COMMONWEALTH v. SHANAHAN (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Robert W. Shanahan, appeals from convictions, after a Superior Court jury trial, of armed home invasion, G. L. c. 265, § 18C, armed assault in a dwelling, G. L. c. 265, § 18A, and assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A. Concluding that the defendant was deprived of counsel at a critical stage of the proceedings and that the Commonwealth has not shown that the deprivation was harmless beyond a reasonable doubt, we reverse the judgments, set aside the verdicts, and remand for a new trial.

1. Forfeiture of counsel. “Under the Sixth Amendment to the United States Constitution and art. 12 [of the Massachusetts Declaration of Rights], the defendant has a right to counsel at every ‘critical stage’ of the criminal process.” Commonwealth v. Johnson, 80 Mass. App. Ct. 505, 510 (2011), quoting Commonwealth v. Woods, 427 Mass. 169, 174 (1998). “Just as criminal defendants have a constitutional right to be represented by counsel, individuals in criminal and civil matters have a constitutional right to represent themselves.” Commonwealth v. Means, 454 Mass. 81, 89 (2009). “[A]n indigent defendant who refuses, without good cause, to proceed with appointed counsel may be deemed, by his conduct, to have waived his right to an attorney.” Commonwealth v. Pena, 462 Mass. 183, 192 (2012). “However, such a result can only occur if the defendant is warned of the difficulties of self-representation, and ‘knowingly and intelligently’ insists that the ‘appointed counsel not represent him under any circumstances.’ ” Commonwealth v. Clemens, 77 Mass. App. Ct. 232, 242 (2010), quoting Commonwealth v. Pamplona, 58 Mass. App. Ct. 239, 241-242 (2003). Specifically, the record must show that, at the time of waiver, “the defendant had ‘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.’ ” Clemens, supra at 243, quoting Commonwealth v. Moran, 17 Mass. App. Ct. 200, 208 (1983). Accord Commonwealth v. Gibson, 474 Mass. 726, 741 (2016).

Here, it is undeniable that the defendant understood the seriousness of the charges he faced. Beyond that, the motion judge who denied the defendant's motion to replace his third counsel simply told the defendant that he could choose between being represented by current counsel, representing himself with the assistance of standby counsel, or representing himself without the assistance of standby counsel. On the next court date, without receiving any further warnings, the defendant chose to proceed pro se with standby counsel. Nothing in the record shows the defendant was warned of the technical rules governing criminal proceedings or that presenting a defense is more than telling one's story.

This is not a case in which we can discern the defendant's understanding of the disadvantages of self-representation from his experience with the criminal justice system. See Pamplona, 58 Mass. App. Ct. at 242. The record before us reveals only that the defendant pleaded guilty to breaking and entering in the nighttime with intent to commit a felony nine years before this trial. When the defendant first appeared before the trial judge (not the judge who handled the waiver of counsel), he tried unsuccessfully to litigate a motion to suppress. The trial judge then patiently and carefully explained to the defendant the basics of trial structure in great detail. After the lunch break, the defendant immediately chose to resume representation by the attorney he had dismissed. The record thus affirmatively suggests that the defendant, as soon as he understood the intricacies of trial practice, opted to be represented by his last attorney.

We cannot stop there, however, for the right to be represented by counsel applies only to critical stages of the proceedings. “In order to constitute a critical stage, the accused must require assistance in ‘coping with legal problems or assistance in meeting his adversary,’ and the Sixth Amendment does not apply where there is no possibility ‘that the accused might be misled by his lack of familiarity with the law or overpowered by his professional adversary.’ ” Commonwealth v. Sargent, 449 Mass. 576, 580 (2007), quoting United States v. Byers, 740 F.2d 1104, 1118 (D.C. Cir. 1984). See Robinson v. Commonwealth, 445 Mass. 280, 286 (2005) (“because the suppression hearing in this case would have required the taking of evidence and also involved the admissibility of substantial evidence that could determine the outcome of the case,” suppression hearing is critical stage); Commonwealth v. Medina, 64 Mass. App. Ct. 708, 721 (2005) (hearings at which evidence is taken are critical stages).

