Com. v. Burbank, 88-P-557

• Decision Date: 08 March 1989
• Docket Number: No. 88-P-557,88-P-557
• Citation: 534 N.E.2d 1180,27 Mass.App.Ct. 97
• Parties: COMMONWEALTH v. Barry W. BURBANK.
• Court: Appeals Court of Massachusetts

Page 1180

534 N.E.2d 1180

27 Mass.App.Ct. 97

COMMONWEALTH v. Barry W. BURBANK.

No. 88-P-557.

Appeals Court of Massachusetts,

Hampden.

Argued Jan. 18, 1989.

Decided March 8, 1989.

John M. Thompson, Springfield, for defendant.

Elizabeth R. Dunphy, Asst. Dist. Atty., for the Com.

Before ARMSTRONG, SMITH and FINE, JJ.

FINE, Justice.

The defendant appeals from his convictions of second degree murder and assault and battery by means of a dangerous weapon arising out of a 1979 shooting incident. In 1980, the defendant was convicted, based upon the same incident, of first degree murder, assault with intent to murder, and aggravated assault. Those convictions were reversed by the Supreme Judicial Court in April of 1983. Commonwealth v. Burbank, 388 Mass. 789, 448 N.E.2d 735 (1983). The facts relating to the incident are set out in that opinion. We affirm the more recent convictions and also the trial judge's subsequent denial of the defendant's motion for postconviction relief.

1. Pretrial Matters.

The defendant's principal contentions on appeal relate to alleged pretrial errors. He claims that the judge's failure to grant him a two-month continuance deprived him of the right to counsel of his choice at trial. The denial of the continuance, he contends, was attributable to one or more of three prejudicial factors: a conflict of interest and improper actions on the part of Mr. Murray Shulman, his one-time private attorney and court-appointed standby counsel at trial; the defendant's exclusion from a pretrial conference scheduled by the judge to ascertain who was going to represent the defendant at trial; and an abuse of discretion by the trial judge. He also contends that he did not willingly waive his right to counsel at trial. We summarize the facts relevant to these contentions, which we take from the judge's findings on the motion for a new trial.

The defendant, having been found indigent, was represented at his first trial by court-appointed counsel, Edward Hurley. After the defendant was convicted, Mr. Hurley was permitted to withdraw from the case, and William Bennett was appointed to represent the defendant at a second trial. The judge granted a two-month continuance for Mr. Bennett to prepare for trial. The second trial ended in a mistrial on November 21, 1983. After the mistrial, Mr. Bennett negotiated a plea arrangement with the prosecutor whereby the defendant would plead guilty to manslaughter. The defendant rejected the arrangement, however, and decided to seek other counsel to represent him at the third trial.

Using funds borrowed from his family, the defendant engaged Gerald DiSanti and Murray Shulman as private counsel. Mr. Shulman was to represent the defendant at trial, and Mr. DiSanti was to provide pretrial consultation and research assistance. The attorneys' combined fee was to be $15,000, one third for Mr. DiSanti, and two thirds for Mr. Shulman. The first $10,000 was paid to the two attorneys in the specified proportions, and Mr. Shulman became counsel of record on February 8, 1984. On February 13, 1984, the judge granted a continuance until May 9, 1984, to allow Mr. Shulman time to prepare. On February 15, 1984, the judge granted the defendant's request for a change of venue from Hampden to Berkshire County. The case was formally transferred to Berkshire County on April 19, 1984. The calendars of both courts were adjusted to accommodate this change, and arrangements were made to summon sufficient jurors who might have to be sequestered.

After filing his appearance, Mr. Shulman discussed the case with the defendant in jail on several occasions, conferred at length with the prosecutor and the defendant's prior attorneys, obtained a transcript of the first trial and ordered a transcript of the second trial, visited the scene of the crime, reviewed the district attorney's file, and filed a motion for bail review. The defendant, nonetheless, by mid-March, felt that Mr. Shulman had not spent enough time with him, had failed to act promptly in seeking reduced bail, and was unprepared to try the case.

Around March 23, 1984, the defendant discharged Mr. Shulman and Mr. DiSanti, informed them that he planned to retain other counsel, and requested that they return the fee paid to them. Mr. DiSanti, who had done little work on the case, immediately returned his portion of the fee. Mr. Shulman, who had done substantial work on the case, told the defendant that he felt he had earned a portion of the fee, but that he would be willing to discuss sharing the fee should new counsel file an appearance in the case. He further told the defendant that he was willing to withdraw his appearance, but he believed that the judge would not let him do so until new counsel appeared. Throughout March and April, Mr. Shulman continued preparing for trial and made no motion to withdraw.

