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18-P-821 Appeals Court
COMMONWEALTH vs. JORGE G. DUARTE.
No. 18-P-821.
Bristol. October 3, 2019. - April 8, 2020.
Present: Green, C.J., Rubin, & Agnes, JJ.
Assault and Battery. Practice, Criminal, Assistance of counsel, Continuance, Judicial discretion. Constitutional Law, Assistance of counsel. Due Process of Law, Assistance of counsel. Attorney at Law, Attorney-client relationship, Withdrawal.
Complaint received and sworn to in the New Bedford Division of the District Court Department on January 26, 2017.
Motions to discharge counsel and for a continuance were heard by Daniel W. O'Malley, J., and the case was tried before Edward F.X. Lynch, J.
Sharon L. Sullivan-Puccini for the defendant. Robert P. Kidd, Assistant District Attorney, for the Commonwealth.
AGNES, J. A District Court jury convicted the defendant,
Jorge G. Duarte, of assault and battery in violation of G. L.
c. 265, § 13A (a), arising out of his participation in an attack 2
on another inmate that occurred at the Bristol County jail and
house of correction (jail). On appeal, the defendant argues
that the judge abused his discretion by denying the defendant's
request to hire an attorney and, by implication, to obtain a
continuance of the trial that was scheduled for that day,
without affording him an opportunity to be heard. The defendant
also argues that his trial counsel was ineffective by failing to
object to the repeated description by the prosecutor and
witnesses of the incident as an "assault," failing to object to
evidence that the incident occurred in a specific area in the
jail that housed "troublemakers," and failing to deliver a
proper closing argument.
Despite the last minute nature of the defendant's request
to hire an attorney and the inevitable continuance that it would
necessitate, under settled law the defendant was entitled to be
heard. In such circumstances, "the judge [must] give a
defendant an opportunity to make known his reasons for objecting
to appointed counsel before the judge rules on the request."
Commonwealth v. Lee, 394 Mass. 209, 217 (1985). For this
reason, after oral argument and consistent with the procedure
followed in Commonwealth v. Moran, 388 Mass. 655, 658-659
(1983), we remanded the case to the judge who denied the
defendant's motion with instructions to conduct an evidentiary
hearing at which the defendant would have an opportunity to 3
testify without limitation on the subject of his pretrial
request. The judge conducted such a hearing, made findings and
rulings, and concluded that the defendant's request was without
merit. Because this determination is well supported by the
record, and we are unable to discern any prejudice to the
defendant, we reject the defendant's argument that he is
entitled to any relief. We also reject the defendant's claim
that his trial counsel provided ineffective assistance.
Therefore, we affirm the defendant's conviction.
1. Background. a. The incident. On January 6, 2017, at
approximately 4:43 P.M., inmates housed in the defendant's unit
at the jail were released from their cells for dinner.1 Shortly
thereafter, an inmate, Tyrell Pina, was pulled to the ground by
another inmate, Jose Cruz, and then attacked by Cruz, the
defendant, and a third inmate. A video recording (video) of the
incident from the jail's surveillance system was played for the
jury; it shows the defendant repeatedly punching Pina in the
head area while Cruz and the third inmate were simultaneously
kicking Pina.2 After about one minute, correction officers were
1 The defendant was housed in the "HB Unit" of the jail which was described as housing persons waiting to be sentenced. The various witnesses, all of whom worked at the jail, largely referred to these persons as "inmates."
2 After a short period of time, the third inmate stopped while the defendant and Cruz continued to attack Pina. 4
able to control the scene. The incident was witnessed by two
testifying correction officers who identified the defendant as
one of the persons depicted in the video.3 Pina suffered
injuries and required treatment at a local hospital. While a
nurse was examining the defendant for injuries, the defendant
made a statement suggesting that Pina had previously shot at the
defendant's car while his son was in it, and the defendant asked
the nurse, "What would you have done?"
b. Procedural history. A complaint issued on January 26,
2017, alleging the defendant committed assault and battery in
violation of G. L. c. 265, § 13A (a). The defendant was
arraigned on March 1, 2017. The following day, appointed
counsel David P. Tibbetts appeared for the defendant.4 The case
proceeded with pretrial hearings on March 23, 2017, April 6,
2017, and April 19, 2017. The defendant tendered conditional
guilty pleas at each pretrial hearing date, but was unable to
resolve the case on terms that were satisfactory to him.
