Com. v. Gauthier
Decision Date | 14 March 1972 |
Citation | 361 Mass. 394,280 N.E.2d 426 |
Parties | COMMONWEALTH v. Arthur A. GAUTHIER. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Alexander Whiteside, II, Boston (Reuben Goodman, Boston, with him) for defendant.
Peter F. Brady, Asst. Dist. Atty., for the Commonwealth.
Before TAURO, C.J., and CUTTER, QUIRICO, BRAUCHER and HENNESSEY, JJ.
On February 16, 1955, the defendant Gauthier was found guilty by a jury verdict after being tried jointly with codefendants Donald F. Boisvert, Edward R. Beaulieu and Robert E. Weaver under G.L. c. 278, §§ 33A--33G, on indictments charging each with murder in the second degree, robbery, and conspiracy. 1 Gauthier did not appeal. The three codefendants were found guilty on all the indictments except Boisvert who was found not guilty on the murder indictment. On appeal by the three codefendants judgments were affirmed. 2 Gauthier filed a motion for a new trial on November 19, 1969 (almost fifteen years after the trial), and a hearing was held on November 24, 1970, under the authority of G.L. c. 278, § 29 (see Earl v. Commonwealth, 356 Mass. 181, 248 N.E.2d 498). The motion was denied, and the defendant appeals on the following grounds:
(1) Counsel failed to prosecute an appeal; the defendant was not advised of his right to court appointed counsel on appeal; and in the absence of a knowledgeable and intelligent waiver of his right to appeal, the defendant was denied equal protection under the Fourteenth Amendment to the United States Constitution. (2) An instruction on involuntary manslaughter was required by the evidence. (3) Supplementary instructions were improperly given to the jury in the defendant's absence without his effective waiver.
In the defendant's motion for a new trial he stated in part: The judge who heard the motion also presided at the original trial, and the entire transcript of that trial was admitted without objection at the hearing.
The defendant contends that even if he had been aware of his right to appeal, this was an empty formality since he was not advised of his right to appointed counsel on appeal. The pertinent evidence at the hearing on the defendant's motion was as follows. The defendant was represented at his trial by Mr. John R. Murphy (now deceased) and he was assisted in the preparation and certain other aspects by Mr. Alphonse S. Bachorowski who at one time had practised law with the defendant's father until his death in the 1940's. At the time of the trial, Mr. Murphy and Mr. Bachorowski were office associates. Mr. Bachorowski first because interested in the case at the request of the defendant's sister. He then arranged with Mr. Murphy, who is acknowledged to have been a capable trial lawyer, to undertake the case. Neither was appointed by the court and neither received any compensation.
After the defendant's conviction Mr. Bachorowski and Mr. Murphy informed the defendant of his right to appeal and told him that neither of them would represent him further. Mr. Bachorowski testified: 3 No appeal was filed on behalf of the defendant by Mr. Bachorowski or by Mr. Murphy. A contributing factor in the decision was their opinion 'that an appeal would not avail him and would not change the verdict.' Mr. Bachorowski also testified that 'Murphy's opinion was that . . . if he took an appeal, there was not enough evidence in there to upset the findings made by the jury.'
In denying the defendant's motion for a new trial the judge found that There was no evidence that the defendant was informed that he had a right to appointed counsel to prosecute his appeal. 4
Whether a defendant who is represented by retained counsel has a constitutional right to be informed of his right to appeal with the assistance of appointed counsel raises a question of first impression in this Commonwealth, and conflicting viewpoints have arisen in other jurisdictions.
The Supreme Court in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), reh. den. 373 U.S. 905, 83 S.Ct. 1288, 10 L.Ed.2d 200, held that an indigent defendant has the right to appointed counsel on appeal. 5 This decision was given retroactive effect in Smith v. Crouse, 378 U.S. 584, 84 S.Ct. 1929, 12 L.Ed.2d 1039 (1964).
In United States ex rel. Smith v. McMann, 417 F.2d 648 (en banc) (2d Cir.) cert. den. sub nom. McMann v. Smith, 397 U.S. 925, 90 S.Ct. 929, 25 L.Ed.2d 105, the majority stated: Id. at 654.
The court based its decision on equal protection of the laws. It stated, 'It is enough to establish the prisoner's right to federal collateral relief that by reason of his indigence he has been deprived of his right to appeal by the action or inaction of the judicial instrumentalities of the state in which the judgment of conviction was entered' (emphasis added). Id. at 654.
The court set forth that two basic factors must be present: '(T)he fact of indigence at the time of sentence and the fact that the prisoner did not know he could appeal without expense to himself.' Id. at 655. 6 This rule was followed by the Sixth Circuit in Goodwin v. Cardwell, 432 F.2d 521.
The Third and Fifth Circuits have taken a contrary view. Their position is that 'when a defendant has retained counsel of his own choosing the State cannot be held to have violated the constitutional right of an indigent to counsel on appeal, unless the need for appellate counsel is brought home to the State, either by the defendant's request for appellate counsel or because a responsible State official has actual knowledge that the defendant is indigent and desires to appeal his conviction' (emphasis added). Pate v. Holman, 341 F.2d 764, 773 (5th Cir.), modified 343 F.2d 546 (5th Cir.). 7 Accord, Beto v. Martin, 396 F.2d 432, 434 (5th Cir.); Gregory v. United States, 446 F.2d 498, 499 (5th Cir.). See United States ex rel. Smith v. McMann, supra, 417 F.2d at 657--659 (Friendly, J. dissenting); Goodwin v. Cardwell, supra, 432 F.2d at 523--529 (O'Sullivan, J. dissenting).
The Third Circuit in United States ex rel. O'Brien v. Maroney, 423 F.2d 865, found the position taken by the Fifth Circuit and 'the dissent in the Second Circuit persuasive and sensible, especially as it relates to convictions which had become final long prior to the Douglas decision.' 8 Id. at 872. The court did not interpret the Douglas case 'to suggest the presence of a threshold obligation of the state to inquire about the financial means of one who appears at trial with privately retained counsel and thereafter offers no indication that his financial resources have been exhausted.' Id. at 871. 9
The distinction between the two positions is grounded on the concept of State action. There is no doubt that where the defendant has court appointed counsel at trial he is to be afforded appointed counsel for purposes of appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. With representation by retained counsel, '(T)he mandate of the sixth amendment is implemented not by action of the state, but by action of the individual defendant.' United States ex rel. O'Brien v. Maroney, supra, 423 F.2d at 869.
10 11 (emphasis added). Pate v. Holman, 341 F.2d 764, 775 (5th Cir.). Accord, Harris v. Beto, 392 F.2d 191 (5th Cir.); Worts v. Dutton, 395 F.2d 341 (5th Cir.); Langford v. Alabama, 422 F.2d 760 (5th Cir.), cert. den. 400 U.S. 851, 91 S.Ct. 69, 27 L.Ed.2d 88. Consequently 'misfeasance by privately retained counsel is not state action and therefore does not constitute a deprivation of due process or equal protection.' 12 McGriff v. Wainwright, 431 F.2d 897, 899 (5th Cir.). See Harris v. Beto, supra; Worts v. Dutton, supra.
Here, the defendant was prepresented by retained counsel at the trial. We are of the opinion that there was no...
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