Com. v. Jackson

• Decision Date: 15 March 1995
• Citation: 419 Mass. 716,647 N.E.2d 401
• Parties: COMMONWEALTH, v. Samuel A. JACKSON, Jr. Worcester
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 401

647 N.E.2d 401

419 Mass. 716

COMMONWEALTH, v. Samuel A. JACKSON, Jr.

Supreme Judicial Court of Massachusetts,

Worcester.

Argued Nov. 9, 1994.

Decided March 15, 1995.

Daniel J. Johnedis, Woburn, for defendant.

William E. Loughlin, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.

ABRAMS, Justice.

After a trial by jury, the defendant, Samuel A. Jackson, Jr., was convicted of armed robbery, armed assault in a dwelling house with intent to commit a felony, and assault and battery. The defendant appeals. We granted the defendant's application for direct appellate review. For the reasons stated in this opinion, we affirm the convictions. The facts are set forth in the discussion of the issues.

1. Right to self-representation. After the defendant was indicted, the court appointed counsel to represent the defendant. The defendant subsequently waived his right to counsel, electing to proceed pro se. The court then designated standby counsel, who withdrew from the case three months later. The defendant assumed his own representation unassisted by standby counsel from that date forward. ¹

On appeal, represented by appellate counsel, the defendant argues that the conduct of the judge and the prosecutor at trial impaired his right to represent himself in a fair criminal proceeding. The defendant asserts that the judge interrupted his cross-examination of the victim unnecessarily. The defendant failed to object on the record to any of these interruptions.

The defendant further points to the prosecutor's use of statements elicited by the defendant on cross-examination, which were damaging to the defendant, as evidence that the prosecutor somehow "took advantage" of the defendant's pro se status. ²

In addition, according to the defendant, the prosecutor's failure to counsel witnesses to refer to the defendant as "Mr. Jackson" rather than "Sam" or "you" and the prosecutor's failure to avoid leading or improper questions which elicited hearsay responses violated the prosecutor's duty to guarantee a fair proceeding. In sum, the defendant argues that the conduct of the judge and the prosecutor prejudiced him before the jury and denied him an opportunity to represent himself in a fair proceeding. The defendant did not object to many of the issues urged on appeal. Although "we may consider issues on appeal not raised at trial ... our power to do so is rarely exercised, and is exercised only in response to a serious and obvious error creating a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967)." Commonwealth v. Pares-Ramirez, 400 Mass. 604, 609, 511 N.E.2d 344 (1987).

A. Rights waived and risks assumed by pro se defendants. The right to assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution is premised on "a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel." Johnson v. Zerbst, 304 U.S. 458, 462-463, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461 (1938). But because "[t]he defendant, and not his lawyer or the State, will bear the personal consequences of a conviction ... the defendant ... must be free personally to decide whether in his particular case counsel is to his advantage." Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975). Commonwealth v. Conefrey, 410 Mass. 1, 10-11, 570 N.E.2d 1384 (1991). Accordingly, a defendant may waive his right to the "guiding hand of counsel," Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932), and exercise his right of self-representation. Commonwealth v. Mott, 2 Mass.App.Ct. 47, 308 N.E.2d 557 (1974). Article 12 of the Massachusetts Declaration of Rights.

Despite their lack of legal training, pro se litigants are held to the same standards as practicing members of the bar. ³ Commonwealth v. Barnes, 399 Mass. 385, 392, 504 N.E.2d 624 (1987). "When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel." Faretta, supra, 422 U.S. at 835, 95 S.Ct. at 2541.

The defendant waived his right to effective assistance of counsel when he refused appointed counsel and standby counsel. At the time of each of the incidents outlined above, the defendant did not object on the record. His tactical and legal errors, many of which might constitute ineffective assistance of counsel if committed by a member of the bar, were inherent in the risk he assumed. See, e.g., Faretta, supra at 834-835 n. 46, 95 S.Ct. at 2541 n. 46 (pro se defendants cannot raise ineffective assistance of counsel claims on appeal).