The first trial date was June 1, 2017. On that date, the
Commonwealth reported that it was ready for trial and
represented that it had five witnesses present. The defendant's
3 Other employees from the Bristol County sheriff's office that investigated the incident also testified. Pina did not testify.
4 The appointed attorney who represented the defendant at arraignment withdrew. 5
attorney indicated that he was also ready for trial but that the
defendant did not wish to proceed with the trial on that date
because he had an open criminal case and a probation violation
case both pending in the Superior Court. The defendant was
represented by a different appointed attorney in those cases.
The defendant was concerned about the potential negative impact
that a disposition in his District Court case might have on the
pending Superior Court cases. Attorney Tibbetts represented to
the court that he communicated with the defendant's Superior
Court attorney and relayed to the court that it was that
attorney's opinion that it would be advantageous to the
defendant to continue the District Court case until after the
Superior Court cases were resolved. Over the objection of the
Commonwealth, the judge continued the trial until July 25, 2017,
to afford the defendant an opportunity to fully consult with his
Superior Court attorney. At no point on the June 1, 2017, trial
date, or the three earlier pretrial hearing dates, did the
defendant express dissatisfaction with Attorney Tibbetts.
When the defendant's case was called for trial on July 25,
2017, the defendant was not present in the court room; he was
instead in the "lock up" area of the court house. The
Commonwealth again reported it was ready for trial and its
witnesses were again present. Attorney Tibbetts answered that
he too was ready for trial but that the defendant wanted a new 6
attorney that he would hire privately. The Commonwealth
objected to a further continuance, representing that the
defendant had not resolved his probation violation case when
brought before the Superior Court on July 10, 2017, and July 24,
2017, and that the Commonwealth's witnesses had now been present
for the defendant's District and Superior Court cases on four
occasions. After a brief recess, the case was called again,
with the defendant still absent from the court room. Attorney
Tibbetts renewed the defendant's request as follows:
"I went back downstairs and spoke with the client. He's very upset. He feels that I'm not invested enough with his case, that he feels that I haven't spent enough time with him on the case, he feels that this is -- as he put it, it's his life and he needs somebody who will be fully invested. He had a -- a case in Superior Court, which is why this case got continued. That Superior Court case -- I understand he fired that lawyer and he's supposed to be hiring private counsel. And as far as this case goes, he feels that I put the case on for speedy trial without consulting with him, although my memory is we had an oral discussion about it in court.
"I would point out that the case is four and a half months old at this point. I don't -- I think we're kind of out of speedy trial area anyway with the age of the case. But it is also a young case in terms of him getting a new lawyer; it's only four and a half months old. He does -- clearly does not want me as his lawyer, he wants me out -- off, doesn't feel like I've been doing a good job for him. As I told you, I'm ready to go and -- I have to renew the motion because of his vigorous discussion with me downstairs."
The judge denied the request. After a second brief recess, the
defendant was brought into the court room for trial before a
different judge. Although Attorney Tibbetts made reference to 7
the defendant's request before the second judge, the defendant
was not afforded an opportunity to be heard on the issue of
hiring an attorney, and the trial judge did not reconsider the
earlier ruling denying the defendant's request. A trial by jury
commenced and resulted in the defendant's conviction.
2. Discussion. a. Request to discharge counsel and
implied request for a continuance. On appeal, the defendant
argues that the judge erroneously denied his request to hire an
attorney without permitting him to be present in the court room
to articulate his reasons for wanting new counsel and that this
error requires reversal of his conviction. The defendant's oral
request, made through counsel, was effectively a motion to
discharge counsel and, although not explicitly stated, a request
for a continuance so that, if allowed, the new attorney could
adequately prepare for trial.5 See Commonwealth v. Britto, 433
Mass. 596, 600 (2001) ("the most common problem accompanying
[motions for appointment of new counsel is] the need for a
continuance of the trial if the motion is allowed"). Such a
5 In these circumstances, we do not view the defendant's request differently because he suggested that he would retain private counsel instead of asking the court to appoint substitute counsel. See Commonwealth v. Tuitt, 393 Mass. 801, 803-804 (1985), quoting Commonwealth v. Connor, 381 Mass. 500, 503 (1980) ("The right to employ counsel of one's choice, particularly when exercised on the day of trial, is, 'in some circumstances, . . . subordinate to the proper administration of justice'"). 8
request requires the judge to weigh the "interests of the courts
and the public in efficient trial administration" as well as the
prejudice to the opposing party against the "showing of good
cause to support the defendant's motion." Commonwealth v.
