Commonwealth v. Gibson

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SJC-11990

COMMONWEALTH vs. DONALD GIBSON.

Hampden. March 8, 2016. - July 13, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, 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.

After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.

Glynis Mac Veety for the defendant.
Bethany C. Lynch, Assistant District Attorney, for the
Commonwealth.
 2

HINES, J. The principal issue in this appeal is whether a

Superior Court judge properly ordered the forfeiture of the

defendant's right to counsel in a probation revocation hearing.

The judge, faced with a defendant who admittedly engaged in a

pattern of quarrelsome, confrontational, hostile, and

threatening conduct toward a succession of nine different court-

appointed attorneys over the course of the trial and posttrial

proceedings, ordered forfeiture on those grounds. Subsequent to

the forfeiture order, the defendant appeared pro se at the

probation revocation hearing. A different judge found the

defendant in violation of probation and sentenced him to State

prison for a term of not less than seven years and not more than

eight years, from and after the sentence he was then serving.

The defendant appealed, claiming error in the forfeiture order

and the probation revocation hearing. The Appeals Court

affirmed, Commonwealth v. Gibson, 87 Mass. App. Ct. 829, 835

(2015), ruling that the judge had provided the defendant a full

and fair opportunity to be heard on forfeiture and that the

forfeiture order had been warranted based on the defendant's

pattern of threats to counsel. The Appeals Court also rejected

the defendant's claims related to the probation revocation

hearing.

We granted the defendant's application for further

appellate review to consider whether the forfeiture order, based
 3

on the defendant's pattern of hostile and threatening conduct

toward counsel, warrants forfeiture under the guidelines we

articulated in Commonwealth v. Means, 454 Mass. 81 (2009).

Although we appreciate the imperative to force an end to the

defendant's interference with the timely and fair disposition of

the probation revocation matter, we are constrained to conclude

that the forfeiture order must be reversed, as it does not

comply with the strict guidelines we adopted in Means, supra.

Therefore, we vacate the forfeiture order based on our

conclusion that (1) the forfeiture hearing did not meet the

procedural due process requirements of Means; and (2) the

defendant's conduct, although egregious in many respects, did

not warrant forfeiture under the guidelines established in

Means.

Background. We describe the details of the proceedings

leading to the judge's forfeiture order and the subsequent

probation violation hearing. In 2006, the defendant was

indicted on three charges of indecent assault and battery on a

child under fourteen, G. L. c. 265, § 13B. Six attorneys were

appointed to represent the defendant during the trial

proceedings. The third of these trial attorneys withdrew for a

number of reasons, including the defendant's written threat to

counsel that "street justice" would prevail if he were

convicted. The sixth attorney represented him during trial. He
 4

was convicted on two of the three indictments in 2008.1 The

victim was his daughter. The trial judge sentenced the

defendant to a term of not less than eight years and not more

than ten years in State prison on the first indictment, and to

probation for fifteen years on the second indictment, to run

concurrently with the sentence on the first indictment. As a

condition of probation, the judge ordered the defendant to have

no contact, direct or indirect, with the victim or the victim's

mother (his ex-wife).

On September 14, 2011, the probation department issued a

probation violation notice alleging that the defendant had

violated the no-contact condition by sending sexually explicit

letters to the victim from prison.2 Prior to the probation

revocation hearing and after the appointment of three different

attorneys to represent the defendant in that matter, a judge

issued an order to the defendant to show cause why his right to

counsel should not be deemed forfeited. On February 27, 2013,

the day after the issuance of the show cause order, the judge

1
The defendant's convictions were affirmed by the Appeals
Court in a memorandum and order issued pursuant to its rule
1:28. Commonwealth v. Gibson, 78 Mass. App. Ct. 1119 (2011).
2
The probation department issued additional surrender
notices alleging that the defendant had written letters to the
victim on the following dates: November 27, 2010; June 10,
2011; March 15, 2012; December 22, 2012; and January 9, 2013.
 5

conducted the hearing and made findings and rulings summarized

below.

