Commonwealth v. Duarte

• Citation: 97 Mass.App.Ct. 268,146 N.E.3d 487
• Decision Date: 08 April 2020
• Docket Number: No. 18-P-821,18-P-821
• Parties: COMMONWEALTH v. Jorge G. DUARTE.
• Court: Appeals Court of Massachusetts

97 Mass.App.Ct. 268

146 N.E.3d 487

COMMONWEALTH

v.Jorge G. DUARTE.

No. 18-P-821

Appeals Court of Massachusetts, Bristol..

Argued October 3, 2019.

Decided April 8, 2020.

Sharon L. Sullivan-Puccini, Somerst, for the defendant.

Robert P. Kidd, Assistant District Attorney, for the Commonwealth.

Present: Green, C.J., Rubin, & Agnes, JJ.

AGNES, J.

A District Court jury convicted the defendant, Jorge G. Duarte, of assault and battery in violation of G. L. c. 265, § 13A (a ), arising out of his participation in an attack on another inmate that occurred at the Bristol County jail and house of correction (jail). On appeal, the defendant argues that the judge abused his discretion by denying the defendant's request to hire an attorney and, by implication, to obtain a continuance of the trial that was scheduled for that day, without affording him an opportunity to be heard. The defendant also argues that his trial counsel was ineffective by failing to object to the repeated description by the prosecutor and witnesses of the incident as an "assault," failing to object to evidence that the incident occurred in a specific area in the jail that housed "troublemakers," and failing to deliver a proper closing argument.

Despite the last minute nature of the defendant's request to hire an attorney and the inevitable continuance that it would necessitate, under settled law the defendant was entitled to be heard. In such circumstances, "the judge [must] give a defendant an opportunity to make known his reasons for objecting to appointed counsel before the judge rules on the request." Commonwealth v. Lee, 394 Mass. 209, 217, 475 N.E.2d 363 (1985). For this reason, after oral argument and consistent with the procedure followed in Commonwealth v. Moran, 388 Mass. 655, 658-659, 448 N.E.2d 362 (1983), we remanded the case to the judge who denied the defendant's motion with instructions to conduct an evidentiary hearing at which the defendant would have an opportunity to testify without limitation on the subject of his pretrial request. The judge conducted such a hearing, made findings and rulings, and concluded that the defendant's request was without merit. Because this determination is well supported by the record, and we are unable to discern any prejudice to the defendant, we reject the defendant's argument that he is entitled to any relief. We also reject the defendant's claim that his trial counsel provided ineffective assistance. Therefore, we affirm the defendant's conviction.

1. Background. a. The incident. On January 6, 2017, at approximately 4:43 P.M. , inmates housed in the defendant's unit at the jail were released from their cells for dinner.¹ Shortly thereafter, an inmate, Tyrell Pina, was pulled to the ground by another inmate, Jose Cruz, and then attacked by Cruz, the defendant, and a third inmate. A video recording (video) of the incident from the jail's surveillance system was played for the jury; it shows the defendant repeatedly punching Pina in the head area while Cruz and the third inmate were simultaneously kicking Pina.² After about one minute, correction officers were able to control the scene. The incident was witnessed by two testifying correction officers who identified the defendant as one of the persons depicted in the video.³ Pina suffered injuries and required treatment at a local hospital. While a nurse was examining the defendant for injuries, the defendant made a statement suggesting that Pina had previously shot at the defendant's car while his son was in it, and the defendant asked the nurse, "What would you have done?"

b. Procedural history. A complaint issued on January 26, 2017, alleging the defendant committed assault and battery in violation of G. L. c. 265, § 13A (a ). The defendant was arraigned on March 1, 2017. The following day, appointed counsel David P. Tibbetts appeared for the defendant.⁴ The case proceeded with pretrial hearings on March 23, 2017, April 6, 2017, and April 19, 2017. The defendant tendered conditional guilty pleas at each pretrial hearing date, but was unable to resolve the case on terms that were satisfactory to him.

