Com. v. Tuitt

• Decision Date: 31 January 1985
• Citation: 393 Mass. 801,473 N.E.2d 1103
• Parties: COMMONWEALTH v. Michael C. TUITT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1103

473 N.E.2d 1103

393 Mass. 801

COMMONWEALTH v. Michael C. TUITT.

Supreme Judicial Court of Massachusetts Hampden.

Argued Oct. 4, 1984.

Decided Jan. 31, 1985.

Wendy Sibbison and William C. Newman, Northampton, for defendant.

William T. Walsh, Jr., Asst. Dist. Atty., for the Commonwealth.

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

HENNESSEY, Chief Justice.

The defendant, Michael C. Tuitt, was convicted of armed robbery while masked, G.L. c. 265, § 17, and of carrying a firearm without a permit, G.L. c. 269, § 10(a ). On the basis of several prior offenses, he was punished as an habitual offender under G.L. c. 279, § 25, and sentenced to life imprisonment. The judge also imposed a concurrent sentence of one year on the firearm conviction. The defendant appeals from his convictions, primarily on the grounds that the Superior Court judge wrongly denied his motion to discharge appointed counsel, and that the judge deprived him of his right to try his case pro se. The defendant also challenges the judge's application of the habitual offender statute, arguing that the statute does not require the imposition of a life sentence, and that the statute is invalid under various provisions of both the Federal and State Constitutions. We affirm the convictions and see no reason to disturb the sentence imposed.

The facts are as follows. The victim, Sylvester Jackson, testified that on June 14, 1982, at approximately 11:30 A.M., he was driving to a bank in Springfield to deposit $4,000 in receipts from two local liquor stores. He stopped at the corner of Monroe and Hancock streets because a blue Chevrolet, later identified as an automobile registered to the defendant's mother, was parked in the middle of the street, blocking his way. Two men suddenly opened the doors on each side of Jackson's automobile. The man on the driver's side of Jackson's vehicle, later identified by an eyewitness as the defendant, was wearing a ski mask over his head. He threatened Jackson with a pistol, similar to one seized from the defendant at the time of his arrest approximately three weeks later, and demanded: "Give me the money. Don't get killed over anybody else's money." The other assailant grabbed the bag of money from the front seat and passed it to the defendant. The defendant then ran to the blue Chevrolet stopped in front of Jackson's automobile and removed his ski mask. A second eyewitness saw the defendant driving away from the scene. The other assailant ran away on foot.

1. Denial of the defendant's motion to discharge appointed counsel. Trial was initially set for October 4, 1982, but the defendant was granted a two-week continuance for additional preparation. On October 20, 1982, the day on which trial was scheduled to begin, the defendant filed a motion to dismiss his court-appointed attorney and requested that he be allowed to hire substitute counsel. The judge heard the defendant's arguments relative to his appointed counsel's lack of preparation and failure to interview certain witnesses, and then denied the motion, ruling that it was "unsubstantiated" and "unsupported." The judge reiterated this conclusion in his written opinion, noting that "a review of the docket entries will clearly indicate that [defense counsel] was exhaustive in his discovery, obtained all the necessary documentation that one would anticipate ..., assigned an investigator to investigate the factual background of the case and the witnesses, and presented a number of pre-trial motions, most of which were acted upon favorably by this court." He further recognized that the defendant had made only vague references to contacting other attorneys, and that "no appearances were filed nor was there any indication to the court directly or indirectly by any [other] counsel of his intent to appear [at] any time in the case."

The defendant renewed his motion to discharge appointed counsel the next day. The judge then repeated his determination that defense counsel "had conducted this case in a highly professional manner and an impressive manner, and ... that these motions for a new attorney [were] no more than a delaying tactic." The judge also denied counsel's request to withdraw, after assuring himself that counsel was prepared and would fulfil his responsibilities to the defendant to the best of his ability. We conclude that the judge's denial of the defendant's motion to discharge appointed counsel, under these particular circumstances, was proper.

