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13-P-1076 Appeals Court
COMMONWEALTH vs. DONALD GIBSON.
No. 13-P-1076.
Hampden. February 18, 2015. - August 10, 2015.
Present: Green, Grainger, & Massing, JJ.
Practice, Criminal, Probation, Revocation of probation,
Assistance of counsel. Due Process of Law, Probation
revocation, Assistance of counsel. Constitutional Law,
Assistance of counsel.
Indictments found and returned in the Superior Court
Department on February 22, 2006.
A hearing on an order to show cause why the defendant
should not be deemed to have forfeited his right to counsel at a
probation revocation proceeding was had before C. Jeffrey
Kinder, J., and a proceeding for revocation of probation was
heard by Richard J. Carey, J.
Glynis Mac Veety for the defendant.
Bethany C. Lynch, Assistant District Attorney, for the
Commonwealth, submitted a brief.
GREEN, J. After a hearing at which the defendant proceeded
without counsel, a judge of the Superior Court found that the
defendant had violated conditions of his probation, and entered
2
an order revoking his probation and imposing a sentence. On
appeal, the defendant challenges the judge's ruling before the
revocation hearing that he had forfeited his right to counsel.1
We discern no error in the ruling, and discern no merit in the
defendant's other claims of error in the revocation proceeding
itself. We accordingly affirm the order of revocation.
Background. On August 8, 2008, the defendant was convicted
by a jury on two charges of indecent assault and battery on a
child under fourteen. He was sentenced on count one to not less
than eight years and not more than ten years in State prison.
On count two he was sentenced to probation for fifteen years to
run concurrently with the sentence on count one, with the
condition, among others, that he have no contact with the victim
(the defendant's daughter) or her mother without their express
authorization.2 On September 14, 2011, the probation department
filed a notice of surrender alleging that the defendant, while
still incarcerated, had sent letters to the victim. Following a
hearing on April 16, 2013, at which the defendant proceeded
without counsel, a Superior Court judge found the defendant in
violation of the conditions of his probation, revoked his
1
The defendant also claims various errors in the revocation
hearing itself, as discussed in more detail below.
2
A panel of this court affirmed the convictions in an
unpublished memorandum of decision. See Commonwealth v. Gibson,
78 Mass. App. Ct. 1119 (2011).
3
probation and sentenced him to not less than seven years and not
more than eight years from and after the sentence he was then
serving.
The relationship between the defendant and his several
court-appointed attorneys was tumultuous throughout the
proceedings. Prior to the defendant's conviction, four
attorneys were permitted to withdraw from their representation
of him for various reasons, including: (1) accusations by the
defendant of participation by his first attorney in a conspiracy
with the district attorney against the defendant, (2)
accusations by the defendant of unethical conduct by his second
attorney, (3) threats by the defendant against his third
attorney of physical violence and complaint to the Board of Bar
Overseers, and (4) disagreements over trial strategy and a
breakdown of the professional relationship with his fourth
attorney. During the pendency of the probation revocation
proceedings, three more attorneys were permitted to withdraw,
based on: (1) the defendant's combative attitude, (2) breakdown
of the professional relationship, and (3) threats by the
defendant to sue his last attorney and report him to the Board
of Bar Overseers.3
3
The parties did not include within the record appendix
copies of the affidavits of counsel submitted with their
respective motions to withdraw from representation of the
defendant. Following oral argument, we requested from the trial
4
At the hearing, held on June 28, 2012, at which the last
attorney, attorney Dunphy, was appointed to represent the
defendant, the judge warned the defendant that he would have to
work with his newly-appointed counsel, or else he would have to
proceed without counsel.4 Despite that warning, the relationship
court copies of those motions and supporting affidavits, all of
which were before the hearing judge when he ruled on the
question of forfeiture. The trial court thereafter transmitted
all of the requested affidavits but one, which it was unable to
locate. The affidavits substantiate the summary descriptions of
the breakdown in the relationship between the defendant and each
appointed counsel in disturbing detail, including direct and
implied threats to kill (or have others kill) one of his
appointed counsel, and a consistent pattern of accusing counsel
of conspiring to work against the defendant's interest, requests
that counsel communicate messages from the defendant to the
victim (in violation of the condition of his probation that he
have no contact with the victim or her mother), and insisting
that counsel pursue unspecified but frivolous or meritless
avenues of defense.
