Opinion
WOCV2011-00516
03-12-2015
Commonwealth v. Anthony Hines No. 129725
Janet Kenton-Walker, Justice of the Superior Court.
Filed March 12, 2015
FINDINGS OF FACT, RULINGS OF LAW, AND ORDER ON DEFENDANT'S FORFEITURE OF COUNSEL
Janet Kenton-Walker, Justice of the Superior Court.
A grand jury indicted the defendant, Anthony Hines (" the defendant"), on trafficking in cocaine in violation of G.L.c. 94C, § 32E(b)(1); possession of cocaine with intent to distribute, as a subsequent offense, in violation of G.L.c. 94C, § 32A(d); drug violation near a school or park in violation of G.L.c. 94C, § 32J; and two counts of being a habitual criminal. The matter is before the court to consider whether the defendant has forfeited his right to counsel, specifically, whether the defendant has waived his right to counsel through his conduct.
FINDINGS OF FACT
Because the details of this proceeding are important to the court's ultimate conclusion, this court describes them with specificity. See Commonwealth v. Means , 454 Mass. 81, 83, 907 N.E.2d 646 (2009).
A grand jury returned indictments against the defendant charging him with trafficking in cocaine, G.L.c. 94C, § 32E(b)(1); possession of cocaine with intent to distribute, as a subsequent offense, G.L.c. 94C, § 32A(d); drug violation near a school or park, G.L.c. 94C, § 32J; and two counts of being a habitual criminal. On June 22, 2011, the defendant was arraigned before this court and bail was set for $500,000 surety or $50,000 cash.
During the course of the proceedings, the defendant has been represented by six different attorneys.
A. Attorney No. 1
On July 6, 2011, Attorney Tom G. Vukmirovits (" Attorney Vukmirovits") was appointed as counsel. As acting counsel, Attorney Vukmirovits first filed a motion to suppress all evidence obtained from an execution of a search warrant on September 12, 2011. On October 3, 2011, he filed a motion for the disclosure of information relating to the confidential informant, controlled buys, and surveillance connected with the search warrant.
At the hearing on the instant issue (" the waiver hearings"), the defendant, through his counsel that was appointed specifically for the waiver hearing (" motion counsels"), disclosed to the court that the defendant specifically asked Attorney Vukmirovits to attain information regarding the controlled buys in relation to the search warrant. Motion counsel stated that the defendant felt Attorney Vukmirovits did not go forward with the requested investigation and their relationship deteriorated for that reason.
On October 11, 2011, Attorney Vukmirovits filed a motion to withdraw as counsel based on a breakdown of communications. A hearing on Attorney Vukmirovits' motion to withdraw took place before this court (Lemire, J.) on October 14, 2011. A transcript of that hearing reveals that Attorney Vukmirovits informed the court that on October 5, 2011, he received a letter from the defendant asking Attorney Vukmirovits to withdraw from his case. Withdrawal Motion 1 Tr. at p. 2. Attorney Vukmirovits stated that he and the defendant had some disagreements in the last month or so. Id. at 2-3. In granting Attorney Vukmirovits' motion, the court informed the defendant that " this isn't like a menu where you just pick and choose what you have. You're entitled to a court-appointed attorney. We appoint an attorney. The fact that you don't like that attorney, or disagree with that attorney, doesn't necessarily mean you have a right to choose another attorney." Id. at 3.
Cited as Withdrawal Motion 1 Tr. at p.
B. Attorney No. 2
On October 18, 2011, Attorney Steven D. Power (" Attorney Power") was appointed as counsel. Attorney Power filed his request to withdraw as counsel on February 6, 2012. In his motion to withdraw as counsel, Attorney Power stated that " [t]he defendant and the undersigned attorney do not agree on the appropriate manner in handling the case. The defendant has sent the undersigned attorney correspondence stating that the defendant believes that the attorney has 'disrespected' the defendant and is 'procrastinating' with the case. The defendant has also questioned the attorney's ethics by threatening to contact the Board of Bar Overseers due to his handling of the case."
At the waiver hearing, the defendant, through his motion counsel, stated that upon first meeting Attorney Power, Attorney Power stated that he knew the lead investigating officer on the defendant's case very well. Attorney Power mentioned that the officer is " a great guy." Due to this statement, the defendant felt that Attorney Power would not represent him fairly and their relationship declined due to this feeling.
