Com. v. Delorey

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before TAURO; QUIRICO; HENNESSEY
• Citation: 339 N.E.2d 746,369 Mass. 323
• Decision Date: 22 December 1975
• Parties: COMMONWEALTH v. Daniel J. DELOREY.

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339 N.E.2d 746 369 Mass. 323 COMMONWEALTH v. Daniel J. DELOREY. Supreme Judicial Court of Massachusetts, Worcester. Argued Sept. 16, 1975.
Decided Dec. 22, 1975.

Conrad W. Fisher, Worcester, for defendant.

John C. Fisher, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, HENNESSEY, KAPLAN and WILKINS, JJ.

[369 Mass. 324] QUIRICO, Justice.

Following trial before a jury of six persons in the Central District Court of Worcester (G.L. c. 218, § 27A, inserted by St.1972, c. 620, § 1), the defendant was found guilty on September 23, 1974, on four complaints charging him with operating a motor vehicle (a) while under the influence of intoxicating liquor, (b) at a rate of speed greater than is reasonable and proper, (c) without having a certificate of registration for the vehicle on his person or in the vehicle, and (d) the vehicle having

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no rear plate light, in violation of G.L. c. 90, §§ 24, 17, 11 and 7 respectively. A fine was imposed on the defendant for each of the four convictions. The case is here on a bill of exceptions alleging error by the trial judge in admitting in evidence the records of the convictions of the defendant for two prior offenses, one for operating a motor vehicle while under the influence of intoxicating liquor, and the other for malicious destruction of personal property (G.L. c. 266, § 127). These two convictions were by a judge of the Central District Court of Worcester on February 20, 1973. The defendant has included no argument in his brief on the alleged error in admitting the record of his prior conviction for malicious destruction of personal property, and we therefore treat any issue based thereon as waived. S.J.C. Rule 1:13, 351 Mass. 738 (1967). Commonwealth v. Bernier, --- Mass. ---, ---, ^a 322 N.E.2d 414 (1975).

The record of the defendant's prior conviction on February 20, 1973, for operating a motor vehicle while under the influence of intoxicating liquor was offered by the prosecutor to impeach the defendant's credibility in accordance with G.L. c. 233, § 21. The defendant, having become a witness at his trial, became subject to impeachment under § 21, which provides that, with exceptions not here material, the record of his conviction of a crime 'may be shown to affect his credibility.'

The defendant contends that the record of conviction which was offered against him was inadmissible because it failed to show that at the trial for the earlier offense he [369 Mass. 325] had either (a) been represented by counsel, or (b) waived the right to be represented by counsel. We hold that the judge properly found that the defendant had waived his right to be represented by counsel at the earlier trial, and that the record of his conviction at that trial was properly admitted in the later trial which resulted in the bill of exceptions now before us.

It is appropriate to note at this point that the issue before us is not whether the defendant was entitled to be represented by counsel at the trial of the present cases or the earlier cases. On the dates of the defendant's convictions, S.J.C. Rule 3:10, as amended, 355 Mass. 803 (1969), which is reproduced in the margin, ¹ provided that '(i)f a defendant charged with a crime, for which a sentence of imprisonment may be imposed, appears in any court without counsel, the judge shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel.' Costarelli v. Municipal Court of The City of Boston, --- Mass. ---, ---, ^b 323 N.E.2d 859, 863 (1975). Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

It is undisputed that the defendant was not represented by counsel at any stage of the proceedings on the complaint[369 Mass. 326] which culminated in his trial and conviction on February 20, 1973, for operating while under the influence. He appeared before the

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court on that complaint on January 4, January 29, February 7, and February 20, 1973. He did not at any time sign a waiver of his right to counsel under S.J.C. Rule 3:10 with reference to that complaint. ² He requested the judge to assign counsel to represent him under the rule. The judge heard the defendant and received information from a probation officer on the defendant's ability to pay for counsel. On January 29, 1973, the judge found in writing that the defendant was able to pay for counsel, and the finding is filed with the papers in the case, all as required by the rule.

Basically, this is another of the many cases requiring consideration of the consequences of the rule established by the decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), making the right to counsel guaranteed by the Sixth Amendment to the United States Constitution applicable to States by virtue of the Fourteenth Amendment. This rule was described in Burgett v. Texas, 389 U.S. 109, 114, 88 S.Ct., 258, 261, 19 L.Ed.2d 319 (1967), as 'making it unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one' (emphasis supplied). In the Burgett case the trial judge had admitted against the defendant, who was being tried for one felony, records showing that he had committed four prior felonies, thus subjecting him to a life sentence under a recidivism statute. The records of the four earlier convictions were silent on the question whether the [369 Mass. 327] defendant had been represented by counsel in those cases. The court said (114--115, 88 S.Ct. 262) that '(p)resuming waiver of counsel from a silent record is impermissible,' and reversed the conviction.

In Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), the trial judge admitted records of prior convictions to impeach the defendant's credibility as a witness. The records were silent on the question whether the defendant was represented by counsel in those cases. In its decision in the Loper case the Supreme Court described the rule of the Gideon case (481, 92 S.Ct. 1018) as 'a clear and simple constitutional rule: In the absence of a waiver, a felony conviction is invalid if it was obtained in a court that denied the defendant the help of a lawyer' (emphasis supplied). Treating the case as...