1. The succession of posttrial appointed counsel. On

September 29, 2011, the court appointed an attorney from the

Committee for Public Counsel Services to represent the defendant

at the probation revocation hearing. On March 19, 2012, this

attorney filed a motion to withdraw with an affidavit detailing

the defendant's threats to file a complaint against the attorney

with the Board of Bar Overseers (board) unless counsel adopted

the defense strategies proposed by the defendant. A judge

allowed the motion to withdraw and, on March 30, 2012, appointed

a second attorney to represent the defendant. On June 21, 2012,

this attorney filed a motion to withdraw, citing a breakdown in

the attorney-client relationship, and further specifying the

defendant's conduct in an impounded affidavit.3 A second judge

allowed the motion to withdraw. On June 28, 2012, that judge

considered the defendant's motion for appointment of a third

postconviction attorney and allowed the motion. During the

course of the hearing, however, the probation officer reminded

the judge that the matter had been pending since 2011 and opined

that the delay was caused by the withdrawal of the defendant's

3
Although this affidavit is not included in the record, we
assume that the judge reviewed it, as he referenced the
defendant's misconduct toward each of the attorneys who moved to
withdraw from representation of the defendant.
 6

two prior attorneys. The defendant's newly appointed counsel

then assured the judge that despite this history, he would be

able to "take care of" the defendant. The following exchange

took place between the judge and the defendant:

Judge: "You know what, [counsel]? 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?"

Defendant: "If they don't do me justice, I can't keep them
on. So, that's why I had to . . ."

Judge: "Do you understand? It's a yes or no. Do you
understand?"

Defendant: "Yes."

Several months later, on September 4, 2012, the defendant

filed a motion for the appointment of a fourth attorney. The

third attorney, who earlier had expressed optimism about his

ability to represent the defendant, filed a motion to withdraw

on September 10. On September 13, 2012, a third judge held a

hearing during which he allowed the motion to withdraw but

ordered that the attorney serve as standby counsel for the

probation revocation hearing.4 The relationship between counsel

and the defendant apparently deteriorated even further, as

4
The record does not contain a transcript of this hearing.
We rely on the docket for the outcome of the hearing.
 7

counsel filed a second motion to withdraw on February 26, 2013.

In response to this second motion to withdraw, that judge issued

an order to show cause why the defendant should not be deemed to

have forfeited his right to counsel. The judge then appointed a

different attorney to represent the defendant at the show cause

hearing scheduled for the following day.5

On February 27, 2013, the day after the issuance of the

show cause order, the judge held the hearing, at which he

considered two issues: whether to allow counsel's motion to

withdraw; and if so, whether the defendant's conduct warranted a

forfeiture of the right to counsel. As to the first issue, the

judge inquired of the defendant whether he wished to be heard on

counsel's motion to withdraw. The defendant replied that he had

no desire to have counsel withdraw, but he admitted that he had

threatened to report counsel to the board. According to the

defendant, he believed the threat to report counsel to the board

and to the office of the Attorney General was appropriate

because counsel's legal advice to cease writing letters to the

victim in violation of his probation was causing him "undue

stress." In particular, the defendant complained that counsel

had lied in advising that the defendant could be subject to

"life in prison" as a consequence of the charge of which he was

5
The record is not clear as to whether this attorney was
appointed on the issuance of the show cause order or whether
counsel was appointed on the day of the hearing.
 8

convicted.6 He also disagreed with counsel's advice that the

victim did not wish to have contact with him and that his

letter-writing to her was a violation of probation. Last, the

defendant expressed frustration that although he had other

reasons to be dissatisfied with counsel, he was unable to

articulate those reasons at that time because he had been

"diagnosed with a brain tumor deep in [his] brain that's . . .

inoperable [causing him to have] a little trouble . . . putting

things into words." After noting that much of the defendant's

recitation was consistent with counsel's affidavit in support of

the motion to withdraw, the judge allowed the motion and

proceeded to the forfeiture issue.

In commencing this stage of the hearing, the judge signaled

his awareness of the obligation to grant an evidentiary hearing

on whether, by engaging in the apparently undisputed pattern of

threats against a succession of appointed counsel, the defendant

forfeited his right to counsel for the probation revocation

hearing. At the judge's invitation, counsel -- who minutes

earlier had been allowed to withdraw from representation of the

defendant -- detailed the reasons for his motion to withdraw.

