Commonwealth v. HempelCommonwealth v. Hempel
Indictments found and returned in the Superior Court Department on May 15, 2015.
The cases were tried before Gary A. Nickerson, J., and a motion for a new trial, filed on February 1, 2023, was heard by Michael K. Callan, J.
RUBIN, J. After a jury trial in the Superior Court, the defendant was convicted of home invasion,
On appeal, the defendant primarily argues that he was allowed to represent himself for a portion of the trial, relegating his attorney (trial counsel) to the role of standby counsel, but that the trial judge failed to provide the warnings and make the inquiry required under
1. Background.
a. The crimes.
We recite the facts that the jury could have found. On March 23, 2015, the defendant kicked open the locked front door of Susan Finn‘s apartment, without permission. Finn was in the apartment with her
b. Appointment of counsel.
After the defendant was indicted, he was assigned three different court-appointed lawyers before his trial counsel was appointed.2
On May 11, 2016, two months before the trial date, the defendant filed a motion for appointment of new counsel. At the motion hearing, trial counsel reported that “there is a strong disagreement between what I think the correct trial posture is and what Mr. Hempel says.” The judge inquired about the defendant‘s experience with the court system, focusing on the
Before the next pretrial conference, held on June 16, 2016, the defendant filed a motion to dismiss his attorney. At the hearing, the judge excused the prosecutor and closed the courtroom. The defendant then aired a laundry list of complaints about his attorney, after which trial counsel stated that the defendant “wants to call some witnesses that I cannot call” because “I think I would have an ethical issue.” The judge said, “I assume rightly or wrongly, the concern is whether there‘s a question of perjury or subornation of perjury,” to which trial counsel responded, “Yes.” The judge said, “[T]here
c. The trial.
On the day the trial began, the judge asked the defendant, “Are you going to be representing yourself? Is [trial counsel] going to be then relegated to the role of standby counsel? Are you going to use [trial counsel] as your counsel?” The defendant replied, “[Y]ou said that he would be a standby. So, I was kind of going by that assumption.” The
The next morning, prior to the beginning of jury selection, the judge announced, “I am going to conduct a hearing or a colloquy with Defense counsel and Mr. Hempel and the Court. The courtroom will be closed.” The defendant reported that he and trial counsel had discussed “me questioning the witness that [trial counsel] didn‘t want to question . . . . And then to have [trial counsel] do the things that I feel are . . . in my best interest for him to do . . . so that I don‘t hurt myself.” The defendant was concerned that he would not be able to act in his own best interests because “I only have a [general educational development certificate (GED)].” The judge responded, “[Y]ou and I have had a fair amount of dealings . . . . [Y]ou are always articulate. You always have something
The judge then explained to the defendant that, although Mitchell was “different than our situation where we‘re dealing with a witness,” Mitchell was still the only Massachusetts case that gave him guidance, even though it involved a defendant who was going to testify falsely as opposed to potential witness perjury. He also said, “[W]hether that would be an appropriate way to handle a witness, I don‘t have any guidance from the Supreme Judicial Court of our state on that subject. But it would seem to me that‘s one model, one way to do it.”
The judge explained to the defendant trial counsel‘s ethical concern in calling Doyle to ensure that the defendant had “a very clear understanding” of the issue. This is required under Mitchell when a defendant insists on testifying despite trial counsel being ethically bound not to call that defendant. See Mitchell, 438 Mass. at 552 (defendant must “clearly understand the situation he has created“). The judge also warned the defendant that he risked further legal consequences, including further prosecution, if he were to suborn perjury by calling Doyle himself.
The defendant continuously expressed concerns about his ability to represent himself. He said, “[Trial counsel] should
The judge discussed how the Mitchell approach worked in the case of a defendant testifying. The defendant expressed concern about how it would work in his case. The judge then said, “But, you know, Mr. Hempel, you are an intelligent man. . . . I don‘t care how far you went in school. . . . You know, I have had people that are dropouts that are a hell of a lot brighter than some of the lawyers I see, you know? . . . It‘s the simple truth.” The judge then said, “[I]f I were making a decision about this, I would say, [w]ell, Mitchell is my best guidance. That‘s my decision. But how to conduct the trial really is between you two. I can‘t make your tactical decisions.”