On February 9, 2012, this court heard Attorney Power's motion to withdraw. A review of the transcript of that hearing discloses that Attorney Power told the court that he and the defendant disagreed on which motions should be filed in the defendant's case. Withdrawal Motion 2 Tr. at p. 3. Attorney Power stated he informed the defendant that one of the motions the defendant wanted to file was not appropriate. Id. The defendant then told Attorney Power that he felt insulted, felt Attorney Power was delaying his case, and threatened to report him to the Board of Bar Overseers. Id.
Cited as Withdrawal Motion 2 Tr. at p.
This court asked the defendant about these accusations. The defendant stated that he felt Attorney Power would not represent him fairly based on his friendship with the investigating officer. Id. at 4. The court reminded the defendant that this was the second attorney he had difficulties with. Id. The defendant retorted by stating in regards to Attorney Vukmirovits, the defendant felt that there was a " conflict of interest" because the defendant asked Attorney Vukmirovits to file " a motion pursuant to Rule 14 under criminal procedures. And he filed a motion to disclose the identity of the informant, and I didn't ask him to do that." Id.
This is the same story related to this court by motion counsel at the waiver hearing.
In reflecting on the fact that this was the second attorney that the defendant was not happy with, the court went on to explain that " you have a right to attorney to represent you on these charges. And you know perfectly well these are very serious charges. In fact, you're facing some minimum mandatory sentences of significance here. But that right to an attorney is not absolute . . . [I]f you act in a way that can be determined as dilatory or abusive--meaning acting towards your attorney that's dilatory or abusive--that can be considered a waiver of your right to counsel. And you don't keep getting new attorneys every time you have a disagreement with them. At some point you're going to get cut off and you're going to have, by your own actions, have waived your right to counsel, and you're going to be forced to proceed representing yourself. That is not a good situation for you, and I think you know that." Id. at 5-6. This court allowed Attorney Power's motion to withdraw, but warned that " this is the last time. And if this action comes up again, if this next attorney, whoever it might be, files a similar motion alleging, just as the other two attorneys have alleged, that they disagree or you disagree with them . . . there's going to be a finding that by your actions, you have waived your right to counsel. And then you will be required to proceed on your own. Is that clear?" Id. at 6. In response, the defendant stated that " [y]es, it is." Id.
The defendant stated through his motion counsel at the waiver hearing that when he came before the court regarding Attorney Power's motion to withdraw as counsel, he remembered being warned that this could be his last attorney.
C. Attorney No. 3
On February 10, 2012, Attorney Sean McGinty was appointed as counsel (" Attorney McGinty"). As acting counsel, Attorney McGinty filed a motion for discovery on March 8, 2012; a motion for discovery pursuant to Mass.R.Crim.P. 14 on March 29, 2012; a motion to suppress evidence on March 29, 2012; another motion for discovery, on June 26, 2012; a motion to compel discovery on June 26, 2012; and a motion to dismiss on October 11, 2012. The discovery motions seem to all be in relation to information regarding the controlled buys. Attorney McGinty was successful to an extent on these motions.
In regard to these motions, this court (Tucker, J.) found and ordered: " (1) the Commonwealth does not have processing of Narcotic Field Tests; (2) the request for Controlled drug buy policy seeks privileged information and the defendant has failed to overcome privilege with a substantial preliminary showing of need or irregularity of process to overcome privilege; (3) the Commonwealth shall produce, dates times, location of surveillance of the defendant NOT involving a confidential informant to the extent that it is able." (Emphasis in original.)
The defendant stated at the waiver hearing that he was extremely pleased with Attorney McGinty's representation as he was pursuing motions regarding evidence concerning the controlled buys. However, on March 20, 2013, Attorney McGinty filed a motion to withdraw as counsel. In his motion, Attorney McGinty stated: " (1) There has been a severe breakdown in communications between the client and counsel; (2) The client continually argues with counsel; (3) The client continues to make unreasonable demands of counsel; (4) The client refuses to accept the attorney's advice on the law and strategy; (5) Counsel has informed client of his intention to withdraw from the case." The defendant's motion counsel stated that the defendant was " shocked" when Attorney McGinty filed a notice of withdrawal.
This court heard Attorney McGinty's motion on March 27, 2013. A transcript of that hearing reveals that Attorney McGinty informed the court that " [e]very time we talk on the phone or in person, Judge, it ends up in an argument. We really can't agree how to go forward." Withdrawal Motion 3 Tr. at p. 3. The defendant responded to these statements by telling the court that he did not wish for Attorney McGinty to withdraw, however, he was unsatisfied that Attorney McGinty was not actively addressing his bail situation. Id. at 4. Attorney McGinty replied by stating that " there's other issues, not just this issue." Id. at 5.
