Opinion
22-P-116
10-18-2022
COMMONWEALTH v. TIMOTHY SMITH.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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, 7 1 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On appeal from the denial of his second motion for new trial, as amended, the defendant, Timothy Smith, asserts that the motion judge erred in ruling that he was estopped from raising his claim that his waiver of his right to counsel at trial was invalid, because he raised that claim in his first motion for new trial but did not pursue it on appeal. We affirm.
Background.
The defendant was indicted on charges of rape (G. L. c. 265, § 22), kidnapping (G. L. c. 265, § 26), and strangulation (G. L. c. 265, § 15D [b]); the rape indictment also alleged that the sentence for that crime should be enhanced pursuant to the habitual criminal provision of G. L. c. 279, § 25. At arraignment an attorney was appointed who withdrew from representation after about three weeks. Another attorney was appointed, who represented the defendant for about three months and then withdrew from representing him. In August 2017, about eight months before trial, the attorney who appeared at trial (defense counsel) was appointed to represent him.
At a November 13, 2017 hearing, defense counsel stated that she was moving to withdraw because the defendant had drafted his own motion to dismiss pursuant to Commonwealth v. O'Dell, 392 Mass. 445, 447 (1984), "that he wants to file pro se and argue pro se." Defense counsel explained that she was the defendant's third or fourth attorney and, "[t]hat said, I don't believe that [the defendant] wants counsel. I think the reason I'm moving to withdraw is because he wants to litigate these -- this motion on his own." The defendant was sworn, and the judge asked if he wanted to represent himself. The defendant replied, "Actually, Your Honor, that wasn't my intention . . . [b]ut that seems to be what I need to do in order to expedite this case." He told the judge that defense counsel and his prior lawyers had not provided him with copies of all of the discovery that the Commonwealth had provided, but from what he had, he could "see that there's certain things that the Commonwealth did not present to the grand jury." The judge explained that defense counsel "can't just take your motion and sign her name to it," and the defendant replied, "I'm not asking her to. I signed my name." The judge appointed defense counsel as standby counsel "[f]or the rest of the trial."
The indictments for rape, kidnapping, and strangulation were tried in April 2018 before another Superior Court judge (trial judge). With the defendant's agreement, defense counsel, acting as standby, conducted jury selection, conferring with the defendant about any follow-up questions and challenges. The defendant argued motions in limine and gave an opening statement. The defendant began the cross-examination of the first witness, the victim. When he tried to question her about what they had done together in the forty-five minutes they were alone in his apartment and her failure to tell ambulance personnel that she had been sexually assaulted, the victim became recalcitrant, and many of the prosecutor's objections to repetitive questions were sustained. At sidebar, defense counsel suggested that she be permitted to cross-examine the victim, and the defendant agreed. At defense counsel's request, the judge recessed the trial for an early lunch break so that defense counsel could discuss with the defendant her strategy for cross-examining the victim, and make sure they were "on the same page." Defense counsel then cross-examined the victim, succinctly eliciting many inconsistencies that furthered the defense theory that the victim had had consensual sex with the defendant in exchange for crack cocaine.
For the remainder of the trial, defense counsel conducted the defense over three days. Questioned by the trial judge, at several points the defendant explicitly stated that he wanted defense counsel to do so; at no point did he complain that he wanted to conduct the defense himself. Defense counsel cross-examined the remaining prosecution witnesses: a neighbor, a police detective, a criminalist, and a deoxyribonucleic acid (DNA) analyst. At the conclusion of the Commonwealth's case, defense counsel successfully moved for a required finding of not guilty on the strangulation charge. Defense counsel also successfully moved to exclude evidence of the defendant's prior convictions, and then conducted his direct examination. Defense counsel handled the charge conference, and gave the closing argument on behalf of the defendant. The jury found the defendant not guilty of rape, and convicted him only of kidnapping.
Three months after trial, the defendant filed pro se his first motion for new trial, and moved for appointment of counsel. In his first motion for new trial he argued, among other things, that he was "forced" to represent himself at trial, and the deprivation of his right to counsel amounted to structural error. The trial judge stayed the first motion for new trial pending appointment of counsel, but then the defendant moved for a hearing, and so the trial judge held a nonevidentiary hearing on the defendant's first motion for new trial. At it, the defendant told the trial judge: "my motion for a new trial, that aspect that's based on ineffective assistance, it's my contention that I'm not alleging any errors at this point during trial. I'm alleging that I was deprived of any assistance of counsel prior to trial. . . . When I waived counsel, I waived counsel simply because I could not receive the assistance of the three attorneys that were appointed." The trial judge denied the first motion for new trial in a written memorandum. In it she found, based on her memory of the trial, that the defendant had waived his right to counsel after a colloquy.