The judge said he needed to know, “Are we proceeding in a fairly strict sort of Mitchell format? In other words, [trial counsel is] carrying the ball but for that witness? Or are we going to proceed where you are representing -- you know, in the past, you have said, I want to represent myself. You have told
Trial counsel delivered an opening statement and cross examined the Commonwealth‘s witnesses. During the defense case, trial counsel called and examined one defense witness. The defendant then called and examined Doyle as a witness. Doyle testified that on the day of the attack, she “waved” the defendant into Finn‘s apartment and then a third party attacked the defendant with an axe. She testified that she ran out the back door as soon as the fight began, and flagged down a passing motorist who took her to the police station. She testified that while there, she was hysterical, terrified, and under the influence of illegal drugs.
On cross-examination, Doyle was confronted with prior verbal, written, and recorded statements that she made to the police that were inconsistent with her trial testimony. This included that Doyle had told multiple police officers and a dispatcher that “Jamie Hempel was armed with an axe and a knife and he was killing everyone at [Finn‘s address].” She continuously asked whether Finn was okay, implying that she
The prosecutor also presented Doyle‘s previous statements describing in some detail the defendant‘s past violent conduct and threats, including evidence that she was afraid of the defendant and had sought a
After a lunch recess, and before conducting redirect examination, the defendant asked to speak to the judge. The judge obliged but recommended that the defendant speak to trial counsel first, to which the defendant replied,
“No. I know what to say. I don‘t want to talk to him anymore. The statement that [the prosecutor] just read from the Eastham police, okay, I didn‘t have any of that before it was read into -- I don‘t know how that was allowed. And before I called this witness, I didn‘t know none of this was going to be called [sic] if I called [Doyle] to the stand.”
The judge responded, “I don‘t know what your conversations have and haven‘t been with [trial counsel]. . . . I don‘t know what you were and weren‘t aware of in any of this.”
Trial counsel then notified the judge that the defendant intended to handle the cross-examination of any Commonwealth rebuttal witnesses and present his own closing argument. The defendant confirmed that he wanted trial counsel to stay on as standby counsel. The judge responded, “If you‘re telling me that you‘re taking over the case, then that means that if there‘s any case in rebuttal, you would be doing the cross examination and closing arguments.” The defendant responded, “Yeah, that‘s not a problem.” The judge then said, “The Court has had numerous dealings with Mr. Hempel and the Court has no concern that the gentleman suffers from any mental health condition that would preclude him from going forward.” At no point did the judge conduct a colloquy, ask any questions, or give any warnings to the defendant to ensure that his decision to represent himself for the remainder of the trial was knowing and intelligent.
The defendant conducted redirect examination of Doyle, and the prosecutor conducted recross-examination. The defendant decided not to testify and rested his case. The prosecutor called two rebuttal witnesses, and the defendant chose not to cross-examine them.
At the charge conference the next day, trial counsel made two brief comments, including agreeing with the prosecutor about which theory of assault was at issue in the case. After
2. Discussion.
a. Standard of review.
“Under the
b. Waiver of the right to counsel.
A defendant has the freedom to waive his right to counsel and represent himself. See Commonwealth v. Johnson, 424 Mass. 338, 340 (1997). Indeed, he has a constitutional right to represent himself. See Faretta v. California, 422 U.S. 806, 807 (1975). But when a defendant seeks to represent himself and, therefore, necessarily to waive his right to counsel, a judge “bears a ‘serious and weighty responsibility’ to ascertain whether the waiver is knowing and intelligent.” Commonwealth v. Barros, 494 Mass. 100, 112 (2024), quoting Commonwealth v. Cavanaugh, 371 Mass. 46, 53 (1976).
“Under
The judge must conduct a “careful inquiry on the record” to determine whether the waiver is knowing and intelligent. Means, 454 Mass. at 89. ”
c. Standby counsel.
