Commonwealth v. Johnson

• Decision Date: 28 September 2011
• Docket Number: No. 10–P–735.,10–P–735.
• Parties: COMMONWEALTHv.Michael JOHNSON.
• Court: Appeals Court of Massachusetts

80 Mass.App.Ct. 505

954 N.E.2d 56

COMMONWEALTH

v.Michael JOHNSON.

No. 10–P–735.

Appeals Court of Massachusetts, Suffolk.

Argued April 11, 2011.Decided Sept. 28, 2011.

Cynthia Vincent Thomas for the defendant.David D. McGowan, Assistant District Attorney, for the Commonwealth.Present: KANTROWITZ, RUBIN, & CARHART, JJ.CARHART, J.

The defendant appeals from the denial of his revised motion for a new trial.¹ At trial, and for a sixteen-month period before trial, the defendant represented himself. On appeal, the defendant argues that he was deprived of his constitutional ² right to the assistance of counsel during the pretrial proceedings because no waiver of counsel colloquy was conducted until the second day of trial, some sixteen months after his motion to dismiss counsel was allowed. See G.L. c. 211D, § 5; S.J.C. Rule 3:10(3), as amended, 416 Mass. 1309 (1993). See also Commonwealth v. Mullen, 72 Mass.App.Ct. 136, 141–142, 889 N.E.2d 52 (2008). He also argues that his waiver of counsel at trial was constitutionally ineffective because the colloquy failed to address the issue of his competency.³ We reverse.

Background. The Commonwealth presented evidence establishing that the defendant broke into the home of two elderly women on July 28, 1999. After striking both women, the defendant stole some jewelry and fled. The police, who were immediately summoned, apprehended the defendant near the victims' home. The defendant had the stolen jewelry in his possession. Blood stains found on the defendant's shirt and shoes were analyzed and found to be consistent with the deoxyribonucleic acid (DNA) profile of one of the victims.

This case has a lengthy procedural history. On August 17, 1999, the defendant was arraigned and counsel was appointed for him. On February 1, 2000, the defendant filed a pro se motion to dismiss counsel. On June 11, 2001, the defendant filed a pro se motion to waive counsel. During the pendency of the case the defendant had several admissions to Bridgewater State Hospital (Bridgewater) for mental health evaluations pursuant to G.L. c. 123, §§ 15( b ) and 18( a ). On December 19 and 20, 2001, a competency hearing was held and the defendant was found to be competent. Nineteen days later, on January 8, 2002, a hearing was held on the defendant's motions to dismiss and to waive counsel. A Superior Court judge allowed the defendant's motion to dismiss counsel and appointed new counsel. The judge declined to rule on the defendant's motion to waive counsel; the judge requested that the defendant decide whether he wanted to be represented by counsel or proceed pro se with standby counsel.

The defendant was next before the court on May 1, 2002.⁴ At that time, he informed the judge that he was representing himself and that his attorney was serving as standby counsel. On July 10, 2002, when the defendant and standby counsel were in court for a hearing in connection with the Commonwealth's motion for a blood sample, the defendant requested that standby counsel be dismissed. The judge indicated that he would allow standby counsel to withdraw and the defendant to represent himself, and he requested that standby counsel file the appropriate documents for endorsement. The defendant was returned to court and represented himself on August 22, 2002; October 3, 2002; October 16, 2002; and December 9, 2002. There was no waiver of counsel colloquy at any of these hearings.⁵

The defendant was discharged from Bridgewater on December 9, 2002, where he had been admitted for a psychiatric evaluation pursuant to G.L. c. 123, § 18( a ). This admission was the defendant's twelfth admission to Bridgewater. Upon his discharge, the defendant was prescribed Zyprexa and Depakene. ⁶

On January 27, 2003, the defendant represented himself at a hearing on a motion to suppress.⁷ The motion was denied. On March 28, 2003, the defendant filed a motion for funds for a DNA expert. That motion was denied without a hearing and without prejudice.

The defendant's trial began on May 15, 2003. Before the jury was selected, the trial judge realized that no waiver of counsel form had been signed and that there had been no colloquy with the defendant confirming that his waiver of counsel was knowing and intelligent. The trial judge then conducted an unsworn waiver of counsel colloquy with the defendant. The next day, the trial judge conducted a formal, sworn waiver of counsel colloquy with the defendant. The trial proceeded and the defendant was convicted on all counts.⁸

The defendant appealed from his convictions and then subsequently filed a motion for a new trial. The defendant's motion for a new trial was delayed for various reasons.⁹ The direct appeal was decided by this court on October 26, 2007; the defendant's convictions were affirmed.¹⁰ Commonwealth v. Johnson, 70 Mass.App.Ct. 1107, 2007 WL 3132926 (2007).

