Commonwealth v. Higgins

• Decision Date: 25 February 1987
• Citation: 23 Mass. App. Ct. 552,503 N.E.2d 1326
• Parties: COMMONWEALTH vs. PATRICK HIGGINS.
• Court: Appeals Court of Massachusetts

23 Mass. App. Ct. 552

503 N.E.2d 1326

COMMONWEALTH vs. PATRICK HIGGINS.

Appeals Court of Massachusetts, Bristol.

October 20, 1986.

February 25, 1987.

Present: ARMSTRONG, KAPLAN, & PERRETTA, JJ.

Thomas C. Federico, Committee for Public Counsel Services, for the defendant.

Dana A. Curhan, Assistant District Attorney, for the Commonwealth.

The defendant, pro se, submitted a brief.

KAPLAN, J.

Outline. Upon bench trial in District Court, the defendant Patrick Higgins was convicted of three "bad check" charges, namely: (1) larceny of property over $100, G.L.c. 266, § 30; (2) larceny by check, G.L.c. 266, § 37; (3) larceny of property $100 dollars or less, G.L.c. 266, § 30. He had initially signed a waiver of right to counsel on the first charge, but counsel was later appointed to represent him on this and the second charge. On the third charge, the defendant signed a waiver, and counsel was not thereafter requested or appointed. Just before trial of the three charges on June 24, 1985, counsel appointed to try the first two cases renewed a motion to withdraw that he had earlier made.¹ The judge allowed counsel's motion, finding that the defendant had failed to cooperate with counsel: he had missed scheduled appointments and made no effort to confer with him. Thereupon the defendant asked for the appointment of new counsel to represent him on the two charges. The request was denied and so was a repeated request "for the reason that the motion to withdraw was allowed." Trial proceeded with the defendant representing himself. The judge found him guilty of all charges and sentenced him.²

On the same day, June 24, 1985, the defendant appealed the three convictions to the jury-of-six session. A court form, which he signed, duly informed him of the transfer of the cases for trial de novo, and directed him to appear in District Court on July 24, 1985.³ He failed to appear as directed that day and a capias issued. The clerk notified him by mail that he should appear on August 5, 1985, for hearing at the jury-of-six session. Again the defendant absented himself and he was defaulted. Acting pursuant to G.L.c. 278, § 24, the judge on that date imposed the sentences previously imposed, and issued a warrant for the defendant's arrest.

On September 9, 1985, the defendant was arrested in Rhode Island on a fugitive-from-justice complaint issued by the Rhode Island District Court on the basis of the Massachusetts warrant, and, having waived extradition, he was returned to the Commonwealth. A hearing then followed in District Court on September 11 to decide whether the default should be removed (with consequent vacation of the sentences). The judge told the defendant he was entitled to counsel, and offered to allow him time to secure counsel. However, the defendant chose to proceed pro se. He did not assert indigency or request appointment of counsel. The judge declined to remove the default and reimposed the sentences.

Pro se motions followed: to revise and revoke sentences and to reconsider the denial of that motion, both denied; then for release from unlawful detention. Upon the latter motion, the defendant complained that he had been denied counsel at his bench trial and at the default hearing in violation of his constitutional rights. After hearing, in which the defendant continued to represent himself, the judge on December 12, 1985, denied the motion with findings in substance that the defendant had represented himself at the default hearing by his own choice; that he had a long history of proceeding pro se on many other charges of like offenses; that he was a recalcitrant who for his own ends had deliberately failed to cooperate with appointed counsel and to appear in court as required.

Upon his pro se appeal to this court, now with help of counsel,⁴ the defendant contends that his bench trial convictions were invalid because he was denied counsel despite his request, and that this invalidated the sentences ultimately imposed; further, that his default at the jury-of-six session was not "solid," and anyway should be held ineffective because he was not adequately advised of the risks of proceeding pro se when he waived counsel at the default hearing.

In dealing with these contentions we supplement the statement set out above with additional record facts where necessary.

Regarding the bench trial. Considered without regard to background or context, the judge's refusal to appoint successor counsel after the permitted withdrawal of original appointed counsel, so that the defendant had to proceed pro se on the first and second charges, looks like an infringement of the right to counsel. The antecedent facts, however, put a different light on the matter, for the defendant's conduct before the date of trial may be read as amounting to a waiver. See Faretta v. California, 422 U.S. 806, 818-821 (1975); Commonwealth v. Lee, 394 Mass. 209, 216 (1985).

