Commonwealth v. Myers

• Decision Date: 12 February 2001
• Docket Number: P-1141
• Citation: 51 Mass. App. Ct. 627,748 N.E.2d 471
• Parties: (Mass.App.Ct. 2001) COMMONWEALTH vs. LORINSO MYERS. 99-
• Court: Appeals Court of Massachusetts

748 N.E.2d 471 (Mass.App.Ct. 2001)

COMMONWEALTH vs. LORINSO MYERS.

99-P-1141

Appeals Court of Massachusetts

February 12, 2001.

May 23, 2001.

County: Suffolk.

Present: Armstrong, C.J., Gillerman, Greenberg, Beck, & Cowin, JJ.

Constitutional Law, Right of defendant in criminal case to act pro se, Assistance of counsel, Fair trial. Practice, Criminal, Assistance of counsel.

Indictments found and returned in the Superior Court Department on June 5, 1992.

The cases were tried before Sandra L. Hamlin, J., and a motion for a new trial, filed on August 14, 1995, was heard by her.

Barry L. Pretzel for the defendant.

Alex Philipson, Assistant District Attorney, for the Commonwealth.

COWIN, J.

The defendant was convicted by a jury of possession of cocaine with intent to distribute (G. L. c. 94C, § 32A); distribution of heroin (G. L. c. 94C, § 32); distribution of heroin within 1,000 feet of a school (G. L. c. 94C, § 32J); and possession of cocaine with intent to distribute within 1,000 feet of a school (G. L. c. 94C, § 32J).¹ Thereafter, the defendant filed a motion for new trial and a subsequent supplementary motion for new trial. The motions collectively assert as follows: (1) that under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights the defendant's right to proceed pro se was infringed by the failure of the trial judge to inform him that such a right existed; and (2) that the defendant was deprived of a fair trial by reason of ineffective assistance of counsel.

Following a hearing, the motion judge -- who had also been the trial judge -- denied the defendant's motion for new trial. The defendant appeals from the order denying his motion. We affirm.

1. Denial of right to proceed pro se.

On the threshold of jury empanelment, the defendant personally addressed the court and stated that he did not believe that his trial counsel would represent him properly. As support for this belief, he cited counsel's communication to him of a plea bargain proposal; the fact that counsel visited him only once during his pretrial incarceration; failure to provide him with police reports or grand jury minutes; and failure to investigate or follow up on certain issues suggested by the defendant. At no time did the defendant request that he be permitted to represent himself at the trial. His effort was directed exclusively to obtaining new counsel. The trial judge denied the defendant's request.

It is not disputed that a defendant has a right, one protected by both the Federal and State Constitutions, to proceed pro se with respect to his defense against criminal charges. Commonwealth v. Martin, 425 Mass. 718, 720 (1997). This right is explicit in art. 12 of the Declaration of Rights: "[E]very subject shall have a right to produce all proofs, that may be favorable to him; to meet the witnesses against him face to face, and to be fully heard in his defence by himself, or his counsel, at his election."

A request that present counsel be discharged does not by itself constitute a demand to be permitted to proceed pro se. "[T]he criminal defendant must make an unequivocal request to act as his own lawyer in order to invoke the right." Commonwealth v. Scott, 360 Mass. 695, 699 (1971), quoting from United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir. 1965). See Commonwealth v. Conefrey, 410 Mass. 1, 11 (1991). Compare Commonwealth v. Jordan, 49 Mass. App. Ct. 802, 813 (2000) ("[a] request to proceed pro se is not equivocal merely because it is an alternative position, advanced as a fall-back to a primary request for different counsel" [citation omitted]). Ordinarily, where there is no claim of a constitutional right, there can be no denial thereof. Commonwealth v. Amirault, 424 Mass. 618, 641 n.15 (1997).

Here, the defendant asserts that his address to the court prior to empanelment could be interpreted as a request to proceed pro se and that -- even were this not so -- the judge should sua sponte have advised him of his right to represent himself. The first of these propositions is untenable. The defendant never suggested the possibility that he was prepared to proceed pro se, nor could the thought reasonably have been implied from anything which he said. There was no basis upon which the motion judge could have understood that the possibility of pro se representation was an issue.

