Com. v. Bernier

• Decision Date: 08 March 1971
• Citation: 267 N.E.2d 636,359 Mass. 13
• Parties: COMMONWEALTH v. Norman George BERNIER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 636

267 N.E.2d 636

359 Mass. 13

COMMONWEALTH v. Norman George BERNIER.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 4, 1971.

Decided March 8, 1971.

Norman G. Bernier, pro se.

Terence M. Troyer, Legal Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and CUTTER, SPIEGEL, REARDON and QUIRICO, JJ.

QUIRICO, Justice.

This is an appeal by the defendant under G.L. c. 278, §§ 33A--33G, from the denial of his motion for a new trial. On February 23, 1967, the defendant was convicted by a jury on two indictments charging the crimes of kidnapping, two charging the crimes of assault by means of a dangerous weapon, one charging the crime of robbery while armed with a dangerous weapon, and one charging the crime of unlawful possession of a firearm. On the defendant's appeal to this court the judgments in all six cases were affirmed by an opinion dated May 2, 1968, and reported as Commonwealth v. Medeiros, 354 Mass. 193, 236 N.E.2d 642, cert. den. sub nom. Bernier v. Massachusetts, 393 U.S. 1058, 89 S.Ct. 699, 21 L.Ed.2d 699. ¹ The victims of the kidnappings and assaults were a mother and her two year old daughter, and the victim of the armed robbery was the mother.

On September 26, 1969, the defendant filed a motion for a new trial on the alleged ground that before and during his trial and in the prosecution of his direct appeal to this court he was denied the 'effective assistance of counsel' guaranteed to him by the Sixth Amendment to the United States Constitution made applicable to the several States through the due process clause of the Fourteenth Amendment. In his motion he alleges a number of specific acts or omissions by his court-appointed counsel which he claims resulted in depriving him of his right to the effective assistance of counsel.

In his motion for a new trial and in a letter which he sent to the trial judge one week before the hearing on the motion, the defendant stated that he elected to waive his right to be represented by counsel, and that he desired to handle the matter himself. At the opening of the hearing on the motion the trial judge informed the defendant of his right to be represented by counsel in the proceeding, and to have counsel appointed for him by the court if he desired. He again stated that he elected to proceed without counsel, and he signed a waiver of his right to have counsel appointed for him. The trial judge thereupon signed a certificate of compliance with S.J.C. Rule 3:10, 351 Mass. 791--793.

The defendant's motion was heard by the trial judge on the basis of the sworn statements contained therein plus evidence consisting solely of testimony given by the defendant and by the attorney who represented him at the time of the original trial and appeal to this court. ² Before the defendant took the stand at the hearing on the motion the trial judge informed him that by taking the stand he would probably be waiving any attorney-client privilege attaching to his conversations with the attorney whose conduct he was now questioning. The defendant replied, 'I am willing to waive that,' and he agreed that the attorney could disclose any conversation which the defendant had with him. ³

To the extent that the defendant's motion was based on facts which were neither agreed upon nor apparent on the face of the record, he had the burden of proving such facts. Commonwealth v. Jordan, 207 Mass. 259, 275, 93 N.E. 809, aff'd sub nom. Jordan v. Massachusetts, 225 U.S. 167, 32 S.Ct. 651, 56 L.Ed. 1038; Commonwealth v. Sacco, 255 Mass. 369, 448, 151 N.E. 839, Id., 259 Mass. 128, 138--139, 156 N.E. 57. The trial judge was not compelled to accept as true the statements made in the affidavit or the oral testimony of the witnesses at the hearing. The credibility of the affiant and the witnesses was a preliminary matter for decision by the trial judge and his decision thereon is final. Commonwealth v. Jordan, supra, 207 Mass. 275, 93 N.E. 809; Commonwealth v. Crapo, 212 Mass. 209, 210, 98 N.E. 702; Commonwealth v. Chin Kee, 283 Mass. 248, 257, 186 N.E. 253; Commonwealth v. Millen, 290 Mass. 406, 410, 195 N.E. 541; Commonwealth v. Noxon, 319 Mass. 495, 500, 66 N.E.2d 814; Commonwealth v. Doyle, 323 Mass. 633, 637, 84 N.E.2d 20; Commonwealth v. Heffernan, 350 Mass. 48, 53, 213 N.E.2d 399, cert. den. sub nom. Heffernan v. Massachusetts, 384 U.S. 960, 86 S.Ct. 1586, 16 L.Ed.2d 673.