The trial judge made those findings without benefit of the trial transcript, which had not yet been prepared.
Represented by appellate counsel, the defendant appealed from the kidnapping conviction and from the denial of his first motion for new trial. In June 2019, the defendant's brief was filed in this court, but did not pursue his claim that he had been "forced" to represent himself at trial. While that appeal was pending, the transcript of the November 13, 2017 motion to dismiss hearing at which defense counsel was appointed as standby counsel was docketed in this court. The defendant then filed a reply brief that made no mention of his claim that he had been forced to represent himself at trial. A panel of this court heard oral argument, at which no mention was made of that claim, and affirmed the conviction and the denial of the motion for new trial in an unpublished opinion. See Commonwealth v. Smith, 97 Mass.App.Ct. 1106 (2020).
At oral argument in this case, the defendant stated that his appellate counsel had ordered that transcript at his request.
The defendant sought reconsideration of that decision in this court, and petitioned to the Supreme Judicial Court for further appellate review, which was denied, Commonwealth v. Smith, 484 Mass. 1106 (2020). Neither his motion for reconsideration nor his petition for further appellate review pursued his claim that he had been forced to represent himself at trial.
In June 2021, the defendant filed pro se his second motion for new trial asserting the claims raised here, including that he had been constructively denied his right to counsel at trial and his waiver of counsel was invalid. In a supporting affidavit, the defendant asserted that no waiver of counsel colloquy was conducted, and he never signed a waiver of counsel form. Two months later, the defendant filed an amended version of his second motion for new trial, adding a claim that the prosecutor knowingly had used false testimony by presenting the trial testimony of the victim and a detective, and also by obtaining the indictments based on their statements. The Commonwealth filed an opposing memorandum which did not address the defendant's new claim that the prosecutor had knowingly used false testimony.
A Superior Court judge other than the trial judge (motion judge) denied the second motion for new trial, ruling that the defendant was "estopped" from raising claims that he had raised in his first motion for new trial but had not pursued on his appeal from its denial. In his memorandum and order, the motion judge referred to the motion before him by the docket number of the second motion, not that of the second amended motion, and did not directly reference the new claim added in the second amended motion. The defendant moved to "correct" the motion judge's order, on the ground that it referenced the wrong docket number; the motion judge denied that motion. The defendant then moved for reconsideration of the denial of his motion to correct, and filed a supplemental memorandum of law reiterating his argument that the prosecutor improperly had presented "false testimony" before the grand jury and at trial. The motion judge endorsed it: "No action needed. Defendant's second new trial motion, as amended, was denied by this Court on 11/8/21 in a written decision." This appeal ensued.
Discussion. 1.
Motion for new trial.
A motion for new trial may be granted "at any time if it appears that justice may not have been done." Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). In reviewing the denial of a motion for new trial, we examine the motion judge's conclusions to determine if there has been a "significant error of law or other abuse of discretion," in other words, whether the motion judge's conclusion was "manifestly unjust" (citations omitted). Commonwealth v. Lessieur, 488 Mass. 620, 627 (2021). We will overturn the motion judge's decision only where it "falls outside the range of reasonable alternatives." Id., quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). Where, as here, the motion judge did not preside at trial or conduct an evidentiary hearing, we "regard ourselves in as good a position as the motion judge to assess the trial record." Lessieur, supra. However, to the extent that we consider factual findings made by the trial judge in denying the first motion for new trial, we accord those findings "special deference" unless clearly erroneous. Commonwealth v. Barnett, 482 Mass. 632, 638 (2019), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986). See also Commonwealth v. Sin, 100 Mass.App.Ct. 172, 177 (2021) .
The defendant argues that the motion judge erred in ruling that he was "estopped from relitigating" in his second motion for new trial his claim about the validity of his waiver of counsel, because he raised it in his first motion for new trial but did not pursue it on appeal. A defendant must raise all claims for relief in the original or amended motion for postconviction relief. "Any grounds not so raised are waived unless the judge in the exercise of discretion permits them to be raised in a subsequent motion, or unless such grounds could not reasonably have been raised in the original or amended motion." Mass. R. Crim. P. 30 (c) (2), as appearing in 435 Mass. 1501 (2001). See Rodwell v. Commonwealth, 432 Mass. 1016, 1017 (2000). The defendant argues that he could not reasonably have raised this claim in his first motion for new trial, because when he filed it he did not yet have the trial transcripts. That argument overlooks the facts, as set forth above, that he did raise the claim in his first motion for new trial, and then moved for a prompt hearing on that motion without awaiting appointment of counsel or preparation of transcripts. In any event, before he completed briefing in his appeal from the denial of that first motion for new trial, all of the transcripts were available to him, including the transcript of the November 13, 2017 hearing at which defense counsel was appointed as standby counsel. Cf. Commonwealth v. Francis, 485 Mass. 86, 105 (2020) (structural error regarding deprivation of choice of counsel waived where "this issue was not raised by the defendant or defense counsel despite the available transcript"). In those circumstances, we consider the validity of the defendant's waiver of counsel to determine if a substantial risk of a miscarriage of justice arose. See Id. at 106. "An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not materially influence [ ] the guilty verdict" (citation omitted) . Id. at 103.
