Commonwealth v. Jeffrey L. Clemens, July 8, 2010
77 Mass. App. Ct. 232
Assistance of Counsel, Self-Representation, Waiver of Constitutional Rights
The defendant appealed from his conviction for disorderly conduct, in violation of G.L. c. 272, § 53, following a jury trial in the District Court. The appeal challenges the manner in which the judge coupled allowance of the defendant's request to discharge appointed counsel (denying his request for new counsel) with a decision to require the defendant to represent himself. The defendant argued that there was inadequate colloquy between the judge and the defendant to inform the defendant of the risks of going forward if unrepresented by counsel. Without adequate warning, the judge could not conclude that the defendant was sufficiently informed to warrant an implied waiver of his right to counsel. The Appeals Court reversed, holding that the colloquy was inadequate to support a finding of a knowing waiver of counsel.
Facts
The disorderly conduct charge stems from a May 12, 2005 incident with the police. The case was called for trial on September 18, 2008 and attorneys for both parties reported their readiness for trial. Prior to jury empanelment, both defense counsel and the defendant sought to address the judge. These attempts were not acknowledged. After empanelment, defense counsel informed the judge of a disagreement with the defendant over trial readiness and strategy. The defendant wanted to discharge his attorney (his third) and requested new counsel. The judge informed the defendant that if the defendant wanted to discharge his attorney, a new attorney would not be appointed, and the defendant would have to represent himself. The judge would not uncouple the allowance of the attorney discharge with the requirement for self-representation by the defendant. The trial proceeded with the former defense counsel appointed as standby counsel.
Motion for new counsel
The Appeals Court held that the judge did not err when he denied the defendant's motion for new counsel. The defendant has the burden of showing good cause to remove appointed counsel. There was no showing of good cause in the records, and the defendant failed to complain before trial of defense counsel's efforts or strategy decisions.
The Appeals Court noted however, that the judge should have made further inquiry regarding the cause for the request to remove defense counsel. A judge needs to provide an opportunity for the defendant to address the court about dissatisfaction with counsel. Here, the defendant was not permitted to speak prior to empanelment. After jury selection, the judge's colloquy with the defendant, once he was given the opportunity to speak, was inadequate both for the defendant to justify his dissatisfaction with counsel and for the judge to make an informed decision.
The Appeals Court held that though the defendant had been given inadequate opportunity to explain his reasons for requesting new counsel, the records show insufficient cause to remove counsel, and the lack of inquiry at trial does not require reversal here.
Implied waiver of the right to counsel
Defendant contends that he did not knowingly and voluntarily waive his right to counsel. The colloquy between the defendant and the judge served only to inform the defendant that the discharge of defense counsel would lead to self-representation. There was no inquiry into the reasons for the request or providing any information to the defendant concerning the risks of being unrepresented. After denying the defendant‟s request for new counsel, the judge asked the defendant if he wanted defense counsel to represent him, the defendant responded no, and the judge discharged defense attorney.
A criminal defendant can effectively waive his right to the assistance of counsel by an affirmative, express waiver of his right to counsel at trial. The defendant did not request or express that his right to counsel be waived, such waiver was not formalized in writing and signed by the defendant, and there was no appropriate colloquy.
Forfeiture of the right to counsel does not require prior warning to the defendant by the judge. Forfeiture is an extreme sanction in response to extreme conduct (ex. a defendant physically assaulting counsel). Circumstances here did not invoke forfeiture.
A defendant can also implicitly waive his right to counsel by his conduct, provided that the defendant was previously warned by a judge against the misconduct. This is also termed abandonment of counsel. An implied waiver of counsel is not the automatic consequence of a defendant‟s insistence on the discharge of counsel.
Here, the defendant was not warned that he had one of two choices: continue with his appointed counsel or represent himself at trial. Self-representation occurred simply as a result of the defendant's request for the judge to discharge counsel. There was no basis upon which the judge could conclude that the defendant was aware of the difficulties and risks of self-representation. While the defendant insisted on the discharge of his counsel, the judge conducted no colloquy and administered no warning concerning the difficulties attendant to self-representation. The Appeals Court held that the judge's ruling requiring the defendant to represent himself was erroneous.
Since the defendant was not given the choice of continuing with his counsel or representing himself after the judge was satisfied that the defendant knew of the consequences and risks of self-representation, an implied waiver of counsel by abandonment had not been shown, and reversal was required.
The Appeals Court reversed the judgment and set aside the verdict.
- Prepared by AYK
