Com. v. Cavanaugh

• Decision Date: 07 September 1976
• Citation: 353 N.E.2d 732,371 Mass. 46
• Parties: COMMONWEALTH v. Donald CAVANAUGH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 732

353 N.E.2d 732

371 Mass. 46

COMMONWEALTH

v. Donald CAVANAUGH.

Supreme Judicial Court of Massachusetts, Bristol.

Argued March 1, 1976.

Decided Sept. 7, 1976.

Daniel F. Toomey, Boston, for defendant.

Peter B. Gay, Special Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and REARDON, QUIRICO, BRAUCHER, WILKINS and LIACOS, JJ.

LIACOS, Justice.

The defendant, Cavanaugh, was found guilty by a jury of armed robbery while masked (G.L. c. 265, § 17) and of three counts of assault by means of a dangerous weapon (G.L. c. 265, § 15B) after a trial in the Superior Court. We transferred the case here on our own motion (G.L. c. 211A, § 10(A)). His appeal is before us pursuant to G.L. c. 278, §§ 33A--33G.

Cavanaugh argues that the trial judge erred by: (1) denying a motion for a continuance; (2) forcing Cavanaugh to proceed to trial pro se despite Cavanaugh's refusal to waive his right to counsel; (3) denying Cavanaugh's motion to inspect certain grand jury minutes; and (4) failing adequately to inform the jury about certain security measures taken at trial. We conclude that Cavanaugh was denied his right to counsel at trial without a waiver of that right. His convictions must be reversed. We consider only those facts and issues necessary to explicate our decision.

Cavanaugh was indicted on June 18, 1974. He was arraigned on June 28, 1974. A private member of the bar, who apparently represented Cavanaugh on other pending matters, filed a limited appearance for the arraignment only on that day. This limited appearance was accepted by a judge other than the trial judge. The defendant pleaded not guilty to all counts and was incarcerated pending trial. No attorney was appointed to represent Cavanaugh for purposes of trial until November 11, 1974. ¹ Various motions were filed in the period November 13--19, 1974, and were ruled on by the judge on the first day of trial, November 19, 1974.

On the day before trial, Cavanaugh's counsel moved for a postponement of trial 'to allow the defendant and his counsel sufficient time to adequately prepare his defenses in this matter.' This motion was argued before the trial judge on the next day. Cavanaugh's counsel stated that he had had ' a difficult time in trying to prepare' for the case because of the number of pre-trial motions that were to be filed and because 'of the other load of cases that are being called each day and which I find myself connected with . . ..' He concluded by saying: 'I feel, and the defendant feels, but particularly the defendant, that we are not adequately prepared because we have not had the time (necessary to prepare for trial). I haven't had the time to . . . interview any witnesses that might be of great assistance to the defendant.'

The trial judge responded to defense counsel's claim of lack of time for adequate preparation: 'I am quite sure with the expertise acquired over the past six months, he (the defendant) would be more willing and able to advise you in those matters in which you feel might be deficient. I think with this expert assistance and advice, you can well be prepared to try an excellent case . . .. I am quite sure he will render you about every bit of assistance in his power to do it.'

The assistant district attorney argued that there had been sufficient time to prepare; he stated that counsel 'has had knowledge of this case since . . . June (1974) when he filed an appearance albeit for an arraignment, and has conferred with his client many times since then . . ..' This last assertion was emphatically denied by Cavanaugh's counsel, who replied that he had not conferred with Cavanaugh at all in the period between the arraignment and his reappointment eight days before the trial, and that he had only met once with Cavanaugh during the previous eight days.

The judge denied the motion. After three other motions were heard and disposed of, Cavanaugh's counsel asked that Cavanaugh be allowed to address the court. Cavanaugh told the judge that there had been little time to prepare the case and concluded: 'I believe I am arbitrarily being denied the right to prepare any defense because none of the facts have been brought forth by me to (the attorney).' The judge stated: 'We will empanel tommorrow . . . and you will have plenty of opportunity this afternoon and this evening to talk to (the attorney) . . ..'

The next morning, the judge was told by Cavanaugh's counsel that Cavanaugh 'didn't want . . . (his) services as his attorney.' The judge responded by stating that Cavanaugh had rejected the Massachusetts Defenders Committee as counsel and that he knew 'of no more capable counsel . . . than yourself.' He continued: 'Now, if the defendant is adamant in his position that he does not wish to have you represent him, that leaves us with but one alternative: he will have to represent himself. . . . (I)f he wishes to represent himself, that is his prerogative. However, I would ask you, please . . . to sit by on a consulting basis . . ..'

