Commonwealth v. Francis
| Decision Date | 24 June 2020 |
| Docket Number | SJC-12683 |
| Citation | 147 N.E.3d 491,485 Mass. 86 |
| Parties | COMMONWEALTH v. Kevin FRANCIS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Amy M. Belger (Ira L. Gant, Committee for Public Counsel Services, also present) for the defendant.
Dara Z. Kesselheim, Assistant District Attorney (Craig Iannini, Assistant District Attorney, also present) for the Commonwealth.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
The defendant, Kevin Francis, was convicted of murder in the first degree in 1982. This is the defendant's appeal, pursuant to G. L. c. 278, § 33E, from the denial of his second motion for a new trial. The victim, who was the defendant's former girlfriend, had been stabbed multiple times in the chest and skull. The defendant had previously threatened her and had been identified by an eyewitness chasing the victim with a knife.
At the time of his arraignment, the defendant was nineteen years old, indigent, and entitled to court-appointed counsel. Stephen Hrones, an experienced criminal defense lawyer, appeared at the defendant's arraignment to try to represent him at trial. Hrones was not on a list of attorneys who were approved by the court to serve as assigned counsel in murder cases, but it was his practice to be on the lookout for such cases. In a sidebar discussion with the judge and prosecutor that excluded the defendant, Hrones asked if he had been added to the approved list of appointed counsel and informed the judge that he would represent the defendant privately pro bono if he could not be appointed by the court. The court informed Hrones that he was not on the approved list but allowed Hrones to serve as private counsel so long as he would not be paid with any public funds. The judge did not seek the defendant's approval of the arrangement or inform the defendant in a colloquy or otherwise that he was entitled to court-appointed, State-funded counsel. Hrones also did not explain the arrangement or secure his appointment as private counsel through any prior or subsequent discussions with the defendant. Hrones nonetheless represented the defendant at trial and in his direct appeal.
After this court affirmed his conviction, the defendant represented himself when filing his first motion for a new trial in May 1991. At that time, he had in his possession his trial and arraignment transcripts, including the arraignment judge's summary of the sidebar discussion that took place during the arraignment, which stated that Hrones was private counsel and not appointed public counsel. The defendant's case was also screened by the Committee for Public Counsel Services (CPCS) in 1992-1993 and again in 2000 without the issue being raised in any motion. It was not until his second motion for a new trial, filed in 2015, that a claim was raised that Hrones's appointment violated the defendant's rights under the Sixth Amendment to the United States Constitution or art. 12 of the Massachusetts Declaration of Rights. This is the sole issue presented here. There is no suggestion that Hrones's representation at trial was ineffective apart from the appointment itself, as no ineffective assistance of counsel claims are made here by appellate counsel in the second motion for a new trial. Nor were any identified in our G. L. c. 278, § 33E, review in 1984. See Commonwealth v. Francis, 391 Mass. 369, 461 N.E.2d 811 (1984).
The first dispositive question at issue is whether the defendant's Sixth Amendment and art. 12 rights were violated when he was deprived of the opportunity to choose between paid, court-appointed counsel and the representation offered by Hrones and, relatedly, whether excluding the defendant from the sidebar discussion that established this arrangement violated the defendant's right to be present at a critical stage of his criminal proceedings. Second, if the defendant's rights were violated, we must determine whether they warrant a new trial more than thirty-seven years after the defendant's conviction. We conclude that the defendant's right to choice of private counsel and right to be present during a critical stage of the proceedings under both the Federal and State Constitutions were violated. Although a novel question, we also conclude that these violations of his constitutional rights are structural errors requiring automatic reversal absent waiver, as the choice of private counsel is a fundamental right to be made by the defendant -- not by the court and counsel and without the defendant's consent. Nonetheless, the delay of more than thirty years in bringing these claims in these circumstances, where the claim was not first brought until 2015, but the transcript clearly depicting the constitutional violations was available for the defendant in 1991 and for the public defense counsel screening his claims in 1992-1993 and 2000, waives the claims under State and Federal constitutional law. We also conclude that there was no substantial risk of a miscarriage of justice,1 as the defendant was capably represented at trial by an experienced criminal defense counsel, and no errors in the quality of that representation have been identified -- the only error identified is the appointment itself.
1. Background. The conviction of murder in the first degree underlying this appeal was reviewed by this court in Francis, 391 Mass. 369, 461 N.E.2d 811. We summarize the relevant facts. On September 19, 1981, an eyewitness, Terrence Smith, was driving along Blue Hill Avenue toward Mattapan Square in Boston at approximately 7 P.M. Id. at 370, 461 N.E.2d 811. Smith saw a young woman on the sidewalk running toward him, and saw that she was carrying a stick and wearing a "rain or shine" jacket, new boots, and dungarees. Id. Smith then saw a man running about forty or fifty yards behind the woman. Id. As the man got closer, the eyewitness saw he was carrying a knife. Id. Smith testified that the man came within fifteen feet of him and that he saw "a very good side view" of the man. Id. At 7:15 P.M. that evening, the police received a call to report to the Franklin Field area, and upon arrival they discovered the body of the victim, Vanessa Marson, who was the defendant's former girlfriend. Id. at 370-371, 461 N.E.2d 811. The medical examiner testified that the victim died of multiple stab wounds
to her chest and skull. Id. at 370, 461 N.E.2d 811. Smith identified the defendant from an array of ten or twelve photographs as the man he saw the evening of the murder and identified by means of a photograph the victim as the woman he saw running. Id. He later identified the defendant at trial. Id. at 370-371, 461 N.E.2d 811. The evidence also showed that the defendant had threatened the victim two months before the murder occurred. Id. at 371, 461 N.E.2d 811.
The defendant was charged with murder in the first degree and arraigned on January 8, 1982. At the time of the arraignment, the defendant was nineteen years old and indigent. Attorney Hrones appeared at the defendant's arraignment on his own initiative.
Hrones had been a member of the bar since 1972. He had represented defendants pro bono in murder cases on four or five occasions before representing the defendant, and had tried numerous serious felony cases. Nevertheless, neither the defendant nor his family had any contact with Hrones before the arraignment or had otherwise arranged to retain Hrones's services. The defendant met Hrones for the first time at the arraignment.
At the time of the arraignment, there was a Superior Court rule in effect that provided that "[n]o person shall be assigned as counsel in a murder case unless he is included in the official Standing List of Counsel established by a majority vote of the justices." Rule 53(1) of the Rules of the Superior Court (1982). Hrones was not included in the official Standing List of Counsel at the time of the defendant's arraignment in 1982, and was reminded of this fact at the arraignment during a sidebar discussion with the judge. The court conducted this sidebar discussion in court with the prosecutor and Hrones, out of the presence and earshot of the defendant. The judge explained the substance of that sidebar discussion, as reflected in the record:
After the sidebar discussion, in open court, the judge asked Hrones if he was going to file an appearance for the defendant as private counsel. Hrones answered in the affirmative.
The judge knew at the arraignment that the defendant was entitled to counsel who met the requirements to be court-appointed counsel in murder cases, at no charge to the defendant, and that Hrones was not on the list of attorneys who satisfied these requirements. Yet at no point during the arraignment did the judge conduct a colloquy with the defendant to ensure that the arrangement was acceptable to him. Nor did the judge ensure that Hrones had conferred with the defendant regarding his representation. He only ensured that the record reflected that Hrones was to receive no public funds in compensation for his representation.
After a jury trial, the defendant was...
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