4
The transcript of the hearing reveals the following
exchange:
Mr. Dunphy: "I think I'll be able to take care of Mr.
Gibson, Judge."
Judge: "You know what, Mr. Dunphy? I know you'll be able
to take care of him, because if you can't take care of him,
he's going to have to take care of himself.
"Mr., Mr. . . . I'm talking to you, sir. So look at
me and listen. I, I read prior counsel's affidavit and I
was troubled by the contents of her affidavit. You will
not get another attorney appointed to represent you, do you
understand me, sir?"
The defendant: "If they don't do me justice, I can't keep
them on. So that's why I had to . . ."
5
between the defendant and his attorney was marked by
difficulties similar to those in his previous appointments. On
September 4, 2012, the defendant filed a motion requesting the
appointment of a new attorney and, on September 10, the attorney
filed a motion to withdraw. After a hearing on September 13,
2012, a different judge allowed the attorney's motion to
withdraw and then appointed him for standby purposes only.
Thereafter, on February 26, 2013, the attorney filed a motion to
withdraw as standby counsel. On that date, the judge entered an
order directing the defendant to show cause why he should not be
deemed to have forfeited his right to counsel, and a forfeiture
hearing was scheduled for the following day.
On the following day, the judge appointed new counsel to
represent the defendant for purposes of the hearing on the
question of forfeiture. At the forfeiture hearing, the judge
heard testimony of the withdrawing attorney and a report from
the attorney appointed that morning. He also had before him the
affidavits of the seven attorneys who previously had moved to
withdraw. Based on his review of that material, he concluded
that "this is the rare case where the defendant has forfeited
Judge: "Do you understand? It's a yes or no. Do you
understand?"
The defendant: "Yes."
Judge: "Thank you. Very good. Okay, Mr. Dunphy."
6
his right to counsel in this probation violation action by his
own egregious conduct."
Discussion. Absent forfeiture or waiver of the right to an
attorney, "a probationer is entitled to the effective assistance
of counsel at a probation violation hearing whenever
imprisonment may result." Commonwealth v. Pena, 462 Mass. 183,
188 (2012). An appellate court reviewing a trial court's ruling
that a defendant has waived or forfeited his right to counsel
for a probation violation hearing "give[s] substantial deference
to [the] judge's factual findings . . . [but] 'review[s] claims
of violations of the right to counsel de novo, making an
independent determination of the correctness of the judge's
application of constitutional principle to the facts found.'"
Id. at 192 n.10, quoting from Commonwealth v. Means, 454 Mass.
81, 88 (2009).
The Supreme Judicial Court in Means identified "four
considerations that generally govern whether forfeiture is
appropriate." Id. at 93. "First, forfeiture of counsel
typically is applied in circumstances where a criminal defendant
has had more than one appointed counsel." Ibid., citing United
States v. Leggett, 162 F.3d 237, 240 (3d Cir. 1998), cert.
denied, 528 U.S. 868 (1999) (second appointed counsel). See
United States v. McLeod, 53 F.3d 322, 325 (11th Cir. 1995)
(second appointed counsel); People v. Gilchrist, 239 A.D.2d 306
7
(N.Y. 1997) (fourth appointed counsel); People v. Sloane, 262
A.D.2d 431 (N.Y. 1999) (third appointed counsel); State v.
Carruthers, 35 S.W.3d 516, 538-539 (Tenn. 2000), cert. denied,
533 U.S. 953 (2001) (fourth appointed counsel). In determining
whether the defendant had forfeited his right to counsel, the
hearing judge properly considered his conduct throughout the
proceedings that began with his indictment in 2006 and continued
through the April, 2013, hearing on his violations of probation.5
During the pendency of those proceedings, seven attorneys moved
for leave to withdraw from representing the defendant because of
his misconduct, a consideration that weighed strongly in favor
of forfeiture.
"Second, forfeiture rarely is applied to deny a defendant
representation during trial. It is more commonly invoked at
other stages of a criminal matter, such as a motion for a new
trial, sentencing, appeal, and pretrial proceedings."