The first trial date was June 1, 2017. On that date, the Commonwealth reported that it was ready for trial and represented that it had five witnesses present. The defendant's attorney indicated that he was also ready for trial but that the defendant did not wish to proceed with the trial on that date because he had an open criminal case and a probation violation case both pending in the Superior Court. The defendant was represented by a different appointed attorney in those cases. The defendant was concerned about the potential negative impact that a disposition in his District Court case might have on the pending Superior Court cases. Attorney Tibbetts represented to the court that he communicated with the defendant's Superior Court attorney and relayed to the court that it was that attorney's opinion that it would be advantageous to the defendant to continue the District Court case until after the Superior Court cases were resolved. Over the objection of the Commonwealth, the judge continued the trial until July 25, 2017, to afford the defendant an opportunity to fully consult with his Superior Court attorney. At no point on the June 1, 2017, trial date, or the three earlier pretrial hearing dates, did the defendant express dissatisfaction with Attorney Tibbetts.

When the defendant's case was called for trial on July 25, 2017, the defendant was not present in the court room; he was instead in the "lock up" area of the court house. The Commonwealth again reported it was ready for trial and its witnesses were again present. Attorney Tibbetts answered that he too was ready for trial but that the defendant wanted a new attorney that he would hire privately. The Commonwealth objected to a further continuance, representing that the defendant had not resolved his probation violation case when brought before the Superior Court on July 10, 2017, and July 24, 2017, and that the Commonwealth's witnesses had now been present for the defendant's District and Superior Court cases on four occasions. After a brief recess, the case was called again, with the defendant still absent from the court room. Attorney Tibbetts renewed the defendant's request as follows:

"I went back downstairs and spoke with the client. He's very upset. He feels that I'm not invested enough with his case, that he feels that I haven't spent enough time with him on the case, he feels that this is -- as he put it, it's his life and he needs somebody who will be fully invested. He had a -- a case in Superior Court, which is why this case got continued.

That Superior Court case -- I understand he fired that lawyer and he's supposed to be hiring private counsel. And as far as this case goes, he feels that I put the case on for speedy trial without consulting with him, although my memory is we had an oral discussion about it in court.

"I would point out that the case is four and a half months old at this point. I don't -- I think we're kind of out of speedy trial area anyway with the age of the case. But it is also a young case in terms of him getting a new lawyer; it's only four and a half months old. He does -- clearly does not want me as his lawyer, he wants me out -- off, doesn't feel like I've been doing a good job for him. As I told you, I'm ready to go and -- I have to renew the motion because of his vigorous discussion with me downstairs."

The judge denied the request. After a second brief recess, the defendant was brought into the court room for trial before a different judge. Although Attorney Tibbetts made reference to the defendant's request before the second judge, the defendant was not afforded an opportunity to be heard on the issue of hiring an attorney, and the trial judge did not reconsider the earlier ruling denying the defendant's request. A trial by jury commenced and resulted in the defendant's conviction.

2. Discussion. a. Request to discharge counsel and implied request for a continuance. On appeal, the defendant argues that the judge erroneously denied his request to hire an attorney without permitting him to be present in the court room to articulate his reasons for wanting new counsel and that this error requires reversal of his conviction. The defendant's oral request, made through counsel, was effectively a motion to discharge counsel and, although not explicitly stated, a request for a continuance so that, if allowed, the new attorney could adequately prepare for trial.⁵ See Commonwealth v. Britto, 433 Mass. 596, 600, 744 N.E.2d 1089 (2001) ("the most common problem accompanying [motions for appointment of new counsel is] the need for a continuance of the trial if the motion is allowed"). Such a request requires the judge to weigh the "interests of the courts and the public in efficient trial administration" as well as the prejudice to the opposing party against the "showing of good cause to support the defendant's motion." Commonwealth v. Chavis, 415 Mass. 703, 712, 616 N.E.2d 423 (1993). Good cause includes "a conflict of interest, incompetence of counsel, or an irreconcilable breakdown in communication." Id. The test is not a "mechanical" one. Id. at 711, 616 N.E.2d 423. It has been repeatedly held that "[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. Tuitt, 393 Mass. 801, 804, 473 N.E.2d 1103 (1985), quoting Moran, 388 Mass. at 659, 448 N.E.2d 362.

To properly exercise that discretion, it has also been held that "when a defendant requests that new counsel be appointed, the judge should allow the defendant to state his reasons for wanting to discharge his attorney so that the judge's discretion can be exercised on an informed basis." Lee, 394 Mass. at 217, 475 N.E.2d 363, citing Moran, 388 Mass. at 659, 448 N.E.2d 362. Although...