Com. v. Lee

• Decision Date: 07 March 1985
• Citation: 394 Mass. 209,475 N.E.2d 363
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. Leslie LEE (and five companion cases 1 ).

Page 363

475 N.E.2d 363

394 Mass. 209

COMMONWEALTH v. Leslie LEE (and five companion cases ¹).

Supreme Judicial Court of Massachusetts Plymouth.

Argued Oct. 3, 1984.

Decided March 7, 1985.

Geraldine S. Hines, Roxbury, for Leslie Lee.

Carol A. Donovan, Boston, for Lawrence Shaw.

Robert S. Sinsheimer, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, ABRAMS and O'CONNOR, JJ.

O'CONNOR, Justice.

The defendants were tried by a jury and convicted of armed robbery and assault and battery with a dangerous weapon in connection with the holdup of a convenience store in Brockton on November 5, 1979. At their arraignment on January 28, 1980, the defendants told the judge they did not want to be represented by counsel. Nevertheless, the judge appointed Mr. Thomas A. Hensley to represent the defendant Lee, and Mr. John Tara to represent the defendant Shaw. Although counsel had been appointed, the defendants represented themselves from that time until the jury had been selected at the trial in August, 1980, opening statements had been made, and the presentation of evidence was in its early stages. Early in the presentation of the Commonwealth's case, Mr. Hensley and Mr. Tara assumed the role of defense counsel, and they continued in that role until the trial was completed and the defendants were sentenced. The defendants appealed from their convictions, and we transferred the cases to this court on our own motion. The defendants now contend that they were denied their right to the effective assistance of counsel, and that they are entitled to a new trial on that ground. Shaw also alleges other errors, which we discuss below. We affirm the defendants' convictions.

We set forth the relevant pretrial proceedings occurring after the arraignment. At a hearing on May 7, 1980, at which Shaw was not present, Lee again indicated that he did not want counsel to represent him. The judge, who had also presided at the arraignment, inquired of Lee's attorney, Mr. Hensley, who stated that there were no personal differences between Lee and himself, but that Lee "continues to assert his rights pursuant to [Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ] to represent himself." The judge then asked Lee, "Is that what you want to do, represent yourself?" to which Lee responded, "Yes, sir, I would like to go pro se." The judge questioned Lee about his education and whether he understood the charges against him. ² He instructed Mr. Hensley to stay in the case as "standby counsel," and to assist the defendant or to refrain from interfering as the defendant wished. He also asked Lee to sign a written waiver of counsel form, which Lee refused to do. At this hearing, Lee also filed a written "motion to stay pending habeus corpus and U.S. Supreme Court Petition for writ of prohibition," the thrust of which was that prosecution of the defendants would be impermissible because they had never been arrested. ³ The motion was filed in the names of both defendants, proceeding pro se.

At a hearing on May 12, 1980, before the same judge, the defendants filed a second pro see document entitled "Defendants' Statement to the Court and Right to Bar Counsel," which was treated as a motion to bar counsel. The motion cited Faretta v. California, supra, and Chapman v. United States, 553 F.2d 886 (5th Cir.1977), which hold that a defendant has a constitutional right to proceed pro se. The motion further stated: "Defendants are pro se only for presenting this statement to the court," and reiterated the defendants' belief that they could not be prosecuted because they had not been arrested. The judge asked Shaw whether he wanted to proceed pro se. Shaw responded that he did, insisting that he could not be tried. ⁴ The judge then denied the motion to stay proceedings. He ordered Shaw's attorney, Mr. Tara, to remain in the case as "stand by" counsel, stating, "I think he may want Tara or may not."

At a hearing on July 22, 1980, before a different judge, Mr. Hensley moved for permission to withdraw, stating that the defendants wanted to represent themselves. The judge asked Lee whether he intended to represent himself. Lee responded, "I'm going pro se on a habeas corpus." The judge made several attempts to find out whether Lee intended to represent himself at trial, but Lee refused to answer, insisting that the judge rule on another pro se motion he had filed. The judge denied that motion, and denied Mr. Hensley's motion to withdraw. Shaw then indicated that he was dissatisfied with Mr. Tara because he was a former assistant district attorney, and Shaw indicated for the first time that he wanted new counsel appointed to represent him at trial. ⁵

