Com. v. Means
| Decision Date | 27 May 2008 |
| Docket Number | No. 07-P-417.,07-P-417. |
| Citation | 71 Mass. App. Ct. 788,886 N.E.2d 754 |
| Parties | COMMONWEALTH v. Mark MEANS. |
| Court | Appeals Court of Massachusetts |
Deborah Bates Riordan, Quincy (Theodore F. Riordan with her) for the defendant.
Audrey Anderson Kachour, Assistant District Attorney, for the Commonwealth.
Present: COHEN, TRAINOR, & MEADE, JJ.
After a jury trial, the defendant was convicted of assault and battery on a correction officer in violation of G.L. c. 127, § 38B, and assault and battery by means of a dangerous weapon in violation of G.L. c. 265, § 15A(b).1 Thereafter, in a separate trial with the same jury, the defendant was convicted of two counts of being a habitual criminal in violation of G.L. c. 279, § 25.
On appeal, the defendant claims he was denied his constitutional right to counsel when a judge permitted his court-appointed attorney to withdraw and refused to appoint successor counsel. The defendant also claims that the judge failed in her obligation to reexamine the jury for bias and impartiality prior to his second trial on the habitual offender indictments. We conclude that the judge did not err in finding that the defendant forfeited his right to counsel due to his egregious misconduct and in requiring him to proceed pro se at trial, and that the judge was not required sua sponte to reexamine the jury prior to the defendant's second trial. Accordingly, we affirm the defendant's convictions.
1. Background. a. Dismissal of counsel. An attorney, whom we will refer to as trial counsel, was appointed as the defendant's counsel in this matter. Prior to trial, the defendant moved pro se for the dismissal of trial counsel and for the appointment of new counsel. In support of his motion, the defendant made a variety of claims relative to trial counsel's interest in the case as well as his performance as counsel.2 Soon after, trial counsel filed his own motion to withdraw as counsel based on the defendant's concerns. A Superior Court judge allowed trial counsel to withdraw, but appointed him to act as stand-by counsel, and ordered the defendant to proceed pro se.
Two months later, the defendant moved to dismiss trial counsel as stand-by counsel based on his lack of assistance, and to appoint new counsel. In support, the defendant stated that based on his "anger management" history and his "impulse control" issues, it would be in both their best interests if trial counsel were completely removed from the case. By the time of the hearing on the motion, the judge found that the defendant and trial counsel had apparently reconciled their differences, and she, with the defendant's consent, ordered trial counsel to resume his role as defense counsel.
The détente was short lived. Within one month, the defendant again moved to dismiss trial counsel as his attorney. In support of the motion, the defendant submitted an affidavit, signed under the pains and penalties of perjury, which again complained of trial counsel's inattentiveness and performance. The affidavit also upped the ante with the following:
The defendant's affidavit also noted that in an unrelated criminal case, the presiding judge had removed trial counsel as his attorney due to, inter alia, the defendant's threats directed at trial counsel.
b. The hearing. At the hearing on the defendant's motion, he admitted that he had sent the threatening letter to trial counsel and that he wanted trial counsel off the case, but claimed that he did not intend to harm counsel. Trial counsel asked that new counsel be appointed; the Commonwealth took no position. Based on the tenor of the defendant's motion, which the judge found to be "frightening," the judge allowed trial counsel to withdraw. However, because of the defendant's threats to do physical harm to trial counsel and his family, the judge deemed the defendant to have "waived" his right to another court-appointed attorney, and she refused "to subject another attorney to this type of behavior." The defendant stated that he wanted to represent himself, requested a trial date, and ably argued several pretrial motions.
d. The trial. At the beginning of the trial, the judge noted that she had received a letter from the Committee for Public Counsel Services (CPCS) indicating that the defendant had requested the assignment of counsel. In the letter, CPCS requested that the judge reconsider her decision finding that the defendant had forfeited his right to counsel, and notified her that CPCS had authorized the assignment of counsel for the limited purpose of presenting a motion for a competency evaluation5 and a motion to reconsider the order denying counsel for the defendant.
That same morning, the court clerk's office received a telephone call from an attorney who was available to the defendant for the above-stated limited purposes. Based on the egregious nature of the defendant's threats of physical harm to trial counsel and his family, the judge declined to reconsider her decision. She specified that if she did reconsider and appoint new counsel, it would set a "chilling" precedent "that all a defendant would have to do would be to threaten his counsel with violence and that would result in a new attorney being appointed."
e. The crimes. The Commonwealth's evidence permitted the jury to find the following. On Christmas Eve in 2001, William Dineen, a correction officer at the Plymouth County Correctional Facility, was the victim of the defendant's disturbingly vile assault. While retrieving razors he had previously distributed to inmates, Dineen saw a razor come flying out from the two-inch gap at the bottom of the defendant's cell door. With Dineen's attention on the razor, the defendant threw at Dineen an open milk carton containing urine and feces. When the carton hit Dineen, its contents splashed onto his face and into his mouth and eyes. His uniform was covered with it.6
After decontaminating himself with a bleach solution, Dineen went to the hospital where he was tested for human immunodeficiency virus and received a series of shots for hepatitis and tetanus. After an initial round of blood tests that were negative, Dineen was told he had tested positive for hepatitis B. Three weeks later, he learned that it had been a false positive, and that he did not have hepatitis.
2. Discussion. a. Forfeiture of the right to counsel. The defendant claims he was denied his constitutional right to counsel at trial when a judge permitted his court-appointed attorney to withdraw and refused to appoint successor counsel. It cannot be gainsaid that an indigent criminal defendant has a constitutionally protected right to appointed counsel at trial under both the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. Gideon v. Wainwright, 372 U.S. 335, 344-345, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Commonwealth v. Sargent, 449 Mass. 576, 579, 870 N.E.2d 602 (2007). See Mass. R.Crim.P. 8, as amended, 397 Mass. 1226 (1986); S.J.C. Rule 3:10, as amended, 416 Mass. 1306 (1993). Although the right to counsel is a fundamental right, the guarantee of that right, like all constitutional rights, is not absolute.
In three different circumstances, a defendant can effectively forgo his right to the assistance of counsel through his conduct. The first, and most common, circumstance is where a defendant affirmatively waives his right to counsel at trial. Such a waiver must be knowing, voluntary, and intelligent to be effective. Faretta v. California, 422 U.S. 806, 835-836, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Commonwealth v. 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). See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
In the second circumstance, which occurs in the absence of an express waiver, a defendant can implicitly waive his right to counsel by his conduct. Often referred to as "waiver by conduct," see United States...
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