Com. v. Barrett

• Decision Date: 23 January 1975
• Parties: COMMONWEALTH v. James W. BARRETT.
• Court: Appeals Court of Massachusetts

Page 89

322 N.E.2d 89

3 Mass.App.Ct. 8

COMMONWEALTH v. James W. BARRETT.

Appeals Court of Massachusetts, Suffolk.

Argued March 19, 1974.

Decided Jan. 23, 1975.

John G. S. Flym, Boston, for defendant.

Elizabeth C. Casey, Asst. Dist. Atty., for the Commonwealth.

Before ROSE, GOODMAN and GRANT, JJ.

GOODMAN, Justice.

These are appeals (G.L. c. 278, §§ 33A--33G) from the denials of the defendant's two motions for a new trial. The defendant, in 1963, was indicted for and convicted of second degree murder. ¹ No appeal was taken. In 1972, the defendant filed a motion for a new trial, which was denied. The motion alleged among other grounds that convictions resulting from previous trials at which the defendant had been without counsel had been unconstitutionally used at the trial to impeach the defendant's credibility; he had testified on his own behalf that he had shot the victim in self-defense. Subsequently, in 1973 the defendant filed a 'renewed motion for a new trial.' The motion reiterated and expanded the ground that the uncounseled convictions had been unconstitutionally used and added a number of other grounds. This also was denied.

We hold that a new trial is required because the Commonwealth introduced in evidence to impeach the defendant's credibility three convictions for assault and battery, viz.: One in the District Court of Chelsea was on May 7, 1956; the defendant pleaded guilty and was fined $50. Al second in the Municipal Court of the City of Boston was on December 19, 1959; the defendant was tried, found guilty, and fined $100. A third in the Municipal Court of the City of Boston was on April 4, 1961; the defendant was tried, found guilty, and fined $15. ² Our conclusion is based on (1) the implications of Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), and of Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), and related cases and (2) on an examination of the transcript, from which it appears that the uncounseled convictions of assault and battery may well have contributed to the conviction in this case in which the defendant was sentenced to life imprisonment.

1. In Loper v. Beto, 405 U.S. 473, 480, 485, 92 S.Ct. 1014, 1018, 31 L.Ed.2d 374 (1972), the majority of the court answered in the affirmative the question: 'Does the use of prior, void convictions for impeachment purposes deprive a criminal defendant of due process of law where their use might well have influenced the outcome of the case?' The plurality opinion, at 483, ³ 92 S.Ct. at 1019, quoting from Gilday v. Scafati, 428 F.2d 1027, 1029 (1st Cir. 1970), cert. den. 400 U.S. 926, 91 S.Ct. 188, 27 L.Ed.2d 186 (1970), said, 'We can put the matter no better than in the words of the Court of Appeals for the First Circuit: '. . . The absence of counsel impairs the reliability of such convictions just as much when used to impeach as when used as direct proof of guilt. " The Loper case thus follows from the principle established in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), that the requirement of counsel 'goes to 'the very integrity of the fact-finding process' in criminal trials, and that a conviction obtained after a trial in which the defendant was denied the assistance of a lawyer 'lacked reliability." Loper v. Beto, supra, at 483--484, quoting, at 484, 92 S.Ct. at 1019, Linkletter v. Walker, 381 U.S. 618, 639, and fn. 20, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Compare Subilosky v. Commonwealth, 349 Mass. 484, 488, 209 N.E.2d 316, 319 (1965), holding the Gideon case retroactive because '(t)he (uncounseled) judgments lack reliability and this is just as true whether the defendant was convicted before or after the decision in the Gideon case.'

Such a conviction, lacking in reliability, cannot (consistently with Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967)) be used 'either to support guilt' (Loper case, at 481, 92 S.Ct. 1014, quoting the Burgett case, supra)--'the obvious purpose and likely effect of impeaching the defendant's credibility' (Loper case, at 483, 92 S.Ct. at 1019, quoting Gilday v. Scafati, 428 F.2d at 1029)--or (consistently with United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972)) 'play( ) a part in the determination of the length of a convicted defendant's prison sentence' (Loper case, at 482, 92 S.Ct. at 1018). See Commonwealth v. Barrett, --- Mass.App. ---, --- - ---, ^a 296 N.E.2d 712 (1973).