A defendant who has properly waived his right to counsel may be appointed so-called “standby counsel.” See, e.g., Commonwealth v. Leonardi, 76 Mass. App. Ct. 271, 275-276 (2010). This is provided for by
Appointing standby counsel to assist a defendant is a form of “hybrid representation.” Commonwealth v. Molino, 411 Mass. 149, 153 n.5 (1991). “In the typical hybrid representation, a trial court acts in its discretion to appoint standby counsel
“The term ‘hybrid representation’ encompasses two forms of attorney-client relationships. First, the attorney may act as cocounsel to the defendant: Both the attorney and the defendant may address the court, question witnesses, and join in the conduct of the trial. Second, the attorney acts in a purely advisory capacity, providing the defendant with advice on how to present the case, but not actually participating in the presentation of the case. Standby counsel usually falls in the latter category.”
Molino, supra, citing Locks v. Sumner, 703 F.2d 403, 407 (9th Cir.), cert. denied, 464 U.S. 933 (1983).
The appointment of standby counsel is commonplace. We see it routinely, and indeed, before a defendant may knowingly and intelligently waive his right to counsel, he must be adequately aware of “the availability of advisory counsel.” Barros, 494 Mass. at 101. By contrast, Molino, 411 Mass. at 153 n.5, is the only reported Massachusetts case in which a relationship between an attorney and defendant has ever been described as “cocounsel.”
d. Application of Mitchell.
In its brief, the Commonwealth states that defense counsel “acted as standby counsel for the defendant‘s case, including [handling] the direct examination of Doyle and the defendant‘s closing argument.” It argues, though, that the inquiry ordinarily
Here, the judge essentially adopted a broadened Mitchell model to allow the defendant to call and examine Doyle, whom, because trial counsel knew she would perjure herself, trial counsel could not ethically call. This was not an unreasonable approach as, at the time of trial, Commonwealth v. Leiva, 484 Mass. 766, 774-775 (2020), discussed infra, had not yet been decided. Indeed, it is fair to say that the judge took some care with respect to the calling and examination of Doyle to ensure that the law, as he understood it, was followed.
But Mitchell is of no application here. Mitchell does not stand for the proposition that there are circumstances where a defendant can waive his right to counsel and represent himself without the inquiry required by
“To the extent that the court in Mitchell suggested that direction of narrative testimony requires a defendant‘s limited waiver of the right to counsel‘s assistance, we clarify that where a trial judge implementing [
Mass. R. Prof. C. 3.3 (e) ] exercises discretion to direct that a defendant‘s testimony take narrative form (should the defendant persist in the decision to testify falsely), this does not leave the defendant ‘unrepresented’ during that testimony. Where the defendant decides to testify under these circumstances, that decision carries a rule-based relinquishment of the right to direct examination by counsel, which counsel is accordingly duty-bound to explain as part of the remonstration requirement [(i.e., the requirement underrule 3.3 (e) that counsel ‘strongly . . . discourage’ the client from perjuring himself and ‘advis[e] that such a course [of conduct] is unlawful, will have substantial adverse consequences, and should not be followed‘)].”
Id. Leiva thus explains that Mitchell leaves intact the rule that waiver of the right to counsel requires the searching on-the-record inquiry described by the court in Barros, 494 Mass. at 100-101, even in a situation where the Mitchell procedure is used for a defendant exercising the constitutional right to testify in the defendant‘s own behalf despite counsel‘s inability ethically to call and examine the defendant.
e. The defendant‘s self-representation.
On this record, we conclude that once the defendant conducted the redirect examination of Doyle, and until the conclusion of the trial, he
Our dissenting colleague concludes that throughout the trial, including both during the direct examination of Doyle and the period after Doyle‘s cross-examination, the defendant had the other form of hybrid representation, in which the client and the attorney are “cocounsel,” rather than the attorney acting as standby counsel. Post at .
