Com. v. Binkiewicz

Decision Date09 June 1961
Citation342 Mass. 740,175 N.E.2d 473
PartiesCOMMONWEALTH v. Michael BINKIEWICZ (three cases). COMMONWEALTH v. Donald PAINTEN (three cases). COMMONWEALTH v. George E. HAYES (two cases).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Ruth I. Abrams, Sp. Asst. Dist. Atty., and Robert M. Sriberg, Asst. Dist. Atty., Boston, for Commonwealth.

Albert R. Mezoff, Boston, for defendant Binkiewicz.

Walter Powers, Jr., Boston, for defendant Painten.

Henry E. Quarles, Sr., Boston, and Henry E. Quarles, Jr., Roxbury, for defendant Hayes.



These cases arose out of the robbery of the People's National Bank, Marlborough, on February 28, 1958. At the trial in the Superior Court, the defendants Michael Binkiewicz and Donald Painten were convicted on indictments charging armed robbery while masked and disguised, and Binkiewicz, Painten, and George E. Hayes were convicted on indictments charging larceny of an automobile and conspiracy to steal. A fourth defendant, John Bratkon, in the course of the trial, pleaded guilty to armed robbery and conspiracy and thereupon was called as a witness for the Commonwealth. The convictions depended upon his testimony. The convicted defendants have appealed under G.L. c. 278, §§ 33A-33G. The assignment of error not argued in the briefs are deemed waived. Commonwealth v. Taylor, 327 Mass. 641, 646, 100 N.E.2d 22; Commonwealth v. Locke, 335 Mass. 106, 110, 138 N.E.2d 359.

1. Denial of Binkiewicz's motions for continuance.

On April 9, 1958, Binkiewicz was indicted for armed robbery. On May 7, 1958, he was indicted for larceny and conspiracy. Binkiewicz was arraigned on May 14, at which time his attorney, Mr. Stephen L. Mitchell, filed motions for bills of particulars which were denied. The court on June 9, 1958, assigned the cases for trial on June 18, 1958. Mr. Mitchell on June 10, by motion filed in the armed robbery case (No. 53537), moved that trial be postponed until September, 1958, because of his illness and inability to try the case before that month. On June 12, after hearing, that motion was denied, subject to the defendant's exception. On June 16, a second motion was filed in No. 53537 for a continuance to September, signed by Mr. Mitchell and indorsed from the office of George F. Himmel, 6 Beacon Street, Boston. To the motion was attached a written statement by a physician, dated June 6, 1958. Mr. Himmel may have been an office associate of Mr. Mitchell; the latter's address was the same. On June 18, in a handwritten paper, Mr. Mitchell withdrew the defendant's motion for continuance filed on June 16, 1958, 'for the reason that the court, Donahue J. has refused to hear the said motion.' On June 18, also, the court ordered in each case that 'George P. Lordan, Esq. * * * a practicing lawyer in this county' be appointed to represent the defendant. Mr. Lordan and Frank P. Marchetti, Esq., had appeared for Binkiewicz on June 12. 1 These appearances were withdrawn on June 13. Assignment of error 4 recites, inter alia, that on 'June 18, 1958, the court asked the defendant if he would accept the services of court-appointed counsel. The defendant answered that he would if said counsel was given sufficient opportunity to prepare an adequate defence.' The statement of evidence is not the function of an assignment of error. Commonwealth v. Boris, 317 Mass. 309, 312, 58 N.E.2d 8. The defendant, however, asserts the fact in his brief and we accept it.

Trial began on June 20, 1958. The transcript shows that after the jury had been empanelled and sworn, the indictments had been read, and a recess taken, Mr. Lordan said, 'Your Honor, I conferred with Mr. Binkiewicz during the recess. He wants me to put on record his objections to going forward and asks his exceptions be saved. May that be done?' The judge answered, 'All right.'

In Lindsey v. Commonwealth, 331 Mass. 1, 2, 116 N.E.2d 691, 692, we said, 'The right to the assistance of counsel obtained by the accused is * * * one of the rights secured by the Fourteenth Amendment. Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 77 L.Ed. 158 * * * [The State] is required to allow the accused a reasonable opportunity to procure counsel for himself and to allow such counsel a reasonable opportunity to prepare and to present the defence. Allen v. Commonwealth, 324 Mass. 558, 87 N.E.2d 192; Commonwealth v. Blondin, 324 Mass. 564, 567-569, 87 N.E.2d 455; Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 84 L.Ed. 371; House v. Mayo, 324 U.S. 42, 45-46, 65 S.Ct. 517, 89 L.Ed. 739; White v. Ragen, 324 U.S. 760, 763-764, 65 S.Ct. 978, 89 L.Ed. 1348.' See Chandler v. Fretag, 348 U.S. 3, 9, 75 S.Ct. 1, 99 L.Ed. 4; Jones v. Commonwealth, 331 Mass. 169, 171, 117 N.E.2d 820; Melanson v. O'Brien, 1 Cir., 191 F.2d 963, 968-969.

