Commonwealth v. Borden

• Decision Date: 04 February 2013
• Docket Number: No. 11–P–277.,11–P–277.
• Citation: 982 N.E.2d 72,83 Mass.App.Ct. 1110
• Parties: COMMONWEALTH v. Richard D. BORDEN.
• Court: Appeals Court of Massachusetts

83 Mass.App.Ct. 1110

982 N.E.2d 72

COMMONWEALTH

v.Richard D. BORDEN.

No. 11–P–277.

Appeals Court of Massachusetts.

February 4, 2013.

OPINION TEXT STARTS HEREBy the Court (BERRY, FECTEAU & CARHART, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial, the pro se defendant was convicted of an assault and battery on his sister. G.L. c. 265, § 13A( a ). Now represented on appeal, the defendant claims that the judgment should be vacated because the charge actually had been dismissed prior to trial. The defendant also claims that his waiver of the right to counsel was constitutionally ineffective and that his motion to vacate judgment or for a new trial ¹ was improperly denied. We affirm.

1. The clerical error on the motion form. First, in his direct appeal and in his motion to vacate judgment, the defendant seeks to take advantage of an obvious clerical error with regard to his motion to dismiss the assault and battery charge. We reject this attempt. Although the motion judge checked the “allowed” box on the motion form, this marking was clearly a mistake. The motion judge's ruling on the record was unequivocal: “I understand your motion. I've read it. I've read the police report. I've heard you, and I'm going to deny your motion.... For the record, the motion is denied.” The case properly proceeded to trial. 2. The defendant's waiver of right to counsel. The defendant's primary argument is that the trial judge's colloquy was inadequate so that his decision to proceed without counsel was not made knowingly and intelligently. See Faretta v. California, 422 U.S. 806, 835 (1975); Commonwealth v. Means, 454 Mass. 81, 89–90 (2009). The defendant also contends that, even if the colloquy was adequate, his “clumsy” trial performance should have occasioned the judge to revisit the defendant's decision to proceed without counsel.²

The trial judge's colloquy adequately apprised the defendant of the effects of proceeding without counsel. The colloquy addressed various relevant issues such as the defendant's age, level of education, employment, possible influence of drugs or alcohol, coercion, and the defendant's mental health. The defendant affirmed on the record that he understood the implications of proceeding pro se and that his decision to waive his right to counsel was knowing and voluntary.

“We have not prescribed the questions that a judge must pose to an accused who desires to represent himself nor is there any ‘particular piece of information that is essential to an effective waiver of counsel.’ “ Commonwealth v. Martin, 425 Mass. 718, 719–720 (1997), quoting from Commonwealth v. Barnes, 399 Mass. 385, 390–391 (1987). “[T]he determination of waiver may properly be based on ‘the background, experience, and conduct of the accused’ and the circumstances of the case.” Commonwealth v. Carsetti, 53 Mass.App.Ct. 558, 565 (2002), quoting from Commonwealth v. Appleby, 389 Mass. 359, 368, cert. denied, 464 U.S. 941 (1983).

The defendant's self-representation demonstrated considerable preparation and a solid grasp of motion and trial practice. At his pretrial hearing in May, 2009, the defendant filed a motion to dismiss and, in the alternative, a motion for a continuance to prepare for trial. At a second hearing in October, 2009, the defendant filed another motion to dismiss, along with a motion to subpoena various records. At trial, the defendant filed a multitude of motions in limine and a motion for sequestration of witnesses. He then went on to conduct an opening statement, several cross-examinations, and a closing argument. All told, this was not the performance of an individual who took the seriousness of the charge lightly or otherwise lacked understanding of what was at stake. See Commonwealth v. Lee, 394 Mass. 209, 218–219 (1985).

Lastly, even if one accepted the defendant's description of his own “clumsy” trial performance, “[a] defendant, having validly waived his or her right to counsel, is not entitled to reversal based on his or her lack of skill or training.” Commonwealth v. Martin, 425 Mass. at 720.

3. Motion for a new trial. The defendant contends that the motion judge improperly denied his motion for a new trial. First, the defendant makes a vague claim that he was misled by probation office personnel as to his ability to qualify financially for court-assigned counsel. Second, the defendant argues that the trial judge's colloquy with regard to the defendant's mental health failed to elucidate the defendant's past and present mental health issues. ³ After reviewing the record, we conclude that the judge did not err in denying an evidentiary hearing and that neither claim warrants a...