Commonwealth v. Means

• Decision Date: 03 April 2017
• Docket Number: 15-P-931
• Citation: 83 N.E.3d 197 (Table),91 Mass.App.Ct. 1114
• Parties: COMMONWEALTH v. Mark MEANS.
• Court: Appeals Court of Massachusetts

91 Mass.App.Ct. 1114
83 N.E.3d 197 (Table)

COMMONWEALTH
v.
Mark MEANS.

15-P-931

Appeals Court of Massachusetts.

Entered: April 3, 2017.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A Superior Court jury convicted the defendant of unarmed robbery,² assault by means of a dangerous weapon, two counts of threatening to commit a crime, and ten counts of violating an abuse prevention order. After a separate jury-waived trial, the judge found the defendant guilty of being a habitual offender as to larceny from a person, see note 1, supra, and assault by means of a dangerous weapon. On appeal the defendant argues that (1) he did not validly waive his right to counsel at the habitual offender trial and at sentencing; (2) the evidence was insufficient to convict him of violating an abuse prevention order; (3) the judge gave an erroneous supplemental jury instruction on the definition of a threat; (4) one of his convictions of threatening to commit a crime is duplicative of his conviction of assault by means of a dangerous weapon; and (5) there was a "constellation of errors," including purportedly false testimony by a police officer, which left "unresolved before the jury" whether the victim had a cooperation agreement with the Commonwealth. We agree with the defendant that he did not voluntarily waive his right to counsel, but reject his remaining arguments. Accordingly, the judgments on all the convictions must be vacated, and the finding on the indictment charging the defendant with being a habitual offender as to the assault by means of a dangerous weapon charge must be set aside. The verdicts on the remaining charges are to stand, and the case is remanded for resentencing.

1. Waiver of counsel. The defendant elected to represent himself at trial on the habitual offender charges and at sentencing after the judge allowed two appointed counsel to withdraw. He now argues that his waiver of counsel was not valid because it was the product of a forced choice between two untenable alternatives: proceeding with inadequate counsel or proceeding pro se.

The defendant was represented by appointed counsel Steven Weymouth at trial on the underlying offenses. After the trial concluded, the defendant filed a "motion to dismiss counsel and to appoint counsel to represent the defendant in the habitual phase," arguing that Mr. Weymouth was ineffective in preparing for trial; failed to seek a jury instruction on larceny from a person, despite the defendant's requests that he do so; and failed to prepare for the habitual offender phase of the proceeding. Mr. Weymouth concurrently filed a motion to withdraw his representation. After a hearing the judge allowed both motions and appointed Tracy Galla as new counsel for the defendant.

Several weeks later, Ms. Galla also moved to withdraw, asserting that she was "not the appropriate attorney to represent the [d]efendant for the [h]abitual portion of the trial" and that she was "not capable of arguing a proper sentence request on behalf of the [d]efendant" because she "was not the trial attorney." The judge held a hearing on the motion, at which Ms. Galla again represented that she "would not be effective in arguing a sentencing at this point as [she] was not [the] trial attorney" and thus did not "know what occurred, how evidence came in, [and] what didn't come in." The judge then conducted the following colloquy with the defendant:

THE COURT: "Okay. So, Mr. Means, you understand that Ms. Galla doesn't feel like she would be able to represent you adequately?"

THE DEFENDANT: "I understand that, Your Honor. I'd like to say I object to the appointment of Mr. Weymouth."

THE COURT: "Okay, but you understand that the same issue would be—it would be the same issue for any new attorney who didn't do the trial; right?"

THE DEFENDANT: "Yeah, I understand. I mean, yeah. I just don't think it's—I mean, at least with me, Your Honor, I researched everything, and like I said, he was ineffective and I still stick to that to this day. I mean, he didn't even prepare the case for trial. He didn't request for jury instructions and, you know, I mean, I totally object to him being reappointed to this case."

THE COURT: "Okay. So do you want to represent yourself for the rest of the case? I mean, is that what you want?"

THE DEFENDANT: "Yeah, that's fine."

THE COURT: "No, no, no. I don't want you to say that's fine. I'm asking—"

...

THE COURT: "Wait a second. I really want to stick with what we're talking about here, and I want to figure out whether you're saying that you would rather—Ms. Galla is saying she doesn't feel comfortable representing you because she didn't participate in the trial. And I understand that you talked to her about that and that you understand that."

THE DEFENDANT: "Yes, ma'am."