Commonwealth v. Means, 454 Mass. at 93. The defendant in the
present case was represented by counsel during his trial. The
hearing judge's ruling that the defendant had forfeited counsel
5
"A probation violation proceeding is not considered to be
a new criminal prosecution because the Commonwealth already has
met its burden of proving guilt beyond a reasonable doubt."
Commonwealth v. Pena, 462 Mass. at 190. See Commonwealth v.
Wilcox, 446 Mass. 61, 65 (2006). Instead, "a probation
violation hearing is part of the sentencing process."
Commonwealth v. Pena, supra at 191 n.8.
8
for purposes of his probation violation hearing did not "deal as
serious a blow to [the] defendant as would the forfeiture of
counsel at the trial itself." Id. at 94, quoting from United
States v. Leggett, 162 F.3d at 251 n.14.
"Third, forfeiture may be an appropriate response to the
defendant's threats of violence or acts of violence against
defense counsel or others." Commonwealth v. Means, supra.
Although the hearing judge's findings about the defendant's
conduct toward his appointed counsel were somewhat summary in
nature, they adequately supported his conclusion that the
defendant's conduct warranted forfeiture. The judge found --
based on the affidavits filed by the defendant's various
appointed counsel in support of their respective motions to
withdraw -- that the defendant had engaged in a persistent
pattern of hostility and threatening conduct toward them that
included threats of physical violence to at least one attorney,
as well as repeated accusations of unethical conduct coupled
with threats to report counsel to the Board of Bar Overseers and
the Attorney General for claimed misconduct and to file suit
against them. It is apparent, from a December 1, 2012, letter
from attorney Dunphy to the defendant, that the defendant
faulted attorney Dunphy for, among other things, refusing to
engage in unethical conduct, including communicating with the
defendant's daughter to pass along a message from the defendant
9
in violation of the terms and conditions of the defendant's
probation, and providing the defendant with addresses for his
daughter and his former wife. The defendant's "behavior toward
his counsel was repeatedly abusive, threatening, and coercive."
United States v. McLeod, 53 F.3d at 326, cited with approval in
Commonwealth v. Means, 454 Mass. at 94. See People v. Sloane,
262 A.D.2d at 432 (defendant forfeited his right to counsel
after he moved to discharge third appointed attorney by "his
persistent pattern of threatening, abusive, obstreperous, and
uncooperative behavior with successive assigned counsel").
"The fourth and final area of general agreement . . . is
that forfeiture should be a last resort in response to the most
grave and deliberate misconduct." Commonwealth v. Means, 454
Mass. at 95. Here, a series of "experienced and skilled
criminal defense lawyers" had been appointed to represent the
defendant. Almost without exception, those lawyers came to the
point of being unable to represent the defendant. The defendant
was warned at least once that he was risking his right to
representation by his continued abuse of appointed counsel. He
knew what was at stake in the probation violation hearing.
After he had been warned that the court would not appoint
successor counsel, the defendant nonetheless moved to have
attorney Dunphy removed and new counsel appointed on the
frivolous ground that attorney Dunphy was senile or had memory
10
problems. The final hearing on the defendant's probation
violations was repeatedly delayed due, at least in part, to his
multiple changes in counsel. Appointment of yet another
attorney would have delayed the final probation violation
hearing even further.
The judge "g[a]ve notice of and conduct[ed] a[n
evidentiary] hearing in which the defendant [wa]s given a full
and fair opportunity to show why [the sanction of forfeiture of
counsel] should not be imposed." Id. at 100. He allowed the
defendant to be heard on whether attorney Dunphy should be
permitted to withdraw as counsel. He took evidence, including
evidence on the defendant's mental competence,6 and heard
argument on the question why the defendant should not be found
to have forfeited his right to counsel. See id. at 97. The
judge was not required to credit the defendant's unsupported
claim that his mental state was impaired by "a brain tumor deep
within the center of [his] brain." See Commonwealth v. McMahon,
443 Mass. 409, 422-424 (2005) (judge could rely on his
observations of defendant, with other evidence, in concluding
that defendant was competent). See also Commonwealth v.
Pamplona, 58 Mass. App. Ct. 239, 243 (2003) (proper for judge to
6
The Supreme Judicial Court has held that forfeiture and
waiver by conduct are "inapplicable where the defendant is
determined mentally incompetent to waive the right to counsel
and proceed pro se." Commonwealth v. Means, 454 Mass. at 95.
