Opinion
15-P-931
04-03-2017
COMMONWEALTH v. Mark MEANS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury convicted the defendant of unarmed robbery, assault by means of a dangerous weapon, two counts of threatening to commit a crime, and ten counts of violating an abuse prevention order. After a separate jury-waived trial, the judge found the defendant guilty of being a habitual offender as to larceny from a person, see note 1, supra, and assault by means of a dangerous weapon. On appeal the defendant argues that (1) he did not validly waive his right to counsel at the habitual offender trial and at sentencing; (2) the evidence was insufficient to convict him of violating an abuse prevention order; (3) the judge gave an erroneous supplemental jury instruction on the definition of a threat; (4) one of his convictions of threatening to commit a crime is duplicative of his conviction of assault by means of a dangerous weapon; and (5) there was a "constellation of errors," including purportedly false testimony by a police officer, which left "unresolved before the jury" whether the victim had a cooperation agreement with the Commonwealth. We agree with the defendant that he did not voluntarily waive his right to counsel, but reject his remaining arguments. Accordingly, the judgments on all the convictions must be vacated, and the finding on the indictment charging the defendant with being a habitual offender as to the assault by means of a dangerous weapon charge must be set aside. The verdicts on the remaining charges are to stand, and the case is remanded for resentencing.
The judge allowed the defendant's motion under Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1502 (1995), to reduce the verdict on the unarmed robbery charge to the lesser-included offense of larceny from a person. The judge subsequently allowed the defendant's motion for new trial on this count, a ruling the Commonwealth does not appeal from. Thus, this aspect of the defendant's original convictions (along with the finding that the defendant was a habitual offender as to this count) is not before us.
1. Waiver of counsel. The defendant elected to represent himself at trial on the habitual offender charges and at sentencing after the judge allowed two appointed counsel to withdraw. He now argues that his waiver of counsel was not valid because it was the product of a forced choice between two untenable alternatives: proceeding with inadequate counsel or proceeding pro se.
The defendant was represented by appointed counsel Steven Weymouth at trial on the underlying offenses. After the trial concluded, the defendant filed a "motion to dismiss counsel and to appoint counsel to represent the defendant in the habitual phase," arguing that Mr. Weymouth was ineffective in preparing for trial; failed to seek a jury instruction on larceny from a person, despite the defendant's requests that he do so; and failed to prepare for the habitual offender phase of the proceeding. Mr. Weymouth concurrently filed a motion to withdraw his representation. After a hearing the judge allowed both motions and appointed Tracy Galla as new counsel for the defendant.
Several weeks later, Ms. Galla also moved to withdraw, asserting that she was "not the appropriate attorney to represent the [d]efendant for the [h]abitual portion of the trial" and that she was "not capable of arguing a proper sentence request on behalf of the [d]efendant" because she "was not the trial attorney." The judge held a hearing on the motion, at which Ms. Galla again represented that she "would not be effective in arguing a sentencing at this point as [she] was not [the] trial attorney" and thus did not "know what occurred, how evidence came in, [and] what didn't come in." The judge then conducted the following colloquy with the defendant:
THE COURT: "Okay. So, Mr. Means, you understand that Ms. Galla doesn't feel like she would be able to represent you adequately?"
THE DEFENDANT: "I understand that, Your Honor. I'd like to say I object to the appointment of Mr. Weymouth."
THE COURT: "Okay, but you understand that the same issue would be—it would be the same issue for any new attorney who didn't do the trial; right?"
THE DEFENDANT: "Yeah, I understand. I mean, yeah. I just don't think it's—I mean, at least with me, Your Honor, I researched everything, and like I said, he was ineffective and I still stick to that to this day. I mean, he didn't even prepare the case for trial. He didn't request for jury instructions and, you know, I mean, I totally object to him being reappointed to this case."
THE COURT: "Okay. So do you want to represent yourself for the rest of the case? I mean, is that what you want?"
THE DEFENDANT: "Yeah, that's fine."
THE COURT: "No, no, no. I don't want you to say that's fine. I'm asking—"
...
THE COURT: "Wait a second. I really want to stick with what we're talking about here, and I want to figure out whether you're saying that you would rather—Ms. Galla is saying she doesn't feel comfortable representing you because she didn't participate in the trial. And I understand that you talked to her about that and that you understand that."
THE DEFENDANT: "Yes, ma'am."
THE COURT: "The person who would best represent you is the person who was there for the trial, who could argue a sentence, an appropriate sentence. I know you're not happy with Mr. Weymouth, but I think he's willing to do this, and I think it would probably be better for you guys to work together as opposed to you working alone. Now, given that I just need you to think clearly about it and decide what you want to do."
THE DEFENDANT: "I disagree. No disrespect. Just because he was ineffective. He didn't prepare the case for trial, Your Honor."
THE COURT: "Okay. So you're saying you would prefer to represent yourself for the—"
THE DEFENDANT: "Do the best I can, yeah. It wouldn't be the first time."
After conducting this colloquy, the judge allowed Ms. Galla's motion to withdraw and appointed Mr. Weymouth to serve as the defendant's standby counsel. The defendant then proceeded to represent himself at the habitual offender trial and at sentencing.
We do not construe the judge's statement that lack of familiarity with the trial record "would be the same issue for any new attorney" to mean that no attorney other than trial counsel can provide effective assistance at sentencing. New counsel are often required, in a variety of procedural contexts, to familiarize themselves with an existing trial record in order to provide effective representation going forward. Judges should give more encouragement to ease the transition between counsel than what the judge did here and may do so by giving new counsel adequate time in which to prepare.
A criminal defendant may waive his right to the assistance of counsel if the waiver was knowing, voluntary, and intelligent. See Commonwealth v. Clemens, 77 Mass. App. Ct. 232, 240 (2010). In reviewing the judge's ruling that the defendant waived his right, we give "substantial deference" to "[f]actual findings related to the loss of the right to counsel" but "review claims of violations of the right to counsel de novo, making an ‘independent determination of the correctness of the judge's application of constitutional principles to the facts found.’ " Commonwealth v. Means, 454 Mass. 81, 88 (2009), quoting from Commonwealth v. Currie, 388 Mass. 776, 784 (1983).
"[A] defendant does not have a right to court-appointed counsel of his choice." Commonwealth v. Carsetti, 53 Mass. App. Ct. 558, 561 n.5 (2002). See Commonwealth v. Moran, 388 Mass. 655, 659 (1983). If the judge "make[s] available to an indigent defendant counsel with whom reasonable communication is possible, who is competent, completely loyal and, with the defendant's cooperation, prepared to defend him," then the defendant's "refusal to accept such representation is a voluntary waiver of the right to counsel." Commonwealth v. Lee, 394 Mass. 209, 216 (1985). Thus, in reviewing the defendant's waiver of counsel for voluntariness, we must determine that he "refus[ed] without good cause to proceed with able appointed counsel." Commonwealth v. Appleby, 389 Mass. 359, 366-367 (1983), quoting from Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir. 1976).
Turning first to the withdrawal of Ms. Galla, the record does not establish that the defendant refused to accept her representation. Rather, the defendant simply acquiesced to Ms. Galla's motion to withdraw, which was based on her own belief that she would "not be effective" at the sentencing phase because she was not trial counsel. During the colloquy the judge did not present the defendant with the option of proceeding with Ms. Galla as his attorney. Accordingly, we do not deem the defendant's failure to object to Ms. Galla's motion as constituting a waiver of his right to counsel.
As is clear from the colloquy, however, the judge did give the defendant the option of having Mr. Weymouth reappointed as his counsel. We must therefore determine whether the defendant had good cause for rejecting the reappointment. We conclude, in the unusual circumstances of this case, that he did. The defendant had earlier moved to dismiss Mr. Weymouth as counsel on the ground that he was ineffective. Although the judge did not make explicit factual findings on that issue, her allowance of the defendant's motion suggests that she found the defendant's claims to have some basis. Consequently, the judge could not then require the defendant to choose between proceeding with Mr. Weymouth or proceeding pro se. The defendant did not have a right to counsel of his choice, but, at the same time, he "may not be forced to proceed to trial with incompetent or unprepared counsel." Appleby, 389 Mass. at 366, quoting from Maynard, 545 F.2d at 278. See Commonwealth v. Cavanaugh, 371 Mass. 46, 53–54 (1976) (defendant did not voluntarily waive right to counsel when presented with choice between "proceed[ing] to trial represented by counsel who characterized himself as ‘unprepared’ " and "proceeding to trial pro se"). Thus, after "indulg[ing] every reasonable presumption against waiver [of counsel]," as we must, we conclude that the defendant's waiver was not voluntary. Commonwealth v. Gomes, 407 Mass. 206, 211 (1990), quoting from Johnson v. Zerbst, 304 U.S. 458, 464 (1938). On remand he is entitled to new appointed counsel, if he so requests, to represent him on the habitual offender charge and at resentencing.
We note that, at the hearing on the defendant's motion, Mr. Weymouth admitted that he "did make a mistake" by neglecting to request a jury instruction on larceny from a person. The defendant represented, without dispute, that he repeatedly asked Mr. Weymouth to seek such an instruction. The judge later noted that Mr. Weymouth's failure to request the instruction was a "serious omission," constituting ineffective assistance of counsel and requiring a new trial on the larceny charge. See note 1, supra.
2. Violations of abuse prevention order. To establish a violation of an abuse prevention order under G. L. c. 209A, § 7, the Commonwealth must prove beyond a reasonable doubt that "(1) a valid G. L. c. 209A order was entered by a judge and was in effect on the date of the alleged violation; (2) the defendant violated the order; and (3) the defendant had knowledge of the order." Commonwealth v. Shangkuan, 78 Mass. App. Ct. 827, 829 (2011), quoting from Commonwealth v. Griffen, 444 Mass. 1004, 1005 (2005). The defendant admitted at trial that he knew that the victim had obtained an abuse prevention order against him, and that he violated the order by continuing to contact her. His sole argument on appeal is that the order was invalid because he was not given notice of the hearing that led to its issuance.
The victim was granted an ex parte abuse prevention order against the defendant on November 22, 2012, with an expiration date of November 23, 2012. On November 23 she was granted a second ex parte order with an expiration date of December 3, 2012. The November 23 order contained the following statement: "The above and any subsequent Orders expire on the expiration dates indicated. Hearings on whether to continue and/or modify Orders will be held on dates and times indicated." The order then indicated that the time of the next hearing would be 9 A.M. , but the space for "next hearing date" was left blank. The defendant conceded at trial that he was served in hand with the November 23 order on the day it issued.
On December 3, 2012, the victim appeared for a hearing on extending the order, but the defendant did not. As a result the order was extended for a year until December 3, 2013. Ultimately, the defendant was convicted of violating the December 3 order by contacting the victim on ten different occasions in December of 2012 and January and February of 2013.
The defendant now contends that the December 3 order is invalid because the November 23 ex parte order did not specify the date of the extension hearing. We disagree. It is of course true that due process requires notice and the opportunity to be heard. See Commonwealth v. Delaney, 425 Mass. 587, 591 (1997). But contrary to the defendant's assertions, he was not denied those rights solely because of the missing hearing date on the November 23 order. The statement that there would be a "[h]earing[ ] on whether to continue and/or modify [the] [o]rder" put the defendant on notice that "extension beyond the [ten] day period was a very real possibility." Commonwealth v. Henderson, 434 Mass. 155, 162 (2001). Indeed, the defendant testified that he "knew about the [November 23] temporary order" and "knew that [he] had a right to challenge the temporary order." He further admitted that he was aware, no later than December 19, 2012, that the order had been extended for a year. At no point, however, did the defendant request a hearing or move to modify or vacate the extended order. See G. L. c. 209A, § 3, as amended by St. 1990, c. 403, § 3 ("The court may modify [an abuse prevention] order at any subsequent time upon motion by either party").
The defendant acknowledged that he had written a letter to the victim on December 19, 2012, in which he stated, "I'm not going to come near you with your restraining order," and "I would really appreciate it if you would lift your restraining order against me." In addition, he admitted directly that he knew the December 3 order was in effect when he wrote the letter.
Having failed to timely request relief once he became aware of the extension, the defendant cannot now complain that he was denied an opportunity to be heard. In Henderson the court held that the defendant's convictions under G. L. c. 209A comported with due process, even though he was unable to attend the extension hearing because he was incarcerated, and then was never served with the extended order that he was convicted of violating. See 434 Mass. at 162–163. The court reasoned that, because the defendant was aware that the ex parte order could be extended, it was incumbent on him to "notif[y] the court of his interest in attending the extension hearing" or to "seek rehearing or reconsideration." Id. at 163. See Delaney, 425 Mass. at 591–592 (due process did not require reversal of defendant's conviction for violating extended order that had not been served on him, where "with reasonable inquiry" he "could have discovered that the temporary order had been extended" and moved to vacate). We reach the same conclusion here. "[A] party may not ‘shut his eyes to the means of knowledge which he knows are at hand, and thereby escape the consequences which would flow from the notice if it had actually been received.’ " Id. at 592, quoting from Commonwealth v. Olivo, 369 Mass. 62, 69 (1975). The omission of the hearing date does not, in these circumstances, warrant reversal of the defendant's convictions.
3. Supplemental jury instruction on threat to commit crime. During their deliberations the jury submitted the following question to the judge: "Request for clarification in regards to the charge threat to commit a crime.... Please define what constitutes a threat. Does it have to be verbal? Or can it be expressed via gestures or by body language?" At the request of both defense counsel and the prosecutor, the judge instructed the jury that "the threat must be verbal." On appeal the defendant reverses course and contends that the supplemental instruction was erroneous. Because he did not raise this objection at trial (and indeed, invited the alleged error of which he complains), we review to determine whether there was an error and, if so, whether it resulted in a substantial risk of a miscarriage of justice. See Commonwealth v. St. Louis, 473 Mass. 350, 359 (2015).
The defendant correctly observes that a threat can be communicated through gestures and nonverbal expressions. See, e.g., Commonwealth v. Troy T., 54 Mass. App. Ct. 520, 526 (2002) ("The putative threat need not be oral [or] verbal"). Nonetheless, despite the apparent error, we conclude that the supplemental instruction did not create a substantial risk of a miscarriage of justice. By narrowing the definition of a threat, the instruction correspondingly narrowed the grounds on which the jury could convict the defendant of the two charges of threatening to commit a crime. Unsurprisingly, therefore, the defendant makes no claim that the instruction led the jury to wrongly convict him of those charges. See Commonwealth v. King, 460 Mass. 80, 86 (2011) (no substantial risk of miscarriage of justice where incomplete jury instruction "actually made the Commonwealth's burden of proof more difficult" [quotation omitted] ).
The defendant instead argues that the instruction "potentially impacted" his conviction on the separate charge of assault by means of a dangerous weapon. Specifically, his theory is that the jury might have "settled for the assault conviction based upon the erroneous instruction while bypassing the option of viewing the same evidence as better fitting the crime of threat." We reject this argument because the defendant does not claim that any part of the judge's instruction on assault by means of a dangerous weapon was erroneous, nor does he claim that the evidence was insufficient for the jury to convict him of that charge. Absent any claim of error, there can be no substantial risk of a miscarriage of justice. Cf. Commonwealth v. Roberts, 407 Mass. 731, 737–738 (1990) (where defendant did "not argue that there was error in the judge's instructions on armed robbery or that there was insufficient evidence to permit the jury to infer that the defendant had committed armed robbery," failure to give instruction on lesser-included offense of larceny did not create substantial risk of miscarriage of justice).
4. Duplicative convictions. The defendant next raises what he deems an alternative argument, which is that one of his convictions of threatening to commit a crime is duplicative of his conviction of assault by means of a dangerous weapon. Because the defendant did not preserve this issue for appeal, we again review for a substantial risk of a miscarriage of justice. See Commonwealth v. Gouse, 461 Mass. 787, 799 (2012).
"The traditional rule in Massachusetts ... is that ‘a defendant may properly be punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not.’ " Commonwealth v. Vick, 454 Mass. 418, 431 (2009), quoting from Commonwealth v. Valliere, 437 Mass. 366, 371 (2002). The defendant does not contest that the offense of assault by means of a dangerous weapon contains an element (use of a dangerous weapon) that the offense of threatening to commit a crime does not. Our analysis therefore centers on the reverse inquiry—whether threatening to commit a crime requires proof of an element that assault by means of a dangerous weapon does not.
The crime of assault by means of a dangerous weapon can be proved under one of two theories, "attempted battery" or "immediately threatened battery." Commonwealth v. Melton, 436 Mass. 291, 294 (2002). Here, the judge instructed the jury on both theories, and they did not specify which they ultimately relied on in convicting the defendant. The defendant advances no argument that his threat convictions would be duplicative of an assault conviction under the theory of attempted battery. He focuses solely on immediately threatened battery, which requires the Commonwealth to "prove that the defendant engaged in ‘objectively menacing’ conduct with the intent to put the victim in fear of immediate bodily harm." Commonwealth v. Gorassi, 432 Mass. 244, 248 (2000). In comparison, the offense of threatening to commit a crime requires proof of "an expression of intention to inflict a crime on another and an ability to do so in circumstances that would justify apprehension on the part of the recipient of the threat." Commonwealth v. Maiden, 61 Mass. App. Ct. 433, 434 (2004), quoting from Commonwealth v. Milo M., 433 Mass. 149, 151 (2001).
The Commonwealth introduced evidence that would seem to support a verdict on attempted battery, including the victim's testimony that the defendant stood by her bed with a meat cleaver and knife, chased her down the hallway, stated that he was going to kill her, and tried to force open the door to the closet where she was hiding.
We disagree with the defendant's suggestion that, in determining whether his convictions are duplicative, we can simply ignore the definition of "threat" contained in the jury instruction that he requested. "Counsel may not try a case on one theory of law, and then obtain appellate review on another theory which was not advanced at trial." Commonwealth v. Lazarovich, 410 Mass. 466, 476 (1991). Accord Roberts, 407 Mass. at 737 ; Commonwealth v. Shruhan, 89 Mass. App. Ct. 320, 324 (2016). "Appellate review should not be the occasion to convert the ‘consequences of unsuccessful trial tactics and strategy into alleged errors by the judge.’ " Lazarovich, 410 Mass. at 476, quoting from Commonwealth v. Johnson, 374 Mass. 453, 465 (1978). We therefore consider the jury instruction and, in doing so, conclude that the defendant's threat convictions are not duplicative of his assault conviction under a theory of immediately threatened battery. A threat, as defined in the instruction, requires a "verbal" communication. Assault by means of a dangerous weapon (under either theory) contains no such requirement. Thus, in the context of this case, each crime requires proof of an element that the other does not, making the convictions not duplicative.
We express no opinion on whether the convictions would be duplicative in the absence of the jury instruction.
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Despite the apparent error in the threat instruction, we conclude that there was no substantial risk of a miscarriage of justice. The defendant affirmatively requested the instruction, which was favorable to him with respect to the two charges of threatening to commit a crime. "Whatever the specific tactical reason for proceeding in this manner and regardless of its net effect, the fact that it was part of an apparent trial strategy weighs heavily in determining the existence of ... prejudicial effect." Commonwealth v. Adams, 434 Mass. 805, 813 (2001). Accord Shruhan, 89 Mass. App. Ct. at 324. Given that the instruction was a product of deliberate choice, we cannot say that it created a substantial risk of a miscarriage of justice.
5. Evidence of victim's cooperation agreement. Lastly, the defendant argues that, due to a "constellation of errors," the jury were not made aware of the fact that the victim agreed to testify against him in exchange for the dismissal of charges pending against her. It is not altogether clear from the defendant's brief whether he is claiming that the errors were the judge's errors, the result of prosecutorial misconduct, the result of ineffective assistance of defense counsel, or some combination of all three. Regardless, the defendant does not point to any specific objections he raised at trial, and so we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Dyer, 460 Mass. 728, 741 (2011).
The defendant first challenges the testimony of a police detective, asserting that the testimony was "false," yet the Commonwealth allowed it to go uncorrected. The defendant's argument is based on the detective's statement, in response to a question from defense counsel, that the hearing on the criminal complaint against the victim did not occur. That statement was in fact true, not false; as the defendant acknowledges in his brief, the hearing did not take place because the victim failed to appear. We see no error, let alone one that creates a substantial risk of a miscarriage of justice.
The defendant next challenges the testimony of the victim, asserting that it did not establish the "nexus between the prosecutor's decision not to prosecute her" and "her cooperation in the instant case." Both the prosecutor and defense counsel asked the victim several questions about her cooperation agreement, but, as the attorneys noted at sidebar, her testimony was "confused." Defense counsel explained during the sidebar that he wanted to elicit testimony "that, in fact, there is a reward here for cooperating, and that the case against [the victim] was dismissed." In response the judge stated: "I'm not saying that you're not entitled to that. I just don't know if you're going to get her to say that. You may have to have a stipulation or something like that, okay?" The prosecutor then offered to enter into a stipulation, provided that the letter memorializing the cooperation agreement was admitted in evidence. Defense counsel declined the offer.
The defendant fails to explain what error occurred in this exchange. The fact that his counsel could not elicit the testimony that he wanted from a "confused" witness does not show that the judge erred or that the prosecutor committed misconduct. The judge offered the defendant an alternative way to introduce the evidence, but he declined. There was no error and thus no substantial risk of a miscarriage of justice.
Conclusion. We vacate the judgments on all the convictions, and set aside the finding on the indictment charging the defendant with being a habitual offender as to the assault by means of a dangerous weapon charge. The verdicts on the remaining charges are to stand, and the case is remanded for resentencing.
So ordered.
Vacated in part and remanded.