Thе defendant appeals from his conviction of armed assault with intent to murder and unlawful carrying of a firearm. 1 He argues that he was unfairly forced to go to trial, representing himself, in circumstances where a continuance should have been granted and counsel appointed. We conclude that there was no abuse of discretion in proceeding to trial on the day designated, with the dеfendant acting for himself. 2 We reject, as not properly before us, the defendant’s unrelated contention that, because of certain newspaper publicity during trial, the judge should have conducted an individual voir dire of each empanelled juror. We do, however, set forth the appropriate procedures which should be followed in similar circumstances in the future.
We briefly desсribe the evidence because we shall have occasion to consider whether certain of the judge’s rulings prejudiced the defense or gave rise to a substantial risk of a miscarriage of justice.
The evidence of the defendant’s guilt was overwhelming. On December 26,1972, one of two Cambridge police officers in an unmarked van observed the defendant driving a Cadillac automobile and аpparently accosting a female pedestrian. The police officers in the van followed the Cadillac automobile, which sped away. They lost sight of it, spotted it again, and gave chase. Another police vehicle joined the pursuit. The Cadillac automobile was
The defendant presented no substantial evidence in his defense. He suggested that the police had failed to investigate the possibility of other suspects, including the registered owner of the Cadillac automobile.
1. There was no abuse of discretion in denying the defendant’s requests for a continuance. At a hearing on June 3,1976, trial was set for June 14,1976. The defendant requested a continuance in order to prepare for trial, and the judge denied the request. Such a determination will be disturbed only if there was a clear abuse of discretion.
Commonwealth
v.
Watkins,
The indictments in this case were handed down in January, 1973. In June, 1973, at the defendant’s request, an order was entered deferring triаl in this case, and certain other cases involving the defendant, until the conclusion of the trial against the defendant in the so called Reich murder case. The trial of the Reich case was
The defendant had no reasonable basis for being unprepared for trial by reliance on the ordеr deferring the trial of this case. The order had deferred only the trial date and had placed no restrictions on preparation for trial. Nor did the withdrawal of counsel, approved by the judge on June 3, 1976, require a continuance. The defendant had long known that those withdrawals were inevitable, and they were solely the product of his own conduct.
Jackson
v.
Commonwealth,
There are further grounds for upholding the denial of a continuance. The record indicates, in addition, that the defense had substantially prepared for trial in the six months following the indictments. In August, 1973, the Commonwealth had presented a general version of the events surrounding this case in a hearing on a motion to suppress filed in another of the criminal рroceedings against the defendant. The defendant made no showing on June 3, 1976, of a particular need for a continuance. Even now, the defendant has not demonstrated how the denial of the continuance prejudiced him at trial. The judge accommodated late requests for an investigator, a ballistician, and a psychiatrist. The defendant presented
If we assume that the denial of a continuance on the first day of trial is before us on the assignments of error, there was no abuse of discretion for reasons already given. The defendant has made nо showing that his receipt of certain papers four days before trial was prejudicial to him.
2. On June 3,1976, after the trial date of June 14,1976, was established, the judge accepted the defendant’s request that he be permitted to represent himself at trial. The defendant claims that the judge improperly concluded that the defendant had waived his constitutional right to counsel. The colloquy between the judge and the defendant, portions of which are set forth in the margin,
3
plainly warrants the judge’s conclusion that the defendant knowingly and intelligently waived his right to counsel. Indeed, he insisted on his constitutional right to represent himself, apparently citing (although by the wrong name) and quoting from the opinion of the Su
The defendant was adequately aware of the seriousness of the charges, the magnitude of his undertaking, the availability of advisory counsel, and the disadvantages of self-representation. See
Faretta
v.
California,
The assertion in the defendant’s brief that his waiver of counsel was contingent on the granting of a continuance is incorrect. The trial date was firmly established before the court considered the question of representation, and at no time did the defendant suggest thаt his waiver of counsel was contingent on a change of the trial date.
3. The defendant makes a fleeting reference to the judge’s refusal to let him abandon his self-representation and use his court-appointed legal advisor as defense counsel. He made such a request on the first day of trial, and repeated it several times during the course of the trial. Although this issue is presented to us in the context of the defendant’s claim that he never effectively waived his right to counsel, we shall treat the defendant’s assertion as a claim of an abuse of discretion in the judge’s refusal to permit him to retract his decision to represent himself.
On June 14, 1976, before the jury were selected, the defendant asserted that he had not had adequate time to prepare the case and asked the judge to permit his court-appointed legal advisor to defend him. Seemingly gone was the eloquent self-confidence of June third — "And I ask the Court for that right [to defend myself]. If I must
The judge did not abuse his discretion in turning down the defendant’s request made at that late date. While we recognize the importance of counsel, we rejeсt any suggestion that every defendant has an absolute right at the moment trial is to begin to retract his decision to represent himself. See
Glenn
v.
United States,
Furthermore, the defendant delayed his request for counsel until the final moment before trial, without showing good cause for not having made a more seasonable request. The defendant’s last-minute assertion of lack of preparation did not have to be accepted at face value. There was ample justification for the judge to conclude that the request was just another dilatory tactic. See
Commonwealth
v.
