Opinion
10-P-555
04-30-2015
COMMONWEALTH v. THOMAS F. PATCH.
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
Because the defendant did not knowingly and voluntarily waive his right to counsel, and did not otherwise engage in conduct that would warrant waiver by conduct, we agree that he is entitled to a new trial on the charges of which he was convicted on March 13, 2006.
The defendant was tried on three complaints, consolidated for trial: (i) a complaint issued on December 22, 2003, for violation of a protective order under G. L. c. 209A, § 7, (ii) a complaint issued on April 5, 2004, for violation of a protective order under G. L. c. 209A, § 7, and (iii) a complaint issued on December 2, 2004, for criminal harassment under G. L. c. 265, § 43A(a).
As the defendant observes, the defendant never received a full colloquy warning him of the perils of representing himself. See Commonwealth v. Means, 454 Mass. 81, 89-90 (2009). Moreover, unlike the circumstances in cases such as Commonwealth v. Pena, 462 Mass. 183, 194 (2012), the defendant was not warned that he would be required to proceed without an attorney unless he obtained counsel by a date certain. The first time a judge addressed the defendant on the topic of counsel was the day of trial; accordingly, he was not "previously warned by a judge against the misconduct" of causing delay by his failure to secure counsel. Commonwealth v. Clemens, 77 Mass. App. Ct. 232, 240 (2010). The defendant's indication on signed pleadings that he was acting "pro se" is without consequence, both because he did not receive a full colloquy and because he expressly reserved "the right to secure representation of a lawyer in the future." The authorities relied upon by the Commonwealth for a contrary conclusion are inapposite because they involve circumstances in which defendants forced counsel to withdraw, or attempted to do so, without good cause and despite warnings by the judge. The defendant is entitled to a new trial.
Though a judge signed a certificate on December 9, 2004, stating that the defendant had executed a waiver of counsel, no signed waiver form appears in the record, and the docket reflects no colloquy.
We also observe that, though the appointment of standby counsel on the day of trial was not an adequate substitute for the defendant's right to counsel, the trial judge's discharge of standby counsel upon the defendant's attempt to preserve his objection to proceeding without counsel was without justification.
Our conclusion that the defendant is entitled to a new trial obviates the need to consider his claims of error in the probation revocation proceedings following his conviction. We comment briefly on certain of the defendant's other claims. First, the evidence was sufficient under Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), to support the defendant's conviction of criminal harassment, for substantially the reasons explained in the Commonwealth's brief at pages thirty-one to thirty-three. Second, though we discern no material prejudice resulting from the error, the trial judge erred in excluding from evidence the letter of Dr. Steven Nielsen dated December 31, 2003, as it satisfied the statutory requisites of G. L. c. 233, § 79G. Third, the motion judge did not abuse his discretion, and otherwise acted within his authority in issuing the criminal harassment complaint against the defendant. See Bradford v. Knights, 427 Mass. 748, 750-753 (1998); Standard 3:22 of the Standards of Judicial Practice, The Complaint Procedure of the District Court Department of the Trial Court (2008).
We decline to consider the defendant's unpreserved claims of error in the jury instructions, or his claims of improper closing argument by the prosecutor, as they are unlikely to recur at any retrial of the defendant.
Judgments reversed. Verdicts set aside.
By the Court (Rapoza, C.J., Cohen & Green, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 30, 2015.