The defendant's alternative argument, that the judge should under the circumstances have taken it upon herself to bring the constitutional right to proceed pro se to the defendant's attention, is equally unavailing. He acknowledges that there is presently no statutory or procedural requirement that such advice be given. We decline to create such a requirement.

"[A]ppellant's expressed dissatisfaction with his trial counsel did not obligate the court either to substitute new counsel or advise him sua sponte of his right to proceed pro se." United States v. White, 429 F.2d 711, 712 (D.C. Cir.) (emphasis supplied). United States v. Martin, 25 F.3d 293, 296 (6th Cir. 1994). Commonwealth v. Scott, 360 Mass. at 700. Other States have expressly rejected the proposition.² We know of no jurisdictions that have adopted it.

This is hardly surprising in light of the obvious danger associated with such judicial intervention, i.e., that a defendant will treat advice regarding the existence of the right as a subtle indicator that the judge is in fact recommending that he exercise the right. The Supreme Judicial Court has addressed the analogous claim that the trial judge must inform the defendant of his constitutional right to testify in his own behalf. Commonwealth v. Waters, 399 Mass. 708, 716-717 (1987). The court in Waters, stated as follows: "Unlike most other rights, the right to testify is counterpoised by the right not to testify. Therefore, the exercise of one right is the waiver of the other. . . . [T]he judge's role in this strategic decision would be problematic; to the extent the judge appeared to urge the defendant to exercise the right to testify, the judge would appear to urge the defendant to waive the right not to testify." Id. at 716. See Commonwealth v. Freeman, 29 Mass. App. Ct. 635, 641 (1990).

The same considerations apply to a sua sponte reference to the defendant's right to proceed pro se. A defendant has both a right to counsel and a right to represent himself. The right to counsel is so fundamental that, where there is a "bona fide doubt" as to the defendant's ability to make an informed decision to proceed without counsel, the trial judge must conduct an inquiry as to the defendant's sanity. Commonwealth v. Barnes, 399 Mass. 385, 389 (1987). Only then may the judge determine whether the request to proceed pro se was exercised knowingly and intelligently. See Commonwealth v. Mott, 2 Mass. App. Ct. 47, 51-52 (1974). A requirement that the judge introduce the subject of possible pro se representation creates an undesirable counterweight which may lead to a defendant's making a choice which is ordinarily not in his interest. See United States v. Betancourt-Arratuche, 933 F.2d 89, 94 (1st Cir.), cert. denied, 502 U.S. 959 (1991). See also Commonwealth v. Stovall, 22 Mass. App. Ct. 737, 739 (1986). There being no justification either in existing jurisprudence or in the practical requirements of protecting the rights of criminal defendants for creating this new burden upon trial judges, we reject the defendant's proposed colloquy.

2. Ineffective assistance of counsel.

The defendant argues that his trial counsel was unprepared; failed to develop a defense; gave a perfunctory opening statement; and neglected various opportunities during trial both to buttress the defendant's position and to discredit the Commonwealth's only percipient witness. The following emerged at trial. On June 25, 1991, Officer Kenneth Hearns was patrolling the area near the Dearborn School in the Roxbury section of Boston with his partner Officer Anthony Dantona. Officer Hearns testified that he observed a man, later identified as Paul Bowling, approach the defendant and give him money folded into thirds. He then observed the defendant run approximately one-half block to a light pole, bend down, and pick up a small object which appeared to be in a tissue. The defendant removed a packet from the tissue and replaced the tissue at the bottom of the light pole. Officer Hearns testified that the defendant then returned to Bowling and gave him the packet; Bowling placed it in his pocket and walked away.

Officer Hearns placed a radio call to another police officer, Officer Hector Alicea, who stopped Bowling and obtained a packet from him. The packet was stamped with the likeness of Dick Tracy. Officer Hearns then went to the base of the light pole and picked up the tissue paper from which he had seen the defendant remove a packet following his receipt of money from Bowling. The tissue contained five small packets marked with the Dick Tracy stamp and three additional packets. Subsequent analysis demonstrated that the five packets marked with the Dick Tracy stamp contained heroin, while the three other packets contained cocaine.

The principles which determine whether a criminal defendant has been denied a fair trial by reason of ineffective assistance of counsel are now well established. We are called upon to undertake "a discerning examination and appraisal of the specific circumstances of the given case to see whether there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer -- and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). To prevail upon an ineffective assistance of counsel contention, a defendant must demonstrate that...