After a status hearing in the Superior Court, counsel for the defendant filed a revised motion for a new trial, which, in essence, argued that the defendant was deprived of his constitutional right to counsel because he had not waived that right when he represented himself during critical pretrial proceedings and because his waiver of counsel at trial was ineffective. The judge denied the defendant's motion on June 29, 2009.¹¹ She concluded that the lack of a formal waiver of counsel colloquy until the second day of trial was harmless beyond a reasonable doubt because the orders denying the defendant's suppression motions had been upheld on direct appeal and the evidence of the defendant's guilt was overwhelming. She also concluded that because the defendant had been found competent seventeen months before trial and there was no subsequent evidence calling this determination into question, the defendant's waiver of counsel was effective. The defendant brings the instant appeal from the order denying his new trial motion.

Discussion. 1. Pretrial denial of right to counsel. The right to counsel is a fundamental constitutional right. Commonwealth v. Means, 454 Mass. 81, 88, 907 N.E.2d 646 (2009). The role of defense counsel is a key component of our criminal justice system, as it provides the accused with an advocate skilled in the process and trained to counter the power of the prosecution. See Godinez v. Moran, 509 U.S. 389, 400, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993) (noting defendants usually do better with guidance of counsel). The assistance of counsel provides criminal defendants with innumerable benefits, including pretrial preparation and investigation that are essential to effective representation.¹² See Commonwealth v. Haggerty, 400 Mass. 437, 442, 509 N.E.2d 1163 (1987).

The assistance of counsel is so important to our system of justice that it cannot be waived unless a judge is satisfied that the waiver was entered knowingly and voluntarily. See Means, supra at 89, 907 N.E.2d 646. See also Godinez, supra. The judge must ensure that the defendant understands the magnitude of the undertaking and the disadvantages of self-representation, and that the defendant has an appreciation of the seriousness of the charges and penalties. Means, supra at 89–90, 907 N.E.2d 646. It is precisely for this reason that various procedural protocols have been established. The judge must meaningfully inquire of the defendant to ensure that the waiver of counsel was made knowingly and voluntarily, and the defendant must execute a written waiver of his right to counsel. Commonwealth v. Clemens, 77 Mass.App.Ct. 232, 240, 929 N.E.2d 344, further appellate review granted, 458 Mass. 1105, 935 N.E.2d 325 (2010).

In this case, there was no formal waiver until the second day of trial. By this time, the defendant had filed several motions and represented himself at a number of pretrial hearings.¹³ Although the case had been before several judges, it was the trial judge who realized, on the first day of the trial, that a written waiver of counsel had not been executed, nor had a formal waiver colloquy taken place. The trial judge engaged the defendant in an unsworn colloquy on the first day of trial and in a formal, sworn colloquy the next day. Although the trial judge attempted to make the best of a most difficult situation, we conclude that a formal waiver, at this point in the proceedings, came far too late to be effective.

We disagree with the motion judge's analysis in her decision on the motion for a new trial. At the outset, we observe that the fact that this court upheld the trial court rulings on the motions to suppress, or that the evidence against the defendant was overwhelming, has no bearing on the issue before us. Here, the defendant did not waive the right to counsel before he represented himself during a number of pretrial proceedings, including a suppression hearing.

“Under the Sixth Amendment to the United States Constitution and art. 12 [of the Massachusetts Declaration of Rights], the defendant has a right to counsel at every ‘critical stage’ of the criminal process.” Commonwealth v. Woods, 427 Mass. 169, 174, 693 N.E.2d 123 (1998), and cases cited. See Lavallee v. Justices in the Hampden Superior Ct., 442 Mass. 228, 235, 812 N.E.2d 895 (2004) (“The right to counsel ... includes assistance in making decisions about specific defenses and trial strategies, which may rise to the level of [a] ‘critical stage’ of the process”). A suppression hearing is a critical stage. See Commonwealth v. Rabb, 70 Mass.App.Ct. 194, 198, 873 N.E.2d 778 (2007). As the defendant did not waive the right to counsel before representing himself during critical stages of the pretrial proceedings, which included a suppression hearing, there was constitutional error. See Clemens, supra at 233, 929 N.E.2d 344.

Although most constitutional errors are subject to harmless error analysis, the instant error is not. The deprivation of the right to counsel during a critical stage of the criminal process is structural error; it is an error “that so...