Commonwealth v. Clemens

• Court: Appeals Court of Massachusetts
• Writing for the Court: FECTEAU, J
• Citation: Commonwealth v. Clemens, 77 Mass.App.Ct. 232, 929 N.E.2d 344 (Mass. App. 2010)
• Decision Date: 08 July 2010
• Docket Number: No. 08-P-2138.,08-P-2138.
• Parties: COMMONWEALTHv.Jeffrey L. CLEMENS.

77 Mass.App.Ct. 232

929 N.E.2d 344

COMMONWEALTHv.Jeffrey L. CLEMENS.

No. 08-P-2138.

Appeals Court of Massachusetts Plymouth.

Argued Jan. 11, 2010.

Decided July 8, 2010.

COPYRIGHT MATERIAL OMITTED

Matthew S. Cameron, Boston, for the defendant.

Audrey Anderson Kachour, Assistant District Attorney, for the Commonwealth.

Present: MCHUGH, GREEN, & FECTEAU, JJ.

FECTEAU, J.

The defendant appeals from his conviction of disorderly conduct, in violation of G.L. c. 272, § 53, following a jury trial in the District Court. This appeal in effect challenges the manner in which the judge coupled allowance of the defendant's request to discharge appointed counsel (denying his request for new counsel) with a decision to require the defendant to represent himself. In particular, the defendant contends that there was inadequate colloquy between the judge and the defendant to inform the defendant of the risks and perils of going forward if unrepresented by counsel, and that such information was required to be given separately and prior to warning that if the defendant insisted upon the discharge of appointed counsel, he would be required to represent himself. Without such a warning, the defendant claims there was an inadequate basis for the judge to conclude that the defendant was sufficiently informed to warrant an implied waiver of his right to counsel.¹ Because we view the colloquy as being inadequate to support a finding of a knowing waiver of counsel in these circumstances, and because “the right to the assistance of counsel is essential to individual liberty and security, and to a fair trial, its erroneous denial can never be treated as harmless error,” we must reverse. ² Commonwealth v. Means, 454 Mass. 81, 88-89, 907 N.E.2d 646 (2009), citing Chapman v. California, 386 U.S. 18, 23 & n. 8, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Factual background. The jury could have found the following facts. On May 12, 2005, Scituate police Sergeant Michael O'Hara was dispatched to an address on Old Oaken Bucket Road to look for a green Chevy Blazer. As he arrived there, he saw a green Jeep Wagoneer that was backed into a driveway of a house across from the address in question. As O'Hara approached in his cruiser, the Jeep drove onto the street; O'Hara motioned for the defendant, who was driving, to pull over, but the defendant kept going. After activating his police lights, O'Hara stopped the defendant for an investigative inquiry and noticed that he appeared to be nervous and anxious. The defendant told O'Hara that he was a graduate student at a local university and was investigating something for the Federal Bureau of Investigation (FBI), and asked O'Hara to contact a certain FBI agent. O'Hara asked the defendant to step out of the car and the defendant complied. O'Hara asked the defendant whether he had any mental health issues, to which the defendant said that he did not.

With the defendant's consent, O'Hara looked inside the defendant's vehicle and found a plot plan for the address in question, a private residence. When another officer arrived at the scene, O'Hara returned to the residence and spoke to Shelly Laveroni, the person who had called the police. She told O'Hara that the defendant had identified himself as a private investigator. ³ O'Hara returned to the defendant and asked him if he was a private investigator. The defendant responded that he was not, demanded to know who said that he was, and denied stating that he was a private investigator. O'Hara told him that he was going to investigate the private investigator claim further, whereupon the defendant became angry, began to flail his arms, and raised his voice. Nonetheless, the defendant was told that he was free to go but might be summonsed upon further investigation.

The defendant continued to debate the matter, but O'Hara again told him that they were done, that he was free to go, and began walking back to his cruiser. Appearing to O'Hara as enraged, the defendant said, “[W]e're going to settle this right fucking now,” and quickly took two or three steps toward O'Hara. With the assistance of the other officer, O'Hara arrested the defendant for disorderly conduct.⁴

Procedural background. When this three year old case ⁵ was called for trial on September 18, 2008, the attorneys for both parties first reported to the judge their readiness for trial. Prior to a jury venire being in the courtroom for empanelment, defense counsel on one occasion and the defendant twice sought to address the judge, but these attempts were not acknowledged, nor was inquiry made of the reasons the defendant wanted to speak. After empanelment and after the jury were taken from the courtroom, defense counsel informed the judge that the defendant had tried to express to the court his disagreement with counsel, that the defendant did not believe that they were ready for trial, and that a deep division between them had developed over trial strategy that might affect their relationship. ⁶ The defendant added that he wanted to discharge his attorney (his third, and the second of two attorneys appointed in succession) and requested the opportunity to “seek other counsel.” The judge informed the defendant that if the defendant wanted to discharge his attorney, he would not appoint another attorney, and joined in one question whether the defendant wanted to discharge his counsel and represent himself.⁷ In spite of several attempts by the defendant to have the judge uncouple the questions, the defendant's reiteration of his request for the discharge of his attorney, which the judge allowed, resulted in the judge's decision to require the defendant to represent himself, appointing his former defense counsel as standby counsel.

