Com. v. Conceicao

• Decision Date: 28 February 1983
• Citation: 388 Mass. 255,446 N.E.2d 383
• Parties: COMMONWEALTH v. Paul CONCEICAO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 383

446 N.E.2d 383

388 Mass. 255

COMMONWEALTH v. Paul CONCEICAO.

Supreme Judicial Court of Massachusetts Bristol.

Argued Nov. 2, 1982.

Decided Feb. 28, 1983.

Maureen B. Brodoff, Boston, for defendant.

Phillip L. Weiner, Asst. Dist. Atty. (Patricia O. Ellis, Asst. Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

HENNESSEY, Chief Justice.

The defendant, Paul Conceicao, was convicted by a jury of the unarmed robbery of Albert LeBoeuf and sentenced to the Massachusetts Correctional Institution at Walpole for a term of seven to fifteen years. The defendant appealed and the conviction was affirmed by the Appeals Court in Commonwealth v. Conceicao, 10 Mass.App. 899, 409 N.E.2d 816 (1980). Both at trial and on appeal to the Appeals Court the defendant was represented by court-appointed counsel.

On March 11, 1981, the defendant, pro se, filed a motion for a new trial, pursuant to Mass.R.Crim.P. 30, 378 Mass. 900 (1979), accompanied by other motions, including a motion for appointment of counsel and an affidavit of indigency. In his motion for a new trial, the defendant challenged portions of the trial judge's charge to the jury dealing with reasonable doubt, presumption of innocence, right of appeal, and joint enterprise. He also asserted that he was denied effective assistance of counsel because his trial counsel failed to seek production of certain photographs that the police showed to an identification witness, failed to seek suppression of such identification, and failed to object to certain testimony of a police officer. The judge denied the motion for a new trial without a hearing. In view of his action on the defendant's new trial motion, the judge declined to take any action on the defendant's motion for appointment of counsel. The defendant then filed a notice of appeal to the Appeals Court. He also submitted a motion for appointment of counsel to represent him on his appeal, which was allowed. We removed the case to this court on our own motion.

On this appeal, the defendant argues that the United States Constitution, the Massachusetts Declaration of Rights, and Mass.R.Crim.P. 30 entitle him to appointed counsel in presenting his motion for a new trial. The defendant also argues most of the issues raised in his motion for a new trial. ¹ He further asserts for the first time on this appeal, that he was denied effective assistance of counsel because his trial counsel failed to request the trial judge to instruct the jury on the issue of misidentification and that the judge, sua sponte, should have charged on this issue. We reject all the defendant's contentions and we therefore affirm the denial of the defendant's motion for a new trial.

In August, 1978, around 1 a.m., Albert LeBoeuf was in his car in New Bedford. LeBoeuf was approached by a woman, later identified as Maureen Pullman, who asked him if he wanted to go out. LeBoeuf accepted, a price was discussed, and the two drove to a parking lot next to some apartments on Elm Street in New Bedford. LeBoeuf got out of the car, turned around, and saw two men, one of whom he later identified as the defendant. The man with the defendant pointed at the defendant and said to LeBoeuf, "What are you doing with his old lady?" The defendant then struck LeBoeuf, knocking him to the ground, and LeBoeuf lost consciousness.

When he awoke, he ran from the parking lot, where the defendant, the woman, and the other man were still standing. LeBoeuf noticed that money was missing from his pocket. He telephoned a friend who accompanied him to a police station. LeBoeuf told the police that his car had been stolen, that he had been dragged out of his car, beaten up, and robbed by four men. He described one of the men, but his description did not match the defendant. Later that day, the police again questioned LeBoeuf, and he told the police about the woman and the two men and the incident that occurred in the parking lot. The police report contained no description of either Maureen Pullman or the defendant. LeBoeuf picked out photographs of Pullman and the defendant from an array of photographs shown him by the police.