Shortly thereafter, in reference to some motions that had not yet been filed, the judge said: '(Cavanaugh) has had six months, at least, to prepare these motions. Apparently, he has been consulting all the law books available at the House of Correction . . .. If he insists on acting as his own counsel and will not take advice from anyone, I am afraid he will have to take the consequences of his dilatoriness.' Counsel responded that Cavanaugh had not had counsel from the arraignment to the date of appointment. Counsel further pointed out that law books were 'not in plentiful availability at the . . . House of Correction.'

Cavanaugh addressed the judge, stating: '(M)y position is that I do need counsel . . .. I have no knowledge of . . . legal litigation.' The judge replied that Cavanaugh had not accepted the aid of the public defenders. There then occurred a significant colloquy between Cavanaugh and the judge, which is set out in the margin. ²

The trial began. Cavanaugh did consult with the attorney but he continued to inform the judge of his unfamiliarity with the law and of his desire to be represented by adequately prepared counsel. It is clear from the record that Cavanaugh would not have objected to his appointed counsel's representing him if counsel had felt that he was prepared for the trial.

1. The Sixth and Fourteenth Amendments to the United States Constitution afford a defendant the right to assistance of counsel in all State criminal prosecutions which may result in the loss of his liberty. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). See also Williams v. Commonwealth, 350 Mass. 732, 216 N.E.2d 779 (1966). Counsel for a defendant must be afforded ' a reasonable opportunity to prepare and to present the defence.' Lindsey v. Commonwealth, 331 Mass. 1, 2, 116 N.E.2d 691, 692 (1954). See also Commonwealth v. Brant, 346 Mass. 202, 190 N.E.2d 900 (1963); Jones v. Commonwealth, 331 Mass. 169, 117 N.E.2d 820 (1954).

Ordinarily, the granting of a continuance rests in the sound discretion of the trial judge, and a denial of a continuance will not constitute error absent an abuse of that discretion. Commonwealth v. Klangos, 326 Mass. 690, 96 N.E.2d 176 (1951). The discretion of the trial judge cannot be exercised in such a way as to impair the constitutional right to have counsel who has had reasonable opportunity to prepare a defense. See Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954). Cf. Commonwealth v. Locke, 335 Mass. 106, 111, 138 N.E.2d 359 (1956).

There is no 'mechanical test' for deciding when a denial of a continuance is so arbitrary as to violate a defendant's right to effective assistance of counsel and to due process of law. Commonwealth v. Smith, 353 Mass. 442, 445, 232 N.E.2d 917 (1968). 'The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.' Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 850, 11 L.Ed.2d 921 (1964).

"In considering a request for a continuance, a trial judge should balance the movant's need for additional time against the possible inconvenience, increased costs, and prejudice which may be incurred by the opposing party if the motion is granted. He must also give due weight to the interest of the judicial system in avoiding delays which would not measurably contribute to the resolution of a particular controversy." Commonwealth v. Gilchrest, 364 Mass. 272, 276--277, 303 N.E.2d 331, 335 (1973). In considering these factors, a 'myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.' Ungar v. Sarafite, supra at 589, 84 S.Ct. at 849, quoted in Commonwealth v. Smith, supra, 353 Mass. at 445, 232 N.E.2d 917. Cf. Commonwealth v. Bettencourt, 361 Mass. 515, 281 N.E.2d 220 (1972), denial of petition for writ of habeas corpus aff'd sub nom. Frates v. Bohlinger, 472 F.2d 149 (1st Cir. 1973).

The 'facts' on which the trial judge acted in denying counsel's motion for a continuance in this case are shown by careful review of the record to be substantially and materially erroneous. The trial judge assumed that he was the judge who had presided over the arraignment of the defendant; the docket shows otherwise. The trial judge assumed he had set bail for this defendant; the docket shows otherwise. The trial judge assumed that attorneys of the Massachusetts Defenders Committee had been appointed to represent this defendant whereas the docket clearly shows that this was not the case; indeed, a certificate of record filed by another judge showed that attorneys of the committee could not represent the defendant. He assumed the defendant had consulted with attorneys of the committee, but there was no evidence of such consultation and the...