A few days after discharging Mr. Shulman, the defendant contacted J. Tony Serra, a California attorney, in hopes of retaining his representation in the upcoming trial. Mr. Serra's associate, Randolph Daar, responded by mail on April 5, 1984, and requested that the defendant telephone their office. The defendant did so, and subsequently Mr. Daar telephoned the prosecutor, the trial judge's clerk, and Mr. Shulman about the possibility of obtaining a continuance in the case. He made inquiries of the Massachusetts Bar Association and the Massachusetts Board of Bar Examiners about entering an appearance in the State. Mr. Hurley was asked by Mr. Daar to serve as local counsel, but he declined. In an April 24, 1984, letter, of which copies were sent to the judge, the prosecutor and Mr. Shulman, Mr. Daar informed the defendant that Mr. Serra was prepared to represent the defendant, but only if the case could be continued until July, 1984.

In response to Mr. Daar's April 24th letter, the judge arranged a conference on April 30, 1984, to which he summoned the district attorney, Mr. Hurley, and Mr. Shulman. The defendant was not present. At the conference, which was on the record, Mr. Hurley stated that he had declined to serve as local counsel in the case, and that he intended to urge the defendant to plead guilty. Mr. Shulman indicated to the judge that he had known about the problem with the California attorney for weeks, but had continued to prepare, and was now prepared, for trial on the assumption that he would end up trying the case. Mr. Shulman stated that he was not there to seek a continuance for the defendant. The judge instructed Mr. Hurley and Mr. Shulman to inform the defendant that he would not continue the trial date, and that the defendant could either have Mr. Shulman represent him, or he could represent himself, with Mr. Shulman serving as standby counsel.

On May 2, 1984, appearing with Mr. Shulman, the defendant was heard on a motion for a two-month continuance of the scheduled trial to permit him to be represented by Mr. Serra, counsel of his choice. The judge refused to grant the continuance. He told the defendant that he would consider allowing Mr. Serra to appear if Mr. Serra were to present himself for trial as scheduled; he could not promise to do so, however, as he knew nothing of Mr. Serra's qualifications and Mr. Serra was not a member of the Massachusetts bar. The judge strongly advised the defendant against proceeding pro se, but offered him only the choice of proceeding with Mr. Shulman or pro se, with Mr. Shulman acting as standby counsel. On May 4, 1984 the defendant, represented by Mr. Shulman, appealed the trial judge's denial of the defendant's motion for a continuance to a single justice of the Supreme Judicial Court, but his appeal was unsuccessful.

The third jury trial was held from May 9, 1984, to May 16, 1984. The defendant chose to proceed pro se, stating that he was representing himself "under duress" because he could not obtain counsel of his choice. The court appointed Mr. Shulman as standby counsel and indicated on May 9, 1984, that Mr. Shulman would be compensated by the Commonwealth for all further work on the case. Mr. Shulman did not return any portion of the fee to the defendant, and he did not bill the Commonwealth for services as court-appointed standby counsel. The defendant, an intelligent young man who learned much about criminal trial practice at his first two trials, represented himself ably. He received substantial assistance from Mr. Shulman who spent several late evenings during the course of the trial at the jail coaching the defendant.

The judge concluded that Mr. Shulman was reasonably prepared as of March 23, 1984, and that the defendant's dissatisfaction with him was "not justified." He also concluded that Mr. Serra would probably not have been available to represent the defendant. He based that conclusion on the preliminary stage of the defendant's negotiations with Mr. Serra, Mr. Serra's failure to come to Massachusetts to assert his interest in representing the defendant, and the improbability of his being admitted pro hac vice to try a first degree murder case given that he was a California attorney not subject to Massachusetts disciplinary procedures. As to the propriety of Mr. Shulman's actions, the judge concluded that his failure to make a timely motion to withdraw was "perhaps misguided" but not motivated by financial self-interest. Mr. Shulman, the judge found, would have withdrawn and made an equitable adjustment of the fee upon new counsel's filing an appearance. The judge felt that continuing to prepare for trial, in light of the unlikelihood of a continuance, was proper.

Balancing all the factors, including the age of the case and the administrative problems which a delay would have caused, against the defendant's interest in having counsel of his choice at trial, the judge concluded that the requested two-month continuance should not have been granted either on April 30, 1984, or on May 2, 1984. Finally, the judge concluded that the defendant...