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COMMONWEALTH v. KASKI (2021)

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Appeals Court of Massachusetts.

COMMONWEALTH v. Kurt P. KASKI.

20-P-727

Decided: October 27, 2021

By the Court (Desmond, Sacks & Grant, JJ.1)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury-waived District Court trial at which he waived his right to counsel and represented himself, the defendant was convicted of assault and battery of a family or household member and of strangulation or suffocation. He was sentenced to two concurrent two-year terms in a house of correction. On appeal, now represented by counsel, the defendant argues that his waiver of his right to counsel at trial was not knowing and intelligent, primarily because the record does not establish that he was aware of the perils of self-representation. We are unpersuaded and therefore affirm the convictions.

Background. The circumstances resulting in the charges against the defendant need not detain us. At arraignment, he was found indigent and counsel was appointed. Less than one month before trial, however, defense counsel moved for leave to withdraw, asserting that the defendant was making disparaging and insulting remarks about counsel, that he had apparently lost confidence in counsel, and that communications had broken down.2 After a hearing on November 8, 2019, the motion was allowed, and new counsel was appointed to serve on a standby basis.

Prior to the scheduled December 2, 2019 trial, the defendant filed a motion for witness summonses. The motion stated that he was representing himself but that he was “at a disadvantage without my law library access or phone [number] or address to contact [standby counsel]. Also my [i]nability to contact the [witnesses] I plan to call to testify.” The motion was allowed.

On the day of trial, the judge began by confirming that the defendant wished to represent himself and was aware that standby counsel was present and available for consultation. The judge asked whether a waiver of counsel had been executed; standby counsel replied, “I don't know if we did that last time.” The clerk stated that prior counsel's motion to withdraw had previously been allowed, and then informed the judge, “but you have before you ․ a typewritten note.” The judge replied, “Right, I'm going to address that.” The defendant then executed a written waiver of counsel,3 was sworn, and participated in the following colloquy:

The court: “All right. So I just want to make sure you understand how you're proceeding, sir. So I have here a signed waiver of your right to have a lawyer to represent you. I want to go over that first before we go over the issue of whether you want a jury trial or a bench trial.

“So I want to make sure you understand that you have an absolute right, constitutional right to have a lawyer represent you in these criminal proceedings. If you cannot afford a lawyer, one would be provided for you by the Commonwealth through the Committee for Public Counsel Services. If you have an attorney represent you, which I know you have in the past, that attorney would use his or her legal expertise in assisting you in preparing for trial, preparing a defense, and obtaining discovery evidence and so forth. Do you understand that, sir?”

The defendant: “Yes, I do.”

The court: “And is it your intention to represent yourself?”

The defendant: “Yes, it is, Your Honor.”

The court: “Okay. And are you under the influence of any substance?”

The defendant: “Absolutely not.”

The court: “Okay. Have you had enough of an opportunity to reflect on the decision to represent yourself and waive your right to have an attorney appointed or otherwise hired to represent you?”

The defendant: “Yes, I have.”

The court: “And that's how you want to proceed?”

The defendant: “Yes, Your Honor.”

The court: “Okay. No one has told you to do that, this is a decision you're making --”

The defendant: “Yes, Your Honor.”

The court: “-- on your own? All right, so I'm going to accept your waiver of counsel. And now I have a typed waiver, your motion for a fair and impartial trial by judge, which I have had an opportunity to read. I do note that you are suggesting that you want a trial, a bench trial in front of [another judge]. I'm not [that judge] and I'm the judge who would hear this, so ․ do you understand that?”

The defendant: “Yes, I do.”

Shortly thereafter, in the course of discussing the defendant's desire to waive a jury trial, the defendant mentioned that he had lost some documents, although he had photocopies. The defendant then stated, “But I have taken an oath to tell the truth and I would just ask a little leeway on some of that evidence.” The judge responded by informing him that “by representing yourself, that doesn't mean the [r]ules of [e]vidence go out the window and, because you're not an attorney, it doesn't mean that you don't have to follow the procedures․ I want you to understand that.” The judge continued, “So to the extent that there's relevant, admissible evidence that you're going to present, then I'll accept it ․ if it's not admissible or otherwise relevant, then I won't accept it.” The defendant stated that he understood.