The defendant had at least one attorney of record on June 18; we infer that an attorney acting for him was in court at some time on that day. The withdrawal on June 18 of the second motion did not add to or lessen the defendant's rights in respect of a continuance. It is the necessary conclusion, however, that the defendant, on June 18, was willing to accept Mr. Lordan as his trial attorney, if he could not have Mr. Mitchell, provided the former should have sufficient opportunity to prepare for trial.

No error is shown in respect of the denial on June 12 of the motion to continue to September. The right to representation by a particular attorney is not absolute. It must be adjusted to the reasonable requirements of other parties to the case, the orderly conduct of the courts, and the rights of other litigants. It is not uncommon, in the general interest, that an order is entered which in effect requires a much sought attorney to elect what case he will try and thus to choose, or permit the choice of, a substatitute in some case. The state of Mr. Mitchell's health as disclosed in the physician's statement of June 6, 1958, was such that it was conjectural whether he would be able to try the case in September. 2 The denial of a continuance was within the discretion of the judge. Commonwealth v. Millen, 289 Mass. 441, 463, 194 N.E. 463; Commonwealth v. Knights, 325 Mass. 758, 89 N.E.2d 218; Commonwealth v. Locke, 335 Mass. 106, 111, 138 N.E.2d 359. We assume nevertheless that the denial entailed the obligation in the court so to decide in respect of the trial date that the defendant was not deprived of the right described in the Lindsey case, supra. An important step was the appointment on June 18 of an attorney who was acceptable to the defendant. Thereupon it became the obligation of this attorney to move for a continuance if he was unable to prepare for trial in the two days available before the trial started on Friday, June 20, and in the week end break which followed the first day of trial. We discern in Mr. Lordan's opening address to the court no suggestion of his own view that a continuance was required. The implication is otherwise. Conceivably he felt to a degree that he was appointed to try the case on June 20. But we reject the inference that he would not have moved and pressed for a continuance if, having accepted the obligations of counsel, he believed his proper representation of the defendant made a continuance necessary.

It is not clear to what action of the court the exception expressed in Mr. Lordan's remarks was taken. At best for the defendant, what counsel said was a motion of the defendant that there be a continuance. The absence of supporting contention of counsel that he needed more time, and the implication to the contrary, are fatal.

Binkiewicz asserts no way in which he was prejudiced in fact. There is no basis for concluding that the case had not been adequately prepared. Mr. Mitchell's appearance was entered on April 16, 1958. The motions of May 14, for particulars, show that he was giving attention to the case. The defendant, after noting that the transcript may be thought to show evidence to support a guilty finding and observing that this might be attributed to inadequate preparation, says: 'A continuance here certainly would have been useful to the accused, but even if not, the importance of proper assistance of counsel in serious criminal charges is too large to permit speculation on its effect.' It is the defendant, we think, who asked the benefit of speculation. He was represented by court appointed counsel, who was acceptable to him on a condition which we must conclude was met. Mr. Lordan's participation in the trial was such as to suggest that the defence did not suffer from lack of time. The conclusion would not be unjustified, from the events of June 12, 13, 16, and 18, that Binkiewicz was seeking to capitalize on Mr. Mitchell's illness; in any event he shows no error or prejudice.

2. Denial on June 20, 1958, of Hayes's motion for a continuance.

No error is shown. The motion recited the denial of the Binkiewicz motion and, on information, that Binkiewicz 'refuses and will throughout the duration of the said trial refuse to testify or in any manner participate therein unless and until Stephen L. Mitchell is present and conducts his defence.' Without suggesting that Hayes would have had a right to a continuance if the recitals of his motion had been established, it is sufficient to note that they were not. The only facts before us bearing on Binkiewicz's intention in respect of the trial (section 1, supra) speak of his intention to cooperate with court appointed counsel rather than otherwise, and Mr. Lordan's cross-examination of witnesses reflects cooperative consulatation between lawyer and client.

3. Denial of Painten's motions for particulars.

We pass the absence in the record of indication of the denial of the motions and of exceptions. The indictments were in the language of the statute and it does not appear that they were insufficient ...

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