Com. v. Fillippini

• Decision Date: 23 April 1974
• Citation: 310 N.E.2d 147,2 Mass.App.Ct. 179
• Parties: COMMONWEALTH v. William L. FILLIPPINI et al. 1
• Court: Appeals Court of Massachusetts

Page 147

310 N.E.2d 147

2 Mass.App.Ct. 179

COMMONWEALTH v. William L. FILLIPPINI et al. ¹

Appeals Court of Massachusetts, Plymouth.

Argued Nov. 19, 1973.

Decided April 23, 1974.

Kay Hodge, Boston, for defendant Fillippini

Charles P. Dattola and Henry F. Owens, III, Boston (Anne Hoffman, Boston, with them), for defendant Andrews.

David G. Nagle, Jr., Asst. Dist. Atty., for the Commonwealth.

Before ROSE, KEVILLE and GRANT, JJ.

ROSE, Justice.

William Fillippini, Ralph Andrews, and James, John, and Arthur Pina were charged in a single indictment with armed robbery while masked. On the third day of a first trial the judge declared a mistrial as to each defendant. As a second trial of the indictment, under G.L. c. 278, §§ 33A--33G, Andrews, Fillippini, and The evidence was, in part, as follows. On the morning of March 21, 1968, two armed men wearing stocking masks robbed the Rockland Trust Company in Hanson. At approximately the time of the robbery a bystander saw a man (later identified as Fillippini) leave the bank while carrying a bag and adjusting a garment around his neck. The man entered an automobile driven by another man wearing a ski mask and was driven away at a high rate of speed. One Kathy Perry Ducote testified concerning conversations at which the defendants had been present or in which they had participated and in the course of which the March 21 robbery had been planned. Ducote also testified that on March 20 she had accompanied Andrews and James Pina on a trip to Boston. Another witness, who lived in Boston near where Andrews and Pina had parked their automobile on the March 20 trip, testified that the license plates had been stolen from her automobile on that date. The stolen license plates were later observed on the car in which Fillippini left the bank at the time of the robbery. Ducote further testified that she had been present at Andrews' apartment on the afternoon of March 21, that she had heard the five defendants discuss their roles in the robbery committed that morning, and that she had seen each of them take portions of a large amount of currency which was lying on the floor.

James Pina were convicted, but the jury were unable to reach a verdict concerning John or Arthur Pina. Only the assignments of error by Fillippini and by Andrews are presently before this court. Fillippini assigns as error the judge's permitting him to proceed to trial without counsel and the denial of his motion for a psychiatric examination of a prosecution witness. Andrews assigns as error the [2 Mass.App.Ct. 181] denial of his motion for a mistrial, ² the admission of an in-court identification of Fillippini by a witness to the robbery, the denial of Andrews' motion for a psychiatric examination of a prosecution witness (the same witness as the one to whom Fillippini's motion for a psychiatric examination related, but founded on grounds different from those on which Fillippini's motion was based), and the judge's decision to limit Andrews' cross-examination of that witness. Discussion of Andrews' other assignments of error is unnecessary in light of the view we take of his case.

FILLIPPINI

1. At the start of his second trial Fillippini executed a written waiver of counsel. Thereafter, he conducted his defense without the assistance of an attorney. Fillippini now contends that his rights under the Sixth and Fourteenth Amendments to the Constitution of the United States were violated because his waiver was not intelligently and knowingly executed. See Johnson v. Zerbst, 304 U.S. 458, 464--465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Moore v. Michigan, 355 U.S. 155, 161, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957); Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). Arguing by analogy from the case of Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), Fillippini states that his waiver cannot be treated as valid in the absence of a showing that it was made 'with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.' Id. at 724, 68 S.Ct. at 323.

The Von Moltke case involved what may be a different situation from that presented by the case at bar, namely a defendant's decision to waive counsel and enter a plea of guilty rather than as here proceed to trial without counsel. The decision has been interpreted by other courts not to require a judge 'literally (to) fulfill all elements of a formula describing his responsibilities for acceptance of waiver of counsel. Substance rather than form is the guiding criterion for reviewing courts.' Spanbauer v. Burke, 374 F.2d 67, 74 (7th Cir. 1966), cert. den. 389 U.S. 861, 88 S.Ct. 111, 19 L.Ed.2d 127 (1967), and cases cited. See Arnold v. United States, 414 F.2d 1056, 1058 (9th Cir. 1969), cert. den. 396 U.S. 1021, 90 S.Ct. 593, 24 L.Ed.2d 514 (1970). If the Von Moltke case does apply in a situation such as is presented by the case at bar, we are of the opinion that its substance was fulfilled.