Chavis, 415 Mass. 703, 712 (1993). Good cause includes "a
conflict of interest, incompetence of counsel, or an
irreconcilable breakdown in communication." Id. The test is
not a "mechanical" one. Id. at 711. It has been repeatedly
held that "[a] motion to discharge counsel, when made on the eve
of trial, or on the day on which trial is scheduled to begin,
'is a matter left to the sound discretion of the trial judge.'"
Commonwealth v. Tuitt, 393 Mass. 801, 804 (1985), quoting Moran,
388 Mass. at 659.
To properly exercise that discretion, it has also been held
that "when a defendant requests that new counsel be appointed,
the judge should allow the defendant to state his reasons for
wanting to discharge his attorney so that the judge's discretion
can be exercised on an informed basis." Lee, 394 Mass. at 217,
citing Moran, 388 Mass. at 659. Although some of the cases,
such as Lee, 394 Mass. at 217, speak in terms of what the judge
"should" do when faced with such a request, we reiterate that
when a defendant requests a discharge of counsel and a
continuance on the eve of or the first day of trial, the judge
must afford the defendant the opportunity to be heard before 9
ruling on the request. See Tuitt, 393 Mass. at 804 (defendant
must be permitted to present reasons for dissatisfaction on
motion to discharge counsel); Moran, supra ("the decision to
honor a defendant's request for change of appointed counsel is a
matter left to the sound discretion of the trial judge, but
after he has given the defendant the opportunity to articulate
his reasons"); Commonwealth v. Clemens, 77 Mass. App. Ct. 232,
23 (2010) ("We acknowledge the pressure a District Court judge
faces with large volumes of cases and the need to process them
efficiently, but such concerns cannot excuse the failure to
provide an opportunity for the defendant to address the court
about dissatisfaction with counsel"). Cf. Commonwealth v.
Delacruz, 463 Mass. 504, 508-511 & n.8 (2012) (rejecting
argument that defendant was not afforded opportunity to be heard
where defendant made "tentative inquiries" at pretrial hearing
about whether trial date could be moved so that potential
private counsel could enter appearance and "no mention was made
at any time that appointed counsel was insufficient in any
way"). "The appropriate practice, which should have been
followed at the time of trial in this case, is to hear the
defendant's offer of specifications so that the judge's
discretion will be exercised on an informed basis" (quotation
and citation omitted). Moran, supra. Although this hearing
need not "satisfy a particular formula[,] . . . the judge [must] 10
give a defendant an opportunity to make known his reasons for
objecting to appointed counsel before the judge rules on the
request." Lee, supra.6
The defendant in this case was not afforded an adequate
opportunity to articulate his reasons supporting his request for
new counsel. When the issue of representation by counsel was
discussed in court, the defendant was not present in the court
room and was instead in the lock-up area of the court house.7 In
6See Chavis, 415 Mass. at 710-712 (defendant had fair opportunity to explain dissatisfaction where he made pro se oral motion to discharge counsel on day of trial and was afforded opportunity to personally explain reasons for request); Lee, 394 Mass. at 217 (defendants had adequate opportunity where "[t]hroughout the pretrial proceedings and at trial the defendants were given ample opportunity to voice their concerns about appointed counsel, and they did so"); Tuitt, 393 Mass. 805 (rejecting argument judge did not inquire of defendant where judge displayed "exemplary patience by listening to the defendant express, on three separate occasions, his charge that counsel had not made any effort to 'properly prepare this case'"); Commonwealth v. Appleby, 389 Mass. 359, 368-369 (1983) (defendant was given two opportunities to speak but did not advance any reasons of his own as to why he was dissatisfied with counsel); Commonwealth v. Price, 17 Mass. App. Ct. 955, 957 (1983) (judge made adequate inquiry). Cf. Moran, 388 Mass. at 657-658, 660 (court did not approve of judge's handling of oral requests for new counsel on two occasions, one just before trial and one during trial, where judge did not inquire of defendant and instead said "quite clearly, he is not going to be afforded the opportunity to change counsel"); Clemens, 77 Mass. App. Ct. at 238 ("judge's colloquy with the defendant, once he was given the opportunity to speak on this subject, was inadequate both for the defendant to justify his dissatisfaction with counsel and for the judge to make an informed decision"). 7 We do not fault the defendant for not speaking up to address the trial judge directly once the defendant was brought into the court room after he learned that his request was 11
these circumstances, the defendant could have had meaningful
information to add on the issue, and the judge's failure to
provide the defendant the opportunity to be heard precluded the
judge from making an informed exercise of discretion. What
makes a judge's choice to allow or deny a motion an exercise of
sound judicial discretion is the fair weighing of the factors
relevant to the decision. See L.L. v. Commonwealth, 470 Mass.
