Commonwealth v. Means

Decision Date12 June 2009
Docket NumberSJC-10262.
Citation907 N.E.2d 646,454 Mass. 81
PartiesCOMMONWEALTH v. Mark MEANS.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Deborah Bates Riordan, Quincy (Theodore F. Riordan with her) for the defendant.

Audrey Anderson Kachour, Assistant District Attorney, for the Commonwealth.

Beth L. Eisenberg, Boston, & Kristen J. Graves, Committee for Public Counsel Services, & Robert D. Fleischner & Susan F. Stefan, for Committee for Public Counsel Services & another, amici curiae, submitted a brief.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

MARSHALL, C.J.

We consider whether, conformably with the constitutionally guaranteed right to assistance of counsel in a criminal case,1 a defendant may be held to have forfeited his right to counsel at trial by reason of his wrongful behavior (doctrine of forfeiture), a novel issue in Massachusetts. Cf. United States v. Leggett, 162 F.3d 237, 249-251 (3d Cir.1998), cert. denied, 528 U.S. 868, 120 S.Ct. 167, 145 L.Ed.2d 141 (1999) (defendant forfeited right to counsel at sentencing hearing by physically attacking counsel). If so, we consider whether the trial judge properly invoked the doctrine of forfeiture in this case.

During the course of pretrial proceedings on charges of assaulting a correction officer, the defendant filed several pro se motions to discharge his first, and at all times his only, court-appointed trial counsel, and for appointment of new counsel. In one such motion the defendant disclosed both in his motion and in his affidavit in support of his motion that he had sent a letter to counsel threatening serious harm to him and to his family if counsel did not immediately withdraw from the case.2 After a brief video conference hearing, during which the judge asked the defendant to confirm that he had sent such a letter, the judge ruled that the defendant, by his "egregious misconduct" in making the threats, had "forfeited his right to proceed to trial" with any "court-appointed attorney." She ordered the defendant to represent himself at his trial.

Trial commenced some weeks later, and a jury convicted the defendant of assault and battery on a correction officer and assault and battery by means of a dangerous weapon. G.L. c. 127, § 38B. G.L. c. 265, § 15A. Immediately following his convictions, the defendant was tried on indictments charging him with being a habitual criminal, G.L. c. 279, § 25, before the same jury. The defendant again requested that counsel be appointed to represent him, and the judge again denied his request. The defendant was found guilty on two charges of being a habitual criminal and sentenced to two concurrent terms of ten years in a State prison.

The defendant appealed to the Appeals Court, which rejected his claim that he was denied his constitutional right to counsel at trial. Commonwealth v. Means, 71 Mass.App.Ct. 788, 886 N.E.2d 754 (2008).3 We granted the defendant's application for further appellate review.

We recognize that threats of violence made by a defendant against his attorney or the attorney's family may constitute "extremely serious misconduct" that may justify a finding that an indigent defendant has forfeited his right to court-appointed counsel. United States v. Goldberg, 67 F.3d 1092, 1102 (3d Cir.1995). In light of the fundamental constitutional rights at stake, before a judge finds that a defendant has forfeited his right to counsel and imposes the extreme sanction of denying an indigent defendant the assistance of counsel at trial or otherwise, she must first conduct a hearing at which the defendant has a full and fair opportunity to offer evidence as to the totality of the circumstances that may bear on the question whether the sanction of forfeiture is both warranted and appropriate. Because the hearing conducted in this case fell short of that standard, we are constrained to reverse the judgments on the habitual criminal charges, reverse the judgments on the assault charges, and remand the case to the Superior Court for a new trial on the charges of assault and battery on a correction officer and assault and battery by means of a dangerous weapon.

1. Background. Because details of the proceedings are important to our conclusions, we describe them with specificity. On March 15, 2002, a grand jury returned indictments against the defendant charging him with assault and battery on a correction officer, G.L. c. 127, § 38B; assault and battery by means of a dangerous weapon, G.L. c. 265, § 15A (b); vandalism with a noxious or filthy substance, G.L. c. 266, § 103; and being a habitual criminal, G.L. c. 279, § 25. On March 27, 2002, the defendant was arraigned, and counsel was appointed to defend him. Trial was scheduled for July 21, 2003, and was then rescheduled several times.

