Com. v. Dunne

• Decision Date: 07 February 1985
• Citation: 474 N.E.2d 538,394 Mass. 10
• Parties: COMMONWEALTH v. Daniel DUNNE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 538

474 N.E.2d 538

394 Mass. 10

COMMONWEALTH v. Daniel DUNNE.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Nov. 7, 1984.

Decided Feb. 7, 1985.

Richard Zorza, Brookline, for defendant.

Susan S. Beck, Asst. Dist. Atty., for the Commonwealth.

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

LYNCH, Justice.

The defendant was convicted by a jury of assault on a child under sixteen with intent to commit a rape, G.L. c. 265, § 24B, on an indictment charging rape of a child under sixteen years of age (G.L. c. 265, § 23). The defendant appealed his conviction, and we allowed his application for direct appellate review.

The defendant argues that three errors of law warrant the reversal of his conviction. First, he contends that the refusal of the motion judge to allow a continuance to enable him to retain private counsel violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution to be represented by counsel of his choice. Second, the defendant claims prejudicial error in the exclusion of certain hospital records concerning the psychological evaluation of the victim after the incident. Third, the defendant argues that conviction of assault with intent to commit statutory rape requires proof of his knowledge of the victim's age, an element not charged in the indictment or proven at trial. We affirm the judgment.

There was sufficient evidence from which the jury could have found the following facts. The victim was approximately fifteen years and four months old on April 19, 1982. That evening, she met several friends at Prospect Hill Park in Somerville. Sometime later, the victim and one friend met the defendant at Perry Park. ¹ The victim accepted the defendant's invitation to accompany him to a place where drugs could be purchased. While traveling down some railroad tracks in a nonresidential area of the city, the defendant pulled the victim off the railroad tracks and forced her to the ground, where he forcibly removed her clothing below the waist and attempted to have sexual intercourse with her. The defendant admitted to consensual sexual activity, but denied having intercourse with the victim.

After returning to a friend's house, the victim reported to police that she had been raped. The victim was then taken by police to Cambridge Hospital (hospital) where she was examined by a doctor. The doctor found abrasions and dried blood on the victim's labia. The physical examination of the victim revealed no evidence of semen in her vagina. Clothing tests, however, showed evidence of seminal fluid in the crotch of the victim's pants and on the defendant's underwear. Later, she and her mother were referred to a hospital psychiatrist or social worker for a psychological interview. ²

The defendant was arrested on the night the incident took place. On June 16, 1982, a grand jury returned an indictment charging the defendant with statutory rape under G.L. c. 265, § 23. ³ The defendant was found to be indigent and counsel was appointed for him on July 1. On July 21, the defendant's case was scheduled for trial on September 28, 1982, but it was continued three or four times. ⁴ On November 18, the Commonwealth and defense counsel answered ready for trial, which was then scheduled for the following Monday, November 22.

1. Continuance. On the morning of November 22, the day that empanelment was to commence, the defendant's appointed counsel, Mr. Krashin, received a telephone call from a private attorney, Mr. Atkins, informing him that the defendant's family was interested in retaining Mr. Atkins as private counsel. Mr. Krashin requested the trial judge's permission to withdraw and sought a one-month continuance to provide Mr. Atkins with time to prepare the case. Mr. Krashin informed the trial judge that the defendant's family wanted to retain private counsel, but could not do so until the defendant's bail was revoked and the bail money returned to them. Mr. Atkins had not filed an appearance and initially was not present in court. The trial judge referred the matter to the motion judge who had heard the defendant's earlier request for new counsel. ⁵

Both attorneys appeared before the motion judge. Mr. Atkins indicated that he had not yet been retained by the defendant, and that he was not yet ready to enter an appearance on the defendant's behalf. ⁶ The Commonwealth opposed the continuance, since the prosecutor handling the case would have been unavailable on the new trial date. The prosecutor stated that he had established a "rapport" with the victim, and contended that the request for substitution of counsel "had more to do with the strength of the case than anything else." Nevertheless, the prosecutor expressed his willingness to agree to a shorter continuance and to provide Mr. Atkins immediately with all the discovery the prosecutor had at the time, as well as the substance of the prosecution witnesses' testimony.

Finding that Mr. Krashin was "fully prepared" and noting the lateness of the defendant's request, the motion judge refused Mr. Krashin's request to withdraw. ⁷ However, the motion judge invited Mr. Atkins to act as cocounsel, if he and the defendant's family so desired. The trial judge subsequently revoked the defendant's bail so that the bail money would be available to the family. Neither Mr. Atkins nor other private counsel was retained by the family to act as cocounsel.

