Opinion
20-P-1341
06-06-2022
COMMONWEALTH v. KEVIN TAING
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, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Convicted by a Superior Court jury of six counts of larceny by false pretenses and five counts of larceny by embezzlement for stealing over $580,000 dollars, the defendant appeals. He argues that his waiver of counsel was "nullified" because (1) the waiver judge told him that the trial judge might permit standby counsel to take an active role at trial; (2) the trial judge erred in denying his motion, made after jury selection, for a continuance to hire a lawyer; and (3) the trial judge erred in instructing the jury that the defense of honest but mistaken belief did not apply to larceny by false pretenses. We affirm.
Background.
After the indictments were returned, nearly four years of pretrial proceedings ensued. At first represented by private counsel, the defendant was declared indigent and was appointed counsel (pretrial counsel) who represented him for nearly two years. At a hearing shortly before the sixth scheduled trial date, the defendant said that he was considering representing himself. The case was continued to give him the opportunity to discuss with pretrial counsel whether to waive his right to counsel.
The defendant told that judge, "I would like to prepare the case with [a] standby attorney. At trial I would like to have the attorney present the case." The judge explained, "if you're representing yourself, then you're going to do the presentation of it. If you want an attorney to do the presentation, then you need to . . . keep [pretrial counsel] in the case."
Shortly before the seventh scheduled trial date, the defendant waived his right to counsel before a Superior Court judge (waiver judge), as discussed in more detail below. Just before the eighth scheduled trial date, pretrial counsel withdrew, and standby counsel was appointed; standby counsel was later present at trial.
Trial began on January 13, 2020, the tenth scheduled trial date. In sum, the jury heard evidence that the defendant befriended the victim homeowners, all Cambodian or Vietnamese immigrants who were having financial difficulties paying their mortgages, and told them that he knew a lot about real estate. The defendant promised the victims that he would deal with their mortgage companies on their behalf and convinced them to make monthly payments to him or to companies he controlled instead of their mortgage providers. The victims paid the defendant thousands of dollars each month for a period of years. The defendant gave some of the victims documents that purported to show that he was making mortgage payments on their behalf, but in fact he was not. Instead, the defendant kept their money for himself. He told the victims that if they received correspondence from their mortgage companies, they should not open it but just give it to him; they complied. When some of the victims were far behind in their mortgage payments, the defendant convinced them to file bankruptcy.
Altogether, there were fourteen victims who collectively owned ten homes.
Discussion.
1. Right to counsel.
a. Waiver of counsel.
The defendant argues that the waiver judge erred in accepting his waiver of counsel, because although the defendant engaged in a colloquy and signed a waiver form, he did not in fact have a "fair understanding" of what it meant to waive counsel. The waiver colloquy established that the defendant understood "the seriousness of the charges, the magnitude of his undertaking, the availability of advisory counsel, and the disadvantages of self-representation" (quotation and citation omitted). See Commonwealth v. Martin, 425 Mass. 718, 720 (1997) . See also Commonwealth v. Means, 454 Mass. 81, 90 (2009). Contrast Commonwealth v. Haltiwanger, 99 Mass.App.Ct. 543, 557 (2021) (waiver invalid where defendant's answers during colloquy raised issue of competence).
The defendant maintains that the waiver judge "nullified the finality of waiver" when she said that the defendant could ask the trial judge to allow standby counsel to take a more active role in the case, and that decision would be in the trial judge's discretion. During the waiver colloquy, this exchange took place:
At the time, pretrial counsel was acting as standby counsel.
WAIVER JUDGE: "I find that the defendant has voluntarily, intelligently[, ] and knowingly decided to . . . represent himself, and that he does so with the understanding of the availability of standby counsel, and with the understanding that the precise role of standby counsel will be defined by the trial judge. I find that the defendant is competent to act as his own lawyer with standby counsel.
. . .
"Mr. Taing, I want to advise you further that your decision to represent yourself is one that may be revisited by the [c]ourt if after beginning trial preparations you wish to ask the [c]ourt to have [standby counsel] represent you as counsel at your trial. It's certainly something that the [c]ourt would consider. Do you understand that?"
DEFENDANT: "I do, your Honor."
The defendant argues that the waiver judge's "advice likely suggested that a waiver is transient," and as a result he "believed he could change his mind at any time." That is not a reasonable interpretation of what the waiver judge said. At most, the waiver judge's comments could be interpreted to mean that the defendant could ask the trial judge for standby counsel to represent him at trial. They could not be interpreted to mean that the defendant could at any time revoke his waiver of counsel and obtain a continuance of the trial to hire a new lawyer.
b. Denial of motion to continue trial to hire counsel.
The defendant also argues that the trial judge erred in denying his motion, made just after the jury was selected, to continue the trial so that he could hire new counsel.
Six days before trial, the defendant told the trial judge that he intended "to proceed as pro se," and that he had discussed with the waiver judge the risks and difficulties in doing so. At the end of the first day of trial, after the jury was selected, the defendant told the trial judge, "being a pro se is not my first choice, your Honor, but . . . [a]fter what I've been through, I find that it's less stressful being a pro se because I . . . know more about the case than I'm being represented."