As we have described, this is contrary both to what the judge and the defendant said, and to what the defendant did as
Perhaps more fundamentally, although our dissenting colleague recognizes that “[h]ybrid representation with the attorney acting as an advisor effectively waives the right to counsel and thus must be accompanied by a defendant‘s knowing and voluntary waiver,” post at , the dissent also states that in the cocounsel model, the defendant need not execute a knowing and intelligent waiver of the right to counsel, id. at . There is no support for this suggestion in our case law, and it is also contrary to the Commonwealth‘s argument on appeal. Perhaps most notably, our dissenting colleague cites none.
Instead, it has long been the rule that there must be a knowing and intelligent waiver of the right to counsel in such
f. Lack of inquiry.
Once the defendant began to represent himself and trial counsel was relegated to standby counsel, the judge did not engage in the “careful inquiry on the record” required to determine whether the waiver was knowing and intelligent. Means, 454 Mass. at 89. He did not provide
Although Barros held “that
The record does not do so here. In light of the discussions surrounding the possibility of the defendant utilizing a modified Mitchell procedure to call and examine Doyle, without a clear statement from the judge informing the defendant, the record does not give us confidence that the defendant was adequately aware of the disadvantages of self-
So ordered.
BRENNAN, J. (dissenting). In Commonwealth v. Molino, 411 Mass. 149, 152-153 & n.5 (1991), the Supreme Judicial Court described two distinct forms of hybrid representation in a criminal trial. In the first model, the attorney and the defendant act as cocounsel and both “may address the court, question witnesses, and join in the conduct of trial.” Id. at 153 n.5. Although unorthodox, and perhaps inadvisable, permitting this form of hybrid representation is within a judge‘s discretion. See id. at 152. See also LeBaron v. Commonwealth, 464 Mass. 1020, 1020 (2013). A defendant and an attorney acting collaboratively as cocounsel is not the same as self-representation and thus does not trigger the waiver of counsel requirements recently reaffirmed by the Supreme Judicial Court in Commonwealth v. Barros, 494 Mass. 100, 112 (2024). Alternatively, the attorney may operate “in a purely advisory capacity” without participating in case presentation. Molino, supra at 153 n.5. The second model is akin to self-representation with standby counsel. Id.
Throughout postconviction litigation, the defendant has framed the central issues as self-representation and deprivation of counsel. The decision denying the defendant‘s motion for a new trial and the majority opinion in this appeal, although reaching different conclusions, both reflect an analytical approach that responds to the defendant‘s framework. I see this
I discern no error in the judge‘s decision to monitor the situation rather than move immediately to a waiver of counsel colloquy in the aftermath of the defendant‘s emotional outburst following the prosecutor‘s cross-examination of Doyle. Because the defendant and counsel continued to act collaboratively as cocounsel for the remainder of trial -- just as they had prior
Discussion. 1. A defendant and attorney may act as cocounsel.
“The Sixth Amendment to the United States Constitution and
“A defendant does not have a constitutional right to choreograph special appearances by counsel” (quotation and citation omitted). Molino, 411 Mass. at 153. Nevertheless, a judge has discretion to permit hybrid representation in one of
To the extent the cocounsel model of hybrid representation has been permitted by criminal trial judges, it does not appear to have been subject to appellate review. Therefore, no appellate case exists to provide judges with a mechanical or legal framework for employing the cocounsel model at trial. Similarly, there is no appellate guidance regarding the defendant‘s requisite level of understanding or the judge‘s role in explaining the particulars of cocounsel representation. What is evident from Molino, 411 Mass. at 153 n.5, however, is that the cocounsel approach does not require a defendant to give up any rights, let alone the fundamental right of representation by counsel. Sharing the rights and responsibilities of representation with counsel is a boon. A defendant who acts as cocounsel with trial counsel remains fully represented while also enjoying benefits traditionally denied a represented defendant, such as addressing the court directly, having an equal voice in trial strategy, and participating in the presentation of the case. See id. See also Mitchell, 438 Mass. at 552 (judge should instruct counsel on how to proceed with
In contrast to the cocounsel approach, the advisory model of hybrid representation is indistinguishable from self-representation with standby counsel; indeed, the court in Molino stated that “[s]tandby counsel usually falls in the [advisor] category.” Molino, 411 Mass. at 153 n.5. Standby counsel does not formally represent the defendant and does not protect the defendant‘s interests in the same way or to the same extent as counsel. See id. at 152-154. See also Commonwealth v. Leonardi, 76 Mass. App. Ct. 271, 275-276 (2010). Hybrid representation with the attorney acting as an advisor effectively waives the right to counsel and thus must be accompanied by a defendant‘s knowing and voluntary waiver. See Molino, supra at 150 n.2 (description defendant with this hybrid model as proceeding pro se and recounting necessary colloquy).