Beginning in April, 2004, and several times thereafter, the defendant attempted to inform the court by motion of his dissatisfaction with his appointed counsel. In his first such motion, filed in April, 2004, the defendant made various claims concerning alleged shortcomings of his counsel including that appointed counsel had failed to file certain motions, had visited the defendant only twice "for the past 25 months," and had failed to return the defendant's telephone calls. The defendant claimed that "a complete `breakdown' of communication" with appointed counsel had occurred. On May 4, 2004, appointed counsel moved to withdraw, citing an insurmountable breakdown in communications with his client. After a hearing, the judge allowed appointed counsel to withdraw, but denied the defendant's request for new counsel. Instead, she appointed the attorney as standby counsel, and ordered the defendant to represent himself at trial.4, 5

Over the following months, the defendant filed three pro se motions to remove his appointed standby counsel and for the appointment of new trial counsel, without action by the judge.6 In February, 2005, standby counsel moved to continue the trial, which had been scheduled for February 22, 2005. The judge held a hearing during which it appears (according to the Superior Court docket) that standby counsel was reinstated as trial counsel, and the judge allowed the motion to continue the trial until April 27, 2005.

Any rapprochement between the defendant and his counsel was short lived. In March, 2005, the defendant filed a further pro se motion for the "immediate withdrawal" of his counsel and for the appointment of new counsel to represent him at his trial. In an affidavit attached to this motion, the defendant disclosed that he had sent a blood-smeared letter dated March 6, 2005, to appointed counsel threatening to harm him and his family if counsel did not withdraw from the case. See note 2, supra. The defendant's affidavit also stated that, if the judge did not allow his motion, then at the "very first chance," the defendant "will physically assault, spit, kick, head-butt, etc." appointed counsel. To emphasize his point, the defendant added that he was "not playing around; this isn't any joke, I'm very serious! I have major mental health deficiencies, and present very serious anger management issues, due to lack of treatment." The defendant concluded his affidavit by noting that he was "not prepared" for his April 27 trial date, and did not have any documents with which to present his defense.

A hearing on the defendant's March, 2005, motion seeking appointment of new counsel (with accompanying affidavit) was held in August, 2005, by video conference. The judge read for the record the several paragraphs from the defendant's affidavit concerning his threats to counsel. Appointed counsel, who was participating in the conference, advised the defendant not to "adopt" the affidavit as something he had written. However, after several pointed questions from the judge directed to the defendant in the face of such advice of counsel, the defendant told the judge that he "absolutely" did write the threatening letter adding that he "did it out of anger" and "I just said that to get him off my case because he's not doing nothing on my case. In reality, I'm not going to do nothing to him." Appointed counsel then requested that the judge allow the defendant's motion because his "ability to represent [the defendant] in an effective way has been compromised." The judge agreed to do so, but declined to appoint successor counsel, finding that the defendant had "lost [his] right to court appointed counsel."7 In a later filed memorandum, the judge explained that "the defendant here engaged in egregious misconduct by threatening [appointed counsel] and his family with serious bodily harm and even death. As such, he has forfeited his right to proceed to trial with [appointed counsel] or any other court-appointed attorney...."8, 9

Before trial, the defendant filed a written motion for reconsideration of the judge's forfeiture ruling. In a supporting affidavit, he represented that he had been diagnosed by prison mental health clinicians as having "Intermittent Explosive Anger Disorder" as well as "`Bipola[r]' disorder, and other mental health ailments"; that his threatening letter to counsel was written "out of anger" and "after being so frustrated," and that the defendant had no intention of carrying out any threats. He stated at least fifteen times that he was not capable of defending himself, did not know the law, and did not have an attorney appointed to represent him. His motion for a reconsideration was denied without a hearing.10

Immediately prior to the trial, the judge received a letter from the Committee for Public Counsel Services (CPCS) in which it noted that the defendant had not been evaluated "on the question of his competency, despite his claim that he suffers from `major mental health deficiencies ... due to a lack of treatment,'" and that counsel was available to represent the defendant for this "limited purpose" and for a...

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