As set forth above, at the November 13, 2017 hearing on the motion to dismiss, the defendant was represented by defense counsel, who told the judge in the defendant's presence that he wanted to waive counsel. Contrast Commonwealth v. Leonardi, 7 6 Mass.App.Ct. 271, 275-276 (2010) (jury waiver invalid because defendant not represented by counsel, only assisted by standby counsel, and no written waiver of counsel signed). The defendant argues, correctly, that the transcript contains no further colloquy regarding his waiver of counsel. Nor does the record contain any signed waiver of counsel form certified by a judge, as required by Mass. R. Crim. P. 8, as amended, 397 Mass. 1226 (1986), and S.J.C. Rule 3:10, § 3, as appearing in 475 Mass. 1301 (2016). See Commonwealth v. Najjar, 96 Mass.App.Ct. 569, 580-581 (2019). However, the lack of a written waiver is "not conclusive." Commonwealth v. Clemens, 77 Mass.App.Ct. 232, 240 n.10 (2010). Absent a written waiver, there must be "sufficient other evidence in the record to demonstrate that the waiver was voluntary and intelligent." Leonardi, supra at 277. For a waiver of counsel to be valid, the defendant must be "adequately aware of the seriousness of the charges, the magnitude of his undertaking, the availability of advisory counsel, and the disadvantages of self-representation" (citation omitted). Commonwealth v. Martin, 425 Mass. 718, 720 (1997). See also Commonwealth v. Means, 454 Mass. 81, 90 (2009).
The Commonwealth argues that the colloquy at the November 13, 2017 hearing, coupled with the defendant's conduct at trial, showed that he voluntarily waived counsel. See Najjar, 96 Mass.App.Ct. at 579. Contrast Clemens, 77 Mass.App.Ct. at 239-240 ("truncated colloquy" without discussion of risks of self-representation did not establish waiver). Even assuming --without deciding -- that the defendant was not sufficiently informed of the difficulty and the risks of self-representation, we conclude that there was no substantial risk of a miscarriage of justice, for two reasons.
First, for all intents and purposes, the defendant was represented by counsel at trial. Other than the defendant's arguing motions in limine, giving the opening statement, and beginning the direct examination of the victim, defense counsel conducted the defense. Indeed, defense counsel apparently understood that her role changed and she became trial counsel: at the end of trial, she commented, "up until midpoint in this trial I was standby counsel." In that role, defense counsel deftly cross-examined the victim, as well as the detective and two forensic witnesses, and cogently elicited the defendant's version of events on his direct examination. She managed to eliminate two of the three charges, by successfully moving for a required finding on the strangulation charge and convincing the jury to acquit the defendant of the rape charge. The defendant has not argued that defense counsel deviated from the strategy he wished to pursue. In those circumstances, even assuming that his waiver of counsel was invalid, the defendant was not prejudiced. Contrast Francis, 485 Mass. at 103 (defendant was "kept ... in the dark" about fact that trial counsel was not appointed, but represented him pro bono).
Second, as shown by the trial judge's ruling denying the first motion for new trial and our own review of the transcript, the evidence supporting the kidnapping conviction was overwhelming. The trial judge found that the victim's testimony "was clear, lucid and credible." The victim testified that the defendant would not let her leave his apartment, and so she climbed out the bathroom window and jumped to the ground, fracturing her pelvis. Her testimony was corroborated by the testimony of a neighbor who did not know either the victim or the defendant. The neighbor heard a woman screaming, "help me" and "he's trying to hurt me," then heard a man telling her to be quiet and sit down. While the neighbor was calling 911, she saw the victim jump out of a third-story window, fall onto a ledge, and then land on the ground. The testimony of the victim and the neighbor was corroborated further by recordings of 911 calls from each of them, surveillance video that partially depicted the victim's fall, and the victim's medical records. We defer to the trial judge's factual findings, based on the credibility of those witnesses, see Sin, 100 Mass.App.Ct. at 179-180, and conclude that the evidence of kidnapping was overwhelming.
In light of the stellar performance of defense counsel during trial and the overwhelming evidence supporting the kidnapping conviction, we are confident that no substantial risk of a miscarriage of justice arose from the absence of a more extensive colloquy with the defendant about his waiver of trial counsel, or a signed form documenting that waiver.
