Com. v. Delorey

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

Page 746

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.

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 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 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 which culminated in his trial and conviction on February 20, 1973, for operating while under the influence. He appeared before the 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 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 one where there was no waiver by the defendant, the court said (483, 92 S.Ct. 1019) 'that the use of convictions constitutioally invalid under Gideon v. Wainwright (372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799) to impeach a defendant's credibility deprives him of due process of law,' and it then (483, 92 S.Ct. 1019) quoted from Gilday v. Scafati, 428 F.2d 1027, 1029 (1st Cir.), cert. denied 400 U.S. 926, 91 S.Ct. 188, 27 L.Ed.2d 186 (1970), the statement that '(t)he absence of counsel impairs the reliability of such convictions just as much when used to impeach as when used as direct proof of guilt.'

Since the Burgett case was decided by the United States Supreme Court, this court has also decided a number of cases involving claims of infirmity of convictions or pleas of guilty of crimes where the defendant, being entitled to be represented by counsel either under the Sixth Amendment to the United States Constitution or under S.J.C. Rule 3:10, neither had counsel nor waived his right to counsel. Some of the cases involved direct appeals from or postconviction attacks on the convictions or pleas, while others involved objections to the use of the records of convictions to impeach credibility under G.L. c. 233, § 21. Our decisions on this subject fall into three groups discussed below. In the first group we held that there was error and afforded relief, in the second we held that if there was error it was harmless beyond a reasonable doubt, and in the third we held that there was no error.

1. In Williams v. Commonwealth, 350 Mass. 732, 216 N.E.2d 779 (1966), we set aside a probation revocation grounded on a plea of guilty, stating the following reason therefor (734, 216 N.E.2d 781): 'Here the record fails to reveal whether the petitioner was indigent. There is nothing to show whether the petitioner could have retained his own counsel and chose not to do so. There is nothing to indicate that the petitioner was informed of his right to have counsel, that he elected to proceed without counsel, or that he either waived counsel or refused to sign a waiver.' Substantially the same factual situation and legal result prevailed in Cardran v. Commonwealth, 356 Mass. 351, 354, 252 N.E.2d 358 (1969), MacDonnel v. Commonwealth, 353 Mass. 277, 281, 230 N.E.2d 821 (1967), and Commonwealth v. Barrett, --- Mass.App.Ct. ---, --- - --- ^c 322 N.E.2d 89 (1975). In Walter v. Bonito, --- Mass. ---, --- n. 1 ^d, 324 N.E.2d 624 (1975), the plaintiff called the defendant as his own witness and was then allowed to impeach his credibility by a record of his prior conviction of a crime. We held that this was error, but did so without reaching the defendant's claim that he had not been represented by counsel in the earlier case.

2. In Subilosky v. Commonwealth, 358 Mass. 390, 392--394, 265 N.E.2d 80 (1970), and Gilday v. Commonwealth, 355 Mass. 799, 247 N.E.2d 396 (1969), where records of prior convictions of the defendants in cases in which they neither had counsel nor waived their right to counsel were admitted to impeach the credibility of the defendants as witnesses, this court concluded that the improper use of such records was 'harmless beyond a reasonable doubt,' citing the case of Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). On the applicability of the 'harmless error' rule to such a case, see the latter decision in Loper v. Beto, 405 U.S. 473, 483 n. 12, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), and cases cited therein. In Commonwealth v. Boudreau, 362 Mass. 378, 382, 285 N.E.2d 915 (1972), decided after the Loper case, there is a suggestion of the applicability of the 'harmless error' rule to such a case. For a civil case in which the...