2. The defendant made an informed decision to proceed at trial as cocounsel with his attorney.
Although the judge was not required to conduct a formal colloquy with the defendant regarding cocounsel representation, a conscientious judge acts
From the outset, it was apparent to the judge that the defendant had extensive experience in the criminal justice system1 and wanted to control the proceedings in this case. As the majority observes, counsel was the defendant‘s fourth appointed attorney in this case. The judge responded initially by setting clear parameters on the defendant‘s choices: representation by counsel or self-representation with standby counsel. When it became evident that part of the conflict with counsel was the defendant‘s strong belief that Doyle was
Here, the defendant faced an exceptionally strong prosecution case. As discussed, he was an experienced litigant who was expressing displeasure with his fourth appointed counsel. The defendant consistently communicated a desire to be represented by counsel. He also strongly believed that his only avenue of defense was Doyle, whom his attorney was unable to call as a witness. The judge certainly could have left the defendant with the choice of representation by counsel at the cost of calling Doyle or calling Doyle at the cost of his right to representation by counsel. Instead, the judge afforded the defendant the option of hybrid cocounsel representation as a middle road that could satisfy both of the defendant‘s competing needs. The judge described each choice of representation to the defendant in detail and responded to the defendant‘s questions. He warned the defendant that by questioning Doyle, the defendant could expose himself to criminal prosecution for suborning perjury. The judge reviewed the Mitchell decision with the defendant and informed him that it was the only Massachusetts
3. The defendant acted as cocounsel with his trial attorney throughout the trial.
The trial record in this case demonstrates that the attorney-client relationship fell under
a. The trial began with a collaborative cocounsel approach between the defendant and counsel.
Once it was settled that the defendant would proceed with a cocounsel approach to trial, the judge told the defendant he was welcome to be present for any sidebar conferences. Counsel took the lead in arguing motions in limine. The defendant, however, raised the issue of attorney-led voir dire of jurors and personally discussed its “pros and cons” with the judge. The judge left the decision on how to proceed to the defendant and counsel together. Counsel then took the primary role during jury empanelment. Counsel presented the opening for the defense, but only after the defendant told the judge directly that he wanted an opening statement notwithstanding counsel‘s inclination to waive it. Counsel also cross-examined the Commonwealth‘s witnesses during its case-in-chief. Both counsel and the defendant addressed the judge when an issue arose about a juror‘s potential exposure to the defendant during a break in the trial. At the close of the Commonwealth‘s case, counsel moved for a required finding of not guilty on the defendant‘s behalf. After the judge denied the motion, counsel questioned the first defense witness. The judge then asked the defendant whether he “wish[ed] to proceed further as we had discussed.” The defendant responded affirmatively.
b. The defendant did not unequivocally assert his right to self-representation and thus a waiver of counsel was not required.
After Doyle‘s cross-examination, the defendant complained to the judge that he was not aware that Doyle would be impeached with her prior statements. The defendant stated he did not want to talk to counsel, and counsel confirmed the defendant no longer wanted him to question witnesses or make the closing argument. The judge expressed concern that the defendant‘s self-representation at that juncture of the trial could “become[] an appellate issue” and began to inquire if the defendant wanted to “discharge [his] lawyer“; however, the defendant interrupted, saying that counsel could “stay on standby for now.” The judge explained the advisory role of
The majority concludes that the defendant‘s statements during this exchange “flatly discharged” counsel. Ante at . I disagree.