According to counsel, the motion was prompted by a letter from

6
As clarified at the hearing, counsel explained to the
defendant the ramifications of a sexually dangerous person
proceeding, under which a person convicted of a sex crime could
be civilly committed for life. See G. L. c. 123A, § 14 (d).
 9

the defendant threatening to file complaints against him with

the board and the office of the Attorney General. In response

to questioning from the prosecutor and the defendant's newly

appointed counsel, the attorney disclaimed any knowledge of the

defendant's mental health issues except for what he had been

told by the defendant in the days preceding the hearing. He

acknowledged, however, that over the course of his

representation, the defendant had engaged in conduct against his

advice, including sending the letters to the victim, and that

the defendant's behavior was not "logical" and "not in his best

interest."

Neither the defendant's new counsel nor the prosecutor

presented evidence at the hearing. Defense counsel, however,

advised the judge that he had met with the defendant "for over

an hour in the back and [he] was not able to get very far."

Counsel described the defendant as being "highly agitated."

Without directly addressing the merits of the forfeiture issue,

counsel expressed concern with the propriety of forfeiture given

what appeared to be the defendant's current mental state and the

long-term consequences of a probation revocation hearing without

the assistance of counsel.7 Counsel repeated what he had been

7
More specifically, defense counsel's caution was prompted
by the possible consequences of a probation revocation in the
event the defendant were to become the subject of a sexually
dangerous person proceeding under G. L. c. 123A.
 10

told by the defendant regarding the recent diagnosis of a "brain

tumor," raising the possibility that the defendant's conduct was

caused by a mental disability rather than by purposeful

oppositional behavior. Counsel then argued that prior to a

hearing on forfeiture, the better course was to require that the

defendant be examined for competency and to determine whether

the defendant is able to "work with a lawyer," preferably a

mental health attorney certified by the Committee for Public

Counsel Services.

The judge inquired about competency evaluations of the

defendant "in this case and others" and was informed by the

prosecutor that the defendant had been examined for competency

on at least two occasions during the pendency of the trial

proceedings.8 In both instances, according to the prosecutor,

the defendant had been found competent.

The judge made findings, commencing with the history of the

defendant's relationship with the "nine different attorneys"9 who

had been appointed to represent him over the course of the trial

and posttrial proceedings. In reciting this history, the judge

8
The docket reflects that the defendant was evaluated for
competency in March, 2007; January, 2008; and August, 2008; and
that the defendant was found competent in each evaluation.
9
The docket entries show that six attorneys, five of whom
withdrew their appearances, were appointed to represent the
defendant at the trial stage; one attorney was appointed during
appellate proceedings; and three attorneys were appointed for
the probation revocation matter.
 11

listed each of the attorneys by name and stated the reason why

each had been allowed to withdraw from representing the

defendant. The judge found that between the arraignment in 2006

and the trial in 2008, the defendant had been represented by six

different attorneys, five of whom had been allowed to withdraw

after the defendant had accused them of unprofessional conduct

and had threatened to report them to the board. As to the

posttrial probation revocation proceedings, the judge found that

the defendant had been represented by three different attorneys

who had been subjected to accusations and threats similar to

those visited upon the trial attorneys, and that the defendant

had been warned that no further counsel would be appointed to

represent him.10 Except with respect to one trial attorney who

had withdrawn in 2007, the judge made no findings that the

defendant had threatened physical harm to any of the appointed

counsel. The judge characterized the defendant's conduct toward

those attorneys, all of whom are "experienced and skilled"

criminal defense lawyers, as "egregious." Last, the judge found

the defendant "lucid" and "responsive" during the earlier

exchange regarding counsel's motion to withdraw. Relying on the

prior competency evaluations as reported by the prosecutor, the

judge found that "mental health [was not] a mitigating factor."

10
The judge's reference was to the comments of a different
judge who, on June 28, 2012, appointed the third attorney to
represent the defendant in the probation matter.
 12

Based on these findings, the judge ruled that "this is the

rare case where the defendant has forfeited the right to counsel

in this probation violation action by his own egregious

conduct." More specifically, the judge relied on the pattern of

hostile and threatening conduct consisting mainly of the threat

to sue or report counsel to the board, the single threat of

violence to a trial attorney, and the prior judge's warning that

no new counsel would be appointed to represent the defendant.