“The term ‘critical stage’ is a term of art.” Commonwealth v. Neary-French, 475 Mass. 167, 173 (2016). “The Supreme Court has held that postindictment lineups, postindictment interrogation by the State, plea hearings, and arraignments are critical stages where the Sixth Amendment right to counsel attaches.” Id. at 171. In addition, critical stages involve such vital proceedings as a hearing on the waiver of counsel, Commonwealth v. Francis, 485 Mass. 86, 99 (2020); a suppression hearing, Commonwealth v. Fontanez, 482 Mass. 22, 32 (2019); a plea hearing, Commonwealth v. Najjar, 96 Mass. App. Ct. 569, 578, 580 (2019); and sentencing, Commonwealth v. Gilbert, 94 Mass. App. Ct. 168, 175 (2018). By contrast, a jury view in a criminal trial, Commonwealth v. Morganti, 455 Mass. 388, 403 (2009), and a psychiatric interview for purposes of criminal responsibility, Commonwealth v. Johnston, 467 Mass. 674, 687 (2014), are not critical stages.

Here, there were at least two events that constituted critical stages that occurred when the defendant was unrepresented. First, the defendant litigated two motions to dismiss indictments. Second, the defendant litigated his motion to suppress on the basis of an unlawful arrest and failure to provide Miranda warnings. That second motion was partially denied without an evidentiary hearing on one date, and the prosecutor convinced the defendant to withdraw the remaining portion on another date.²

Our jurisprudence is inconsistent whether a temporary denial of counsel may be reviewed for harmlessness. Compare Johnson, 80 Mass. App. Ct. at 511 (denial of counsel for entire suppression hearing was structural error), with Commonwealth v. Bacigalupo, 49 Mass. App. Ct. 629, 633-634 (2000) (denial of counsel while responding to jury question; “reversal is not required if the Commonwealth makes an affirmative showing that the error was harmless beyond a reasonable doubt”).³ We need not resolve this jurisprudential quandary, however, as the Commonwealth correctly makes no claim that the deprivation of counsel here was harmless beyond a reasonable doubt. As the trial judge found in denying the defendant's motion for a new trial, and as trial counsel stated in a letter to appellate counsel, the period of deprivation of counsel prevented trial counsel from fully preparing for the trial. As it happened, trial counsel was reappointed two days before the trial started and “was alerted that the case was set down for trial when [the defendant] stood up in court and asked that [counsel] do the trial.” Under these circumstances, the Commonwealth has not rebutted the presumption that “the error had, or might have had, an effect on the jury and ․ the error contributed to or might have contributed to the jury's verdicts.” Commonwealth v. Barrett, 97 Mass. App. Ct. 437, 443 (2020), quoting Commonwealth v. Dyette, 87 Mass. App. Ct. 548, 560 (2015).

2. Conclusion. The judgments are reversed, the verdicts are set aside,⁴ and the case is remanded to the Superior Court for a new trial.⁵

So ordered.

Reversed, verdicts set aside; remanded

FOOTNOTES

2.   There was a serious question whether the evidence the defendant wanted suppressed was inculpatory or exculpatory, and the prosecutor acted properly in pointing that out to the defendant.

3.   Of course, if the defendant were correct that the deprivation of counsel at any critical stage automatically requires the reversal of any subsequent trial verdict, there would be no possible remedy as any retrial would have to be reversed because the defendant was deprived counsel at a pretrial hearing.

4.   “Because we reverse the criminal convictions, we need not consider the defendant's appeal from the denial of his [amended] motion for a new trial.” Commonwealth v. Barrett, 97 Mass. App. Ct. 437, 438 n.1 (2020).

5.   The defendant should also be given an opportunity to relitigate the suppression motions and motions to dismiss, if he so desires.