169, 185 n.27 (2014).
As noted earlier, we remanded the case (consistent with the
procedure followed in Moran, 388 Mass. at 658) to the motion
judge who had denied the defendant's request, with directions to
conduct an evidentiary hearing that afforded the defendant,
defendant's counsel, and the trial prosecutor the opportunity to
present testimony on the subject of the defendant's request. At
this hearing, the defendant testified that he wanted to
discharge his attorney because the attorney had not prepared the
case for trial adequately; failed to meet with or discuss the
case with the defendant to his satisfaction; had not responded
to telephone calls; had not fit him for clothing; had not and
would not fight for him; and that there was a breakdown in
communications. The motion judge prepared detailed findings of
denied. The defendant "was entitled to proceed on the basis of the conventional understanding that a litigant's communications with the court are handled by the litigant's lawyer." United States v. Prochilo, 187 F.3d 221, 226-227 (1st Cir. 1999). 12
fact. He evaluated the defendant's testimony and noted that
"the undersigned judge does not credit [the defendant's stated]
reasons and, instead, finds that the defendant's wish to
discharge his attorney on July 25, 2017 was nothing more than a
back-door attempt to achieve a (second) continuance of his trial
given that his Superior Court probation violation case had still
not been resolved." These findings, which are well supported by
the record, are fatal to the defendant's claim that he was
prejudiced by the motion judge's handling of his request or is
entitled to reversal of his conviction. Even in cases where the
judge fails to afford the defendant an opportunity to be heard
on a request to discharge counsel, a new trial is not required
where that opportunity is later afforded to the defendant and it
can be determined that the request was without merit. See
Moran, supra at 658-659 (defendant was not prejudiced by failure
to hear from defendant prior to trial where, on remand, trial
judge held hearing with defendant, defense counsel, and
prosecutor, and judge determined new trial was not warranted);
Clemens, 77 Mass. App. Ct. at 239 (reversal not required where
defendant gave reasons posttrial and appellate court determined
there was insufficient cause to remove counsel). See also
Lamoureux v. Commonwealth, 353 Mass. 556, 560-561 (1968)
(exceptions overruled despite failure of trial judge to hear
offer of specifications where defendant was later afforded 13
evidentiary hearing before single justice of Supreme Judicial
Court who made detailed findings that demonstrated inadequacy of
complaints).
b. Ineffective assistance of counsel. It is regrettable
that the prosecutor and witnesses repeatedly referred to the
incident using the conclusory term "assault" where the defendant
was on trial for assault and battery. See Commonwealth v.
Dargon, 457 Mass. 387, 396 (2010) (in rape case, failure to
redact words "assault" and "assailant" that appeared twenty-
three times on documentary evidence was error); Commonwealth v.
Coleman, 366 Mass. 705, 711 (1975) (medical examiner not
permitted to testify that death was "homicide"); Commonwealth v.
McNickles, 22 Mass. App. Ct. 114, 121 n.10 (1986) ("Prosecutors
would be well advised to take special care to instruct their
witnesses, prior to putting them on the stand and asking their
opinions, to avoid such terms as 'rape,' 'sexual assault,' and
the like"). The incident could have been adequately described
for the jury in a myriad of other ways without using the term
that constituted an element of the crime for which the defendant
was on trial. While we discern no such intent from the
prosecutor or witnesses in this case, avoiding the use of the
term "assault" would have eliminated the risk that the jury
could have interpreted the questioning or testimony as an
opinion from the Commonwealth or law enforcement witnesses on 14
the issue of the defendant's guilt. See Mass. G. Evid. § 704
(2020).
