Com. v. Jackson

Decision Date12 December 1978
PartiesCOMMONWEALTH v. Anthony J. JACKSON.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Thomas G. Hoffman, Boston, for defendant.

James W. Sahakian, Asst. Dist. Atty. (William L. Pardee, Asst. Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

WILKINS, Justice.

The defendant appeals from his conviction of armed assault with intent to murder and unlawful carrying of a firearm. 1 He argues that he was unfairly forced to go to trial, representing himself, in circumstances where a continuance should have been granted and counsel appointed. We conclude that there was no abuse of discretion in proceeding to trial on the day designated with the defendant acting for himself. 2 We reject, as not properly before us, the defendant's unrelated contention that, because of certain newspaper publicity during trial, the judge should have conducted an individual voir dire of each empanelled juror. We do, however, set forth the appropriate procedures which should be followed in similar circumstances in the future.

We briefly describe the evidence because we shall have occasion to consider whether certain of the judge's rulings prejudiced the defense or gave rise to a substantial risk of a miscarriage of justice.

The evidence of the defendant's guilt was overwhelming. On December 26, 1972, one of two Cambridge police officers in an unmarked van observed the defendant driving a Cadillac automobile and apparently accosting a female pedestrian. The police officers in the van followed the Cadillac automobile, which sped away. They lost sight of it, spotted it again, and gave chase. Another police vehicle joined the pursuit. The Cadillac automobile was found abandoned a few minutes later. Nearby and shortly thereafter, two other police officers in a cruiser saw a pedestrian whom they identified as the defendant. When they approached the defendant, he drew a gun and fired at them. The police officers returned the fire. The defendant appeared to have been hit, but he fled on foot. A few minutes later the defendant was found approximately three blocks away, lying in the street wounded. He was wearing an empty holster. He told the officer who first approached him, "I don't have the gun." At the hospital, a spent bullet was found in the defendant's clothing. The bullet was of the same caliber as the guns of the officers who had been involved in the shoot-out. Keys to the Cadillac automobile were found, along with material identifying the defendant, in an alley between the location of the shooting and the location of the defendant's arrest. A gun was found in that alley eight days later. There was evidence that a bullet recovered from the scene of the shooting had been fired from that gun.

The defendant presented no substantial evidence in his defense. He suggested that the police had failed to investigate the possibility of other suspects, including the registered owner of the Cadillac automobile.

1. There was no abuse of discretion in denying the defendant's requests for a continuance. At a hearing on June 3, 1976, trial was set for June 14, 1976. The defendant requested a continuance in order to prepare for trial, and the judge denied the request. Such a determination will be disturbed only if there was a clear abuse of discretion. Commonwealth v. Watkins, --- Mass. ---, --- A, 379 N.E.2d 1040 (1978), and cases cited. See Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). The defendant has made no such showing.

The indictments in this case were handed down in January, 1973. In June, 1973, at the defendant's request, an order was entered deferring trial in this case, and certain other cases involving the defendant, until the conclusion of the trial against the defendant in the so-called Reich murder case. The trial of the Reich case was substantially delayed. This delay, as we noted in Jackson v. Commonwealth, 370 Mass. --- B, 346 N.E.2d 714 (1976) was due to the defendant's failure to establish and maintain a satisfactory working relationship with any of the various attorneys who had been retained by, assigned to, or offered to the defendant. Shortly after our 1976 opinion, the order giving priority to the Reich trial was rescinded. The judge who denied the continuance in this case was aware of the defendant's record of delay in the Reich case and that those delays had also prevented the case at bar from proceeding to trial.

The defendant had no reasonable basis for being unprepared for trial by reliance on the order deferring the trial of this case. The order had deferred only the trial date and had placed no restrictions on preparation for trial. Nor did the withdrawal of counsel, approved by the judge on June 3, 1976, require a continuance. The defendant had long known that those withdrawals were inevitable, and they were solely the product of his own conduct. Jackson v. Commonwealth, 370 Mass. --- C, 346 N.E.2d 714 (1976). See Commonwealth v. Bettencourt, 361 Mass. 515, 517-518, 281 N.E.2d 220 (1972); United States v. Rodriguez Vallejo, 496 F.2d 960, 964-965 (1st Cir.), cert. denied, 419 U.S. 965, 95 S.Ct. 226, 42 L.Ed.2d 179 (1974). The defendant was offered new counsel at the hearing, and the trial was still eleven days away.

There are further grounds for upholding the denial of a continuance. The record indicates, in addition, that the defense had substantially prepared for trial in the six months following the indictments. In August, 1973, the Commonwealth had presented a general version of the events surrounding this case in a hearing on a motion to suppress filed in another of the criminal proceedings against the defendant. The defendant made no showing on June 3, 1976, of a particular need for a continuance. Even now, the defendant has not demonstrated how the denial of the continuance prejudiced him at trial. The judge accommodated late requests for an investigator, a ballistician, and a psychiatrist. The defendant presented his defense vigorously. He used transcripts of prior proceedings for the purpose of impeachment, called his own witnesses, and successfully excluded a confession which he had given at the hospital following the shooting.