In acting upon the defendant's motion for a new trial, the trial judge used and relied in part upon his own knowledge of what took place at the trial before him. This court has held in a number of opinions that such action is proper. Commonwealth v. Sacco, 259 Mass. 128, 140, 156 N.E. 57; Commonwealth v.Chin Kee, 283 Mass. 248, 257, 186 N.E. 253; Commonwealth v. Lee, 324 Mass. 714, 721--722, 88 N.E.2d 713; Commonwealth v. Barrasso, 342 Mass. 680, 685, 175 N.E.2d 251.

The trial judge found against the defendant on most of the disputed factual issues raised by the motion for a new trial; and he decided against the defendant as to whatever legal questions were thereby raised. As to the judge's findings of facts, the only question before us is whether there was evidence which, if believed, warranted the findings. Commonwealth v. Jordan, supra, 207 Mass. 275, 93 N.E. 809. We conclude that there was evidence to support all of the findings made by the trial judge. The defendant argues that in any event, on the facts found, the judge applied the wrong legal standards in concluding that the defendant had not been denied the right to the effective assistance of counsel.

Before considering the different categories of claims made by the defendant in support of his conclusion of ineffective legal representation, we shall review generally the standard of representation to which he was entitled. We consider this appropriate at this time because of the increasing frequency with which convicted defendants are making accusations of incompetence or ineffectiveness against their trial lawyers as a basis for motions for new trials.

We are not concerned here with the defendant's right to be represented by counsel but only with the question raised by him whether the representation which he received was so deficient that it was tantamount to a denial of effective assistance. In answering this question we are aided by a consideration of the frequently quoted language of several decisions by other courts on this subject.

In Mitchell v. United States, 104 U.S. App.D.C. 57, 259 F.2d 787, cert. den. 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86, the court said at pp. 793--794 of 259 F.2d, that the term 'effective assistance' when used with reference to the construction of the constitutional requirement for the assistance of counsel 'does not relate to the quality of the service rendered by a trial lawyer or to the decisions he makes in the normal course of a criminal case; except that, if his conduct is so incompetent as to deprive his client of a trial in any real sense--render the trial a mockery and a farce is one descriptive expression,--the accused must have another trial, or rather, more accurately, is still entitled to a trial. A convicted person cannot bring about a judicial hearing upon and determination of the trial competence of defense counsel by making allegations which, either on their face or after initial testing for verity, fail to indicate a lack of skill so great that the accused in realistic fact had not a fair trial. An accused cannot bring about a judicial evaluation of the qualify of a defense; he is entitled only to allege and show that the proceeding was not a fair trial.'

In MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir.), the court said: 'We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance. We consider undivided loyalty of appointed counsel to client as essential to due process.'

In Scott v. United States, 334 F.2d 72, 73 (6th Cir.), cert. den. 379 U.S. 842, 84 S.Ct. 81, 13 L.Ed.2d 48, the court said: 'Only if it can be said that what was or was not done by the defendant's attorney for his client made the proceedings a farce and a mockery of justice, shocking to the conscience of the Court, can a charge of inadequate legal representation prevail.'

The general principles stated above apply alike to court-assigned counsel, whether or not he be a public defender, and to privately retained counsel. Each is under the same obligation to defend with all of his skill and energy; and each has the same moral and ethical obligations to the court, embodied in applicable canons of ethics or standards of required conduct for the profession. A client of an assigned counsel can neither demand nor expect more from his lawyer than he could from a lawyer privately retained to defend him. In the very recent case of People v. Williams, Ill., 265 N.E.2d 107, the court said: 'A court appointment to represent an indigent defendant does not endow an attorney with the ability to perform miracles * * *.' Likewise, court-assigned counsel may not by reason of such assignment, maintain or attempt to maintain any defence, or do or attempt to do any act in behalf of his client which would be improper if done by counsel privately retained; and the client has no right to ask or expect his assigned counsel to do so.

Since the word 'effective' was first judicially coupled with the constitutional words 'assistance of counsel' in Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 77 L.Ed. 158, we have had the benefit of many decisons on what these words do or do not mean or require when applied to particular situations. We shall refer to some of these decisions. "Effective' assistance of counsel obviously means something other than successful assistance.' Mitchell v. United States, supra, 259 F.2d 789, 792; ...