2. Other issues. We briefly touch on three other issues raised by the defendant.
To the extent that the defendant reiterates his argument that he was entitled to a jury instruction on self-defense with respect to the kidnapping indictment, we decline to reach that argument as it was already considered and rejected by a panel of this court on direct appeal.
a. Ripeness of appeal. The defendant argues that this appeal is "premature" because the motion judge ruled on his second motion for new trial, rather than his second amended motion for new trial. The ruling on the defendant's motion to reconsider makes clear that the motion judge denied the second motion for new trial, as amended. The mere fact that the motion judge's ruling did not discuss the new claim added to the amended motion did not render his ruling invalid or incomplete. In ruling on a motion, a judge is not necessarily required to analyze every argument raised. See Commonwealth v. Brown, 479 Mass. 163, 168 n.3 (2018) (court addressed defendant's motion for new trial, "but d[id] not necessarily analyze each argument" advanced in support of his claims).
b. Prosecutor's presentation of testimony of victim and detective.
Pointing to inconsistencies between the trial testimony of the victim and the detective and the pretrial statements of each of them, the defendant argues that the trial prosecutor "knowingly use[d] false evidence, including false testimony, to obtain a tainted conviction" for kidnapping, and to wrongly prosecute him on the rape charge of which he was acquitted.
Massachusetts Rule of Professional Conduct 3.3 (a) (3), as appearing in 471 Mass. 1416 (2015), precludes a lawyer from "offer[ing] evidence that the lawyer knows to be false." In addition, Mass. R. Prof. C. 3.8 (a), as appearing in 473 Mass. 1301 (2016), requires that a prosecutor shall "refrain from prosecuting where the prosecutor lacks a good faith belief that probable cause to support the charge exists." The mere fact that the jury found the defendant not guilty of rape does not mean that it found that her testimony that she was raped was "false" -- only that the Commonwealth did not prove the rape charge beyond a reasonable doubt. Nor did the not guilty verdict on the rape charge establish that the prosecutor knew that any testimony of the victim or the detective was false. That not guilty verdict certainly did not establish that the prosecutor lacked a "good faith belief" that there was probable cause to support either the rape charge or the kidnapping conviction. Cf. Commonwealth v. Gonsalves, 488 Mass. 827, 844 & n.8 (2022) (although judge ruled that basis was "thin" for prosecutor's questions about witness's intimidation by defendant's brother seated in courtroom, questions did not amount to prosecutorial misconduct). Indeed, as discussed above, the kidnapping conviction was supported by abundant evidence in addition to the victim's testimony.
c. Absence at supposed critical stage.
The defendant argues that the motion judge should have allowed his second amended motion for new trial because he was deprived of his right to be present at a critical stage of the trial. A critical stage is one in which a defendant's "substantial rights are at stake." Francis, 485 Mass. at 98, quoting Reporter's Notes to Mass. R. Crim. P. 18 (a), Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1429 (LexisNexis 2005).
After the kidnapping verdict was returned, the prosecutor requested that a trial be scheduled on the habitual offender portion of the indictment, noting that at it she would call a fingerprint expert. Defense counsel told the judge that she would need additional time to prepare to cross-examine that expert, and so the case was scheduled for a status conference four days later at which a trial date would be assigned. Questioned by defense counsel, the defendant agreed that he did not need to be present at that status conference. Defense counsel moved that the defendant be released on bail. After argument on the question of bail from both counsel in the defendant's presence, the trial judge revoked his bail pending sentencing.
About twenty minutes later, with the defendant not present, both counsel appeared again before the trial judge. Defense counsel noted that "thank[s] to the eagle eyes of [the assistant clerk]," she realized that the habitual offender enhancement did not pertain to the kidnapping conviction. The judge then directed that because no habitual offender trial was necessary, the hearing four days later that had been designated as a status conference would be a sentencing hearing. Defense counsel requested "a revisit to the issue of bail," which the judge immediately denied without hearing argument.
That brief conversation outside the defendant's presence between counsel and the trial judge was essentially a status conference, designating the hearing scheduled for four days later as a sentencing hearing instead of a status conference. A few minutes before, the defendant had agreed that he did not need to be present at a status conference. Merely because defense counsel reiterated her request for bail -- which the judge denied without argument -- did not transform the brief scheduling conference to a critical stage of trial.
The defendant does not argue that he was prejudiced by the fact that his sentencing hearing took place four days after trial. After stating that she was available on that date for the sentencing hearing, defense counsel commented, "I just don't know if my client would require me to have more time to prepare for . . . sentencing. ... I'm going to go up and speak to my client."
Order denying second amended motion for new trial affirmed.
The panelists are listed in order of seniority.