However, even if the failure to object to this
characterization of the incident fell measurably below the
standards of the ordinary fallible lawyer, we reject the
defendant's claim of ineffective assistance of counsel based on
this error as the defendant has failed to demonstrate he was
"likely deprived . . . of an otherwise available, substantial
ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96
(1974). See Commonwealth v. Randolph, 438 Mass. 290, 295-296
(2002) (equating ineffective assistance of counsel standard to
substantial risk of miscarriage of justice standard in cases
where waiver stems from omission by defense counsel). Based on
the evidence presented at trial, there was no substantial risk
of a miscarriage of justice. The issue was not whether the
defendant violently and repeatedly struck Pina. That was
abundantly clear from the video and the testimony. Instead, the
issue was whether based on the totality of the evidence --
particularly the lack of any audio and the circumstances of
living in jail -- the Commonwealth had proved beyond a
reasonable doubt that the defendant was not acting with
justification, i.e., acting in self-defense.8
8 The judge instructed the jury on self-defense over the Commonwealth's objection. 15
Similarly, the defendant has not demonstrated ineffective
assistance based on counsel's failure to object to the evidence
that the incident occurred in a "maximum unit for jailers" and
later himself elicited on cross-examination from a witness that
the unit housed "troublemakers." While the defendant's presence
in this unit invited a negative inference about the defendant's
character (which was mitigated by a forceful limiting
instruction), permitting and eliciting this evidence may have
been a strategic decision because it invited that same inference
about Pina's character. An attack on Pina's credibility
provided needed support for the defendant's claim of self-
defense and furthered the theory advanced by counsel that people
in jail sometimes have problems with each other, that fights
like this could occur at any time, and that jail was a dangerous
place to be. On this record, considering the other evidence
that would inevitably be before the jury, the potential benefits
of the evidence, and the lack of an affidavit from defense
counsel, we cannot say that counsel's decision was "manifestly
unreasonable."9 Commonwealth v. Kolenovic, 471 Mass. 664, 674
(2015). See Commonwealth v. Zinser, 446 Mass. 807, 812 (2006)
9 There likely are circumstances where it would fall measurably below the ordinary fallible lawyer standard to permit admission of evidence that the defendant is not only in jail but also in a specific part of a jail for troublemakers. 16
(when claim of ineffective assistance of counsel is raised for
first time on direct appeal, relief is not available unless "the
factual basis appears indisputably on the trial record"
[quotation and citation omitted]).
Last, the defendant argues his counsel was ineffective by
making the statement in closing that, "in [his] client's
opinion, this evidence doesn't rise to the level of guilty
beyond a reasonable doubt." Counsel should not have identified
his client's opinion as the reason that the evidence did not
rise to the reasonable doubt standard. Defense counsel's
statement created a risk that the jury would understand the
statement as counsel disassociating himself from the defendant's
position. Instead, the statement should have been more
forcefully delivered by simply arguing that the evidence
presented to the jury did not meet this standard.10 However, we
reject the defendant's claim that this statement or trial
counsel's entire summation left him "denuded of a defense" or
"conceded guilt." See Commonwealth v. Moseley, 483 Mass. 295,
307 (2019). This is not a case where at the "eleventh hour"
counsel abandoned a substantial defense for one that was
10 It may be that this is what counsel intended to convey. "[I]t is far too easy to examine a transcript and point to ways to 'do it better.'" Commonwealth v. Moseley, 483 Mass. 295, 308 (2019), quoting Commonwealth v. Degro, 432 Mass. 319, 333 (2000). 17
"exceptionally weak," Commonwealth v. Street, 388 Mass. 281,
281, 286 (1983), or a case where counsel asked the jury to
believe the testimony of a witness "a hundred percent" where
belief of that testimony would have required the jury to convict
the defendant of murder in the first degree, see Commonwealth v.
Triplett, 398 Mass. 561, 568-569 (1986). Instead, faced with a
challenging case where the defendant was recorded on video
committing the crime, and the video was corroborated by multiple
witnesses, counsel consistently advanced the theory discussed
supra and concluded by asking the jurors to "agree that my
client is not guilty." The defendant failed to satisfy the
prejudice prong set forth in Saferian, 366 Mass. at 96.
Judgment affirmed.