Opinion
13-P-160
02-20-2015
COMMONWEALTH v. JOSEPH OMAR BRAY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the pro se defendant, Joseph Omar Bray, was acquitted of several firearms offenses, but was convicted of assault and battery on a police officer. Now represented by counsel, he appeals from his conviction contending that the judge failed to conduct a proper colloquy to determine if he voluntarily and intelligently waived his right to counsel. We reverse.
Discussion. "The right to counsel is a fundamental constitutional right." Commonwealth v. Johnson, 80 Mass. App. Ct. 505, 509 (2011), citing Commonwealth v. Means, 454 Mass. 81, 88 (2009). This right can be waived where a request to proceed pro se is made unequivocally prior to trial, and the right is waived knowingly and intelligently. Commonwealth v. Mott, 2 Mass. App. Ct. 47, 51 (1974). Commonwealth v. Mullen, 72 Mass. App. Ct. 136, 140 (2008). The court's assessment of whether waiver is knowing and intelligent focuses on the "defendant's subjective understanding of his decision and its consequences." Commonwealth v. Barnes, 399 Mass. 385, 391 (1987). There are no prescribed questions a judge must pose to demonstrate effective waiver. Commonwealth v. Martin, 425 Mass. 718, 719-720 (1997). Rather, the record must reflect that the judge ensured that the defendant understood "the magnitude of the undertaking and the disadvantages of self-representation, and that the defendant ha[d] an appreciation of the seriousness of the charges and penalties." Johnson, supra at 510. Commonwealth v. Clemens, 77 Mass. App. Ct. 232, 241-242 (2010).
While the defendant made two requests to proceed pro se prior to trial, the record is "inadequate to support a conclusion that the defendant's waiver of counsel was knowing and intelligent." Mullen, supra at 140. When the defendant first requested to proceed pro se, the motion judge inquired as to why the defendant wanted to proceed without counsel. After a brief recess, the motion judge informed the defendant that if he wanted to proceed pro se, certain findings would have to be made on the record and a lengthy colloquy would have to be performed to ensure that the defendant understood the consequences and potential risks of representing himself. The motion judge also asked the defendant to speak to duty counsel during the court's recess to receive advice from counsel regarding the potential "perils" of proceeding pro se. No findings were made on the record, and no colloquy was actually performed during the hearing. The clerk stated at the hearing that a subsequent motion judge would go over the colloquy with the defendant if he wished to proceed pro se after conferring with duty counsel. "Standing alone, th[is] interaction with the first motion judge . . . [is] inadequate to permit us to conclude that the defendant's waiver was knowing and intelligent." Mullen, supra at 142.
There is nothing in the record to show whether this consultation occurred.
The defendant then appeared before a second motion judge. Before the defendant came into the court room, the prosecutor told the judge that the defendant was coming to the court to "perhaps go through a colloquy or something." After a recess, the judge asked the defendant if he wanted to have new counsel appointed. The defendant declined and requested standby counsel. The motion judge warned that if the defendant did not get along with standby counsel, he would be "completely on [his] own." The defendant responded, "[o]kay." The motion judge also advised that standby counsel was not responsible for representative decisions, but was only there to assist the defendant acting as his own counsel. When asked if he understood this, the defendant responded, "[y]es, your Honor." The hearing proceeded without any further colloquy. There is no record of a written waiver by the defendant, or the judicial certification required by S.J.C. Rule 3:10, as amended, 416 Mass. 1306 (1993), at this hearing or the defendant's prior hearing.
The Commonwealth argues that a knowing, intelligent, and voluntary waiver may be gleaned from the facts and circumstances. This contention was considered and rejected in Mullen, supra. In Mullen, the defendant sought to represent himself before one motion judge. The judge had the defendant sign a waiver form, but did not conduct a colloquy on the record as to the defendant's decision to proceed pro se. Ibid. This court noted that the waiver form signed by the defendant lacked "the certification required by S.J.C. Rule 3:10, . . . which requires that waiver of counsel be accomplished by signing a form that contains a certificate signed by the judge that he or she has properly informed the defendant in accordance with that rule and G. L. c. 211D, § 5, of his or her right to counsel, and that the party has knowingly elected to proceed without a lawyer." Id. at 142. See Commonwealth v. Cote, 74 Mass. App. Ct. 709, 713 (2009). The defendant in Mullen next appeared before a second motion judge who told the defendant that appointed counsel was experienced and competent, and that the defendant could harm himself by opting to proceed pro se. Id. at 142-143. The Commonwealth argued that this interaction was sufficient to establish the defendant's knowing and intelligent waiver of counsel. This court disagreed, reasoning that the brief discussion "could have apprised the defendant of the seriousness of the charges, the magnitude of the undertaking, and the disadvantages of self-representation. But there is nothing in the record from which we can establish . . . that the defendant subjectively understood his decision and its consequences." Id. at 143.
In this case there is also an absence of a colloquy. The first motion judge's overview of what would be discussed in a formal colloquy could have similarly "apprised the defendant" of the relevant considerations, but there is nothing in the record that establishes the defendant's "subjective" understanding of his decision to proceed pro se. See ibid. The second motion judge did not perform a colloquy. Consequently, the record fails to support a finding that the defendant knowingly and intelligently waived his right to counsel.
Judgment reversed. Verdict set aside.
By the Court (Katzmann Sullivan & Blake, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: February 20, 2015.