Commw. V. Carsetti

• Decision Date: 14 January 2002
• Docket Number: 00-P-107
• Citation: 53 Mass. App. Ct. 558
• Parties: COMMONWEALTH vs. EMIL CARSETTI. Docket No.: 00-Massachusetts Court of Appeals
• Court: Appeals Court of Massachusetts

COMMONWEALTH vs EMIL CARSETTI

Docket No.: 00-P-107

Massachusetts Court of Appeals

June 11, 2001.

January 14, 2002

County:Bristol.

Present: Jacobs, Kantrowitz, & Kafker, JJ.

Practice, Criminal, Continuance, Assistance of counsel. Constitutional Law, Assistance of counsel, Waiver of constitutional rights. Waiver.

Indictments found and returned in the Superior Court Department on April 16, 1998.

The cases were tried before John A. Tierney, J.

Patrick T. Matthews for the defendant.

David Keighley, Assistant District Attorney, for the Commonwealth.

KANTROWITZ, J.

On the morning of trial, against the backdrop of an overpowering case for guilt¹ and the Commonwealth answering ready, with witnesses and the jury present, defense counsel asked for a continuance, claiming an irretrievable breakdown in the attorney-client relationship with his client, a career criminal.

The issues of substance in this appeal are twofold: first, whether it was error for the judge not to grant the continuance; and second, whether the defendant waived his right to counsel. We affirm his two convictions.

The procedural background. On April 28, 1998, the defendant was arraigned on charges of breaking and entering in the nighttime with intent to commit a felony, G. L. c. 266, 16, and of unlawful possession of burglarious tools, G. L. c. 266, 49. He received a court-appointed attorney. A pretrial conference report was filed on May 11 and a motion to suppress identification was filed on June 19. At the conclusion of an evidentiary hearing on December 11, the motion was denied and a trial date was set for January 5, 1999. It was the sole trial scheduled for that day.

The motion for continuance to change counsel. On the morning of January 5, the attorney informed the court that he was "not prepared to go to trial today." However, counsel did not appear to be referring to substantive unpreparedness to try the case. He explained as follows:

"[The defendant] called me up on December, I believe it was, 28th -- I'm not quite sure of the date -- left a message on my answering machine. I got back to him on January 2nd. He said he did not want me; he has new counsel. He says he didn't like what I was doing, which -- he told me I didn't hire an investigator; that I should have hired an investigator. We had some words exchanged. I told him that I did not want to represent him. He said under no circumstances did he want me to represent him because he was going to be found guilty, and I have done nothing for his case. This was on January 2nd.

"I did tell him he should come before this court prior to today because this was a scheduled date for trial, which was, I believe, set back on December 11th."

At the outset, we note that the obligation to come forward and inform the trial judge of the need for a continuance prior to the date of trial rests on counsel, not the defendant. See Commonwealth v. Burbank, 27 Mass. App. Ct. 97, 104 (1989). See also United States v. Prochilo, 187 F.3d 221, 226-227 (1st Cir. 1999).² Prior to the day of trial, appointed counsel did not wish to represent a client who did not want his representation. Further, counsel knew of another named private attorney, whom the defendant wanted as counsel, and with whom the current attorney spoke "way back a week ago, over a week ago." That lawyer indicated that he would only enter an appearance if a continuance were granted.³,⁴

The defendant was allowed, as he must be, to address the court. See Commonwealth v. Moran, 388 Mass. 655, 659 (1983). He complained that his attorney had failed to (1) secure a copy of the suppression hearing transcript; (2) scientifically test the evidence; and (3) hire an investigator. The judge denied the motion to continue the case.

"The Sixth and Fourteenth Amendments to the United States Constitution afford a defendant the right to assistance of counsel in all State criminal prosecutions which may result in the loss of his liberty." Commonwealth v. Cavanaugh, 371 Mass. 46, 50 (1976), citing Gideon v. Wainwright, 372 U.S. 335 (1963).⁵ When a defendant requests a continuance in order to change counsel, the judge must consider the defendant's right to obtain counsel of his choice as well as the public's interest in the fair, efficient and orderly administration of justice. Commonwealth v. Fogarty, 25 Mass. App. Ct. 693, 697-698 (1988). While there is no unbridled right to replace one competent attorney with another, Commonwealth v. Dunne, 394 Mass. 10, 15 (1985), a defendant may not be forced to go to trial with incompetent or unprepared counsel. Commonwealth v. Appleby, 389 Mass. 359, 366-367, cert. denied, 464 U.S. 941 (1983), citing Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir. 1976).

