Com. v. Fogarty

Decision Date29 June 1988
Docket NumberNo. 87-1093,87-1093
Citation521 N.E.2d 1058,25 Mass.App.Ct. 693
PartiesCOMMONWEALTH v. Brian J. FOGARTY.
CourtAppeals Court of Massachusetts

Barry P. Wilson, Boston, for defendant.

Joel S. Fishman, Asst. Dist. Atty., for Com.

Before GREANEY, C.J., and SMITH and FINE, JJ.

FINE, Justice.

The seven indictments on which the defendant was tried arose out of (1) vicious assaults on two women, Irene Pizzi and Diane Makarski, one taking place within a few hours and a few miles of the other, and (2) the retrieval four and one-half days later of a blood-stained bag containing a large amount of cocaine in the woods near the residence of Diane Makarski. The two victims were longtime acquaintances of each other. The defendant was convicted of assault in a dwelling house with a dangerous weapon 1 (a pistol) on each of the victims, assault with intent to murder 2 each of the victims, assault and battery by means of a dangerous weapon 3 (a pistol) on each of the victims, and trafficking in cocaine. 4 After considering the numerous issues raised by the defendant on appeal, we conclude that the convictions should stand.

We recite the highlights of the evidence produced by the Commonwealth, with the events described in the order in which they occurred. The defendant, an attorney, resided in Florida but made frequent lengthy visits to western Massachusetts, often by car. He became romantically involved for a time with Diane Makarski. On September 28, 1986, Makarski, perhaps annoyed with the defendant about his inconstancy in their relationship, took, without permission, a sealed shoebox from the bed in a room which he frequently occupied in the home of his brother and sister-in-law, Matthew and Anne Fogarty. Makarski believed the box contained cocaine. She hid it in a shed in her back yard. The defendant and his brother, Matthew, made separate visits to a bar that evening, the Macano Inn in Great Barrington. The defendant left the bar around 11:45 P.M.

Some time after retiring for the night at her home in Stockbridge around 11:00 P.M., Irene Pizzi was awakened by someone beating her on the head with a small handgun. The assailant wanted to know the whereabouts of Diane Makarski. Makarski, he said, had something which belonged to him that he wanted returned. He said he knew that Pizzi knew where Makarski was because he had read "the note." (A note had been left on Makarski's door in nearby Housatonic signed by a different "Irene.") While being subjected to threats and beatings, Pizzi denied any knowledge of the note or of Makarski's whereabouts. The beating caused her to bleed profusely (type A blood). The man strangled Pizzi and put a pillow over her head. A second assailant present in Pizzi's bedroom also beat her. As she lost consciousness, she heard one of the two men say, "It's done" or "She's done." She was unable to identify the man who strangled her, but she recognized the voice of the second man in the room as that of Matthew Fogarty.

Some time after Makarski went to sleep in her apartment in Housatonic at around 11:30 P.M., she was awakened by the defendant knocking loudly on her porch door. She let him inside. He grabbed her, started to strangle her, and said, "Tell me where it is. I just did your girlfriend in. Tell me where it is, I just killed her." The defendant struck Makarski over the head with a small metal gun. She told him that what he wanted was in the shed. He kept beating her on the head, and she may have lost consciousness. She bled profusely (type O blood). As she was coming to, she saw the defendant holding a plastic bag in his hand which appeared to contain cocaine. As she was screaming, the defendant told her that someone who was waiting outside would come and silence her if she did not keep quiet. He told her he was going to kill her. As he looked down to prepare his gun, however, she managed to flee to a neighbor's house.

The two victims were hospitalized. After some initial reluctance, Makarski named the defendant as her assailant to the police. At around 6:00 A.M. on the morning following the attacks, the police went to the apartment occupied by Matthew and Anne Fogarty with a warrant for the defendant's arrest. Only the defendant, Matthew Fogarty, and an unidentified third person were present. The defendant was asleep, fully-clothed, with a twelve-gauge shotgun cradled across his stomach. After being given his Miranda warnings, the defendant was taken to a police station. The police again apprised the defendant of his Miranda rights, and the defendant agreed to answer questions. He said he had been in the Macano Inn until it closed at 2:00 A.M. that morning and that he then went home to bed. The Macano Inn owner testified that he recalled closing the bar that night at around 11:45 P.M. because business was slow. The defendant, he testified, was the only customer in the bar when he closed it.

