Com. v. Moran

• Decision Date: 09 December 1983
• Citation: 17 Mass.App.Ct. 200,457 N.E.2d 287
• Parties: COMMONWEALTH v. Richard F. MORAN.
• Court: Appeals Court of Massachusetts

Page 287

457 N.E.2d 287

17 Mass.App.Ct. 200

COMMONWEALTH v. Richard F. MORAN.

Appeals Court of Massachusetts,

Middlesex.

Argued Nov. 7, 1983.

Decided Dec. 9, 1983.

Alice A. Hanlon, Boston (George F. Gormley, Boston, with her), for defendant.

Pamela L. Hunt, Asst. Dist. Atty., for the Commonwealth.

Before GRANT, GREANEY and SMITH, JJ.

GREANEY, Justice.

In a Superior Court jury trial, the defendant, Richard F. Moran, was convicted of two counts of armed robbery, armed assault with intent to murder, and assault and battery by means of a dangerous weapon. Moran was also convicted of a single count of armed burglary. He was sentenced to two consecutive life terms for the armed robbery offenses, each to be served concurrently with sentences of nineteen to twenty years for the armed assault with intent to murder offenses. He was sentenced to an additional life term for the armed burglary offense, to be served concurrently with the second life term for armed robbery. He appeals from his convictions, asserting that he was forced to proceed to trial "unrepresented," having refused to go forward pro se or to permit representation by a court-appointed attorney. Moran's theories are (1) that counsel assigned to represent him should have been discharged for cause shown and new counsel substituted, and (2) that his Sixth Amendment right to counsel under the United States Constitution was violated because he did not voluntarily, knowingly, and intelligently waive his right to counsel, or voluntarily elect to proceed pro se. We affirm the convictions.

The defendant had originally been represented by an attorney with the Massachusetts Defenders Committee. The case was called in the Superior Court for trial on November 30, 1981. On that date the judge heard certain preliminary motions, including a motion for a continuance, which was denied. It was anticipated that empanelment would begin on the following morning. On the morning of December 1, 1981, however, Moran addressed the court personally and argued that his counsel be replaced because of a "communication gap." This "gap" apparently centered on the defendant's insistence on raising a "temporary insanity" defense despite a paucity of evidence of insanity. ¹ The judge conducted an extended colloquy in which he probed the defendant's understanding of the necessity for a legal basis for a claim of insanity. ² The judge cautioned Moran that he might have adopted a defense position which no attorney would consider legally supportable. He told Moran, "I do not want ... to have you say to me, 'Judge, I can't find anyone who is going to accept my position.' " Nonetheless, at the conclusion of the colloquy the judge relieved the public defender, granted a continuance and, later that day, appointed Mr. James O'Donovan to represent Moran.

The case came on for trial before a different Superior Court judge on Friday, January 22, 1982. Moran immediately informed the judge that he did not wish to be represented by Mr. O'Donovan. The judge then conducted a colloquy with the defendant and Mr. O'Donovan. The defendant stated that he was dissatisfied with Mr. O'Donovan because he had not seen the lawyer since he was appointed. The defendant also stated that Mr. O'Donovan had talked to him for less than two hours in total and had not discussed the defense, including whether he should take the stand, and that he did not know what Mr. O'Donovan knew about the case. Mr. O'Donovan, in turn, informed the judge that after his appointment he had acquired the case file compiled by the public defender and had conferred with him about the case. He said that the case was, in his opinion, "fully prepared and ready to go to trial." He explained that he had spoken with the defendant about the case in the courtroom and at the Billerica house of correction on a number of occasions and had unsuccessfully argued a motion for a neurological examination on January 13, 1982, the defendant being present at and participating in the hearing. He indicated that, with the exception of the filing of that motion, he had inherited a case which was ready for trial. He said that he had not returned a call from Moran in early December, 1981, because at the time he did not consider further discussions to be necessary. When he did go to Billerica to see the defendant, on the Sunday previous to the Friday trial date, Moran refused to see him. The subject of the "temporary insanity" defense did not arise in this colloquy.