On September 25, 2008, a motion for a “mistrial and immediate release,” essentially a motion for a new trial under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), was filed on behalf of the defendant by his brother. The motion was heard on October 8, 2008, at which time the defendant filed a motion to revise and revoke under Mass.R.Crim.P. 29(a), 378 Mass. 899 (1979), which was also heard at that time. At this hearing, the defendant detailed for the first time his belief that defense counsel had failed in three respects: (1) to follow the defendant's request to join all of the offenses that stemmed from the May, 12, 2005, incident; (2) to summons additional trial witnesses; and (3) to obtain a transcript of the 911 tape. The latter two evidentiary issues appear to be materially related to the later charged offenses. The motions were denied by the trial judge. The defendant has not claimed appeal from the orders denying his motions.

Discussion. Motion for new counsel. The judge did not err when he denied the defendant's motion for new counsel. The defendant has the burden of showing good cause to remove appointed counsel, which includes, but is not limited to, “a conflict of interest, incompetence of counsel, or an irreconcilable breakdown in communication.” Commonwealth v. Chavis, 415 Mass. 703, 712, 616 N.E.2d 423 (1993). “[T]he decision to honor a defendant's request for change of appointed counsel is a matter left to the sound discretion of the trial judge, but after he has given the defendant the opportunity to articulate his reasons.” Commonwealth v. Moran, 388 Mass. 655, 659, 448 N.E.2d 362 (1983). While there is no bright-line test, the “judge must blend ‘an appreciation of the inevitable difficulties of trial administration with a concern for constitutional protections.’ ” Commonwealth v. Britto, 433 Mass. 596, 600, 744 N.E.2d 1089 (2001), quoting from Commonwealth v. Dunne, 394 Mass. 10, 14, 474 N.E.2d 538 (1985).

While the Sixth Amendment to the United States Constitution guarantees the right to effective assistance of counsel, it does not “require a ‘meaningful attorney-client relationship,’ ” Commonwealth v. Tuitt, 393 Mass. 801, 806, 473 N.E.2d 1103 (1985), quoting from Morris v. Slappy, 461 U.S. 1, 14, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983), nor does it guarantee the right to any particular court-appointed counsel. See Commonwealth v. Moran, supra. Moreover, a judge has “broad discretionary power ... over requests for last-minute shifts in representation which threaten to delay a proceeding.” Commonwealth v. Johnson, 424 Mass. 338, 341, 676 N.E.2d 1123 (1997), quoting from Commonwealth v. Jackson, 376 Mass. 790, 796, 383 N.E.2d 835 (1978). The most common problem accompanying a request for a change of counsel is the need for a continuance of the trial if the motion is allowed or, in the case of an empanelled jury, a mistrial. Commonwealth v. Britto, supra. See, e.g. Commonwealth v. Diatchenko, 387 Mass. 718, 727-728, 443 N.E.2d 397 (1982). Here, the judge faced such a situation with the defendant's request for new counsel on the day of his trial.

At the beginning of trial, the defendant cryptically stated that he and his lawyer were “in great dispute about what pretrial motion ... should have been done or what should be done.” ⁸ The defendant's first attempt to speak on the cusp of jury empanelment, followed immediately thereafter with his actual request to discharge defense counsel, was made with no prior report of problems between himself and his attorney, who was the second of two court-appointed attorneys he had over the course of the prior nine months. The record does not show that the defendant complained before trial of defense counsel's efforts or strategy decisions, including the failure to move for a joinder or to arrange for these additional witnesses, or during trial when he had the opportunity to explain to the judge the reasons why he felt that they were not ready to proceed. Moreover, neither prior to nor during trial did defense counsel ever state that he was unprepared. See Commonwealth v. O'Brien, 380 Mass. 719, 723, 405 N.E.2d 650 (1980). Contrast Commonwealth v. Cavanaugh, 371 Mass. 46, 52-54 & n. 3, 353 N.E.2d 732 (1976) (cou...