Commonwealth v. Haltiwanger

• Decision Date: 11 May 2021
• Docket Number: 20-P-517
• Parties: COMMONWEALTH v. Jason HALTIWANGER.
• Court: Appeals Court of Massachusetts

99 Mass.App.Ct. 543

169 N.E.3d 1198

COMMONWEALTH

v.Jason HALTIWANGER.

20-P-517

Appeals Court of Massachusetts, Plymouth.

Argued February 1, 2021.

Decided May 11, 2021.

Mark Booker, Boston, for the defendant.

Jessica L. Kenny, Assistant District Attorney, for the Commonwealth.

Present: Wolohojian, Desmond, & Grant, JJ.

WOLOHOJIAN, J.

In the course of conducting a pretrial hearing that, among other things, included a colloquy regarding the defendant's waiver of his right to counsel, the judge became concerned about the defendant's competence. Despite that concern, the judge accepted the defendant's waiver. At the same time, the judge arranged a G. L. c. 123, § 15 (a ), examination to take place the following day. Although the defendant appeared for that examination, he refused to be examined and, as a result, the psychologist offered no opinion as to the defendant's competence. Without any further inquiry into the defendant's competence or making any findings, the judge allowed the defendant to proceed to trial pro se aided by appointed standby counsel. We conclude that it was error to accept the defendant's waiver of counsel without further inquiry into his competence and making appropriate findings. However, in the unusual circumstances of this case, where the defendant does not argue that he was incompetent to stand trial, the record does not otherwise contain substantial evidence of incompetence, and there is reason to think that the defendant's conduct was that of a so-called "sovereign citizen" seeking to deliberately manipulate the court rather than the product of incompetence, we conclude that the appropriate remedy in this case is for the defendant to file a motion for new trial rather than to vacate the judgments.

Separately, we conclude that the evidence was insufficient to prove the composition of the pills that were the basis of the defendant's conviction of possession with intent to distribute a class E substance, subsequent offense, and reject the defendant's remaining arguments.

Background. In October 2014, the defendant was indicted for various drug offenses.¹ The charges were based on drugs found by police when they executed search warrants for the defendant's car and apartment, and his girlfriend's car (which the defendant was driving at the time of the search).

The defendant was represented by private counsel when he was arraigned on November 12, 2014, and he continued to be represented by that lawyer for almost the next two years. During that time, the case was actively litigated. On December 22, 2015, the Commonwealth certified that it had complied with its discovery obligations, and on May 17, 2016, the case was set for trial on October 24, 2016.

Less than two weeks before trial, defense counsel filed a motion to withdraw, citing his suspension from the practice of law effective October 1, 2016.² The case was continued for successor counsel to file an appearance, which he did on November 10, 2016. The case was set for trial on June 7, 2017.

Less than one month before this trial date, the defendant terminated the services of his second attorney, who filed a motion to withdraw. In support of the motion, defense counsel stated that the "defendant has taken his file and indicated that he wants a new lawyer to represent him." The motion was allowed ten days later, and successor counsel filed a notice of appearance the same day. The trial date was again continued; this time, to October 2, 2017.

The trial date was subsequently continued for various reasons, including at the request of the defendant, the defendant's unsuccessful petition seeking leave to take an interlocutory appeal, and for a brief period at the request of the Commonwealth. Throughout this period, the defendant continued to be represented by his third private counsel. The case was set for trial on October 2, 2018.

Approximately two weeks before this trial date, during a hearing, the defendant informed the judge that he wanted to hire a different lawyer. The trial was continued in order to permit the defendant's third lawyer to withdraw and a fourth to appear. The defendant's fourth private counsel filed his appearance on September 27, 2018, and, after various additional procedural events, the case was ultimately scheduled for a final pretrial conference on June 6, 2019, and for trial on June 17, 2019. At this point, the case was almost five years old, and much of the delay was connected to the fact that the defendant had repeatedly changed counsel.

This brings us to the sequence of events that are at the center of this appeal. On April 5, 2019, the defendant again moved to continue the trial date. A Superior Court judge denied the motion.