If we assume that the denial of a continuance on the first day of trial is before us on the assignments of error, there was no abuse of discretion for reasons already given. The defendant has made no showing that his receipt of certain papers four days before trial was prejudicial to him.

2. On June 3, 1976, after the trial date of June 14, 1976, was established, the judge accepted the defendant's request that he be permitted to represent himself at trial. The defendant claims that the judge improperly concluded that the defendant had waived his constitutional right to counsel. The colloquy between the judge and the defendant, portions of which are set forth in the margin, 3 plainly warrants the judge's conclusion that the defendant knowingly and intelligently waived his right to counsel. Indeed, he insisted on his constitutional right to represent himself, apparently citing (although by the wrong name) and quoting from the opinion of the Supreme Court in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). On June 4, 1976, the judge filed a statement in which he noted that the defendant stated in open court that he wished to proceed "pro se," and added that "if the defendant does not desire to make use of appointed counsel, I appoint said counsel as legal advisor in all proceedings."

The defendant was adequately aware of the seriousness of the charges, the magnitude of his undertaking, the availability of advisory counsel, and the disadvantages of self-representation. See Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The record shows that the defendant was "literate, competent, and understanding." Id. The finding of the defendant's waiver of right to counsel was fully justified. See Fillippini v. Ristaino, 585 F.2d 1163, 1166-1167 (1st Cir. 1978).

The assertion in the defendant's brief that his waiver of counsel was contingent upon the granting of a continuance is incorrect. The trial date was firmly established before the court considered the question of representation, and at no time did the defendant suggest that his waiver of counsel was contingent on a change of the trial date.

3. The defendant makes a fleeting reference to the judge's refusal to let him abandon his self-representation and use his court-appointed legal advisor as defense counsel. He made such a request on the first day of trial, and repeated it several times during the course of the trial. Although this issue is presented to us in the context of the defendant's claim that he never effectively waived his right to counsel, we shall treat the defendant's assertion as a claim of an abuse of discretion in the judge's refusal to permit him to retract his decision to represent himself.

On June 14, 1976, before the jury were selected, the defendant asserted that he had not had adequate time to prepare the case and asked the judge to permit his court-appointed legal advisor to defend him. Seemingly gone was the eloquent self-confidence of June third "And I ask the Court for that right (to defend myself). If I must sail the sea, I want to be at the helm of my own ship, Your Honor, without counsel."

The judge did not abuse his discretion in turning down the defendant's request made at that late date. While we recognize the importance of counsel, we reject any suggestion that every defendant has an absolute right at the moment trial is to begin to retract his decision to represent himself. See Glenn v. United States, 303 F.2d 536, 540-541 (5th Cir. 1962), cert. denied sub nom. Belvin v. United States, 372 U.S. 922, 83 S.Ct. 737, 9 L.Ed.2d 726 (1963). A court faced...

To continue reading

Request your trial
133 cases
  • Harper v. People
    • United States
    • Colorado Supreme Court
    • September 16, 1991
    ...426, 551 N.E.2d 1211, 1215 (1990) (voir dire required if a serious question of possible prejudice arises) (citing Commonwealth v. Jackson, 376 Mass. 790, 383 N.E.2d 835 (1978)). But see United States v. Metzger, 778 F.2d 1195, 1209 (6th Cir.1985) (jury presumed to follow court's instruction......
  • Com. v. Sinnott
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 13, 1987
    ..."[t]he constitutional standard of fairness requires only that the jurors be impartial and indifferent." Commonwealth v. Jackson, 376 Mass. 790, 799, 383 N.E.2d 835 (1978), relying on Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2035, 44 L.Ed.2d 589 (1975). 17 The judge followed the ......
  • Com. v. Conefrey
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 6, 1991
    ...Appleby, 389 Mass. 359, 366, 450 N.E.2d 1070, cert. denied, 464 U.S. 941, 104 S.Ct. 357, 78 L.Ed.2d 320 (1983); Commonwealth v. Jackson, 376 Mass. 790, 795, 383 N.E.2d 835 (1978); asserted in a timely manner, see Commonwealth v. Miller, supra 6 Mass.App.Ct. at 960, 383 N.E.2d 1144, and not ......
  • Com. v. Jackson
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • January 28, 1983
    ...to murder and of unlawfully carrying a firearm in connection with that arrest. The convictions were affirmed. Commonwealth v. Jackson, 376 Mass. 790, 383 N.E.2d 835 (1978). Testimony about that arrest was admitted at the trial in the instant case, over the defendant's objections. Hair sampl......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT