COMMONWEALTH vs. DANIEL J. DELOREY.
Supreme Judicial Court of Massachusetts
December 22, 1975
369 Mass. 323
Worcester. September 16, 1975. — December 22, 1975. Present: TAURO, C.J., REARDON, QUIRICO, HENNESSEY, KAPLAN, & WILKINS, JJ.
Discussion of decisions of this court involving claims of infirmity in prior convictions or pleas of guilty of defendants entitled to be represented by counsel who neither had counsel nor waived counsel. [328-330]
The record of a conviction for operating a motor vehicle while under the influence of intoxicating liquor warranted a conclusion that the defendant had intentionally and knowingly waived his constitutional right to counsel during the twenty-two days before trial where it appeared that, although the defendant had not signed a waiver under S.J.C. Rule 3:10, as amended, 355 Mass. 803 (1969), and had requested assignment of counsel under the rule, the trial judge found that the defendant was able to pay for counsel and denied the request; the record was properly admitted at a subsequent trial of the defendant for a similar offense to impeach his credibility. [330] HENNESSEY, J., concurring.
None of the forms established by S.J.C. Rule 3:10, as amended, 355 Mass. 803 (1969), was applicable to a criminal trial in which the judge found after a hearing that the defendant was able to pay for counsel. [330-331]
FOUR COMPLAINTS received and sworn to in the District Court of Western Worcester on November 21, 1973.
On appeal to the jury session of the Central District Court of Worcester, the cases were tried before George, J.
Conrad W. Fisher for the defendant.
John C. Fisher, Assistant District Attorney, for the Commonwealth.
The record of the defendant‘s prior conviction on February 20, 1973, for operating a motor vehicle while under the influence of intoxicating liquor was offered by the prosecutor to impeach the defendant‘s credibility in accordance with
The defendant contends that the record of conviction which was offered against him was inadmissible because it failed to show that at the trial for the earlier offense he
It is appropriate to note at this point that the issue before us is not whether the defendant was entitled to be represented by counsel at the trial of the present cases or the earlier cases. On the dates of the defendant‘s convictions, S.J.C. Rule 3:10, as amended, 355 Mass. 803 (1969), which is reproduced in the margin,1 provided that “[i]f a defendant charged with a crime, for which a sentence of imprisonment may be imposed, appears in any court without counsel, the judge shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel.” Costarelli v. Municipal Court of the City of Boston, 367 Mass. 35, 44 (1975). Gideon v. Wainwright, 372 U.S. 335 (1963).
It is undisputed that the defendant was not represented by counsel at any stage of the proceedings on the com-
Basically, this is another of the many cases requiring consideration of the consequences of the rule established by the decision in Gideon v. Wainwright, 372 U.S. 335 (1963), making the right to counsel guaranteed by the Sixth Amendment to the United States Constitution applicable to States by virtue of the Fourteenth Amendment. This rule was described in Burgett v. Texas, 389 U.S. 109, 114 (1967), as “making it unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one” (emphasis supplied). In the Burgett case the trial judge had admitted against the defendant, who was being tried for one felony, records showing that he had committed four prior felonies, thus subjecting him to a life sentence under a recidivism statute. The records of the four earlier convictions were silent on the question whether the
In Loper v. Beto, 405 U.S. 473 (1972), the trial judge admitted records of prior convictions to impeach the defendant‘s credibility as a witness. The records were silent on the question whether the defendant was represented by counsel in those cases. In its decision in the Loper case the Supreme Court described the rule of the Gideon case (481) as “a clear and simple constitutional rule: In the absence of a waiver, a felony conviction is invalid if it was obtained in a court that denied the defendant the help of a lawyer” (emphasis supplied). Treating the case as one where there was no waiver by the defendant, the Court said (483) “that the use of convictions constitutionally invalid under Gideon v. Wainwright to impeach a defendant‘s credibility deprives him of due process of law,” and it then (483) quoted from Gilday v. Scafati, 428 F.2d 1027, 1029 (1st Cir.), cert. denied, 400 U.S. 926 (1970), the statement that “[t]he absence of counsel impairs the reliability of such convictions just as much when used to impeach as when used as direct proof of guilt.”
Since the Burgett case was decided by the United States Supreme Court, this court has also decided a number of cases involving claims of infirmity of convictions or pleas of guilty of crimes where the defendant, being entitled to be represented by counsel either under the Sixth Amendment to the United States Constitution or under S.J.C. Rule 3:10, neither had counsel nor waived his right to counsel. Some of the cases involved direct appeals from or postconviction attacks on the convictions or pleas, while others involved objections to the use of the records of convictions to impeach credibility under
1. In Williams v. Commonwealth, 350 Mass. 732 (1966), we set aside a probation revocation grounded on a plea of guilty, stating the following reason therefor (734): “Here the record fails to reveal whether the petitioner was indigent. There is nothing to show whether the petitioner could have retained his own counsel and chose not to do so. There is nothing to indicate that the petitioner was informed of his right to have counsel, that he elected to proceed without counsel, or that he either waived counsel or refused to sign a waiver.” Substantially the same factual situation and legal result prevailed in Cardran v. Commonwealth, 356 Mass. 351, 354 (1969), MacDonnel v. Commonwealth, 353 Mass. 277, 281 (1967), and Commonwealth v. Barrett, 3 Mass. App. Ct. 8, 9-16 (1975).* In Walter v. Bonito, 367 Mass. 117, 123 n.1 (1975), the plaintiff called the defendant as his own witness and was then allowed to impeach his credibility by a record of his prior conviction of a crime. We held that this was error, but did so without reaching the defendant‘s claim that he had not been represented by counsel in the earlier case.
2. In Subilosky v. Commonwealth, 358 Mass. 390, 392-394 (1970), and Gilday v. Commonwealth, 355 Mass. 799 (1969), where records of prior convictions of the defendants in cases in which they neither had counsel nor waived their right to counsel were admitted to impeach the credibility of the defendants as witnesses, this court concluded that the improper use of such records was “harmless beyond a reasonable doubt,” citing the case of Chapman v. California, 386 U.S. 18, 24 (1967). On the applicability of the “harmless error” rule to such a case, see the later decision in Loper v. Beto, 405 U.S. 473 (1972).
3. Several cases decided by this court involved the sufficiency of the evidence to establish that a witness whom it is sought to impeach by a record of a prior conviction either “had or waived counsel in the proceeding certified by the record.” Gilday v. Commonwealth, 355 Mass. 799 (1969). In Commonwealth v. Boudreau, 362 Mass. 378, 382 (1972), we held that it was sufficient that on the complaint in the earlier case there was an entry “For defendant — D. Kurzon, Esq.” in the space provided for that purpose. We reached the same conclusion in Commonwealth v. Deeran, 364 Mass. 193, 197-198 (1973), where the entry on the complaint offered as the record of earlier conviction was: “I find this defendant not indigent. (signed) John W. McLeod, Justice. Defendant did not want counsel.” In reaching this conclusion we said: “We find nothing in Loper v. Beto [405 U.S. 473 (1972)] about any constitutional requirements that waiver of counsel be proved in any particular way. . . . In the circumstances of this case, failure to prove compliance with the formal requirements of Rule 3:10 does not prevent use of the prior conviction to impeach the defendant.”
In this case, as in the Deeran case, the decisive question is whether there was sufficient evidence in the record of the defendant‘s earlier conviction to establish a waiver by him of his right to be represented by counsel. We hold that there was.
The defendant‘s emphasis on the absence from the record of the several forms established by S.J.C. Rule 3:10 is misplaced. The rule establishes three forms to be used by the courts in the administration of the rule. The first is a waiver to be signed by a defendant acknowledging that he has been informed of his right to have counsel appointed for him, electing to proceed without counsel, and waiving his right to such counsel. The second is a certificate to be signed by the judge to the effect that the defendant was informed of his right to have counsel appointed for him, that the defendant elected to proceed without counsel and signed a waiver of counsel. The third form is also a certificate of the judge in the same language as the second except for the last clause which certifies instead that the defendant refused to sign a waiver of counsel. Thus none of the forms applies to the facts of this case where the judge, having found that the defendant was able to pay for counsel, did
By reason of our conclusions and holdings above we do not reach the other grounds on which the Commonwealth argued in support of the admissibility of the record of the defendant‘s prior conviction.3
Exceptions overruled.
HENNESSEY, J. (concurring). I concur in the result and the reasoning. Nevertheless, I consider it useful to comment once more, as I did in a concurring opinion in the case of Commonwealth v. DiMarzo, 364 Mass. 669, 678-683 (1974), that unfair prejudice to the defendant may result in some cases where proof of prior convictions is received for impeachment purposes. No matter how carefully the jury may be instructed as to the limited purpose of the evidence, common sense and experience indicate that jurors in some cases may well regard the prior convictions of the defendant as proof of guilt. “The danger of prejudice most clearly arises when the prior convictions [as in the instant case] are similar in nature to the indictments on trial.” Commonwealth v. DiMarzo, supra at 680. I suggest once more that justice may be assisted by legislative attention to the problem. See Commonwealth v. DiMarzo, supra at 683.