1. Constitutional Right to Have Counsel.

The defendant's first argument is that the State and Federal Constitutions require appointment of counsel to assist indigent defendants in preparing and presenting motions for a new trial. The defendant relies on Douglas v. California, 372 U.S. 353, 355-356, 83 S.Ct. 814, 815-816, 9 L.Ed.2d 811 (1963), where the United States Supreme Court established a per se rule that a State is bound constitutionally to provide counsel for an indigent defendant on his first appeal as of right. The defendant in this case acknowledges, however, that indigent defendants do not have an absolute right to have counsel appointed to represent them in all postconviction proceedings. Indeed, in Ross v. Moffitt, 417 U.S. 600, 609-616, 94 S.Ct. 2437, 2443-46, 41 L.Ed.2d 341 (1974), the Court concluded that neither the due process clause nor the equal protection clause of the Fourteenth Amendment requires a State to provide an indigent defendant appointed counsel to represent him on a discretionary appeal to a State supreme court. The Court noted that, although a State has no duty to provide an appellate process, once it chooses to allow appeals, it may not single out indigent defendants and deny them meaningful access to the appellate system because of their poverty. Id. at 611, 94 S.Ct. at 2444. See also Douglas, supra 372 U.S. at 357, 83 S.Ct. at 816. The Court determined, however, that, even though an indigent defendant may be benefited by an appointment of counsel on a discretionary appeal, "[t]he duty of the State ... is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State's appellate process." Ross v. Moffitt, supra 417 U.S. at 616, 94 S.Ct. at 2446. That opportunity, the Court concluded, was provided to the defendant in Ross. ²

Hence, in Ross, the Supreme Court clearly determined that an indigent defendant does not have an absolute right to have counsel appointed at all postconviction proceedings. ³ See also Gagnon v. Scarpelli, 411 U.S. 778, 788-789, 93 S.Ct. 1756, 1762-1763, 36 L.Ed.2d 656 (1973) (indigent defendant's right to have counsel appointed to represent him at probation revocation hearing must be decided on case-by-case basis). See generally Note, Criminal Procedure--Post-Conviction Right to Counsel, 77 W.Va.L.Rev. 571 (1975). The Court, however, has not identified clearly the proceedings at which indigent defendants are entitled, as a general rule, to have counsel appointed.

We are aware of only one case where a court has addressed an indigent defendant's right to have counsel appointed to represent him on a motion for a new trial. In Dirring v. United States, 353 F.2d 519, 520 (1st Cir.1965), the United States Court of Appeals for the First Circuit summarily concluded that the Federal Constitution does not require a court to appoint counsel to represent an indigent defendant in presenting a motion for a new trial. Rather, the court determined, "[a]fter final conviction the appointment of counsel must rest in the discretion of the court." Id. In analogous cases, courts have determined that indigent defendants do not have an absolute right to be provided with a free trial transcript to aid them in preparing a motion for a new trial. See United States v. Banks, 369 F.Supp. 951, 955 (M.D.Pa.1974); People v. Martinez, 174 Cal.Rptr. 771, 782 (Cal.App.1981); People v. Lopez, 1 Cal.App.3d 78, 81-83, 81 Cal.Rptr. 386 (1969); Morris v. State, 532 S.W.2d 61, 63 (Tenn.Cr.App.1975). These courts have reasoned that, although the equal protection clause guarantees that indigency may not compromise a person's defense or statutory appeal procedure, "[a] motion for a new trial is consistently placed in a different category than the original trial or an appeal from a conviction." Banks, supra at 954.

In cases involving petitions for habeas corpus relief, which are similar to motions for a new trial, courts have also concluded that indigent defendants do not have an absolute right to be furnished appointed counsel. See, e.g., Norris v. Wainwright, 588 F.2d 130, 132-134 (5th Cir.), cert. denied, 444 U.S. 846, 100 S.Ct. 93, 62 L.Ed.2d 60 (1979) (Federal and State petition); Graham v. State, 372 So.2d 1363, 1365-1366 (Fla.1979) (Federal and State petition); Honore v. Washington State Bd. of Prison Terms, 77 Wash.2d 660, 673-674, 466 P.2d 485 (1970) (State petition). Some courts have adhered to a view that the decision whether to appoint counsel in proceedings on a habeas corpus petition is discretionary with the trial judge and will not be overturned absent a showing of fundamental unfairness which impinges on the defendant's due process rights. See, e.g., Norris, supra at 133-134. Cf. Vandenades v. United States, 523 F.2d 1220, 1225-1226 (5th Cir.1975) (on motion to vacate sentence, decision whether to appoint counsel is discretionary and will not be overturned in absence of fundamental unfairness). Other courts, however, have concluded that the Federal Constitution requires counsel to be furnished to an indigent defendant in prosecuting a habeas corpus petition when "a colorable or justiciable issue or meritorious grievance prima facially appears in the [defendant's] petition." Graham, supra at 1366. See also Honore, supra.

After reviewing both United States Supreme Court precedent and decisions of other courts, we conclude that an indigent defendant does not have an absolute right under any provision of the United States Constitution or the Massachusetts Declaration of Rights to appointed counsel in preparing or presenting his motion for a new...