The defendant argues that the motion judge's refusal to allow Mr. Krashin to withdraw and to grant a continuance enabling Mr. Atkins to appear as substitute counsel violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution to employ counsel of his own choice. We disagree, and decide that the motion judge acted within his discretion in denying these requests.

As a general rule, "a defendant should be afforded a fair opportunity to secure counsel of his own choice." Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932). Commonwealth v. Scott, 360 Mass. 695, 701, 277 N.E.2d 483 (1971). This right, however, "is not absolute, and may, in some circumstances, be subordinate to the proper administration of justice." Commonwealth v. Connor, 381 Mass. 500, 503, 410 N.E.2d 709 (1980). See, e.g., Linton v. Perini, 656 F.2d 207, 211 (6th Cir.1981), cert. denied, 454 U.S. 1162, 102 S.Ct. 1036, 71 L.Ed.2d 318 (1982); United States v. Burton, 584 F.2d 485, 488-489 (D.C.Cir.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979); Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir.1976). When the defendant seeks a continuance to substitute counsel at or near the time of trial, the judge must balance the defendant's right to choose his counsel with the interests of the court, the public, the victim, and the witnesses. Commonwealth v. Scott, supra 360 Mass. at 699-701, 277 N.E.2d 483. Commonwealth v. Gilchrest, 364 Mass. 272, 276-277, 303 N.E.2d 331 (1973). There is no easy, mechanical test that the judge can apply in balancing these interests. Commonwealth v. Cavanaugh, 371 Mass. 46, 51, 353 N.E.2d 732 (1976). Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964). Nor is there an all-inclusive list of factors for the judge to consider. ⁸ Instead, the judge must blend "an appreciation of the inevitable difficulties of trial administration with a concern for constitutional protections." United States v. Poulack, 556 F.2d 83, 86 (1st Cir.), cert. denied, 434 U.S. 986, 98 S.Ct. 613, 54 L.Ed.2d 480 (1977). For these reasons, it is within the judge's discretion to determine whether, in the particular circumstances presented by each case, a continuance for change in counsel is warranted. Lamoureux v. Commonwealth, 353 Mass. 556, 560, 233 N.E.2d 741 (1968). Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377 (1940).

In this case, the defendant's request was made on the day that empanelment was scheduled to commence. This court has repeatedly stated that "a defendant's freedom to change his counsel is restricted on the commencement of trial." Commonwealth v. Miskel, 364 Mass. 783, 791, 308 N.E.2d 547 (1974) (during jury empanelment). See Commonwealth v. Diatchenko, 387 Mass. 718, 727, 443 N.E.2d 397 (1982) (during jury empanelment); Commonwealth v. Scott, supra 360 Mass. at 698, 277 N.E.2d 483 (day of trial); Lamoureux v. Commonwealth, supra (second day of trial). The defendant has alleged no irreconcilable breakdown in communications with Mr. Krashin. See Commonwealth v. Miskel, supra 364 Mass. at 790, 308 N.E.2d 547. No question was raised as to the experience, skill, or competence of Mr. Krashin, or to the manner in which he represented the defendant. See Commonwealth v. Scott, supra 360 Mass. at 699, 277 N.E.2d 483. There was no showing that Mr. Krashin was unprepared to try the case or that the defendant would suffer prejudice by going to trial as scheduled. See Lindsey v. Commonwealth, 331 Mass. 1, 4, 116 N.E.2d 691 (1954). The defendant had ample time (five months) to retain private counsel before the day of trial, and his failure to do so was the result of his own lack of diligence rather than of any error by the motion judge. ⁹ See Commonwealth v. Bettencourt, 361 Mass. 515, 517, 281 N.E.2d 220 (1972) (one month was adequate time to retain counsel); United States v. Carroll, 510 F.2d 507, 510-511 (2d Cir.1975), cert. denied, 426 U.S. 923, 96 S.Ct. 2633, 49 L.Ed.2d 378 (1976) (six months was "generous" time to retain counsel); United States v. Bragan, 499 F.2d 1376, 1379 (4th Cir.1974) (two months sufficient). While the Commonwealth demonstrated some prejudice to its case as well as inconvenience to the victim and witnesses, "[t]he defendant was asking for a change in counsel without stating any reasons therefor apart from claiming the right to counsel of his choice." Commonwealth v. Scott, supra 360 Mass. at 699, 277 N.E.2d 483. In sum, the defendant has...