Cited as Withdrawal Motion 3 Tr. at p.
This court allowed Attorney McGinty's motion and related to the defendant that he was facing a precarious situation. This court stated that " this is the last attorney that this Court will appoint to represent you. It sounds to me, based on what I'm hearing and based on the docket that's before me, that the major problem here is not necessarily the attorneys, but you. And it's starting to sound like your conduct--in making demands, not going along, not listening and taking advice--is creating a situation where you are going to end up forfeiting your right to counsel by the conduct, by not getting along with them . . . You're going to have to learn to cooperate with counsel. If you don't, you may very well find, if a hearing is held and it's found that you have been obstreperous, it may be found that you have forfeited your right to an attorney, and you may very well be representing yourself in these matters which, as you know, is not to your best advantage. So I will appoint one more counsel to represent you, but that is the last one. And if this attorney cannot get along with you or there's a problem, then a hearing will be held to determine whether or not you've forfeited the right to counsel. Is that understood?" Id. at 8-9. The defendant responded, " [y]es. I understand." Id. at 9.
D. Attorney No. 4
On April 4, 2013, Attorney Brian Murphy (" Attorney Murphy") was appointed as counsel. As counsel, Attorney Murphy filed a motion for ex parte funds for an investigator on August 22, 2013 and a discovery motion on September 16, 2013.
The discovery motion was denied by the court (Lemire, J.) on September 16, 2013, as the court found that " the release of the requested information will not provide relevant information for use in trial of the defendant and could result in the disclosure of the identity of the informant."
On November 19, 2013, Attorney Murphy filed a motion to withdraw as counsel, stating simply that " the attorney/client relationship has irretrievability broken down." At the waiver hearing, motion counsel related that the defendant and Attorney Murphy were getting along until the hearing on the September 16, 2013 discovery motion. In the defendant's eyes, this was a " big" motion and he told Attorney Murphy that he wanted to be in court when it was argued. Motion counsel further disclosed that the defendant believed that the motion should go before this court, instead of another judge. Even though the defendant told Attorney Murphy in no uncertain terms that he wanted to be at the hearing, the defendant was not present when Attorney Murphy argued the motion to the court. Motion counsel reported that the defendant also felt that Attorney Murphy misrepresented facts to the court during the motion hearing.
A hearing on Attorney Murphy's withdrawal motion was held on November 19, 2013, before Judge Lemire. The transcript of that hearing shows that Judge Lemire and the defendant engaged in a short discussion where the defendant stated that he did not feel that he was receiving adequate counsel from attorneys in the Worcester area. Withdrawal Motion 4 Tr. at p. 5-6. The defendant further stated that his attorney was " not doing his job. He's not doing what I'm asking him to do. He's telling me that you're not going to allow this to happen, and I'm telling him how does he know that." Id. at 6. Judge Lemire allowed Attorney Murphy's motion to withdraw and scheduled the case for appointment of new counsel.
Cited as Withdrawal Motion 4 Tr. at p.
B. Attorney No. 5
On November 21, 2013, Attorney Richard J. Farrell, Jr. (" Attorney Farrell") was appointed as counsel. As counsel, Attorney Farrell filed several motions including: a motion to dismiss based upon the prosecutor's failure to request a vote for changes on January 29, 2014; a motion regarding the prosecutor's failure to request a vote for an enhancement of charge on January 29, 2014; and a motion for additional discovery also filed on January 29, 2014. The court (Tucker, J.) allowed the motion for additional discovery, the other motions were denied. Attorney Farrell also filed a motion to reconsider the defendant's motion to dismiss based upon the prosecutor's failure to request a vote for changes on March 11, 2014. The court (Tucker, J.) also denied this motion.
At the waiver hearing, motion counsel related that at this point, due to the Commonwealth's destruction of certain evidence, the defendant discussed with Attorney Farrell filing a motion to reduce bail. Attorney Farrell did file a motion to reduce bail on April 11, 2014. Motion counsel disclosed that the defendant and Attorney Farrell also discussed that Judge Lemire would be the presiding judge on the bail hearing. Instead, Judge Wrenn presided at the hearing that took place on April 16, 2014. Judge Wrenn denied the defendant's request to reduce his bail. Motion counsel stated that Attorney Farrell never explained to the defendant why Judge Lemire did not preside over the hearing.