The parties appeared in court on June 6, 2019. The defendant, through his fourth counsel, filed a motion seeking reconsideration of the denial of his motion to continue the trial. Although defense counsel acknowledged that the trial date had been agreed upon, he stated that his office had mistakenly agreed to a date that conflicted with another trial he had in Rhode Island. Given the age of the case, and the number of previous continuances, the judge denied the request for a further continuance. As soon as the judge announced his decision, the defendant stated that he was "going on [his] own," and would represent himself. He asked to file a "special appearance," and he stated that he wanted the prosecutor "to certify [his] right to subrogation."³ When the judge inquired of defense counsel what these statements meant, defense counsel stated that he thought the defendant was simply frustrated with the process knowing that the case was coming to an end, that he (the defendant) "didn't accept the Commonwealth's offer," and that "he's just expressing some disconcern [sic ] with the process at this point." The judge continued the matter to permit the defendant to consult with counsel about his options with respect to proceeding pro se. After that consultation, the hearing continued during which, as a result of the defendant's additional statements regarding subrogation, the judge concluded that the defendant was "confused" and did not understand what he was doing "from a legal perspective." The judge advised the defendant that proceeding pro se is generally ill-advised, but that he recognized the defendant's right to make that decision. Defense counsel requested that the judge allow the defendant to have the weekend to think about his options. The judge agreed, and arranged to have the parties return for a colloquy to determine whether the defendant continued to wish to proceed pro se.

The parties indeed returned four days later, on June 10, 2019. The defendant's fourth lawyer filed a motion to withdraw on the ground that the defendant had terminated his services. For two reasons, we set out in detail what transpired during the remainder of the hearing. First, the details are central to the issues raised on appeal. Second, they may help trial judges in future cases recognize some of the hallmark phrases and concepts used as litigation delaying tactics by a group known as "sovereign citizens."⁴

THE JUDGE : "All right. Mister Haltiwanger, you wish to terminate the services of your lawyer?"

THE DEFENDANT : "Mmm-hmm. [acknowledges yes] Yes."

THE JUDGE : "Well, you have a trial coming up."

THE DEFENDANT : "Well, I'm not ready for trial."

THE JUDGE : "You're not ready for trial?"

THE DEFENDANT : "Nope."

THE JUDGE : "Why not, sir?"

THE DEFENDANT : "I need to file my motions."

THE JUDGE : "Pardon me?"

THE DEFENDANT : "My motions."

THE JUDGE : "What motion?"

[brief pause]

THE JUDGE : "This --"

THE DEFENDANT : "My motions."

THE JUDGE : "This is a motion to withdraw filed by your attorney."

THE DEFENDANT : "My motion."

THE JUDGE : "What I just asked, sir --"

THE DEFENDANT : "Is this a court of record? Is this a court of record?"

THE JUDGE : "Is this a court of record?"

THE DEFENDANT : "Yes."

THE JUDGE : "Yes, it is, sir."

THE DEFENDANT : "So, on the record, could you certify my rights to subrogation?"

THE JUDGE : "Sir, I've told you --"

THE DEFENDANT : "The prosecutor certify my rights to subrogation."

THE JUDGE : "Sir, you're very confused."

THE DEFENDANT : "No, I'm not. We can't proceed or --"

THE JUDGE : "No."

THE DEFENDANT : "-- until that's resolved first."

THE JUDGE : "The -- we're -- sir, you're going to proceed."

THE DEFENDANT : "No, we cannot proceed."

THE JUDGE : "All right."

THE DEFENDANT : "And, I, and I don't consent."

THE JUDGE : "It doesn't matter if you consent. Your case is five --"

THE DEFENDANT : "I do not --"

THE JUDGE : "-- years old. It's --"

THE DEFENDANT : "I do not consent."

THE JUDGE : "Pardon me?"

THE DEFENDANT : "I do not consent."

THE JUDGE : "Irrelevant as far as I'm concerned."

THE DEFENDANT : "I would like the prosecutor to certify my rights to subrogation in writing, please."

THE JUDGE : "Sir, you want to represent yourself?"

THE DEFENDANT : "Could the prosecutor certify my rights to subrogation, please?"

THE JUDGE : "Sir?"

THE DEFENDANT : "In writing, please."

THE JUDGE : "Sir, do you want to wish -- do you wish to represent yourself?"

THE DEFENDANT : "Could the prosecutor certify my rights to subrogation, please?"

THE JUDGE : "The answer is no. All right?"

THE DEFENDANT : "And, could I get that in writing?"

THE JUDGE : "You just had it. All right?"

THE DEFENDANT : "All right. So, I got it in writing, right? Get it in writing. Okay?"

THE JUDGE : "Are you prepared to proceed to trial?"

THE DEFENDANT : "No."

There was then an exchange between the judge and the prosecutor during which the prosecutor confirmed that the Commonwealth was ready for trial as scheduled. The hearing then continued.

THE JUDGE : "I'm going to allow the motion to withdraw because you have terminated the services of [the fourth attorney's] office. All right?"

THE DEFENDANT : "Yeah."

THE JUDGE : "Now, do you wish me to appoint standby counsel to you?"

THE DEFENDANT : "No."

THE JUDGE : "Do you wish to represent yourself?"

...