Having heard both the defendant and Mr. O'Donovan, the judge gave the defendant the choice of proceeding either with Mr. O'Donovan as counsel or pro se, with Mr. O'Donovan standing by as an advisor. The defendant accepted neither option and repeatedly insisted that he would not go to trial with Mr. O'Donovan. A heated exchange ensued. The judge noted for the record his impression that Moran was "seeking to delay these proceedings." The judge then informed the jury venire that the defendant was representing himself (Moran objecting to this characterization) and that Mr. O'Donovan was standing by in case the defendant wished to consult with him. As the judge began to empanel the jury, the defendant refused to remain in the courtroom and was escorted to a holding area where a sound system had been installed at the judge's request to allow the defendant to hear what transpired in the courtroom.

As empanelment proceeded, the defendant was allowed to reenter the courtroom and began to confer with Mr. O'Donovan. After some fifteen minutes of discussion, Mr. O'Donovan informed the judge that the defendant now desired his representation. After fourteen members of the venire were called as jurors, but prior to the exercise of any challenges, Mr. O'Donovan objected to the lack of any black persons either among the fourteen jurors or in the venire from which they came. The judge did not formally rule on the objection but noted that both the defendant and the victims were black. Empanelment thereafter proceeded without incident until the court adjourned for the weekend, a full panel not having been seated.

When court reconvened on the following Monday, January 25, 1982, the defendant presented the judge with a written pro se motion to relieve Mr. O'Donovan and to appoint new counsel. As grounds for the motion, Moran asserted that Mr. O'Donovan had (1) refused to file motions; (2) interfered with attempts to obtain "necessary records" by insisting that he file pro se motions to obtain them; (3) refused to talk to him; (4) expressed personal dislike for him; and (5) expressed an opinion that he was guilty. The motion also asserted, as a sixth ground, that there was a "conflict of interest between counsel and defendant." Inquiring of Mr. O'Donovan, the judge determined that he had met with the defendant for four to five hours over the weekend. Mr. O'Donovan also informed the judge that he had spoken to the defendant about the advisability of a plea of guilty but that the defendant had not accepted his advice. The judge treated the motion as a restatement of the defendant's pre-empanelment protestations, "already denied." The trial proceeded with the defendant representing himself "[u]nder protest ... because I have no other choice." Mr. O'Donovan remained available in the courtroom throughout the trial in the event that the defendant wished to seek his advice or have him act as his counsel. It appears from the transcript that the defendant spent a large portion of the trial in self-imposed exile outside the courtroom, listening to the proceedings on a speaker system and taking little active part. Mr. O'Donovan took no active part in the trial.

1. The constitutional right to counsel in a criminal case does not guarantee a defendant the right to any particular court-appointed counsel. Commonwealth v. Moran, 388 Mass. 655, 659, 448 N.E.2d 362 (1983), and cases cited. "A court need not tolerate unwarranted delays, and may at some point require the defendant to go to trial even if he is not entirely satisfied with his attorney." Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir.1976). Whether a motion for substitution of counsel should be allowed depends on the defendant's demonstrating good cause. Some examples of good cause include counsel's incompetence or failure to prepare a defense, conflict of interest, or a complete breakdown in communication which threatens the defendant's right to a fair trial. See Lofton v. Procunier, 487 F.2d 434, 436 (9th Cir.1973); McKee v. Harris, 649 F.2d 927, 931 (2d Cir.1981), cert. denied, 456 U.S. 917, 102 S.Ct. 1773, 72 L.Ed.2d 177 (1982). The final decision on a motion to change counsel is committed to the trial judge's sound discretion, which is to be exercised only after the defendant has been given an adequate opportunity to state his grounds for seeking discharge of counsel. Lamoureux v. Commonwealth, 353 Mass. 556, 560, 233 N.E.2d 741 (1968). Commonwealth v. Moran, supra at 659, 448 N.E.2d 362. If the motion for substitution is properly denied, the defendant may then permissibly be confronted with the choice of continuing his representation by appointed counsel or acting pro se. If the defendant chooses (or is left with) the latter situation, the final inquiry must be whether the defendant's "decision was understandingly and intelligently made: that is, did he make his choice 'with eyes-open'." Maynard v. Meachum, supra at 279, quoting from Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 241, 87 L.Ed. 268 (1942).

2. With these principles in mind, we turn to the first relevant question: whether the defendant established good cause for the discharge of Mr. O'Donovan and the appointment of new counsel.

The sum total of the defendant's complaints in connection with his attempt to replace Mr. O'Donovan on Friday morning, January 22, 1982, was that there had been inadequate communication between attorney and client concerning the conduct of the...