Attorney Farrell filed his motion to withdraw from the case shortly thereafter, on April 25, 2014. In his motion, Attorney Farrell stated that " there [was] a complete breakdown of the attorney-client relationship." On April 30, 2014, Judge Lemire presided over the hearing on Attorney Farrell's withdrawal motion. The transcript of that hearing shows that Judge Lemire inquired about the defendant's ability to cooperate with his attorneys, as that it " appear[ed] that you are not able to get along with your attorneys." Withdrawal Motion 5 Tr. at p. 3. The defendant stated that " [i]t's not that I didn't get along with them, it's just certain things that was done I just can't approve of." Id. Judge Lemire stated that as the defendant has had five attorneys, it indicated to him that " there's some ongoing issues." Id. Judge Lemire asked the defendant if he would like another appointed attorney or if he would like to proceed pro se. Id. at 4. The defendant stated he " would prefer to ask for another attorney because I'm not legally qualified to do this. But if I'm forced to go pro se, then I guess I have no choice but to." Id. As the defendant wished for a fifth attorney, Judge Lemire allowed Attorney Farrell's motion to withdraw and found that the defendant had effectively waived his speedy trial rights. Id. at 5-6. In appointing another attorney, Judge Lemire further warned the defendant that " this may be the last one that [the court] consider[s] appointing." Id. at 6. The defendant again requested to be appointed an attorney outside of Worcester county. Id. Judge Lemire honored this request and appointed Attorney Meryl A. Kukura (" Attorney Kukura"). Id. at 6-7.
Cited to as Withdrawal Motion 5 Tr. at p.
Before Attorney Farrell's withdrawal, the defendant, acting pro se, filed a motion for objections on April 22, 2014. The purpose of the motion was to object to the way certain issues were handled by counsel on record. These objections included allegations that: (1) counsel failed to protect the right to object " based upon an erroneous decision or judgment from Judge Wrenn"; (2) counsel failed to protect his client's right to object " based upon the Prosecutor's mischaracterization of the facts regarding the request for discovery, particularly every thing [sic] ORDERED previously by Judge Kenton-Walker and Judge Richard Tucker"; (3) counsel failed to properly preserve rights and provided ineffective assistance of counsel at the bail hearing.
In the motion, the defendant indicated that he was " acting alongside appointed Counsel . . ."
F. Attorney No. 6
On July 30, 2014, Attorney Kukura filed a motion for discovery regarding information and evidence concerning the controlled buys. On October 21, 2014, Attorney Kukura filed a motion to dismiss based upon lost or destroyed evidence. The court denied (Lemire, J.) the motion to dismiss, as the defendant had not shown that the Commonwealth acted in bad faith in destroying the drugs that were used in the controlled buys. Attorney Kukura filed a motion to reconsider on December 18, 2014, which the court (Lemire, J.) also denied on December 31, 2014. Shortly thereafter, on January 12, 2015, Attorney Kukura filed a motion to withdraw her appearance as counsel. In her motion, Attorney Kukura stated that " there has been an irretrievable breakdown in communication between the attorney and the defendant and the defendant has requested that the attorney withdraw from his case ." (Emphasis added.)
In regards to the defendant's misgivings about Attorney Kukura, motion counsel disclosed at the waiver hearing that the defendant waited thirty days to meet her, although she did apologize for the delay. Further, in regards to the motion to dismiss due to lost or destroyed evidence, motion counsel stated that the defendant and Attorney Kukura discussed that it was imperative that a certain officer testify. In accordance with this discussion, Attorney Kukura told the defendant that she had summonsed the officer into court for the hearing. At the day of the hearing, the officer did not show up. Attorney Kukura did not offer an explanation for why this was so and proceeded with the hearing, regardless of the officer's absence.
This court held a hearing on Attorney Kukura's motion to withdraw on January 15, 2015. The transcript of this hearing reveals that Attorney Kukura stated that she and the defendant had " differing views on how to proceed on the case, and after our last discussion [the defendant] requested that I submit my motion to withdraw." Withdrawal Motion 6 Tr. at p. 2. The court addressed the defendant regarding the numerous attorneys appointed to his case and noted that due to his conduct, there would be a hearing to determine if he had waived his right to counsel by conduct. Motion 6 Tr. at p. 4-5. The court appointed CPCS counsel for the purposes of that issue only. Motion 6 Tr. at p. 8.
Cited as Withdrawal Motion 6 Tr. p.
Although I used the word " forfeited, " the proper term, which I corrected at the waiver hearing, is " waiver by conduct."
