial judge's failure to require a hearing on the defendant's contention that he was insane denied him his constitutional right to a fair trial. Id., 383 U.S. at 385, 86 S.Ct. at 842. There was evidence that the defendant Pate had a long history of disturbed behavior, had been confined as a psychopathic patient and had committed acts of violence, including the killing of his infant son and an attempted suicide. Four defense witnesses testified that the defendant Pate was insane. "Where the evidence raises a 'bona fide doubt' as to a defendant's competence to stand trial," a sanity hearing is constitutionally required. Id.

We therefore view Westbrook as necessitating a competency hearing or inquiry to waive counsel only where there is some indication of mental disorder or impairment sufficient to create a "bona fide doubt" as to the defendant's ability to make an informed decision to proceed without counsel. ³ Evans v. Raines, 534 F.Supp. 791, 794-795 (D.Ariz.1982), aff'd and remanded on other grounds, 705 F.2d 1479, 1480-1481 (9th Cir.1983). See People v. Leever, 173 Cal.App.3d 853, 864, 219 Cal.Rptr. 581 (1985); State v. Bauer, 310 Minn. 103, 123, 245 N.W.2d 848 (1976). See also State v. Doss, 116 Ariz. 156, 159, 568 P.2d 1054 (1977).

There was no indication that Barnes suffered from any mental problems. The psychiatrist's examination expressly concluded that Barnes was competent to stand trial and that he was not impaired by any mental disorder which would have interfered with his capacity to appreciate the criminality of his conduct. A trial judge is only required to act reasonably on the facts before him. Therefore, the judge was not required to hold an inquiry into Barnes's mental competency to waive counsel. Barnes "does not dispute that he was competent to stand trial; from this fact the trial court was entitled to infer that he was also competent to waive his right to counsel." United States v. Hafen, 726 F.2d 21, 25 (1st Cir.), cert. denied, 466 U.S. 962, 104 S.Ct. 2179, 80 L.Ed.2d 561 (1984). Moreover, counsel for Barnes, "who had represented him for [two] months preceding trial and who was consequently in a better position than the trial judge to assess his mental state, made no objection to the validity of [Barnes's] decision to proceed pro se." Id. "Although a criminal defendant cannot waive his right to a Pate hearing, ... 'the failure of defendant or his counsel to raise the competency issue [is] persuasive evidence that no Pate violation occurred.' " Hance v. Zant, 696 F.2d 940, 949 (11th Cir.) cert. denied, 463 U.S. 1210, 103 S.Ct. 3544, 77 L.Ed.2d 1393 (1983), quoting Reese v. Wainwright, 600 F.2d 1085, 1092 (5th Cir.), cert. denied, 444 U.S. 983, 100 S.Ct. 487, 62 L.Ed.2d 410 (1979).

We are next faced with the issue of whether the decision by Barnes to waive counsel was knowing and intelligent. Barnes argues that the waiver was ineffective because of the judge's failure to inform him of the potential sentence that could be imposed if he was found guilty. He also claims that he was not told of valuable defenses of a technical nature which could be irretrievably lost by his failure to raise them in a timely fashion.

We have not prescribed the questions that a judge must pose to an accused who desires to represent himself nor is there any "particular piece of information that is essential to an effective waiver of counsel." Maynard v. Meachum, 545 F.2d 273, 279 (1st Cir.1976). The validity of a defendant's waiver depends on the particular facts and circumstances of each case. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).

The focus of our review is the defendant's subjective understanding of his decision and its consequences....