The judge advised the defendant that the probation revocation

hearing would be scheduled forthwith and that the defendant

would proceed pro se.

2. The probation revocation hearing. Between the

forfeiture and probation revocation hearings, a different judge

held a hearing on three motions filed by the pro se defendant:

a motion to dismiss the probation surrender notice,11 a motion

for medical records from Lemuel Shattuck Hospital, and a motion

for funds for a private investigator. The motion to dismiss was

based on the defendant's claim that the letters to the victim

did not violate the no-contact condition of probation because he

11
The motion to dismiss was based on the defendant's
allegation that the probation department unilaterally changed
the condition of probation to entrap him on the probation
violation. This allegation arose from a disparity between the
language of the probation contract prohibiting contact with the
victim "without permission from the Court" and the trial
transcript establishing the condition as no contact "without
[the victim's] express permission."
 13

had the victim's permission to send the letters. The defendant

sought medical records to establish a causal relationship

between his "brain damage" and the letter writing to the victim.

The basis of the motion for funds for a private investigator was

to "check any future issues as they arise." The judge denied

these and subsequent motions filed by the defendant.12

Over the course of two days, the judge, who was not the

judge who had conducted the forfeiture hearing, conducted the

probation revocation hearing, where the sole issue was whether

the defendant violated the "no-contact" condition of his

probation by sending letters to the victim.13 On the first day

of the hearing, the judge ordered that the defendant be

evaluated for competency during the luncheon recess. After

interviewing the defendant and reviewing pertinent court

records, the court's forensic psychologist opined, "I do believe

he has a rational and meaningful understanding of what this

hearing is about. I believe he understands the gravity and the

12
The defendant filed fourteen subsequent motions,
including a renewed motion for funds for mental health records,
a motion for a medical expert, and a motion for permission "to
have one hour time with [the victim] after final hearing (with
security present if need be) to make 'peace' with her."
13
The judge relied on the no-contact condition as reflected
in the probation contract, which prohibited contact with the
victim unless permission was granted by the court. The
defendant did not argue that he had sought and received an order
vacating or modifying this condition, relying instead on an
asserted permission from the victim.
 14

consequences for him. And I think, to the best of his ability,

he is prepared to try to convince the Court about his

innocence." The judge accepted the report and resumed the

hearing.

On the first day of the hearing, the victim and her mother

testified that the defendant had sent letters to the victim from

prison and that neither had consented to contact with the

defendant. The victim witness advocate testified on the second

day of the hearing and, in response to the defendant's

questions, testified that the victim had "told [her] on a number

of occasions that [the victim] does not want to have contact

with [him]." The defendant conceded that he had written letters

to the victim but asserted two defenses, permission and

necessity,14 both of which the judge rejected. At the end of the

second day of the hearing, the judge found the defendant in

violation of his probation, revoked the probation, and imposed a

term of imprisonment.

Discussion. 1. Forfeiture of the right to counsel. The

defendant argues that the judge erred on both procedural and

substantive grounds in ruling that his conduct justified the

forfeiture of his right to counsel at the probation revocation

hearing. The defendant argues that the hearing, held on one

14
Counsel disassociates herself from this argument with
support from the record. See Commonwealth v. Moffett, 383 Mass.
201, 208 (1981).
 15

day's notice, violated his right to due process, in that he was

deprived of the opportunity to marshal and present evidence in

opposition to forfeiture. He also argues that the judge

erroneously considered conduct at the pretrial proceedings in

determining that his conduct warranted forfeiture of counsel at

the probation revocation hearing scheduled to occur seven years

later. The Commonwealth counters that the judge's forfeiture

order was proper given the defendant's pattern of threatening

conduct toward counsel and because the proceeding involved a

probation revocation rather than a trial. We conclude that (1)

given the timing, the hearing did not meet the procedural due

process requirement of a "full and fair" opportunity to be heard

on the issue of forfeiture; and (2) because the defendant's

posttrial conduct did not involve either threats of violence or

acts of violence toward counsel, his conduct did not warrant the

extreme sanction of forfeiture of the right to counsel for the

probation revocation hearing. We address each issue in turn.

a. The forfeiture hearing. In Means, we outlined the

requirements of the forfeiture hearing, explaining its

importance as a predicate to the denial of a defendant's

fundamental constitutional right to counsel. There, we said

that "[b]ecause the consequences of forfeiture of counsel are so

severe, the sanction of forfeiture should not be imposed until

the defendant has had a full and fair opportunity at a hearing
 16

to offer evidence as to the totality of circumstances that may

bear on the question of whether the sanction of forfeiture is

both warranted and appropriate." Means, 454 Mass. at 97.