A motion to discharge counsel, when made on the eve of trial, or on the day on which trial is scheduled to begin, "is a matter left to the sound discretion of the trial judge." Commonwealth v. Moran, 388 Mass. 655, 659, 448 N.E.2d 362 (1983). Commonwealth v. Scott, 360 Mass. 695, 700, 277 N.E.2d 483 (1971). United States v. Morris, 714 F.2d 669, 673 (7th Cir.1983). United States v. Welty, 674 F.2d 185, 190 (3d Cir.1982). See Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 1616-17, 75 L.Ed.2d 610 (1983). ¹ Though the defendant must be permitted to present the reasons for his dissatisfaction with his attorney, Commonwealth v. Moran, supra, the judge retains considerable power to discourage last-minute tactics which appear likely to delay the commencement of trial. Commonwealth v. Jackson, supra 376 Mass. at 796, 383 N.E.2d 835 (noting the "broad discretionary power of a court over requests for last-minute shifts in representation which threaten to delay a proceeding" ). United States v. Todisco, 667 F.2d 255, 261 (2d Cir.1981), cert. denied, 455 U.S. 906, 102 S.Ct. 1250, 71 L.Ed.2d 444 (1982) (court should "be wary of eleventh hour requests for new counsel"). See Morris v. Slappy, supra. The right to employ counsel of one's choice, particularly when exercised on the day of trial, is, "in some circumstances, ... subordinate to the proper administration of justice." Commonwealth v. Connor, 381 Mass. 500, 503, 410 N.E.2d 709 (1980). The defendant is "not free at his sole option to insist on a change of counsel regardless of the consequences. The general public, too, has rights. One of them is that criminal complaints or indictments be tried and disposed of with reasonable dispatch." Commonwealth v. Scott, supra 360 Mass. at 701, 277 N.E.2d 483.

Contrary to the defendant's assertion, the judge did not fail to inquire as to the defendant's reasons for dissatisfaction with his appointed counsel. In fact, the judge displayed exemplary patience by listening to the defendant express, on three separate occasions, his charge that counsel had not made any effort to "properly prepare this case." Cf. United States v. Welty, supra at 190 (new trial ordered where record reflects "total absence of any inquiry" into reasons for the defendant's dissatisfaction with counsel). The judge concluded, after reviewing defense counsel's performance, that these charges were "dilatory" and "without substance." Moreover, the defendant's attorney represented to the judge that he was, in fact, prepared to try the case. Compare Morris v. Slappy, supra 461 U.S. at 12, 103 S.Ct. at 1616 ("In the face of the unequivocal and uncontradicted statement" by defense counsel that he was "fully prepared and 'ready,' " denial of continuance does not constitute an abuse of discretion), with Commonwealth v. Cavanaugh, 371 Mass. 46, 353 N.E.2d 732 (1976) (trial judge erred in denying continuance where defense counsel himself stated that he was not adequately prepared). The record does not show how, if at all, the defendant might have been prejudiced by the alleged failure of counsel to interview certain witnesses. ² Finally, there is no indication in the record that the defendant had, in fact, been successful in retaining private counsel. Nor is there any support for his assertion that he was capable of retaining private counsel.

On October 21, shortly before jury empanelment, the defendant renewed his request to discharge counsel. His lawyer then stated that "the communication between me and Mr. Tuitt has irrevocably broken down and I very respectfully request this Court [to allow] me to withdraw." The judge asked whether counsel, if required to try the case, would perform to the best of his professional ability. Counsel stated that he would. The trial judge then denied the request to withdraw.

The defendant claims that it was error not to grant his motion to discharge counsel after counsel himself had acknowledged an irrevocable breakdown of communication with his client. We disagree. In certain circumstances a complete breakdown of communication might require that a judge grant a motion to discharge counsel, even when such a motion was made as late as it was here. See Commonwealth v. Moran, 17 Mass.App.Ct. 200, 204, 457 N.E.2d 287 (1983); United States v. Morris 714 F.2d 669, 673 (7th Cir.1983); United States v. Calabro, 467 F.2d 973, 986 (2d Cir.1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1358, 35 L.Ed.2d 587 (1973). But the Sixth Amendment to the United States Constitution does not invariably require a "meaningful attorney-client relationship." Morris v. Slappy, 461 U.S. 1, 13-14, 103 S.Ct. 1610, 1617-618, 75 L.Ed.2d 610 (1983). See Commonwealth v. Appleby, supra 389 Mass. at 365-369, 450 N.E.2d 1070 (counsel's motion to withdraw properly denied despite allegations of "complete breakdown" of relationship with client). Certainly the defendant cannot rely on a breakdown of the relationship, where, as here, his own dilatory tactics caused the "communication gap." Commonwealth v. Moran, 17 Mass.App.Ct. at 206, 457 N.E.2d 287. Moreover, to provide a ground for a new trial, the breakdown of the attorney-client relationship must be such that it "leads to an apparently unjust verdict," United States v. Calabro, supra, prevents an adequate defense, United States v. Morris, supra, or threatens the defendant's right to a fair trial, Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir.1976). See United States v....