Scott,
The decision of the judge was consistent with a concern for a fair trial. The defendant had substantially prepared his case with the assistance of counsel. He was familiar with the Commonwealth’s case against him. He had accepted a legal advisor.
In addition, the defendant has failed to prove an abuse of discretion in the denial of his requests to change counsel during trial. In this latter situation, a defendant’s freedom to change counsel is significantly more restricted than it is before trial has commenced.
Commonwealth
v.
Miskel,
4. The defendant arguеs finally that he was denied a fair trial because the judge declined to question the empanelled jurors separately concerning the impact on them of a newspaper article which most of them read on the morning of the second day of trial. Although the defendant excepted to the judge’s determination to question the jurors collectively concerning this article, rather than individually, he has not assigned the judge’s ruling as error. In such a case, the propriety of the judge’s failure to interrogate each juror individually is not before us for consideration. See
Commonwealth
v.
Wallace,
On the morning of the second day of his trial, in which the jury were not sequestered, the defendant told the judge that there has been publicity on at least one radio
The constitutional standard of fairness requires only that the jurors be impartial and indifferent. Murphy v. Florida, supra at 799. By this test, we see no constitutional violation. The record fails to disclose the allegedly prejudicial publicity. It appears that the newspaper article referred to serious charges pending against the defendant, but had no direct bearing on any contested issue in this case. The judge did not ignore the potential for prejudice. He made inquiry of the jury, discovered one juror who expressed a lack of impartiality due to the publicity, and discharged her after individual questioning out of the presence of the other jurors. The judge did not conduct a individual voir dire of each juror, but we do not see a threat to the fundamental impartiality of the jury in his failure to do so. The collective questioning of the jury brought forth one juror who conceded the prejudicial effect of the newspaper article on her. Any inhibitory effect of the collective questioning of the jury did not deter that juror, and her statements "broke the ice” for any other juror who might have been reluctant to identify him or her self as prejudiced. The judge gave prompt cautionary instructions and later repeated them.
The same reasoning which leads us to find no constitutional violation supports our further conclusion that the judge did not abuse his discretion in his handling of the asserted prejudicial publicity. We have heretofore granted trial judges wide discretion on this subject. See
Commonwealth
v.
Stanley,
When material disseminated during trial is reliably brought to the judge’s attention, he should determine whether the material goes beyond the record and raises a serious question of possible prеjudice. A number of factors may be involved in making that determination, including the likelihood that the material reached one or more jurors. See
United States
v.
Perrotta, supra
at 249. If the judge finds that the material raises a serious question of possible prejudice, a voir dire examination of the jurors should be conducted. The initial questioning concerning whether any juror saw or heard the potentially prejudicial material may bе carried on collectively, but if any juror indicates that he or she has seen or heard the material, there must be individual questioning of that juror, outside of the presence of any other juror, to determine the extent of the juror’s exposure to the material and its effects on the juror’s ability to render an impartial
Judgments affirmed.
Notes
The defendant was convicted also of assault by means of a dangerous weapon and of three motor vehicle offеnses. These cases were placed on file, the defendant not objecting.
We have allowed the Commonwealth’s motion to expand the record to include the transcript of a pretrial hearing in this matter (referred to in the briefs of each party) and certain transcripts or records in other criminal proceedings involving the defendant. These documents bear on the merits of сertain issues in this case.
On June 3, 1976, the defendant indicated that, if counsel were allowed to withdraw, he would represent himself. Later, the judge suggested that he was "going to appoint counsel, a legal advisor, for you, anyway.” The following conversation then occurred:
The defendant: "Your Honor, Barry versus California says I have a right to try without legal counsel, without any assistance, without any attorney sitting at thе table with me; and that is a U.S. Supreme Court, recent case, 1975.”
The judge: "You are a highly intelligent person, Mr. Jackson, but you are not trained in the — ”
The defendant: "I understand.”
The judge: "You are not trained as a lawyer.”
The defendant: "I understand that, Your Honor. It says that — the last statement of the decision says that: we bestow on the defendant the right to defend himself — although one who defends himself may have a fool for a client. And I ask the Court for that right. If I must sail the sea, I want to be at the helm of my own ship, Your Honor, without counsel.”
The judge: "I will take those matters under advisement.”
On the fifth day of the trial, the judge gave a similar instruction to the jury. In his'final charge to the jury, the judge instructed the jury that anything they read outside the courtroom was not evidence, that they must decide the case only on the evidence, that indictments are not evidence in any respect, and that "[t]he defendant cannot be found guilty upon suspicion or conjecture.” The defendant did not except to the judge’s charge nor did he request further instructions.
The defendant made no claim below, and makes none here, that the judge’s failure to conduct individual questioning of each juror was a violation of G. L. c. 234, § 28, as amended by St. 1975, c. 335. That statute is directed to the process of jury selection. See Commonwealth v. Horton, ante 380, 394-395 (1978). It does not prescribe the consequences of a failure to follow its terms. The rule of practice which we prescribe for the handling of potentially prejudicial circumstances arising during trial parallels that prescribed in G. L. c. 234, § 28.