Beyond the broad command that due process requires notice and an

opportunity to be heard, the court in Means further specified

that (1) the judge should hear evidence regarding the alleged

conduct that may give rise to a finding of forfeiture; and (2)

the defendant has the right to "offer evidence, and to cross-

examine witnesses, both as to the allegations of his misconduct

and the totality of the circumstances that may bear on the

forfeiture finding, including his mental competency and

psychological condition, any other mitigating considerations,

and the willingness of appointed counsel to continue the

representation." Id.

The forfeiture proceeding was properly initiated by notice

"directing the defendant to appear at a hearing to show cause

why the court should not order forfeiture of his right to

appointed counsel." Id. The hearing, however, was not

sufficiently protective of the defendant's due process right to

a "full and fair" hearing where the timing of the hearing, one

day after the issuance of the show cause order, imposed

unacceptable limitations on the defendant's right to present

evidence on the totality of circumstances, including mental

disability, bearing on the issue of forfeiture. See id. At the
 17

very least, the "full and fair opportunity at a hearing to offer

evidence as to the totality of circumstances" bearing on the

issue of forfeiture requires an opportunity for the defendant to

consult fully with counsel and for counsel to marshal evidence

relevant to the conduct underlying the forfeiture. Id. Neither

of these minimum requirements for a fair hearing was met.

The judge conducted the hearing on one day's notice with

newly appointed defense counsel. Counsel, who met the defendant

for the first time on the day of the hearing, reported that he

had spoken to the defendant "for over an hour in the back and

[he] was not able to get very far."15 While we do not intend to

suggest that a one-day notice is never appropriate, it is

evident, however, that in the circumstances of this case, where

a potential defense to forfeiture was the defendant's mental

disability, the one-day notice was simply too short to

effectuate the defendant's right to a "full and fair" hearing.

The defendant was entitled to raise the issue of his mental

disability in his response to the show cause order, and the

court was obligated to consider it. That much is clear from

Means, 454 Mass. at 97. Implicit in the right to present a

defense is a fair opportunity to marshal facts in support of the

claim. Counsel, faced with a defendant claiming a serious

15
The defendant was incarcerated at the time of the
hearing, presumably limiting counsel's options in arranging an
interview prior to the hearing.
 18

mental disability that surely was suggested by the history of

his conduct, was obligated to marshal all the relevant facts and

present the defense on the defendant's behalf. The mental

disability defense suggested by counsel's brief interview with

the defendant likely would require medical records and perhaps

expert testimony, neither of which was available to counsel

after the one-day notice of the hearing.16

Further, where forfeiture is at issue, Means imposes an

affirmative obligation to investigate a defendant's mental

condition through a competency hearing or waiver inquiry

"[w]here 'there is some indication of mental disorder or

impairment sufficient to create a "bona fide doubt" as to the

defendant's ability to make an informed decision to proceed

without counsel.'" Id. at 96, quoting Commonwealth v. Barnes,

399 Mass. 385, 389 (1987). The information available to the

judge from the colloquy with the defendant and from counsel

regarding the possibility that the defendant might have a mental

disorder was sufficient to require further inquiry into the

16
The record reflects that, after the forfeiture hearing,
the defendant attempted to obtain medical records that, he
indicated, would demonstrate a "cystic brain tumor" and other
brain damage that affected his behavior. The motion judge
denied the defendant's motion for medical records from the
Lemuel Shattuck Hospital, where the defendant claimed the
diagnosis had been made. Thus, it is not possible to say
whether such records actually exist.
 19

defendant's ability to proceed without counsel. See Means,

supra.

