19 Mass. App. Ct. 930 | Mass. App. Ct. | 1984
The panel have concluded that the defendant’s conviction of entering in the nighttime with intent to commit a felony and putting an occupant in fear (G. L. c. 266, § 17) must be reversed for the reason that the record does not show that the defendant, who has a long history of mental illness, had the capacity to waive, and intelligently and voluntarily waived, his right to the assistance of counsel. In the course of multiple pretrial hearings the record shows that the defendant began by stating that he wished to represent himself, that he was forcefully admonished by a judge that he should accept assigned counsel, that he agreed, and that counsel was appointed. Therefore there was no occasion for the judges who conducted the pretrial hearings to receive evidence and make findings specifically with respect to the defendant’s competence to waive counsel. When the defendant indicated at the March 30 hearing that he did not wish to be represented by the particular attorney who had been appointed by the court, but wished instead to retain private counsel (the defendant indicated his financial ability to do so), the judge set a trial date more than a month away and strongly warned the defendant that trial would not be delayed beyond that time whether or not the defendant had succeeded in engaging private counsel.
At the May 3 hearing the defendant had not engaged private counsel, and, rather than accept the representation of assigned counsel, insisted on representing himself. The judge admonished the defendant that that was a foolish choice but that he had an absolute right to represent himself if he should insist. He found the defendant competent to stand trial but made no finding specifically directed to his competence to waive his right to the assistance of counsel. He did not conduct a colloquy to set out on the record the defendant’s understanding of the charges against him or the penal consequences to him if he should be found guilty; nor did the judge interrogate the defendant to ascertain his understanding “of the pitfalls in proceeding pro se.” Commonwealth v. Mott, 2 Mass. App. Ct. 47, 52 (1974). The trial began May 16, without further colloquy, the defendant representing himself with appointed counsel present on a standby status.
We are constrained to reverse the conviction by the holding in Westbrook v. Arizona, 384 U.S. 150 (1966) (per curiam). In that case, as here, the defendant had a long history of mental illness but was found on adequate evidence to be competent to stand trial. There, as here, the court did not
While the absence of a finding as to competency to waive counsel is decisive, it must be observed that the record in this case, for want of a colloquy, is also deficient in showing that the defendant’s waiver was exercised knowingly and intelligently. As in Evans v. Raines, supra, “[t]he record does not show that [the defendant] was advised of the penalties which could be imposed [on the indictments]. In the absence of some knowledge of [the defendant’s] understanding of the seriousness of the charges, it cannot be said that he intelligently waived counsel.” Id. at 1480. The general testimony of a psychiatrist that the defendant was aware of the
The defendant was found guilty on two other indictments perhaps not technically before us because they were placed on file, in the words of the clerk, “with the defendant’s consent.” The defendant did not object to that characterization; but it is obvious that those guilty findings are tainted for the same reason as the conviction here on appeal. They should be vacated if the defendant files a motion for a new trial. In addition, we note (counsel seems to be under a mistaken impression on this point) that, on the indictment for indecent assault and battery on a child under age fourteen, the jury’s guilty verdict was as to the lesser included offense of a simple assault and battery. Retrial on that indictment should be limited accordingly.
The judgment on indictment No. 7506 is reversed and the verdict is set aside. The case is remanded for further proceedings consistent with this opinion.
So ordered.