The waiver hearing was held before this court on February 29, 2015. The defendant did not present any witnesses, affidavits, or documentary evidence to suggest that he did not waive his right by conduct. He simply argued his version of events through motion counsel. Motion counsel stated that she did not find the defendant difficult to deal with in preparing for this motion hearing.
RULINGS OF LAW
The Sixth Amendment to the United States Constitution provides: " In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." " An accused's right to be represented by counsel is a fundamental component of our criminal justice system." Means , 454 Mass. at 88, quoting United States v. Cronic , 466 U.S. 648, 653, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). However, although the right to counsel is " fundamental"; Gideon v. Wainwright , 372 U.S. 335, 344, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), it " is not absolute"; Means , 454 Mass. at 89. " Criminal defendants may voluntarily, and in some circumstances involuntarily, proceed without a lawyer. Among the means by which criminal defendant may forgo their right to assistance of counsel are waiver, waiver by conduct, and forfeiture." Id. at 89 (citation omitted).
In the instant action, the court is specifically concerned with whether the defendant has waived counsel by conduct. This doctrine, " occasionally termed abandonment of counsel, " was recognized by the Supreme Judicial Court in Means. Id. at 90. In discussing the doctrine, the Means court articulated that " waiver by conduct generally occurs when a defendant competent to waive counsel moves to remove his attorney without good cause, the motion is denied, and the judge warns the defendant that he will lose his right to an attorney if he engages in dilatory or abusive conduct towards his attorney." Id. at 90-91 (citation omitted). If the defendant does not heed the court's advice and " engages in the very misconduct he was warned not to commit, the misconduct may be treated 'as an implied request to proceed pro se and, thus, as a waiver of the right to counsel, ' because the defendant had been warned of the consequences of such misconduct." Id. at 91, quoting United States v. Goldberg , 67 F.3d 1092, 1100 (3d Cir. 1995). " The key to waiver by conduct is misconduct occurring after an express warning has been given to the defendant about the defendant's behavior and the consequences of proceeding without counsel." Means , 454 Mass. at 91, citing Goldberg , 67 F.3d at 1100-02.
Therefore, in accordance with the principles articulated in Means , in order to find waiver of counsel by conduct the court must find that: (1) the defendant engaged in dilatory and abusive conduct; (2) the defendant was sufficiently warned not to continue this conduct; (3) the defendant understood the risks of proceeding without counsel; and (4) the defendant ignored the court's warnings, and continued his dilatory and abusive conduct. The court will address each of these requirements in regards to the particular circumstances of this case.
A. Dilatory and Abusive Conduct
First, the court finds that the defendant engaged in offensive and abusive conduct towards his attorneys. Motion counsel represented to the court at the waiver hearing that the defendant did not request any of his attorneys to withdraw. This is clearly belied in the record as various attorneys stated that the defendant asked them to file a motion to withdraw. The record does demonstrate, however, that the defendant continuously alienated his counsel due to his unreasonable demands. These demands included requesting his attorneys to file frivolous motions, even after counsel advised that the motions would fail. When counsel did not file these motions or proceed in such a way the defendant thought correct, the defendant would threaten them, argue with them, question their ethics, and ask them to withdraw from his case. The court finds this conduct to be " dilatory and abusive." Means , 454 Mass. at 90. See also United States v. Thomas , 357 F.3d 357, 360-61 (3d Cir. 2004) (defendant waived counsel through his conduct by demanding counsel file frivolous motions, yelling at counsel, and engaging in abusive behavior towards counsel).
Specific examples of this blatant untruth include: Attorney Vukmirovits's statement that he received a letter from the defendant asking him to withdraw, Attorney Kukura's statement that the defendant requested her to withdraw from his case.
The court notes that the defendant did not threaten the attorneys with any violence. However, he did threaten to report Attorney Power to the Board of Bar Overseers.
All of the attorneys who represented the defendant are known to the court to be competent well-respected criminal defense attorneys.
The defendant's actions have also significantly delayed his case. His case is currently four years old and has not made any significant steps towards resolution. The defendant's abusive tactics have been very effective in stalling his trial and the court considers them as " highly disruptive of orderly . . . court proceedings." Means , 454 Mass. at 91.