Specifically, the judge had invited the defendant to

respond to counsel's motion to withdraw earlier in the hearing,

and the defendant alluded to a serious mental condition when he

told the judge that he had been diagnosed with a "brain tumor"

that was causing him to have difficulty "putting things into

words." Prior counsel testified at the hearing that he was

unaware of any current mental disorder but acknowledged that he

had been told of the claimed brain tumor and that the

defendant's conduct was not "logical" or otherwise in his best

interest. Newly appointed counsel reiterated the defendant's

claim of a brain tumor and appropriately requested that the

defendant be evaluated to determine if he was competent and

whether he could work with an attorney before any ruling on

forfeiture. Counsel suggested that, if true, this condition,

rather than a purposeful oppositional behavior, might explain

the defendant's inability to cooperate with counsel. Thus, the

matter of the defendant's mental state, whether it involved

competency or a mental disability related to the asserted brain

tumor, was highly relevant to the forfeiture issue.

The judge found that the defendant was "lucid" and

"responsive" in his exchange with the court regarding counsel's

withdrawal and that the defendant's mental health was not a
 20

factor weighing against forfeiture. This finding was based in

part on competency evaluations that had been completed five

years earlier. We doubt the reliability of the prior competency

evaluations as evidence of the defendant's more recent or then-

current mental condition which, in the circumstances of this

case, was a required factor in the court's forfeiture analysis.

First, competency and mental illness are distinct concepts,

each of which may bear on the propriety of forfeiture. In

Commonwealth v. Chatman, 473 Mass. 840 (2016), we explained that

the focus of competency is the defendant's "functional

abilities" rather than "the presence or absence of any

particular psychiatric diagnosis." Id. at 846-847, quoting

Commonwealth v. Goodreau, 442 Mass. 341, 350 (2004). Thus, the

competency inquiry is (1) whether the defendant has a

"sufficient present ability to consult with his [counsel] with a

reasonable degree of rational understanding," and (2) whether he

has a "rational as well as factual understanding of the

proceedings." Chatman, supra at 847, quoting Commonwealth v.

Harris, 468 Mass. 429, 443 (2014). On the other hand, we noted

in Means that a court considering forfeiture should exercise

caution in applying a "single mental competency standard" in

determining whether a defendant may be permitted to represent

himself. Means, 454 Mass. at 96, quoting Indiana v. Edwards,

554 U.S. 164, 175 (2008). We recognized that, as here, a mental
 21

disability or mental illness, quite apart from competency, may

be a factor in the forfeiture analysis in appropriate cases.

There, we said that "[m]ental illness itself is not a unitary

concept. It varies in degree. It can vary over time. It

interferes with an individual's functioning at different times

in different ways." Means, supra, quoting Edwards, supra.

Thus, while competency is important to the forfeiture issue, it

is not dispositive.

Second, even if competency were the sole relevant issue, a

five year old competency evaluation would not suffice to inform

the required evaluation of the defendant's mental condition at

the time of the forfeiture order. Put simply, it was not

possible, based on the earlier competency evaluation, to

determine whether the defendant, at the time of forfeiture, had

a mental disability as he claimed.

To be clear, we agree with the Appeals Court that 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,'" Gibson, 87 Mass. App. Ct. at

834, but the judge should at least have given counsel a

reasonable opportunity to marshal any evidence there might be to

establish that there was or was not a bona fide issue of

competency either at that time or when prior counsel withdrew.

The defendant's mental condition should not have been left to
 22

speculation, particularly when the constitutional right to

counsel was at risk.

b. The forfeiture decision. Although we conclude that the

forfeiture hearing did not comport fully with the procedural due

process protections we mandated in Means, we nonetheless address

the merits of the judge's forfeiture decision. We do so to

clarify the nature of the conduct required for forfeiture and to

emphasize the necessity to determine whether, given the totality

of the circumstances, forfeiture is in the interests of justice.

In reviewing a judge's forfeiture order, we defer to the

judge's findings of fact but we conduct an "independent

determination of the correctness of the judge's application of

constitutional principle to the facts found." Means, 454 Mass.

at 88, quoting Commonwealth v. Currie, 388 Mass. 776, 784

(1983). Although a probationer does not enjoy the full panoply

of rights guaranteed to a defendant in a criminal trial,

Commonwealth v. Durling, 407 Mass. 108, 112 (1990), we have

determined that "whenever imprisonment palpably may result from

a violation of probation, 'simple justice' requires that, absent

waiver, a probationer is entitled to assistance of counsel."

