Lamoureux v. Com.
| Decision Date | 31 January 1968 |
| Citation | 353 Mass. 556,233 N.E.2d 741 |
| Parties | Robert F. LAMOUREUX v. COMMONWEALTH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
A. David Mazzone, Boston, for petitioner.
Willie J. Davis, Asst. Atty. Gen., for the Commonwealth.
Before WILKINS, C.J., and SPALDING, CUTTER, KIRK and REARDON, JJ.
The petitioner (defendant) was convicted in the Superior Court on indictments charging robbery and kidnapping. On appeal the convictions were upheld. Commonwealth v. Lamoureux, 348 Mass. 390, 204 N.E.2d 115. His counsel then was a public defender, who was appointed on February 26, 1964, when the petitioner appeared in court without counsel. The facts in 348 Mass. show that the victim of the crimes was a secretary who had left her car in a Brockton shopping center parking space. After she returned and got in the car, she observed a man entering the car through the right rear door and pointing at her what she thought was a gun. He ordered her to drive through the city streets for perhaps an hour, during which he took her wallet. Just before her escape, he beat her on the head with a hard object.
In this writ of error in the county court he is represented by other counsel, and claims that there was error in the Superior Court in that he, an indigent, was not permitted to discharge the public defender and to be assigned at public expense a new counsel, not named, of his own choosing. His sole contention before the single justice was that he was deprived of rights under the Sixth Amendment of the Constitution of the United States. After a hearing at which the petitioner testified, the single justice entered an order that the judgment be affirmed. The petitioner excepted.
We summarize the findings of the single justice. The petitioner's principal contention is that he was dissatisfied with the public defender's preparation and conduct of his case, making it reasonable for him to request other counsel; and that he was not given an opportunity to state to the judge the basis of his request. The petitioner expressly disclaimed any intention to charge the court appointed counsel with negligence.
On May 4, 1964, at a preliminary hearing, the public defender told the judge that the defendant said something to him about not knowing whether he wanted the defender to continue on the case, but did not know whether there still was any question in the defendant's mind. The defendant broke in with the statement that he felt that his counsel was 'a pretty busy man' and he would like to have an attorney of his own choosing if he possibly could. When asked if he could pay for one, the defendant replied that he could not.
After this preliminary hearing the judge 'in chambers' asked the public defender if he would like to be relieved of the assignment. The latter replied that he was better prepared than another attorney would be, and that he would continue with the case.
The trial began on May 14, 1964. The defender thought that he and his client 'were getting along quite well.' The next day, in the presence of the jury and before any testimony was taken on that day, the defendant, without warning, spoke up, saying that he wished to address the court, and that he did not want his then counsel to defend him. The judge reminded him that his counsel was the public defender. The defendant repeated that he did not want his counsel to defend him. The judge ordered him to be seated. The defender continued with the case, but it was 'a very difficult situation' which he controlled as best he could.
The petitioner testified before the single justice that he believed that his trial counsel was overburdened with public defender work which interfered with the preparation of his case; and that the defender pressed him to plead guilty. The petitioner also contended before the single justice that his counsel should have interviewed, and perhaps called, three witnesses not called by the prosecution: (1) one Wilde, who saw the victim as she was driving her car under the direction of a kidnapper concealed in the car; and (2) a Mr. and Mrs. Allingham, to whose house the victim went when she left the car following the assault.
The single justice found that counsel was the sole public defender for two counties and had in his charge about 340 to 345 pending criminal matters; that he is a competent trial lawyer experienced in criminal cases; that he investigated the case and conscientiously prepared for trial in accordance with his best judgment; and he pointed out to the defendant the risks of trial and explored with the defendant the possibility of a plea of guilty; that his decision not to interview of call the three witnesses was made after consultation with the defendant; that there was no basis to believe that Wilde had seen the kidnapper or knew that the victim was under restraint; and that there was also no basis for believing that the Allinghams could testify to facts other than the victim's wounded, bloody, and hysterical condition.
At the hearing before the single justice the petitioner made two other points: (1) His counsel did not seek to find evidence that the petitioner had been in a western State at the time of the crime. The single justice found that the petitioner throughout the preparation of the case told counsel that he had been in Brockton at the time, and there was,...
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