Com. v. Blasser

• Decision Date: 10 January 1975
• Citation: 321 N.E.2d 676,2 Mass.App.Ct. 754
• Parties: COMMONWEALTH v. Ralph J. BLASSER.
• Court: Appeals Court of Massachusetts

Page 676

321 N.E.2d 676

2 Mass.App.Ct. 754

COMMONWEALTH v. Ralph J. BLASSER.

Appeals Court of Massachusetts, Suffolk.

Argued Nov. 11, 1974.

Decided Jan. 10, 1975.

John M. Russell, Jr., Boston, for defendant.

Newman A. Flanagan, Asst. Dist. Atty., for the Commonwealth.

Before HALE, C.J., and KEVILLE, GRANT and ARMSTRONG, JJ.

HALE, Chief Justice.

This case comes to us under the provisions of G.L. c. 278, §§ 33A--33G, after the defendant's conviction of armed robbery (Indictment No. 40854) and unlawfully carrying a firearm (Indictment No. 40855). ¹ The defendant was acquitted under a third indictment (No. 40856) charging assault with a dangerous weapon. At the trial there was evidence that between 8:00 and 8:30 P.M. on January 10, 1969, the defendant entered a market on Dorchester Avenue in Boston and bought some cigarettes. He left the store and returned a short time later, informing the cashier that she had given him incorrect change. He then pulled a gun part way from his clothing and told the cashier not to be excited but to open up the register and give him all the money. The cashier gave the defendant the smaller denominations of bills from the register. The defendant demanded bills of larger denomination and reached into the cash register, pulled out the coin section, and took all of the twenty dollar bills which lay beneath. As the defendant started to leave, the market's coowner, one Vega, who had seen the defendant take the money, seized the defendant and a struggle ensued. The other coowner, one Harold, came to Vega's assistance. During the struggle the bills fell to the floor. The gun, which was in the defendant's hand, was fired four times, one of the shots passing through a package of cigarettes in Harold's breast pocket. Vega and Harold overpowered the defendant and took his gun. An off-duty Boston police officer, one James Ahearn, who had been walking past the market when his attention was attracted by the shots, observed the struggle and the money on the floor. He entered, identified himself, and arrested the defendant. He took possession of the gun as well as four spent cartridges and subsequently turned these over to Officer Frank DiNatale, who arrived at the market at about 8;30 P.M.

Indictments Nos. 40854--40856 (the 1969 cases), upon which the defendant was tried, and which are now before us, were returned on March 5, 1969. The defendant fled the Commonwealth shortly after his arrest, spending some of the time in California, ² but subsequently returned to Massachusetts. On December 26, 1970, the defendant was arrested by Officer DiNatale on charges stemming from unrelated incidents which occurred on December 24, 1970 (the 1970 cases).

On May 27, 1971, the defendant appeared before a Superior Court judge on certain motions which had been filed in the 1970 cases. By one of those motions the defendant sought to discharge the Massachusetts Defenders Committee (M.D.C.) as his counsel, alleging that a conflict of interest existed as the result of the M.D.C.'s representation of both the defendant and a co-defendant. The defendant informed the judge that he had talked with a private attorney, whom he named, and requested that that attorney be assigned as his counsel. The motion to discharge the M.D.C. was denied. Immediately thereafter the assistant district attorney in charge of the case informed the judge that it had come to his attention that there were other indictments outstanding (the 1969 indictments). The defendant was thereupon arraigned on those indictments, being represented by an M.D.C. attorney. The defendant stood mute, and pleas of not guilty were entered by order of the court.

On June 8, 1971, the defendant was brought before the arraignment judge who informed him that he had contacted the private attorney requested by the defendant and that he was present in court. That attorney then made a statement to the effect that, while he had previously agreed to accept an appointment to represent the defendant, his present schedule would not permit his doing so. The judge then appointed Mr. Barry Haight to represent the defendant. The docket entries for the robbery indictment (No. 40854) do not reflect this appointment, but the docket entires in the companion cases state, 'June 8, 1971. . . . after hearing . . . (the court) appoints Barry Haight, Esquire, as attorney for defendant. Letter of appointment filed.' ³

The evidence on remand tended to show that several times during the summer of 1971 Mr. Haight conferred with the defendant at the Charles Street Jail. Ninety per cent of the time was spent discussing the 1970 cases. The defendant was reluctant to discuss the 1969 cases, informing Mr. Haight that there were no witnesses against him and that he preferred to discuss the 1970 cases, as both the defendant and Mr. Haight agreed that those cases were 'triable.' The defendant suggested to Mr. Haight that the identification procedures in the 1969 cases should be challenged and reiterated that there were no witnesses. On one occasion Mr. Haight informed the defendant that the assistant district attorney could proceed on any of the cases and asked the defendant if he would allow him to talk with the assistant district attorney. The defendant responded, 'Find out what he'll offer.' The assistant district attorney disclosed to Mr. Haight everything which was in his file on the 1969 cases. Thus, Mr. Haight had full knowledge of the expected testimony of each witness.