Commonwealth v. Patton, 458 Mass. 119, 125 (2010), quoting

Williams v. Commonwealth, 350 Mass. 732, 737 (1966).

In Means, 454 Mass. at 92, we articulated the guidelines to

be applied in ordering forfeiture, explaining that any such
 23

decision is to be made in light of the over-arching principle

that "[f]orfeiture is an extreme sanction in response to extreme

conduct that imperils the integrity or safety of court

proceedings." The guidelines require consideration of four

factors: (1) whether the defendant has had the services of more

than one attorney; (2) the type of proceeding in which

forfeiture is ordered; (3) the type of conduct offered as the

basis for forfeiture; and (4) the availability of a less

restrictive measure or whether forfeiture is a last resort. See

id. at 93-95. The issue for the judge after hearing all the

evidence and making findings and rulings is the application of

the two-part test: "whether the defendant's conduct was so

egregious as to warrant the sanction of forfeiture, and, if so,

in view of the totality of circumstances, whether the sanction

of forfeiture is in the interests of justice." Id. at 97.

We glean from the judge's findings and rulings that the

forfeiture order was grounded largely on his determination that

over the course of the proceedings, from trial up to and

including the probation violation hearing, the court had

appointed nine different attorneys to represent the defendant

and that seven of those attorneys had been permitted to withdraw

because of the defendant's pattern of verbally threatening

conduct against them. The judge found significant as well that

the defendant had threatened physical violence against one of
 24

the trial attorneys. Thus, the judge focused on the first and

third factors in his forfeiture decision.17

It would be an understatement to say that over the course

of the seven years between the defendant's arraignment and the

forfeiture order, the defendant's turbulent relationship with

his withdrawing attorneys demonstrated an extraordinary

inability or unwillingness to cooperate with counsel.

Therefore, we have no quarrel with the judge's frustration with

what could have been a tactical ploy by the defendant to delay

the resolution of the matter likely to result in the revocation

of his probation and the imposition of a State prison sentence.

And we recognize that cases in which defendants consistently

find frivolous reasons to withhold their cooperation from

appointed counsel can and must be dealt with appropriately. See

Commonwealth v. Appleby, 389 Mass. 359, 366-367, cert. denied,

464 U.S. 941 (1983), quoting Maynard v. Meachum, 545 F.2d 273,

278 (1st Cir. 1976) (assistance of counsel not absolute, and

17
Regarding the second factor, we recognize that forfeiture
of counsel at a probation revocation hearing "does not deal as
serious a blow to a defendant as would the forfeiture of counsel
at the trial itself." Commonwealth v. Means, 454 Mass. 82, 94
(2009), quoting United States v. Leggett, 162 F.3d 237, 251 n.14
(3d Cir. 1998), cert. denied, 528 U.S. 868 (1999). Nonetheless,
we need not address the broader question of the types of
proceedings that might weigh more heavily in assessing the
validity of a particular forfeiture decision. In this case,
where the defendant's liberty interests are at stake in a fact-
dependent probation revocation proceeding, the right to counsel
attaches with full force.
 25

"refusal without good cause to proceed with able appointed

counsel is a 'voluntary' waiver"). We conclude, however, that

the forfeiture order in this case was erroneous for two reasons.

First, the defendant's conduct, consisting mainly of threats to

report counsel to the board over a seven-year period, was not

sufficiently "egregious" to warrant forfeiture. Second, even if

the defendant's conduct met the threshold for forfeiture, the

judge failed to consider whether forfeiture was in the interests

of justice, the second prong of the two-part test for

forfeiture.

In elaborating on the particular conduct warranting

forfeiture, we noted in Means, 454 Mass. at 94, that "forfeiture

may be an appropriate response to the defendant's threats of

violence or acts of violence against defense counsel or others."

We focused more narrowly on conduct involving "threats of

violence or acts of violence" in deference to the rationale

underlying the forfeiture doctrine: a court's ability to

respond to conduct that "imperils the integrity or safety of

court proceedings." Id. at 92, 94. Violence or threats of

violence pose obvious threats to the "integrity or safety of

court proceedings" that must be timely addressed in a firm and

fair manner. Id. at 92.