The judge called a recess until Mr. Tara arrived. Both defendants then indicated they wanted counsel, but that they were not satisfied with the attorneys appointed to represent them because they were not prepared to try the case. The colloquy is set forth in the margin. ⁶ The judge stated he would hold appointed counsel in the case, but granted a two week continuance to allow the attorneys time to prepare. The case was called for trial on August 5, 1980. Mr. Hensley stated that he had been informed by Lee that Lee did not want him to try the case, and that he did not feel he was authorized to speak on Lee's behalf. Mr. Tara also stated that he had been told by Shaw that Shaw did not want him as counsel. The judge asked both defendants who their attorneys would be. Lee responded that he did not need an attorney because he could not be tried. Shaw responded that Mr. Tara had been appointed but that Shaw did not want him. The judge ordered the case held for trial.

On August 11, the case was called, and the judge asked whether the defendants were ready for trial. Both defendants insisted that they were not going to take part in the trial. Mr. Hensley and Mr. Tara then asked that their status be put in the record. They stated that the defendants did not want them to participate but that they would be available to assist and advise the defendants if they so desired. The defendants said nothing to contradict the lawyers' statements, and when the judge offered to seat the attorneys close to the defendants so they could help them, Shaw responded, "They're not going to [help]." The defendants' trial then commenced. The defendants represented themselves during the selection of the jury and the early portions of the trial, during which time they made several potentially damaging statements. Mr. Tara and Mr. Hensley eventually assumed the role of defense counsel.

1. A defendant has a right to the effective assistance of counsel, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), although he does not have a right to court appointed counsel of his choice. Commonwealth v. Moran, 388 Mass. 655, 659, 448 N.E.2d 362 (1983). A defendant also has a right to defend himself without the assistance of counsel, if he voluntarily and knowingly elects to do so. Faretta v. California, 422 U.S. 806, 818-821, 95 S.Ct. 2525, 2532-2534, 45 L.Ed.2d 562 (1975). Commonwealth v. Jackson, 376 Mass. 790, 794, 383 N.E.2d 835 (1978). The court must make available to an indigent defendant counsel with whom reasonable communication is possible, who is competent, completely loyal and, with the defendant's cooperation, prepared to defend him. Commonwealth v. Moran, 17 Mass.App. 200, 204, 457 N.E.2d 287 (1983). When counsel of that calibre is made available to a defendant, his refusal to accept such representation is a voluntary waiver of the right to counsel, Commonwealth v. Appleby, 389 Mass. 359, 366-367, 450 N.E.2d 1070 (1983); Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir.1976), and the waiver is effective if the decision is made with "a sense of the magnitude of the undertaking and the 'disadvantages of self-representation: '... an awareness that there are technical rules governing the conduct of a trial, and that presenting a defense is not a simple matter of telling one's story.... In addition, the accused should have a general appreciation of the seriousness of the charge and of the penalties he may be exposed to before deciding to take a chance on his own skill" (citations omitted). Maynard v. Meachum, supra at 279.

The defendants claim that their request for a substitution of counsel was denied in the trial court without an adequate hearing as to their concerns. They also claim that they did not effectively waive their right to counsel. They argue that the waiver was not voluntary because they were forced to choose between disloyal, inadequately prepared counsel and self-representation, and that the waiver was not knowing because they did not possess a sufficient understanding of the significance of such a waiver. In support of these claims, the defendants rely in part on facts which are not shown by the record. Such facts cannot be found for the first time on appeal; they must be established in a trial court. A motion for a new trial, not filed in this case, would be an appropriate vehicle for that purpose. Thus, we consider whether on the facts which do appear in the record there was any error below.

We have held that when a defendant requests that new counsel be appointed, the judge should allow the defendant to state his reasons for wanting to discharge his attorney so that the judge's discretion can be exercised on an informed basis. Commonwealth v. Moran, 388 Mass. 655, 659, 448 N.E.2d 362 (1983). Lamoureux v. Commonwealth, 353 Mass. 556, 560, 233 N.E.2d 741 (1968). We have never insisted, however, that that hearing satisfy a particular formula. We have only required that the judge give a defendant an opportunity to make known his reasons for objecting to appointed counsel before the judge rules on the request. Lamoureux v. Commonwealth, supra. That requirement was met here. Throughout the pretrial proceedings and at trial the defendants were...