In the colloquy preceding the judge's ruling, the defendant said he hadn't "bothered to go forward" with counsel because he "assumed counsel had lost interest in representing me." Taking the defendant at his word, he appears to have acquiesced in counsel's ultimate departure from the proceedings, and reverted to self-representation. See Commonwealth v. O'Brien, 380 Mass. 719, 722 (1980). He had missed scheduled meetings during February and March, and counsel's motion to withdraw was first heard in March. Knowing that the cases were called for June 24, the defendant took no step to request substitute counsel. For decisions, in a variety of circumstances, holding that defendants, facing imminent trial, have waived rights by failing seasonably to retain or secure appointment of counsel, see Commonwealth v. Delorey, 369 Mass. 323, 330 (1975); Glenn v. United States, 303 F.2d 536, 540-541 (5th Cir.1962); Nunn v. Wilson, 317 F.2d 113, 117-118 (9th Cir.1967); United States v. Rodriguez Vallejo, 496 F.2d 960, 964-965 (1st Cir.), cert. denied, 419 U.S. 965 (1974). In that view, the defendant's requests for counsel may be treated as dubious last-minute efforts to retract his decision to represent himself (thereby postponing the day of reckoning), the judge's negative reaction being reviewable only for abuse of discretion, which should not be found here. See Commonwealth v. Jackson, 376 Mass. 790, 795-797 (1978); Commonwealth v. Appleby, 389 Mass. 359, 364-370 (1983).

Such a waiver may, however, be held ineffective if the defendant can show by a preponderance of the evidence that he did not have a fair (it need not be a professionally accurate) understanding of what the waiver meant or entailed. See Maynard v. Meachum, 545 F.2d 273, 277-279 (1st Cir.1976). See also Commonwealth v. Lee, 394 Mass. at 218. An inquiry on the record concerning the defendant's understanding of the implications of waiver, though preferred, was not required, see Lee, 394 Mass. at 218; Maynard, 545 F.2d at 278, 279; a finding that he was knowledgeable may rest on a complex of factors. See Commonwealth v. Appleby, 389 Mass. at 368. Here we have positive indications of an adequate understanding. The defendant had intimate experience of criminal procedures: his criminal record was extensive and included a number of charges like those at bar. See Commonwealth v. Hawkins, 17 Mass. App. Ct. 1041 (1984); Maynard, 545 F.2d at 279. At trial of the third charge,⁵ the defendant moved to compel discovery, called and examined a witness, and moved for a required finding of not guilty. In conducting the other cases, the defendant moved to sequester witnesses, objected to a prosecution motion to amend a complaint, and cross-examined Commonwealth witnesses. See Fillippini v. Ristaino, 585 F.2d 1163, 1167 (1st Cir.1978).⁶

We conclude that a compelling case is made for holding in the particular circumstances that the judge did not abuse his discretion in declining to appoint substitute counsel at the defendant's last-minute request. Further, the defendant understood the consequences of the waiver involved.

Regarding the transfer proceedings. Entirely apart from the conclusion reached in the foregoing discussion, the defendant's appeal fails because the transfer of the cases to the jury-of-six session wiped out errors, if any, connected with the bench trial, and there was no error in the proceedings upon the defendant's later default.

First. In our two-tier system, a defendant who elects to have a bench trial assumes the risk that "a considerable variety of errors might occur from which he could not obtain any relief." Lydon v. Commonwealth, 381 Mass. 356, 363, cert. denied, 449 U.S. 1065 (1980). He does so, however, with the assurance that "virtually nothing can happen to a defendant at a first-tier trial that he cannot avoid" by exercising his absolute right to trial de novo. Boston Municipal Court v. Lydon, 466 U.S. 294, 310 (1984). First-tier errors, "even if of constitutional magnitude," do not survive as a basis for complaint once the case has moved to the second tier. See Commonwealth v. Lupo, 394 Mass. 644, 646 (1985). To the same effect, see Lydon, 381 Mass. at 363; Foley v. Lowell Div. of the Dist. Court Dept., 398 Mass. 800, 803-804 (1986). Cf. Ludwig v. Massachusetts, 427 U.S. 618 (1976).

Much in point is Hutson v. Wareham Dist. Court, 552 F. Supp. 974 (D. Mass. 1982), where a defendant sought habeas corpus, after appealing to the jury-of-six but before trial de novo, on the ground that he had been compelled to proceed to a bench trial without retained counsel. Denying the writ, the court said, "Massachusetts' regular appellate criminal process, the two-tier trial system, adequately protects petitioner's constitutional rights," so that he had not exhausted available State remedies (consisting of trial de novo and possible appeal therefrom). The petitioner argued that subsequent process would not remedy the denial, in first instance, of his right to counsel. The court said: "Even though petitioner's contention...