Except for the threat of violence to one trial attorney,

the defendant did not engage in such conduct in relation to the
 26

attorneys appointed to represent him. Without question, the

defendant's conduct created an annoyance of the highest order

for counsel and an obstacle to the court's effort to efficiently

dispose of its docket in the interest of public safety.

However, where the defendant's conduct mainly involved threats

to file lawsuits or complaints against the attorneys with the

board, we discern no peril to the "integrity or safety of [the]

court proceeding[]," such as would likely inhere in a threat of

violence or an act of violence. Means, 454 Mass. at 92. We

find it significant as well that the one threat of violence

against an attorney was far removed in time from the probation

revocation proceeding. Thus, we adhere to the view expressed in

Means that violence or the threat of violence is the touchstone

for a forfeiture order. See id. at 94. Because the defendant's

conduct did not meet this test, the forfeiture order was

erroneous.

Last, we emphasize that if a judge determines that a

defendant has engaged in "egregious" conduct that warrants

forfeiture, he or she must also determine if, given the totality

of the circumstances, forfeiture is "in the interests of

justice." Means, 454 Mass. at 97. This requirement embodies

the concern that forfeiture be imposed only as a "last resort"

and only "when less restrictive measures are inappropriate"

(citation omitted). Id. at 95. It is a mandate to look beyond
 27

the defendant's "egregious" conduct to the consequences of

forfeiture on the defendant's fundamental right to the

assistance of counsel. Thus, in any case where forfeiture is

ordered, the better practice is to clarify for the record that

all of the guidelines have been appropriately considered and

that forfeiture is in the interests of justice.

We hasten to add that a judge facing a pattern of hostile

conduct from an uncooperative defendant is not without a remedy.

Where a defendant persists in finding fault, without reason,

with a succession of appointed counsel, the court may in

appropriate circumstances consider whether to apply the doctrine

of waiver by conduct. Means, 454 Mass. at 90, citing

Commonwealth v. Babb, 416 Mass. 732 (1994) (recognizing "waiver

of counsel by conduct, occasionally termed abandonment of

counsel"). The waiver by conduct doctrine requires that the

judge must first conduct a colloquy with the defendant warning

the defendant of the consequence that he or she may lose the

right to counsel if he or she engages in abusive conduct (such

as threats to sue or complain to the board) toward the

attorney.18 If the defendant thereafter engages in the conduct

18
In the circumstances of this case, however, this remedy
was not available to the judge at the forfeiture hearing, as the
judge at the prior hearing did not conduct a colloquy suited to
a waiver by conduct. Although the prior judge had warned the
defendant that another attorney would not be appointed for him,
 28

about which he or she was warned, the act may be treated as "an

implied request to proceed pro se and, thus, as a waiver of the

right to counsel." Means, supra at 91, quoting United States v.

Goldberg, 67 F.3d 1092, 1100 (3d Cir. 1995).

2. The probation revocation hearing. On appeal, the

defendant argues that he is entitled to a new hearing based on

the judge's error in limiting his right to cross-examine the

victim and her mother and denying his motion for funds to

procure certified copies of his medical records and for an

expert to interpret those records. In view of our determination

that the order forfeiting the defendant's right to counsel must

be vacated and that the matter must be remanded, we bypass these

issues except to note that where, as here, the defendant's

mental condition is asserted as a factor in both the forfeiture

and the violation, the defendant is entitled to a fair

opportunity to procure and present this evidence on remand.

Conclusion. For the reasons stated above, the forfeiture

order and the order revoking the defendant's probation are

vacated. The matter is remanded to the Superior Court for a

it does not appear -- at least with sufficient clarity -- that
this warning was intended to trigger the waiver by conduct rule.
Rather, it appears more likely that that judge had added the
warning to encourage the defendant's cooperation with counsel,
as the warning was given only after the judge had been informed
of the delay in the probation revocation proceeding caused by
the withdrawal of two prior court-appointed attorneys.
 29

forfeiture hearing at which the defendant may offer evidence of

his mental condition as a defense to forfeiture. Regardless of

the outcome of the forfeiture hearing, the defendant is entitled

to a de novo probation revocation hearing.

So ordered.