COMMONWEALTH v. CRANE (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Adam Crane, appeals from convictions after a Superior Court jury trial of possession of materials to make an incendiary device with the intent to make an incendiary device, G. L. c. 266, § 102 (a) (1), and willful explosion of an incendiary device, G. L. c. 266, § 102B. Concluding that the judge conducted an adequate colloquy on the defendant's waiver of counsel and appropriately explored the defendant's competency to waive counsel, we affirm. Further concluding that the defendant failed to show that trial counsel's reservation of further suppression grounds until after the judge's ruling on the first suppression motion fell outside a reasonable tactical choice, we affirm the denial of the defendant's motion for a new trial.

1. Waiver of counsel. “The assistance of counsel is so important to our system of justice that it cannot be waived unless a judge is satisfied that the waiver was entered knowingly and voluntarily.” Commonwealth v. Johnson, 80 Mass. App. Ct. 505, 509 (2011). “The judge must ensure by careful inquiry on the record that the waiver is made with a sense of the magnitude of the undertaking and the disadvantages of self-representation ․: an awareness that there are technical rules governing the conduct of a trial, and that presenting a defense is not a simple matter of telling one's story ․ In addition, the accused should have a general appreciation of the seriousness of the charge and of the penalties he may be exposed to before deciding to take a chance on his own skill.” (Quotation omitted.) Commonwealth v. Means, 454 Mass. 81, 89-90 (2009), quoting Commonwealth v. Lee, 394 Mass. 209, 216-217 (1985).²

Here, the judge told the defendant that counsel has “more knowledge of the law and experience with the law than you do” and elicited the defendant's understanding that counsel has “training and experience” and “is in a much better position than you are to understand what the best trial strategy would be.” She elicited that the defendant understood that he “will be bound to follow the rules of criminal procedure and other rules of court” and warned the defendant that this required “more than common sense.” She advised the defendant that “it would be better for you to have a lawyer.” This was adequate to make the defendant aware of the disadvantages and challenges of self-representation. See Commonwealth v. Pamplona, 58 Mass. App. Ct. 239, 241-242 (2003) (where “judge advised the defendant that difficulties can attend self-representation and that knowledge of the law and the rules of evidence would be helpful,” colloquy “truncated[ ] ․ [but] adequate”).

The judge also reported the potential penalties for the charged crimes in front of the defendant after breaking from a sidebar “so [the defendant] can know about” plea negotiations. Although it would have been preferable to confirm that the defendant understood the potential penalties, the judge adequately satisfied the requirement that the defendant understand the seriousness of the charges and potential penalties. See Commonwealth v. Martin, 425 Mass. 718, 720 (1997) (colloquy adequate where “judge explained the nature of the charges”); Commonwealth v. Barnes, 399 Mass. 385, 390-391 (1987) (colloquy adequate despite absence of express statement of maximum penalties).

The judge also properly determined that the defendant was competent to waive counsel. “Where there is a bona fide doubt as to the defendant's competency to waive counsel as a result of a history of mental illness, the judge should conduct a separate inquiry on that issue.” Johnson, 80 Mass. App. Ct. at 511-512. “The scope of the inquiry into a mentally ill defendant's competence to waive counsel and self-represent are determined by the circumstances at hand.” Means, 454 Mass. at 96. The clinical psychologist who evaluated the defendant opined that the defendant “might be able to represent himself with assistance of any attorney, if he could agree to take her/her advice.” Consistent with this admonition, the judge repeatedly expressed concerns about the defendant's competency to represent himself, and found the defendant competent to waive counsel only once he agreed to accept the assistance of standby counsel. The record thus reveals the judge's careful consideration of the defendant's competency and her reasonable reliance on a clinical psychologist's report prepared less than three months prior to the waiver. Contrast Johnson, supra at 512 (last competency hearing had occurred over sixteen months prior to trial). The judge properly allowed the defendant to waive counsel.

2. Effective assistance of counsel. “[W]e review the denial of a motion for a new trial for ‘a significant error of law or other abuse of discretion.’ ” Commonwealth v. Duart, 477 Mass. 630, 634 (2017), quoting Commonwealth v. Forte, 469 Mass. 469, 488 (2014). Where, as here, “the motion judge was also the trial judge, her rulings are ‘afforded special deference.’ ” Commonwealth v. Gaudette, 56 Mass. App. Ct. 494, 503 (2002), quoting Commonwealth v. Hung Tan Vo, 427 Mass. 464, 467 (1998). When the basis for a motion for a new trial is a claim of ineffective assistance of counsel, “the defendant must show that the behavior of counsel fell measurably below that of an ordinary, fallible lawyer and that such failing ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ ” Commonwealth v. Prado, 94 Mass. App. Ct. 253, 255 (2018), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

Here, it is evident from the record that the defendant was opposed to filing additional suppression motions. Counsel for the suppression hearing stated that she made a tactical decision to wait until the judge ruled on the defendant's first motion to suppress to file additional motions to suppress, in the hope that the defendant could be persuaded to accept such filings.³ In light of the defendant's preference to proceed pro se rather than to allow the trial to be delayed by suppression motions, this tactic offered the greatest likelihood of protecting the defendant's rights without causing an irretrievable breakdown in the attorney-client relationship. Cf. Commonwealth v. Choeurn, 446 Mass. 510, 520-521 (2006) (reasonable tactical choice not to file motion to suppress where absence of motion provided trial advantage).

Neither motion counsel's statement at the suppression hearing that she was not contesting the search of the bedroom nor her corresponding statement that a finding of a Miranda violation would not require suppression of the evidence seized in the bedroom would have barred her from pursuing another motion to suppress, if the defendant assented. See Commonwealth v. Mauricio, 477 Mass. 588, 590-591 (2017) (follow-up suppression motion permissible). Similarly, the tight time frame was entirely of the defendant's making, and there is no indication in the record that the judge would not have allowed additional time for another suppression hearing, if the defendant assented. “Where the claimed ineffectiveness is the result of a strategic or tactical decision of trial counsel, the decision must have been ‘manifestly unreasonable’ to be considered an error.” Commonwealth v. Ayala, 481 Mass. 46, 62 (2018), quoting Commonwealth v. Kolenovic, 478 Mass. 189, 193 (2017). The defendant has failed to show that motion counsel's tactic was unreasonable, much less manifestly so. Accordingly, the judge properly denied the defendant's motion for a new trial.

Judgments affirmed.

Order denying motion for new trial affirmed.

FOOTNOTES

2.   The absence of the written waiver required by S.J.C. Rule 3:10, § 3, as appearing in 475 Mass. 1301 (2016), is a factor, but “is not conclusive of a lack of waiver.” Commonwealth v. Pamplona, 58 Mass. App. Ct. 239, 243 (2003). Accord Commonwealth v. Cote, 74 Mass. App. Ct. 709, 713 (2009) (“even the absence of a signed form would not be conclusive on the issue of waiver”).

3.   Both parties agreed that motion counsel's statements could be accepted in the form of affidavits from current counsel.