Fillippini had reason to know of the nature and seriousness of the indictment against him, as he had been tried and convicted of armed robbery while masked in November, 1968, less than six months before his trial in the case at bar. ³ As in the present case, Fillippini had been tried with a codefendant and convicted primarily on the strength of Ducote's testimony. In that case he had been sentenced to ten to fifteen years at the Massachusetts Correctional Institution at Walpole.

There is little doubt that Fillippini understood the importance of having the assistance of counsel in his defense. He had been represented by an attorney at his 1968 trial and had retained a lawyer to represent him in the case at bar. Fillippini discharged that attorney on April 18, 1969, asserting that he was in collusion with the prosecution. Fillippini, thereafter insisted that he would retain private counsel and rebuffed the judge's efforts to explain the importance of legal assistance, at one time exclaiming, 'I know how important it is.' That Fillippini never retained an attorney appears to have been due either to his inability to pay a fee (it should be noted that the judge questioned Fillippini at least twice concerning his financial resources and, as noted below, repeatedly offered to appoint a public defender to represent him) or to his mistaken belief that by refusing counsel he could delay the trial (at one point he said to the judge, 'You won't try me without a lawyer').

Our review of the transcript reveals that the judge offered to appoint a public defender to represent Fillippini on seven or more separate occasions, twice emphasizing the experience and competence of such counsel. Fillippini agreed once to accept the judge's offer, for purposes of jury selection at the trial which resulted in a mistrial, but immediately thereafter refused to cooperate with the attorney appointed to assist him. Fillippini now argues that the judge should have informed him that under 'exceptional circumstances' a private attorney could be appointed to represent him. ⁴ Fillippini does not suggest, however, what exceptional circumstances might have been present in his case or that the judge had any cause to inquire as to their possible existence. We conclude that Fillippini's waiver was knowingly and intelligently executed.

2. Fillippini also assigns as error the denial of his motion for a psychiatric examination of Ducote. The motion in question was filed in connection with a number of separate indictments then pending against him and had been heard and denied on October 28, 1968. Certain of the indictments were tried separately, and the judge's ruling on this very motion was reviewed in our opinion in COMMONWEALTH V. FILLIPPINI, MASS.APP. (1973), 304 N.E.2D 581.^A It would serve no useful purpose to restate our reasons for upholding the judge's decision.

ANDREWS

3. Andrews has assigned as error the denial of his motion to sever or, in the alternative, to declare a mistrial. A motion to sever was originally heard on April 18, 1969, and was renewed on May 12. That motion was again pressed during the cross-examination of Ducote by James Pina and by Fillippini and, on the last occasion, was accompanied by a motion for mistrial. In each instance the particular motion was denied by the judge. In the course of the trial James Pina and Fillippini, both of whom proceeded pro so, repeatedly asked questions of Ducote which implicated Andrews in a prior crime. There exists a substantial doubt that the jury were able to disregard this inadmissible and highly prejudicial evidence, and for that reason the motion for a mistrial should have been granted.

The assertions in question were made in the course of cross-examination of Ducote by James Pina ⁵ and Fillippini ⁶, relevant portions of which are set forth in the margin. Proof of prior offenses is a 'dangerous species of evidence' (Commonwealth v. Shepard, 1 Allen 575, 581 (1861)) which, by its nature, is 'manifestly prejudicial's to a criminal defendant. Commonwealth v. Hanley, 337 Mass. 384, 394, 149 N.E.2d 608 (1958), cert. den. sub nom. Hanley v. Massachusetts, 358 U.S. 850, 79 S.Ct. 79, 3 L.Ed.2d 85 (1958). See Commonwealth v. Welcome, 348 Mass. 68, 70, 201 N.E.2d 827 (1964). Although it is often assumed that the jury will obey such limiting instructions as may be necessary (Commonwealth v. Hanley, supra, at 394--395, 149 N.E.2d 608; contrast Commonwealth v. Banuchi, 335 Mass. 649, 654, 141 N.E.2d 835 (1957)), particularly inflammatory matter is difficult for the jury to disregard. See United States v. Rinaldi, 301 F.2d 576, 578 (2d Cir. 1962); Thurman v. United States, 316 F.2d 205, 206 (9th Cir. 1963); Maestas v. United States, 341 F.2d 493, 496 (10th Cir. 1965); Odom v. United States,...