A defendant‘s assertion of the right to self-representation is triggered by a clear and unequivocal declaration to the trial judge that the defendant wants to self-represent and does not want counsel. See Faretta v. California, 422 U.S. 806, 835 (1975). The defendant‘s choice must be “unequivocal, . . . voluntarily and knowingly made, . . . asserted in a timely manner, . . . and not sought for an improper purpose, such as delaying or disrupting the trial” (quotation and citation omitted). Commonwealth v. Barbosa, 99 Mass. App. Ct. 132, 137 (2021). Thus, whether a defendant asserts the right to self-representation is not based solely on the words spoken to the judge but must be assessed contextually and with deference to the trial judge, whose perspective inherently animates the analysis.
Here, the defendant‘s expression of displeasure with counsel was not new; it was a recurring theme that had required deft management by the judge even prior to the commencement of trial. When deciding how to respond to the defendant‘s
Faced with these circumstances, the judge chose to monitor the situation rather than respond in the moment to the defendant‘s outburst. At the conclusion of his exchange with the defendant, the judge noted that the defendant did not
On this record, I discern no error in the judge‘s implicit determination that the defendant did not assert unequivocally his right to self-representation. Based on the defendant‘s mercurial attitude toward counsel throughout pendency of the case, the timing and circumstances of the defendant‘s statements regarding counsel‘s continued representation, and the judge‘s legitimate concern that the defendant was attempting to disrupt
c. The defendant and counsel continued to act as cocounsel.
Although the defendant stated that he no longer wanted counsel to represent him after the prosecutor‘s cross-examination of Doyle, his behavior demonstrated otherwise. Once the trial resumed, the nature of the defendant‘s relationship with his attorney remained unchanged from the cocounsel collaboration the defendant had chosen at the outset of trial. Counsel instructed the defendant how to present a statement to Doyle to rehabilitate her testimony and assisted the defendant with questioning Doyle. Counsel also addressed the admissibility of a statement the prosecutor sought to introduce in evidence during the recross-examination of Doyle. After Doyle‘s testimony, the defendant and counsel conferred before jointly addressing witness and closing argument issues with the judge. The defendant discussed with counsel whether he should testify before telling the judge he would exercise his right not to testify. Counsel formally rested on the defendant‘s behalf.
During the Commonwealth‘s rebuttal case, the defendant and counsel consulted with each other before declining to question one of the witnesses. Counsel informed the judge there was no
This level of involvement by counsel went well beyond the role of advisor. See Molino, 411 Mass. at 153 n.5; Leonardi, 76 Mass. App. Ct. at 275-276. Just as before Doyle‘s redirect examination, counsel shared responsibility with the defendant for strategy and advocacy. I therefore disagree with the majority‘s conclusion that, beginning with the redirect examination of Doyle, counsel “did not go beyond the ordinary role of standby counsel.” Ante at . On the contrary, even to the extent the defendant‘s participation became more active on certain tasks, counsel maintained equal, if not primary, responsibility for safeguarding the defendant‘s interests. I therefore conclude that the cocounsel -- or “tag-team” -- relationship between the defendant and counsel remained consistent in this trial from beginning to end.
The defendant was a forty-four year old adult with extensive court experience working with his fourth attorney at the time of trial in this case. His choices throughout the trial, including cocounsel representation, were fully informed and made after consultation with experienced counsel. Because cocounsel representation is not self-representation, a knowing and intelligent waiver of counsel was not required. Under the circumstances of this case and considering the context in which they were made, the defendant‘s statements that he wanted to “fire” counsel after Doyle‘s cross-examination were not a clear and unequivocal declaration that he wanted to represent himself for the remainder of the trial, and thus the judge was not required to conduct a waiver of counsel colloquy. Because of the trial judge‘s flexibility and exercise of discretion, the defendant received the trial he asked for; that the result was not what he hoped for does not change this reality. I discern no error in the judge‘s decision to permit the defendant to act as cocounsel with his attorney nor in the manner the judge implemented this hybrid model of representation at trial.
For these reasons, I respectfully dissent.