All of the cases were called for trial on September 17, 1971, at which time they were continued to October 13, 1971, as Mr. Haight was engaged elsewhere.

On October 13, 1971, the Commonwealth moved for trial on the 1969 cases. The defendant protested, stating that he had expected to go to trial on the 1970 indictments and that he was unprepared for trial on the 1969 indictments. Mr. Haight informed the court, as he had previously informed the defendant, that he had had access to the assistant district attorney's file, including the grand jury minutes, that he had talked with the police officers involved in the case, and that he had seen witnesses who would be appearing. He informed the court that he 'couldn't be any more prepared.' The defendant thereupon addressed the court and denied that he had ever had any conversation with Mr. Haight concerning the 1969 cases. He stated that he had no knowledge that he was going to be tried on those charges, and that he was prepared on the 1970 cases but not on the 1969 cases, and requested a delay. The judge ordered the trial to proceed. The defendant then orally moved that the 1969 cases be dismissed for want of a speedy trial. A jury was impaneled. The assistant district attorney made his opening statement, and the case was continued to October 14, the following day. On that day the defendant filed a written document requesting the dismissal of the 1969 indictments because of the denial of a speedy trial and further requesting that he be permitted to discharge Mr. Haight as his lawyer and secure a lawyer of his own choosing, stating, among other things, that despite what Mr. Haight had said, the 1969 cases were not prepared for trial. He informed the court that he had witnesses but when directed by the court to furnish their names to Mr. Haight, he declined to do so, stating that he was not accepting Mr. Haight as his counsel. The judge treated the document as a motion, denied it, and noted the defendant's exception. The defendant reiterated his refusal to accept Mr. Haight as counsel throughout the trial (although the transcript indicates that on numerous occasins during the trial Mr. Haight conferred with the defendant) and stated to the court that he did not accept the proceeding as a trial.

1. We first consider the judge's denial of the defendant's motion to discharge his court appointed attorney. The defendant makes no contention that Mr. Haight's representation was in any way incompetent. The judge, on remand, found as a fact that Mr. Haight had handled all aspects of the case in an outstanding manner. The defendant concedes that he was not entitled to have a particular attorney appointed to represent him (Commonwealth v. Drolet, 337 Mass. 396, 400, 149 N.E.2d 616 (1958); Commonwealth v. Bernier, 359 Mass. 13, 19, 267 N.E.2d 636 (1971); Commonwealth v. Miskel, --- Mass. ---, ---, ^a 308 N.E.2d 547 (1974); Commonwealth v. Smith, --- Mass.App. ---, ---, ^b 303 N.E.2d 132 (1973). See Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir. 1970)) and that he could not wait until his case was called for trial to request a continuance and the appointment of new counsel. See United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972), cert. den. 410 U.S. 926, 93 S.Ct. 1357, 35 L.Ed.2d 587 (1973). He contends, however, that despite full access to the government's case his attorney could not have been prepared for trial without having discussed the 1969 cases and any possible defenses with him. The trial judge on remand found that the defendant had refused to discuss those cases with Mr. Haight. The findings also make clear that Mr. Haight sought such discussion but that the defendant chose instead to discuss the 1970 cases. The defendant made that choice notwithstanding Mr. Haight's warning that the Commonwealth could move for trial on either set of indictments.

The defendant's insistence that he expected the Commonwealth to proceed on the 1970 cases was without basis. At the outset of the trial the defendant protested his lack of preparation and told the judge that he had witnesses whose names he had not previously given to Mr. Haight but now desired to give him. The judge responded, 'Why don't you tell him the names of the witnesses you want him to see and to arrange to have them in here?' This the defendant refused to do, and he told the judge that he would not accept Mr. Haight as his attorney in the 1969 cases. The defendant now contends that this refusal was justified for...