Com. v. O'Leary

• Decision Date: 29 April 1964
• Citation: 347 Mass. 387,198 N.E.2d 403
• Parties: COMMONWEALTH v. James T. O'LEARY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 403

198 N.E.2d 403

347 Mass. 387

COMMONWEALTH v. James T. O'LEARY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 6, 1964.

Decided April 29, 1964.

Wilbur G. Hollingsworth, Boston, for defendant.

Jack I. Zalkind, Asst. Dist. Atty., James W. Bailey, Asst. Atty. Gen., for the Commonwealth.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and REARDON, Jj.

WILKINS, Chief Justice.

Three indictments were returned against the defendant: (1) Operating an improperly registered automobile, maximum penalty a fine of not more than $25. G.L. c. 90, § 9 (as amended through St.1961, c. 73, § 2), § 20 (as amended through St.1956, c. 389, § 3). (2) Operating an uninsured automobile, maximum penalty imprisonment for not more than one year. G.L. c. 90, § 34J (as amended through St.1959, c. 282, § 5). (3) Operating an automobile without authority during suspension of right, maximum penalty imprisonment in State prison for not more than ten years. G.L. c. 266, § 28 (as amended through St.1959, c. 160, § 2).

In the Superior Court the defendant filed pleas in abatement in which the allegations of fact were that on October 25, 1963, the defendant was complained of in the Chelsea District Court; and that after a probable cause hearing on the same date, when he was indigent and financially unable to retain counsel, he was bound over to the grand jury. The pleas contained a prayer that the prosecution be abated and that the defendant be discharged 'on the ground that at vital stages of the proceedings counsel was not provided for him.'

The judge in the Superior Court found the facts, as alleged, to be true and reported the question whether upon the facts so found the pleas in abatement should be sustained. G.L. c. 278, § 30A. The docket of the Superior Court shows that the defendant stood mute, that the judge directed the entry of pleas of not guilty, and that the defendant recognized personally in the sum of $1,000.

The first two crimes are misdemeanors. The third is a felony. G.L.(Ter.Ed.) c. 274, § 1. In view of the interrelation of the three, we shall treat them together, and not separately according to their seriousness as offenses.

As matters transpired, the defendant was no worse off in the District Court than if he had had counsel. There is no intimation that counsel would have done something that the defendant did not do or that he would have refrained from doing something which the defendant did do. The course the defendant pursued was intelligent and one which might be reasonably expected even where a defendant was represented by counsel. He did not plead guilty and so was not prejudiced in any of the respects his brief outlines as would have befallen in that event. He was not held upon oppressive bail, as his brief suggests might have been possible. Nothing was waived. The defendant was not barred from raising any defence whatsoever. An unimpaired opportunity still remains to move to suppress evidence should there be any need to do so, a fact as to which we are uninformed. In short, no right of the slightest value has been lost.

The questions are (1) whether out of the defendant's indigence there arose a constitutional right to counsel in a proceeding in the District Court which does not appear to have been otherwise than formal and routine, and (2) whether omission to furnish such counsel invalidated that proceeding and all subsequent proceedings even though upon the ensuing course of events there could have been no harm....