Contrary to the defendant's assertions, the prosecutor did not unfairly "take advantage" of the defendant's pro se status. Nor did the judge prejudicially conduct the trial by limiting the introduction of cumulative evidence and excluding improper questions. No lenience is required on the part of the judge or prosecutor toward a pro se defendant. There is no judicial obligation to protect a pro se defendant from his lack of legal training. Faretta, supra ("The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law"). See also note 3, supra. Neither the trial judge nor the prosecutor impaired the defendant's right to represent himself in a fair proceeding. ⁴

B. Courtroom decorum in pro se cases. The defendant raises matters of courtroom decorum which we mention briefly. We note that pro se defendants should be addressed with titles connoting equal respect to that afforded opposing counsel. The defendant asserts that the judge referred to the defendant frequently as "you" rather than as "Mr. Jackson," and allowed witnesses to refer to the defendant either as "you" or "Sam." ⁵ There was no error. The defendant himself asked questions in the same manner throughout the trial. There is no substantial risk of a miscarriage of justice.

The defendant asserts that he was prejudiced by the judge's repeated interruptions. As we read the interruptions, ⁶ the judge simply told the defendant how to ask questions which would show any inconsistencies with testimony at the probable cause hearing. While the trial judge has a duty, " 'as the directing and controlling mind at the trial,' to see that the trial [does] not get out of hand," in general "it is the better practice to warn and rebuke counsel out of the jury's hearing" (citations omitted). Commonwealth v. McLaughlin, 352 Mass. 218, 226-227, 224 N.E.2d 444, cert. denied, 389 U.S. 916, 88 S.Ct. 250, 19 L.Ed.2d 268 (1967), quoting Whitney v. Wellesley & Boston St. Ry., 197 Mass. 495, 502, 84 N.E. 95 (1908). However, we recognize that "[s]ome warnings and rebukes must unavoidably be made in the jury's presence." McLaughlin, supra. See Commonwealth v. Leonard, 352 Mass. 636, 641-642, 227 N.E.2d 721 (1967). The record reveals that the defendant's cross-examination was argumentative and repetitive. Questions were inartfully phrased. The judge correctly excluded or curtailed repetitive or argumentative cross-examination. He also correctly excluded improperly phrased questions. A pro se defendant cannot put the judge or prosecutor in a "heads, I win, tails, you lose," position. That is exactly what the defendant is attempting to do. The record does not disclose a substantial risk of a miscarriage of justice.

2. Sufficiency of the evidence of dangerous weapon. The defendant was convicted of armed robbery and armed assault in a dwelling under G.L. c. 265, §§ 17 and 18A (1992 ed.). Each statute states that the robbery or assault be committed by one armed with a dangerous weapon. ⁷ On January 22, 1991, the defendant and two other men entered the apartment of the victim. The victim said that he heard the other men moving videocassettes. He asked the defendant, "Wait a minute, what are they doing back there?" The victim then got up from the chair where the defendant had told him to sit. The defendant put his hand in his "pocket and motioned it" toward the victim and said, "I'll blow you away." The victim said that the defendant carried himself as if he was armed with a gun. The victim said that he was afraid he would be harmed. The victim did not see a gun.

The judge instructed the jury that "an appearance of a dangerous weapon when a defendant causes that appearance to exist, can be found to be a dangerous weapon." The defendant objected to the instruction and raised the issue in his motion for a required finding of not guilty. The defendant argues this issue is governed by our decision in Commonwealth v. Howard, 386 Mass. 607, 436 N.E.2d 1211 (1982), while the Commonwealth maintains that Commonwealth v. Delgado, 367 Mass. 432, 326 N.E.2d 716 (1975), governs this appeal. A majority of the court agrees with the Commonwealth.

In Howard, supra, 386 Mass. at 607, 436 N.E.2d 1211, we reversed the conviction of robbery while "armed with a dangerous weapon" where the evidence showed the defendant did not possess a gun even though when he approached the victim, "he had his right hand in his jacket, and he said, 'Walk straight, look down, and don't try anything foolish or I'll pull the trigger.' " The defendant was arrested during the robbery. Despite the defendant's words, the police did not find a gun when they arrested and searched him. We reasoned that "where a robber had no instrumentality at all, although he said he had a gun, a conviction of armed robbery is not warranted." Id. at 608, 436 N.E.2d 1211. We said that "[i]t is the absence of any basis to infer that the defendant may have had a gun that distinguishes this case from Commonwealth v....