THE COURT: "The person who would best represent you is the person who was there for the trial, who could argue a sentence, an appropriate sentence. I know you're not happy with Mr. Weymouth, but I think he's willing to do this, and I think it would probably be better for you guys to work together as opposed to you working alone. Now, given that I just need you to think clearly about it and decide what you want to do."

THE DEFENDANT: "I disagree. No disrespect. Just because he was ineffective. He didn't prepare the case for trial, Your Honor."

THE COURT: "Okay. So you're saying you would prefer to represent yourself for the—"

THE DEFENDANT: "Do the best I can, yeah. It wouldn't be the first time."

After conducting this colloquy, the judge allowed Ms. Galla's motion to withdraw³ and appointed Mr. Weymouth to serve as the defendant's standby counsel. The defendant then proceeded to represent himself at the habitual offender trial and at sentencing.

A criminal defendant may waive his right to the assistance of counsel if the waiver was knowing, voluntary, and intelligent. See Commonwealth v. Clemens, 77 Mass. App. Ct. 232, 240 (2010). In reviewing the judge's ruling that the defendant waived his right, we give "substantial deference" to "[f]actual findings related to the loss of the right to counsel" but "review claims of violations of the right to counsel de novo, making an ‘independent determination of the correctness of the judge's application of constitutional principles to the facts found.’ " Commonwealth v. Means, 454 Mass. 81, 88 (2009), quoting from Commonwealth v. Currie, 388 Mass. 776, 784 (1983).

"[A] defendant does not have a right to court-appointed counsel of his choice." Commonwealth v. Carsetti, 53 Mass. App. Ct. 558, 561 n.5 (2002). See Commonwealth v. Moran, 388 Mass. 655, 659 (1983). If the judge "make[s] available to an indigent defendant counsel with whom reasonable communication is possible, who is competent, completely loyal and, with the defendant's cooperation, prepared to defend him," then the defendant's "refusal to accept such representation is a voluntary waiver of the right to counsel." Commonwealth v. Lee, 394 Mass. 209, 216 (1985). Thus, in reviewing the defendant's waiver of counsel for voluntariness, we must determine that he "refus[ed] without good cause to proceed with able appointed counsel." Commonwealth v. Appleby, 389 Mass. 359, 366-367 (1983), quoting from Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir. 1976).

Turning first to the withdrawal of Ms. Galla, the record does not establish that the defendant refused to accept her representation. Rather, the defendant simply acquiesced to Ms. Galla's motion to withdraw, which was based on her own belief that she would "not be effective" at the sentencing phase because she was not trial counsel. During the colloquy the judge did not present the defendant with the option of proceeding with Ms. Galla as his attorney. Accordingly, we do not deem the defendant's failure to object to Ms. Galla's motion as constituting a waiver of his right to counsel.

As is clear from the colloquy, however, the judge did give the defendant the option of having Mr. Weymouth reappointed as his counsel. We must therefore determine whether the defendant had good cause for rejecting the reappointment. We conclude, in the unusual circumstances of this case, that he did. The defendant had earlier moved to dismiss Mr. Weymouth as counsel on the ground that he was ineffective. Although the judge did not make explicit factual findings on that issue, her allowance of the defendant's motion suggests that she found the defendant's claims to have some basis.⁴ Consequently, the judge could not then require the defendant to choose between proceeding with Mr. Weymouth or proceeding pro se. The defendant did not have a right to counsel of his choice, but, at the same time, he "may not be forced to proceed to trial with incompetent or unprepared counsel." Appleby, 389 Mass. at 366, quoting from Maynard, 545 F.2d at 278. See Commonwealth v. Cavanaugh, 371 Mass. 46, 53–54 (1976) (defendant did not voluntarily waive right to counsel when presented with choice between "proceed[ing] to trial represented by counsel who characterized himself as ‘unprepared’ " and "proceeding to trial pro se"). Thus, after "indulg[ing] every reasonable presumption against waiver [of counsel]," as we must, we conclude that the defendant's waiver was not voluntary. Commonwealth v. Gomes, 407 Mass. 206, 211 (1990), quoting from Johnson v. Zerbst, 304 U.S. 458, 464 (1938). On remand he is entitled to new appointed counsel, if he so requests, to represent him on the habitual offender charge and at resentencing.

2. Violations of abuse prevention order. To establish a violation of an abuse prevention order under G. L. c. 209A, § 7, the Commonwealth must prove beyond a...