Pugliese v. Com.

• Decision Date: 27 February 1957
• Citation: 140 N.E.2d 476,335 Mass. 471
• Parties: PUGLIESE v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 476

140 N.E.2d 476

335 Mass. 471

PUGLIESE v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 8, 1957.

Decided Feb. 27, 1957.

Walter N. Kernan, Boston, Nathaniel T. Dexter, Boston, with him, for pugliese.

Samuel W. Gaffer, Arnold H. Salisbury, Asst. Attys. Gen., for the Commonwealth.

Mark D. Howe, Cambridge, La Rue Brown, Boston, amici curiae.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and CUTTER, JJ.

WILKINS, Chief Justice.

The plaintiff in error, whom we shall call the petitioner, is serving four concurrent sentences imposed in the Superior Court for Middlesex County on June 13, 1946. Two sentences of not exceeding ten nor less than eight years were for kidnapping, and two of not exceeding fifteen nor less than twelve years were for assault with a dangerous weapon with intent to rob and robbery. On October 25, 1954, he sued out a writ of error in this court, assigning as error that he, an indigent person, was tried without counsel in violation of his rights under art. 12 of the Declaration of Rights of the Constitution of Massachusetts and under the Fourteenth Amendment to the Constitution of the United States. G.L.(Ter.Ed.) c. 250, § 9. The single justice reserved and reported the case without decision upon the petition, assignments of error, the return, the answer, and his findings of fact.

The facts appear from the single justice's findings or as matter of record. The indictments were against the petitioner, one Frizzi, one Silva, and one Brazzo, and arose out of one occurrence in which they allegedly took part with one Brigiola, who was separately indicted. Silva pleaded guilty and testified for the Commonwealth. The indictments against Frizzi were nol prossed for lack of adequate identification. The indictments against Brazzo, Brigiola, and the petitioner were tried. Brazzo and Brigiola were each represented by attorneys. The petitioner did not have counsel. Brigiola was found not guilty. The petitioner and Brazzo were found guilty.

The petitioner, born in 1923, is of normal appearance and speech. He is of low intelligence at about the border line of feeble-mindedness. Beginning with kindergarten he attended school for only seven years, getting through the third grade. He has been classified by examining psychiatrists as a high-grade moron. He tests for intelligence at about 68 to 70 on a numerical scale which fixes normal at 100, and on which the area from 80 to 100 is called by the psychiatrists dull normal. The border line of feeble-mindedness is fixed by them in the area about or just above 70. He was not suffering from mental disease or psychosis which would affect his criminal responsibility, and was aware of what it meant to plead guilty to indictments for robbery, assault with a dangerous weapon, and kidnapping. He uses and understands the language of usual ordinary communication among adults and had no difficulty before the single justice in answering in good English the questions of counsel relevant to the four cases in which he was convicted. In 1941 psychiatrists found the petitioner was feeble-minded, with confirmed habits of delinquency, and recommended to the superintendent of the Concord Reformatory that he be committed to the department of defective delinquents at Bridgewater. One of the psychiatrists then found the petitioner to have a 'pre-psychotic personality.' His discharge from the army in April, 1944, was 'Type: Other than honorable,' and the reasons stated were 'Inaptness and habits and traits of character which rendered his retention in service unnecessary.' His condition was diagnosed as 'mental deficiency unstable type.'

The petitioner has been in court on criminal charges twelve to fourteen times beginning in 1934 when he was eleven years of age. In 1939, on a charge of rape, he was represented by counsel and found not guilty. In 1945, he was tried in Suffolk County on four counts for robbery, was represented by counsel and found not guilty. He did not have counsel in two cases in the Boston Juvenile Court and in six cases in District Courts.

On April 11, 1946, the petitioner, when represented by a member of the Voluntary Defenders Committee, pleaded guilty to an indictment in the Superior Court for Suffolk County, and was sentenced to a term of four to five years. In 1946 the Voluntary Defenders Committee was not operating in Middlesex County because of a limited staff. A member of that committee, who interviewed the petitioner in February, March, and April, 1946, as to the Suffolk County charges, told the petitioner that he could not represent him in Middlesex County and suggested that the petitioner ask the court to appoint counsel.

On June 13, 1946, the petitioner, who had pleaded not guilty on March 8, 1946, was brought to court at Cambridge from the State Prison. While in the dock awaiting trial he asked the assistant district attorney if the court would appoint counsel, and was told that the court did not do so in noncapital cases. Later the judge asked the ptitioner if he was represented by counsel, and the petitioner answered that he did not have counsel and would have to represent himself. The petitioner was then without funds to secure counsel. The petitioner questioned one witness during the trial. He did not then know of the statutory provision for summoning witnesses at State expense. He had in mind one or more witnesses, known to him only by nickname, who, if found, might have been interviewed in the hope that their testimony might help to establish as an alibi that the petitioner had been in a Revere night club at the time of the crimes. The petitioner knew that the could take the stand. Other defendants did so.

In Allen v. Commonwealth, 324 Mass. 558, at pages 560-561, 87 N.E.2d 192, at page 194, this court said in 1949: 'The provision in art. 12 of the Declaration of Rights that every subject shall have a right 'to be fully heard in his defence by himself, or his counsel, at his election' has never been deemed to require the court to appoint counsel, even if the defendant is indigent.' 'It must be regarded as settled by McDonald v. Commonwealth, 173 Mass. 322, 324, 327, 53 N.E. 874, that neither in its constitutional nor in its statutory provisions does the law of this Commonwealth require that a person charged with other than a capital offence be furnished counsel.' 324 Mass. at pages 561-562, 87 N.E.2d at page 194. On the same day this court said: 'Article 12 of the Declaration of Rights does not require that counsel be furnished, and we may add that no statute requires it in noncapital cases.' Commonwealth v. Blondin, 324 Mass. 564, 568, 87 N.E.2d 455, 458.

In the cases just cited there were no findings of intellectual inferiority. In fact, the reverse was true. Consequently, no question was presented under that portion of art. 12 which commands that 'No subject shall be * * * put out of the protection of the law * * * or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.' As stated in an opinion of this court by Chief Justice Rugg, art. 12 'is one of the great landmarks of human freedom. * * * It is an additional shield to protect...