The next morning, just before the jury was sworn, the defendant moved for a continuance of trial so that he could hire counsel. He told the trial judge that he had realized the day before how strong the evidence was against him and how difficult it would be for him to present evidence efficiently because he was unfamiliar with court rules, and so he had reached out to a relative who gave him funds to hire an attorney. He told the trial judge that at 1:45 A.M. that morning he had e-mailed an attorney but had not yet heard back; he said that if that attorney did not respond, he would reach out to another attorney. The defendant insisted that he was not trying "to just buy time."
The trial judge noted that standby counsel was "a very accomplished attorney" and "highly competent," and that the defendant had had months to prepare for trial and ample opportunity to review the discovery materials. After further discussion, the trial judge ruled:
TRIAL JUDGE: "I just think it's too late under all the circumstances. I've observed you. You're articulate; you're clearly smart; you have excellent standby counsel, and you've had a lot of time to think about this and to prepare, and under those circumstances, I don't think that you're being denied [the] right to counsel in any respect. I think it's been your own decision to proceed like this, and you can't just at the -- when trial has really essentially begun, change your mind."
We agree with the trial judge that the defendant's request was a late attempt to delay the trial. See Commonwealth v. Higgins, 23 Mass.App.Ct. 552, 556 (1987) ("defendant's requests for counsel may be treated as dubious last-minute efforts to retract his decision to represent himself (thereby postponing the day of reckoning)"). Cf. Commonwealth v. Fernandez, 480 Mass. 334, 340-341 (2018) (within judge's discretion to deny motion to hire expert made on eve of trial, as "implicit request for a continuance").
In any event, the trial judge did permit standby counsel to participate extensively at trial, though the defendant personally examined witnesses and presented the closing argument. With the defendant's consent, standby counsel took an active role at trial, consulting with the defendant during the presentation of the prosecution's case. Throughout the trial, standby counsel handled most of the legal arguments, including at sidebar, during the charge conference, and at sentencing. During the defendant's own testimony, he consulted with standby counsel frequently. Indeed, the trial judge commented that the defendant had "no hesitancy" to consult with standby counsel. The defendant expressed during his testimony how "very helpful" standby counsel had been, reiterating during sentencing that standby counsel was "always there for me when I need[ed] her."
The defendant's mastery of the evidence was shown by his extensive cross-examination of the victims, bank and mortgage company personnel, the Commonwealth's financial investigator, and the United States Justice Department's bankruptcy trustee.
Apparently as a result of his consultation with standby counsel, the defendant made appropriate and succinct objections on various grounds, many of which were sustained.
In those circumstances, the trial judge did not "exercise his . . . discretion in such a way that denial of a continuance deprive[d] [the] defendant of the right to effective assistance of counsel and to due process of law" (quotation and citation omitted). Fernandez, 480 Mass. at 340.
2. Larceny by false pretenses and honest but mistaken belief.
The defendant argues that the trial judge erred in instructing the jury that the affirmative defense that he had an honest but mistaken belief that he was entitled to take the victims' property did not apply as to the theory of larceny by false pretenses. The argument is unavailing.
As defined in G. L. c. 266, § 30, larceny encompasses three theories by which a defendant wrongfully obtains the property of another: by stealing, by false pretenses with intent to defraud, and by embezzlement. See G. L. c. 277, § 41. See also Commonwealth v. Mills, 436 Mass. 387, 391-392 (2002). The trial judge instructed the jury on the latter two theories. At the charge conference, the defendant requested a jury instruction that "[i]f the defendant took another person's property in an honest and reasonable belief that he had a legal right to it, then you must find the defendant not guilty, even if that belief was in fact mistaken, because he lacked the intent to steal." In his main jury charge, the trial judge gave that instruction, telling the jury that it applied "to both types of larceny," i.e., by false pretenses and by embezzlement.
The verdict slips required the jury to specify, as to each victim, whether the larceny proven was by false pretenses or by embezzlement.
A few minutes after the jury had retired to deliberate, the trial judge informed the parties that he had "mis-instructed" the jury, and that the instruction on the defendant's honest but mistaken belief did not apply to the theory of larceny by false pretenses. The trial judge said that he would explain to the jury that the instruction as to the defendant's honest and mistaken belief applied only to larceny by embezzlement. The trial judge then called the jury in and gave that instruction, and also revised it in his written charge. The defendant did not object, and so we review the instruction to determine if there was error, and, if so, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Rocheleau, 90 Mass.App.Ct. 634, 639 (2016).
During the ensuing discussion, standby counsel informed the trial judge that the defendant's proposed instruction had come from the Criminal Model Jury Instructions for Use in the District Court, defining larceny by stealing.
The defendant was entitled to an instruction as to his honest but mistaken belief if any view of the evidence would support a factual finding that he honestly believed that he had a legal right to take the victims' property. See Commonwealth v. Liebenow, 470 Mass. 151, 157 (2014) ("the specific intent to steal is negated by a finding that a defendant held an honest, albeit mistaken, belief that he was entitled to the property he took"). See also Commonwealth v. Ryan, 93 Mass.App.Ct. 486, 492 (2018). However, as to the indictments on which the jury convicted him of larceny by false pretenses, there was no view of the evidence to support a finding that he had an honest belief that the victims' property was his. Indeed, "[t]he intent to induce by a false statement is the polar opposite of a good faith (but mistaken) belief in authority." Commonwealth v. North, 52 Mass.App.Ct. 603, 607 (2001). The defendant was not entitled to an honest but mistaken belief instruction as to larceny by false pretenses.
Judgments affirmed.
Green, C.J., Englander & Grant, JJ.
The panelists are listed in order of seniority.