It is within the judge's sound discretion to grant a request for new counsel on the eve or day of trial, Commonwealth v. Tuitt, 393 Mass. 801, 804 (1985), or to allow a motion for a continuance, Commonwealth v. Richardson, 37 Mass. App. Ct. 482, 487 (1994). While there is no mechanical test for determining when such a denial is so arbitrary as to violate due process, the judge should make findings showing a balancing between the defendant's rights and the interests of the Commonwealth and demonstrating that discretion was in fact exercised. See generally Commonwealth v. Lee, 394 Mass. 209, 217 (1985); Commonwealth v. Fogarty, supra at 698; Commonwealth v. Jordan, 49 Mass. App. Ct. 802, 813 n.12 (2000).

Where the defendant's objections are concerned with the attorney's choice of trial tactics, this is ordinarily not sufficient to warrant a continuance. See Commonwealth v. Price, 17 Mass. App. Ct. 955, 957 (1983), citing Commonwealth v. Ransom, 358 Mass. 580, 585 (1971). However, when a defendant alleges that counsel is unprepared, the judge should perform some colloquy to ascertain whether this is a dilatory tactic or counsel is truly unprepared.⁶ See Commonwealth v. Flowers, 5 Mass. App. Ct. 557, 565-566 (1977) (trial judge should make further inquiry where the defendant alleges that attorney is unprepared), cert. denied, 434 U.S. 1077 (1978). See also Commonwealth v. Drayton, 386 Mass. 39, 45 (1982) (counsel stated that he was prepared); Commonwealth v. Tuitt, supra at 805 (same); Commonwealth v. Dunne, supra at 15 (no allegation that counsel not prepared); Commonwealth v. Haas, 398 Mass. 806, 815 (1986) (same); Commonwealth v. Chavis, 415 Mass. 703, 712 (1993) (judge satisfied himself that attorney was prepared); Commonwealth v. Wright, 11 Mass. App. Ct. 276, 279 (1981) (attorney prepared for trial); Commonwealth v. Moran, 17 Mass. App. Ct. 200, 202 (1983) (attorney represented to court that he was prepared for trial); Commonwealth v. Price, supra at 957 (no question that attorney prepared); Commonwealth v. Fogarty, supra at 697 (attorney represented that she was prepared for trial); Commonwealth v. Burbank, 27 Mass. App. Ct. at 102 (judge found that attorney was prepared). Compare Commonwealth v. Jordan, supra at 812, quoting from Commonwealth v. Chavis, 415 Mass. 703, 711 (1993) ("Although counsel characterized himself as unprepared, he had been appointed [two and one-half months prior to trial], had the transcript of [the codefendant's] trial, and had attended a portion of that trial. In these circumstances, and with the additional protection of co-counsel, the judge did not abuse his discretion in denying [defense counsel's] motions for withdrawal and a continuance filed so close to the date for trial. The trial judge allowed counsel to present his reasons and appropriately balanced the need for additional time against the increased costs, including prejudice to the victim, taking into account also 'the interest of the judicial system in avoiding delays which would not measurably contribute to the resolution of a particular controversy'" [citations omitted]).

The preferred practice is to hear the defendant's reasons for wanting new counsel so that the judge's discretion will be exercised on an informed basis. See Commonwealth v. Moran, 388 Mass. at 659. It is also appropriate to ask counsel for a response. See note 6, supra.

In the case at bar, the judge made no formal findings on the record to indicate a balancing of the public's interest in the fair, efficient and orderly administration of justice with the defendant's right to proceed with counsel of his choice, see Commonwealth v. Fogarty, 25 Mass. App. Ct. at 697-698; nor did the judge question counsel as to his preparedness or his response to the defendant's allegations.

While the judge should have made findings, either in writing or orally on the record, we can glean from the record the apparent rationale for the trial judge's decision: (1) it was the only case on for trial that day; (2) the Commonwealth was present with witnesses, one of whom had to leave the State the following day; (3) the case was a relatively simple one; (4) more importantly, experienced counsel had competently participated in an evidentiary hearing on his motion to suppress identification less than a month earlier, a hearing over which the trial judge presided; (5) the attorney had been representing the defendant for eight months, and had acted appropriately during that time period; (6) the defendant was, as the judge explained, "not entitled to a copy of the transcript as a condition precedent for going forward"; and (7) counsel was not alleging that he was substantively unprepared, but that he was unprepared in the sense the defendant did not wish his representation.

In this light, the judge was well within his discretion to deny the motion to continue in order for the defendant to change counsel. Despite the lack of formal findings, we cannot say the judge committed error.

Waiver of the right to counsel. Once it was determined that the case would be proceeding that day, the defendant continued to indicate his displeasure both with the court's decision and with counsel. When the court indicated that the...