Discussion. 1. Governing standards. The Supreme Judicial Court most recently reviewed the principles governing voluntary waiver of the right to counsel in Commonwealth v. Means, 454 Mass. 81, 90 (2009). “To be effective, the waiver must be voluntary and must involve an informed and intentional relinquishment of a known right” (quotations omitted). Id. at 89. “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” (quotations omitted). Id. at 89-90. “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). Id. at 90. Acceptance of a waiver that is not knowing and intelligent is the equivalent of an erroneous denial of the right to counsel, which “can never be treated as harmless error.”4 Id. at 89.

The court has “not prescribed the questions that a judge must pose to an accused who desires to represent himself nor is there any particular piece of information that is essential to an effective waiver of counsel” (quotation omitted). Id. at 90 n.15. “The focus of our review is the defendant's subjective understanding of his decision and its consequences” (quotation omitted). Id.

Federal constitutional law is to the same effect. “As to waiver of trial counsel, we have said that before a defendant may be allowed to proceed pro se, he must be warned specifically of the hazards ahead.” Iowa v. Tovar, 541 U.S. 77, 88–89 (2004), citing Faretta v. California, 422 U.S. 806 (1975). “Warnings of the pitfalls of proceeding to trial without counsel ․ must be ‘rigorous[ly]’ conveyed.” Tovar, supra at 89, quoting Patterson v. Illinois, 487 U.S. 285, 298 (1988).

But the inquiry need not always be extensive. See Commonwealth v. Cote, 74 Mass. App. Ct. 709, 712 (2009) (discussing cases in which colloquy was held adequate). And “[t]he determination of waiver may properly be based on the background, experience, and conduct of the accused and the circumstances of the case” (citation omitted). Commonwealth v. Pamplona, 58 Mass. App. Ct. 239, 241 (2003). A judge's certification of the waiver under S.J.C. Rule 3:10, as appearing in 475 Mass. 1301 (2016), “while not conclusive, provides some evidence that the defendant's waiver is knowing and intelligent.” Commonwealth v. Mullen, 72 Mass. App. Ct. 136, 142 (2008). Importantly, at least where, as here, the defendant has affirmatively indicated his desire to represent himself, the burden is on him to establish that his waiver was not knowing and intelligent. See Cote, supra. Cf. Commonwealth v. Johnson, 424 Mass. 338, 340-341 (1997).

2. Application of principles to this case. The defendant has not met his burden. Before accepting the defendant's waiver, the judge ascertained that the defendant understood, based on his past experience, that an “attorney would use his or her legal expertise in assisting [the defendant] in preparing for trial, preparing a defense, and obtaining discovery evidence and so forth,” but that the defendant still wanted to waive his right to counsel. The defendant was thereby clearly made aware of what he would be forgoing if he waived counsel, i.e., made aware of the disadvantages of self-representation.

Moreover, the defendant himself expressly indicated, in his pro se motion for witness summonses, that he was aware that having only standby counsel put him at a disadvantage. He nevertheless chose to proceed. And the filing of the motion itself, in a form sufficient to cause it to be allowed, indicated the defendant's awareness that certain procedures had to be followed in order for him to introduce evidence at trial.

In a related vein, in the subsequent colloquy concerning the defendant's waiver of his right to a jury trial, the judge forcefully informed him that he would be required to follow the rules of evidence. Although that requirement was conveyed after the judge accepted the defendant's waiver of his right to counsel, the defendant responded by acknowledging repeatedly that he understood or agreed. This was not the response of a defendant who was just learning of the need to follow the law at trial. Yet the defendant said nothing to suggest any second thoughts about his waiver of counsel.

