Commonwealth v. Smith
| Decision Date | 18 October 2022 |
| Docket Number | 22-P-116 |
| Citation | 101 Mass.App.Ct. 1120,196 N.E.3d 1282 (Table) |
| Court | Appeals Court of Massachusetts |
| Parties | COMMONWEALTH v. TIMOTHY SMITH. |
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On appeal from the denial of his second motion for new trial, as amended, the defendant, Timothy Smith, asserts that the motion judge erred in ruling that he was estopped from raising his claim that his waiver of his right to counsel at trial was invalid, because he raised that claim in his first motion for new trial but did not pursue it on appeal. We affirm.
Background.
The defendant was indicted on charges of rape (G. L. c. 265 § 22), kidnapping (G. L. c. 265, § 26), and strangulation (G. L. c. 265, § 15D [b]); the rape indictment also alleged that the sentence for that crime should be enhanced pursuant to the habitual criminal provision of G. L. c. 279, § 25. At arraignment an attorney was appointed who withdrew from representation after about three weeks. Another attorney was appointed, who represented the defendant for about three months and then withdrew from representing him. In August 2017, about eight months before trial, the attorney who appeared at trial (defense counsel) was appointed to represent him.
At a November 13, 2017 hearing, defense counsel stated that she was moving to withdraw because the defendant had drafted his own motion to dismiss pursuant to Commonwealth v. O'Dell, 392 Mass. 445, 447 (1984), "that he wants to file pro se and argue pro se." Defense counsel explained that she was the defendant's third or fourth attorney and, The defendant was sworn, and the judge asked if he wanted to represent himself. The defendant replied, "Actually, Your Honor, that wasn't my intention . . . [b]ut that seems to be what I need to do in order to expedite this case." He told the judge that defense counsel and his prior lawyers had not provided him with copies of all of the discovery that the Commonwealth had provided, but from what he had, he could "see that there's certain things that the Commonwealth did not present to the grand jury." The judge explained that defense counsel "can't just take your motion and sign her name to it," and the defendant replied, The judge appointed defense counsel as standby counsel "[f]or the rest of the trial."
The indictments for rape, kidnapping, and strangulation were tried in April 2018 before another Superior Court judge (trial judge). With the defendant's agreement, defense counsel, acting as standby, conducted jury selection, conferring with the defendant about any follow-up questions and challenges. The defendant argued motions in limine and gave an opening statement. The defendant began the cross-examination of the first witness, the victim. When he tried to question her about what they had done together in the forty-five minutes they were alone in his apartment and her failure to tell ambulance personnel that she had been sexually assaulted, the victim became recalcitrant, and many of the prosecutor's objections to repetitive questions were sustained. At sidebar, defense counsel suggested that she be permitted to cross-examine the victim, and the defendant agreed. At defense counsel's request, the judge recessed the trial for an early lunch break so that defense counsel could discuss with the defendant her strategy for cross-examining the victim, and make sure they were "on the same page." Defense counsel then cross-examined the victim, succinctly eliciting many inconsistencies that furthered the defense theory that the victim had had consensual sex with the defendant in exchange for crack cocaine.
For the remainder of the trial, defense counsel conducted the defense over three days. Questioned by the trial judge, at several points the defendant explicitly stated that he wanted defense counsel to do so; at no point did he complain that he wanted to conduct the defense himself. Defense counsel cross-examined the remaining prosecution witnesses: a neighbor, a police detective, a criminalist, and a deoxyribonucleic acid (DNA) analyst. At the conclusion of the Commonwealth's case, defense counsel successfully moved for a required finding of not guilty on the strangulation charge. Defense counsel also successfully moved to exclude evidence of the defendant's prior convictions, and then conducted his direct examination. Defense counsel handled the charge conference, and gave the closing argument on behalf of the defendant. The jury found the defendant not guilty of rape, and convicted him only of kidnapping.
Three months after trial, the defendant filed pro se his first motion for new trial, and moved for appointment of counsel. In his first motion for new trial he argued, among other things, that he was "forced" to represent himself at trial, and the deprivation of his right to counsel amounted to structural error. The trial judge stayed the first motion for new trial pending appointment of counsel, but then the defendant moved for a hearing, and so the trial judge held a nonevidentiary hearing on the defendant's first motion for new trial. At it, the defendant told the trial judge: The trial judge denied the first motion for new trial in a written memorandum. In it she found, based on her memory of the trial, that the defendant had waived his right to counsel after a colloquy.[1]
Represented by appellate counsel, the defendant appealed from the kidnapping conviction and from the denial of his first motion for new trial. In June 2019, the defendant's brief was filed in this court, but did not pursue his claim that he had been "forced" to represent himself at trial. While that appeal was pending, the transcript of the November 13, 2017 motion to dismiss hearing at which defense counsel was appointed as standby counsel was docketed in this court.[2] The defendant then filed a reply brief that made no mention of his claim that he had been forced to represent himself at trial. A panel of this court heard oral argument, at which no mention was made of that claim, and affirmed the conviction and the denial of the motion for new trial in an unpublished opinion. See Commonwealth v. Smith, 97 Mass.App.Ct. 1106 (2020).[3]
In June 2021, the defendant filed pro se his second motion for new trial asserting the claims raised here, including that he had been constructively denied his right to counsel at trial and his waiver of counsel was invalid. In a supporting affidavit, the defendant asserted that no waiver of counsel colloquy was conducted, and he never signed a waiver of counsel form. Two months later, the defendant filed an amended version of his second motion for new trial, adding a claim that the prosecutor knowingly had used false testimony by presenting the trial testimony of the victim and a detective, and also by obtaining the indictments based on their statements. The Commonwealth filed an opposing memorandum which did not address the defendant's new claim that the prosecutor had knowingly used false testimony.
A Superior Court judge other than the trial judge (motion judge) denied the second motion for new trial, ruling that the defendant was "estopped" from raising claims that he had raised in his first motion for new trial but had not pursued on his appeal from its denial. In his memorandum and order, the motion judge referred to the motion before him by the docket number of the second motion, not that of the second amended motion, and did not directly reference the new claim added in the second amended motion. The defendant moved to "correct" the motion judge's order, on the ground that it referenced the wrong docket number; the motion judge denied that motion. The defendant then moved for reconsideration of the denial of his motion to correct, and filed a supplemental memorandum of law reiterating his argument that the prosecutor improperly had presented "false testimony" before the grand jury and at trial. The motion judge endorsed it: This appeal ensued.
Discussion. 1.
Motion for new trial.
A motion for new trial may be granted "at any time if it appears that justice may not have been done." Mass. R Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). In reviewing the denial of a motion for new trial, we examine the motion judge's conclusions to determine if there has been a "significant error of law or other abuse of discretion," in other words, whether the motion judge's conclusion...
To continue reading
Request your trial