In Argersinger v. Hamlin, 407 U.S. at 32, 92 S.Ct. at 2010, the Supreme Court of the United States held that the rationale of the Gideon case 'has relevance to any criminal trial, where an accused is deprived of his liberty' and held void an uncounseled conviction of an offense punishable by imprisonment up to six months or a fine of $1,000, for which the petitioner was sentenced to ninety days in jail. The court went on to say, 'We need not consider the requirements of the Sixth Amendment as regards the right to counsel where loss of liberty is not involved, however, for here petitioner was in fact sentenced to jail.' Argersinger v. Hamlin, supra, at 37, 92 S.Ct. at 2012. This was in reply to Mr. Justice Powell's concurring opinion arguing that the need for counsel cannot, under the rationale of Powell v. Alabama, 287 U.S. 45, 68--69, 53 S.Ct. 55, 77 L.Ed. 158 (1932), and Gideon v. Wainwright, 372 U.S. at 343--345, 83 S.Ct. 792, depend on whether imprisonment results. He points out (p. 48, 92 S.Ct. p. 2018) that '(s)erious consequences also may result from convictions not punishable by imprisonment' and predicts (p. 51, 92 S.Ct. p. 2019) that '(t)he thrust of the Court's position indicates, however, that when a decision must be made, the rule will be extended to all petty-offense cases except perhaps the most minor traffic violations.'

We need not in this case attempt to anticipate just what distinctions will ultimately be developed. See United States v. Sawaya, 486 F.2d 890, 892, and fn. 2 (1st Cir. 1973), discussing various possibilities and citing cases. See also Wood v. Superintendent Caroline Correctional Unit, 355 F.Supp. 338, 341--344 (E.D.Va.1973); Note, 35 Ohio St.L.J. 168, 170--176 (1974). But it is perhaps significant that after the decision in the Gideon case, decided March 18, 1963, the Supreme Judicial Court in Commonwealth v. O'Leary, 347 Mass. 387, 390, 198 N.E.2d 403, 405 (decided April 29, 1964), admonished, in view of the possible implications of the Gideon case and related decisions by the Supreme Court of the United States, that 'it would be wise (at a trial in a District Court) to offer to appoint counsel except for the most trifling of offences for which no sentence of imprisonment may be imposed.' The O'Leary case, moreover, was decided at a time when Rule 10 of the General Rules of the Supreme Judicial Court (345 Mass. 792; effective December 21, 1962) provided for appointment of counsel for anindigent indigent defendant 'charged with a non-capital felony.' Indeed, soon thereafter, on June 29, 1964, Rule 10 ⁴ was changed so that it has since provided for the assignment of counsel for an indigent defendant 'charged with a crime, for which a sentence of imprisonment may be imposed . . ..' 347 Mass. 809 (1964). Compare Olvera v. Beto, 429 F.2d 131, 132 (5th Cir. 1970); Gilliard v. Carson, 348 F.Supp. 757, 762--763 (M.D.Fla.1972).

This indication that the classification in Rule 10 may represent the view of the Supreme Judicial Court as to the ultimate scope of the Gideon case (but see MacDonnel v. Commonwealth, 353 Mass. 277, 280, 230 N.E.2d 821 (1967)), is reinforced in Williams v. Commonwealth, 350 Mass. 732, 733--734, 216 N.E.2d 779 (1966), in which an indigent defendant without counsel pleaded guilty in a Municipal Court to five complaints, 'some of which were sufficiently serious to have resulted in the confinement of the petitioner.' They were placed on file without fine or sentence of imprisonment. The court said (p. 734, 216 N.E.2d p. 780), 'In these proceedings the petitioner (defendant) was entitled to be represented by counsel' and cited Gideon v. Wainwright, while referring also to Rule 10. Similarly, in applying its Rule 3:10, 351 Mass. 791 (1967), the Supreme Judicial Court held in Cardran v. Commonwealth, 356 Mass. 351, 353--354, 252 N.E.2d 358, 360 (1969), that a defendant appearing without counsel in a District Court to withdraw an appeal to the Superior Court was entitled to counsel, though he had only been fined in the District Court. The court pointed out that '(i)n one of the complaints the petitioner was charged with an offence 'for which a sentence of imprisonment may be imposed.' G.L. c. 90, § 24(1)(a).' As in Williams v. Commonwealth, supra, the court was concerned with the classification of the offense rather than the outcome of the particular case. ⁵

A somewhat different classification is recommended in the American Bar Association Project on Standards for Criminal Justice, Standards Relating to Providing Defense Services, § 4.1, pp. 37--38 (Approved Draft, 1968), which was quoted by Chief Justice Burger, concurring in Argersinger v. Hamlin, 407 U.S. at 43, 92 S.Ct. at 2015. These standards state: 'Counsel should be provided in all criminal proceedings for offenses punishable by loss of liberty except those types of offenses for which such punishment is not likely to be imposed, regardless of their denomination as felonies, misdemeanors or otherwise.' The commentary on those standards, quoted by the majority in the Argersinger case, states, 'It should be noted that the standard does not recommend a determination of the need for counsel in terms of the facts of each particular case; it draws a categorical line at those types of offenses for which incarceration as a punishment is a practical possibility' (emphasis in original). Similarly, in the Report by the President's Commission on Law Enforcement and Administration of Justice, The Challenge...