The Commonwealth also asks us to consider that the defendant had a lengthy criminal record that would have made him aware of the important role served by counsel and thus, at least by implication, the pitfalls of self-representation. See Pamplona, 58 Mass. App. Ct. at 241-242. To that end, the Commonwealth has sought leave to file a supplemental record appendix containing the defendant's board of probation record (BOP). Although the defendant (now represented by counsel) has opposed the motion, the defendant notably does not argue that the BOP was not before the judge. Indeed, earlier in the course of this appeal, the defendant sought in this court a stay pending appeal under Mass. R. A. P. 6 (b), as appearing in 481 Mass. 1608 (2019), and he attached to his motion a copy of his Court Activity Record Information (CARI) that bears the date November 8, 2019 -- the date of the hearing on defense counsel's motion to withdraw prior to trial. In these circumstances, we are unwilling to assume that the defendant's extensive history in the criminal justice system was not in the record before the judge.5 The judge could properly consider it in determining that the defendant was aware of the importance of counsel, the disadvantages of self-representation, or both.

Moreover, the defendant has left two troubling gaps in the appellate record. First, from the trial transcript it appears that there was some discussion at the November 8, 2019 hearing of the defendant's desire to represent himself, and the docket sheet's indication that only standby counsel was appointed at that time suggests the same. Yet the defendant has not included a transcript of that hearing in the record before us. “It is the defendant's burden, as appellant, to bring us a satisfactory transcript.” Commonwealth v. Montanez, 388 Mass. 603, 604 (1983), citing Mass. R. A. P. 18 (a), as amended, 378 Mass. 940 (1979). See, now, Mass. R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019).

Second, the trial transcript indicates that the defendant filed a typewritten note on or before the day of trial, which the clerk believed related to the waiver of counsel issue. The judge had the note before her, and it related at a minimum to the defendant's desire for a jury-waived trial. The note thus would seem to be relevant, directly or indirectly, to the state of the defendant's knowledge about representing himself at trial, and the judge's awareness on that knowledge. Yet the note is not in the record before us. “Under rule 18 (a), an appellant must provide the reviewing court with all relevant portions of the record.” Shawmut Community Bank, N.A. v. Zagami, 411 Mass. 807, 811 (1992).

For all of these reasons, we conclude that, although it might have been better if the judge had warned the defendant even more “specifically of the hazards ahead,” Tovar, 541 U.S. at 89, the defendant has not met his burden of showing that his waiver of counsel was not knowing and intelligent.

Judgments affirmed.

FOOTNOTES

2.   We glean this information from counsel's November 7, 2019 motion to withdraw. We may rely on that motion notwithstanding that it is not in the parties’ record appendices. See Mass. R. A. P. 18 (a) (1) (D), as appearing in 481 Mass. 1637 (2019). See also Commonwealth v. Morse, 50 Mass. App. Ct. 582, 584 n.3 (2000).

3.   Consistent with S.J.C. Rule 3:10, § 3, as appearing in 475 Mass. 1301 (2016), the waiver form was signed by the judge and included a pre-printed finding that the defendant had “knowingly and voluntarily elected to proceed without counsel.”

4.   See Commonwealth v. Cote, 74 Mass. App. Ct. 709, 713-714 (2009) (reversing order denying motion for new trial without discussing prejudice, where record did not support finding that waiver of right to counsel was knowing and intelligent); Commonwealth v. Mullen, 72 Mass. App. Ct. 136, 145 (2008) (same). Cf. Commonwealth v. Cavanaugh, 371 Mass. 46, 57 n.7 (1976) (suggesting that Federal precedent foreclosed argument that erroneous finding of waiver of right to counsel could be harmless error); Commonwealth v. Johnson, 80 Mass. App. Ct. 505, 514 (2011) (constitutionally ineffective waiver of counsel required new trial “even though the likelihood of a different outcome might have been low”). The Commonwealth here does not argue that the harmless error doctrine applies.

5.   We allow the Commonwealth's motion. See Pamplona, 58 Mass. App. Ct. at 242 n.1.

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