Four and one-half days later, a hitchhiker noticed a yellow plastic bag hanging from a tree limb, about five feet from the ground, off the road near the baseball field bordering Makarski's apartment house. The yellow bag contained two plastic ziplock bags, which in turn contained 514 grams of cocaine. The wholesale value of the cocaine was about $86,000. On the bags was blood of type A and possibly also type O.

1. Request for continuance and change of counsel. The defendant's principal contention on appeal is that the trial judge erred in denying both the eleventh-hour request by the defendant for a continuance of his trial in order to obtain new counsel and the request by his privately-retained attorney, Ms. Elizabeth Quinlan, to withdraw. As we have indicated, the defendant is an attorney. The trial had been set for June 22, 1987, at Ms. Quinlan's request. The judge had reserved the time for the trial during the last week of the June session; there would be no other jury session in Berkshire County until September. The defendant had indicated his intention to offer a plea, but whatever plea arrangement had been made fell through. On the date set for the trial the judge was finishing up another matter. That day, for the first time, the defendant indicated that he no longer wanted Ms. Quinlan to represent him, and Ms. Quinlan also sought to withdraw. She referred to "certain disputes relative to witnesses, defense tactics," a "profound personality conflict," and a breakdown in the attorney- client relationship which made it impossible for her adequately to represent the defendant. The judge invited the defendant to speak. The defendant said, "We have had irreconcilable differences of opinion, trial strategies and what have you." In a recorded conference between the defendant and Ms. Quinlan, a transcript of which was read by the judge before he ruled on the matter, they referred to a clash in personalities and differences as to tactics. Ms. Quinlan indicated, however, that she was prepared for trial. The following day, Ms. Quinlan also expressed her concern that her ability to conduct an effective defense might be affected by her fear of a posttrial claim of ineffective assistance of counsel.

The prosecutor objected to the requests, pointing out the reservation of the late June date, the impossibility of calling another case in for trial, the distress the delay would cause the victims, and the inconvenience to the numerous witnesses who had been summoned or placed on call and were ready to testify. A Florida attorney interested in representing the defendant made known to the judge through a telephone call that he could appear in a week and be ready for trial in a month.

The judge indicated that a similar motion for a continuance made at an earlier stage in the proceedings would almost certainly have been allowed. He denied the requests, however, because of their timing, because of the substantial inconvenience to the witnesses and the court, and because it appeared to him that the differences were tactical and that they would not cause such detriment that the defendant's rights would be jeopardized. As a result, the judge was "not convinced this delay is for a legitimate reason, quite honestly, at this stage." Presented with a choice whether to proceed with Ms. Quinlan as his attorney, pro se, or with standby counsel, the defendant chose the first alternative. At trial, Ms. Quinlan, described by the judge as a competent attorney, conducted a vigorous defense.

A defendant has a right under the Sixth and Fourteenth Amendments to the United States Constitution to have considerable deference given to his choice of counsel to represent him at a trial in which his liberty is at stake. The right is not absolute, however, and on occasion it may be subordinate to the public's interest in the fair, efficient, and orderly administration of justice. See Commonwealth v. Dunne, 394 Mass. 10, 14, 474 N.E.2d 538 (1985); United States v. Panzardi Alvarez, 816 F.2d 813, 816 (1st Cir.1987). The question whether to allow a continuance for change of counsel rests ordinarily in the sound discretion of the trial judge once he has made appropriate inquiry of the defendant as to the reasons for the request. See Commonwealth v. Moran, 388 Mass. 655, 659, 448 N.E.2d 362 (1983); United States v. Torres, 793 F.2d 436, 440 (1st Cir.), cert. denied, 479 U.S. 889, 107 S.Ct. 287, 93 L.Ed.2d 261 (1986). "There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied." Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 850, 11 L.Ed.2d 921 (1964). See Commonwealth v. Dunne, 394 Mass. at 14, 474 N.E.2d 538.

Among the significant factors to be considered in determining whether the denial of the continuance was justified...

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