11
rely on defendant's conduct and demeanor in determining
competence).7
The hearing judge understood that forfeiture of counsel is
a measure of last resort. His conclusion that this was the
"rare" case in which the defendant, by his egregious conduct,
had forfeited his right to counsel at his probation violation
hearing was well supported by the record. See Commonwealth v.
Means, 454 Mass. at 92-96. See also United States v. McLeod, 53
F.3d at 326; People v. Sloane, 262 A.D.2d at 432. There was no
error.8
7
We note as well that the judge subsequently ordered a
competency examination of the defendant at the commencement of
the probation revocation hearing itself. Following examination,
the court's forensic psychologist testified to his opinion that
the defendant "has a rational and meaningful understanding of
what this hearing is about . . . [,] understands the gravity and
the consequences for him . . .[, and] to the best of his
ability, he is prepared to try to convince the [c]ourt about his
innocence. So, with that said, I believe he is competent to go
forward at this time."
8
Our view of the case obviates any need for us to consider
the Commonwealth's argument that the judge's ruling could be
affirmed on the alternative basis that the defendant waived his
right to counsel by his conduct. We note, however, that the
judge who warned the defendant that attorney Dunphy would be the
last attorney appointed to represent him, see note 4, supra, did
not include in her warning a colloquy about the implications and
consequences of proceeding without counsel. See Commonwealth v.
Pena, 462 Mass. at 192. In any circumstances where a defendant
is warned that his conduct could result in the loss of the right
to counsel, and require the defendant to proceed without
counsel, better practice would be to accompany the warning with
a colloquy concerning the implications and consequences of
proceeding without counsel.
12
The defendant's remaining claims require little discussion.
As the Commonwealth observes in its brief, the docket of the
case reflects that the defendant's counsel twice filed motions
for funds for a private investigator, and both motions were
allowed. The judge accordingly could reasonably reject as false
the defendant's assertions that his former counsel did not
request funds for an investigator. In any event, the
defendant's request to commence a new investigation on the eve
of his scheduled revocation hearing would have further delayed
the hearing, which had already been postponed several times.
Similarly, the judge did not abuse his discretion in refusing
the defendant's late request to pursue hospital records, and to
hire an expert to interpret them, as the request would have
caused unnecessary delay in the hearing. The connection of the
records to the matters at issue in the revocation hearing was
tenuous at best, and the judge allowed the defendant to present
prison medical records addressing the same subject matter. See
Commonwealth v. Pena, 462 Mass. at 192-195 (judge must balance
request for additional time against fair and efficient
administration of justice).
As for the defendant's claim that the revocation hearing
judge unfairly curtailed his cross-examination of the victim and
her mother, we discern no abuse of discretion. See Commonwealth
v. Odoardi, 397 Mass. 28, 34 (1986). The lines of examination
13
that are the subject of the defendant's claim were both
irrelevant and potentially abusive.9
Finally, there is no basis for the defendant's claims,
advanced pursuant to Commonwealth v. Moffett, 383 Mass. 201
(1981), (1) that the evidence established that the victim gave
express permission to the defendant to contact her, and (2) that
his actions were justified by the defense of necessity. As to
the first, the victim testified unequivocally that she did not
give express permission to the defendant to contact her, and the
judge was entitled to credit her testimony. See Commonwealth v.
Pugh, 462 Mass. 482, 495 (2012). For the same reason, the judge
was not required to accept the defendant's assertion that the
victim was engaged in prostitution, that the defendant's motive
for writing the letters was to "rescue" the victim from
prostitution, or that the defendant reasonably could expect that
the sexually explicit letters he wrote to her were likely to
accomplish that purpose.
9
During the defendant's cross-examination of the victim,
the judge attempted to guide the defendant toward relevant lines
of inquiry, and ultimately curtailed the defendant's examination
when the defendant asked her whether the reason he wrote
sexually explicit letters to her was to make her feel that
prostitution was a really nasty profession that she should
abandon. The judge curtailed questioning of the victim's mother
when the defendant sought repeatedly to question her about her
knowledge of the conditions of his probation and her motivation
in opening the letters he sent to the victim, following warnings
by the judge that the questions were irrelevant.
14
Order revoking probation and
imposing sentence affirmed.