B. Sufficiency of Warnings
Next, the court finds that the defendant was warned of the consequences of not cooperating with his counsel on three separate occasions. Judge Lemire gave the defendant his first warning regarding the risks of disagreeing with counsel on October 14, 2011. Withdrawal Motion 1 Tr. at p. 3. Although Judge Lemire did not specifically warn the defendant that his conduct could waive his right to counsel, Judge Lemire stated that " [t]he fact that you don't like that attorney, or disagree with that attorney, doesn't necessarily mean that you have a right to choose another attorney." Id. Subsequently, this court warned the defendant on February 9, 2015. There, this court reminded the defendant that he is facing " very serious charges." Withdrawal Motion 2 Tr. at p. 5. This included the court stressing that the defendant is " facing some minimum mandatory sentences of significance . . ." Id. This court went on to advise the defendant that " dilatory or abusive" conduct " can be considered a waiver of your right to counsel . . . That is not a good situation for you, and I think you know that." Id. Finally, at the hearing on March 27, 2013, this court warned the defendant that he must " learn to cooperate with counsel." Withdrawal Motion 3 Tr. at p. 9. If not, this court cautioned that " it may be found that you have forfeited your right to an attorney, and you may very well be representing yourself in these matters which, as you know, is not to your best advantage." Id.
The records of the proceedings demonstrate that the defendant was told, several times, that if he could not get along with his counsel, his conduct could be considered a waiver of his right to counsel. These warnings were specific enough to alert the defendant that he could lose his right to counsel and further sufficiently cautioned the defendant about the risks of proceeding pro se. Goldberg , 67 F.3d at 1101 (valid waiver by conduct " requires that a defendant be warned about the consequences of his conduct, including the risks of proceeding pro se"). See also Thomas at 363 (court must " focus on whether [the defendant] was warned of the possible consequences"); United States v. Fazzini , 871 F.2d 635, 642 (7th Cir. Ill. 1989) (district court appropriately warned defendant, who refused to cooperate with numerous counsel, that his failure to cooperate with future counsel would waive his right to counsel); United States v. Moore , 706 F.2d 538, 540 (5th Cir. 1983) (district court did not err in warning defendant that his failure to cooperate with fourth court-appointed attorney would signal a waiver of the right to counsel); United States v. Bonfilio , No. 09-205, at *3 (W.D.Pa. July 31, 2013) (court properly " cautioned defendant several times that no further counsel would be appointed, and that she would have to cooperate with her fifth appointed counsel or would be forced to proceed pro se").
C. Understanding the Risks of Proceeding Pro Se
The court further finds that the defendant was reminded several times of the difficulties of proceeding without counsel and the potential penalties he faces. See e.g., Withdrawal Motion 2 Tr. at p. 4 " [Y]ou're facing some minimum mandatory sentences of significance here . . . At some point . . . by your own actions, [you will] have waived your right to counsel . . . That is not a good situation for you, and I think you know that"); Withdrawal Motion 3 Tr. at p. 9 (" [Y]ou may very well be representing yourself in these matters which, as you know, is not to your best advantage").
It is also clear that the defendant understood these risks, as he stated at various withdrawal hearings that he is not qualified to represent himself. See e.g., Withdrawal Motion 5 Tr. at p. 4 (defendant stated he " would prefer to ask for another attorney because I'm not legally qualified to do this"). Compare Commonwealth v. Clemens , 77 Mass.App.Ct. 232, 242, 929 N.E.2d 344 (2010) (no basis to believe that defendant was aware of difficulties arising out of self-representation) with Thomas , 357 F.3d at 365 (court's discussion of potential penalties that defendant faced was sufficient to show defendant understood difficulties of self representation).
D. Continuation of Conduct
Finally, although the defendant was warned about the consequences of his conduct, he continued to engage in the same actions he was urged not to partake in. It therefore follows that the defendant has waived his right to appointed counsel by his dilatory and abusive conduct. See Commonwealth v. Pena , 462 Mass. 183, 192, 967 N.E.2d 603 (2012), citing Means , 454 Mass. at 91 (" 'Waiver by conduct' may occur where a defendant fails to engage counsel within a reasonable time after the defendant has been given an express warning about the implications and consequences of proceeding without counsel"); Means , 454 Mass. at 91, quoting Goldberg , 67 F.3d at 1101 (if defendant " engages in the very misconduct he was warned not to commit, the misconduct may be treated 'as an implied request to proceed pro se and, thus, as a waiver of the right to counsel, ' because the defendant had been warned of such misconduct"); United States v. Kosow , 400 Fed.Appx. 698, 702 (3d Cir. Pa. 2010) (defendant waived counsel by conduct as defendant " fired or alienated a long succession of lawyers--two after he had been warned by the District Court that he would waive his right to counsel upon repeated misconduct . . .").
ORDER
Having found that the defendant has waived his right to appointed counsel by conduct, the defendant is hereby ORDERED either to hire private counsel or proceed pro se.