NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
20-P-517 Appeals Court
COMMONWEALTH vs. JASON HALTIWANGER.
No. 20-P-517.
Plymouth. February 1, 2021. – May 11, 2021.
Present: Wolohojian, Desmond, & Grant, JJ.
Controlled Substances. Due Process of Law, Competency to stand trial, Assistance of counsel, Fair trial, Continuance. Constitutional Law, Waiver of constitutional rights, Assistance of counsel, Right of defendant in criminal case to act pro se, Public trial. Practice, Criminal, Continuance, Competency to stand trial, Defendant's competency, Psychiatric examination, Assistance of counsel, Waiver, Self-representation, Public trial, Defendant pro se, Fair trial. Evidence, Competency, Certificate of drug analysis. Mental Impairment. Fair Trial. Attorney at Law, Withdrawal. Judge.
Indictments found and returned in the Superior Court Department on October 24, 2014.
The cases were tried before Thomas J. Perrino, J.
Mark Booker for the defendant. Jessica L. Kenny, Assistant District Attorney, for the Commonwealth. 2
WOLOHOJIAN, J. In the course of conducting a pretrial
hearing that, among other things, included a colloquy regarding
the defendant's waiver of his right to counsel, the judge became
concerned about the defendant's competence. Despite that
concern, the judge accepted the defendant's waiver. At the same
time, the judge arranged a G. L. c. 123, § 15 (a), examination
to take place the following day. Although the defendant
appeared for that examination, he refused to be examined and, as
a result, the psychologist offered no opinion as to the
defendant's competence. Without any further inquiry into the
defendant's competence or making any findings, the judge allowed
the defendant to proceed to trial pro se aided by appointed
standby counsel. We conclude that it was error to accept the
defendant's waiver of counsel without further inquiry into his
competence and making appropriate findings. However, in the
unusual circumstances of this case, where the defendant does not
argue that he was incompetent to stand trial, the record does
not otherwise contain substantial evidence of incompetence, and
there is reason to think that the defendant's conduct was that
of a so-called "sovereign citizen" seeking to deliberately
manipulate the court rather than the product of incompetence, we
conclude that the appropriate remedy in this case is for the
defendant to file a motion for new trial rather than to vacate
the judgments. 3
Separately, we conclude that the evidence was insufficient
to prove the composition of the pills that were the basis of the
defendant's conviction of possession with intent to distribute a
class E substance, subsequent offense, and reject the
defendant's remaining arguments.
Background. In October 2014, the defendant was indicted
for various drug offenses.1 The charges were based on drugs
found by police when they executed search warrants for the
defendant's car and apartment, and his girlfriend's car (which
the defendant was driving at the time of the search).
The defendant was represented by private counsel when he
was arraigned on November 12, 2014, and he continued to be
represented by that lawyer for almost the next two years.
During that time, the case was actively litigated. On December
22, 2015, the Commonwealth certified that it had complied with
its discovery obligations, and on May 17, 2016, the case was set
for trial on October 24, 2016.
Less than two weeks before trial, defense counsel filed a
motion to withdraw, citing his suspension from the practice of
1 The charges were: unlawful distribution of a class B substance (oxycodone), as a subsequent offense, G. L. c. 94C, § 32A (c), (d); trafficking in cocaine, G. L. c. 94C, § 32E (b); unlawful possession with intent to distribute a class B substance (oxycodone), as a subsequent offense, G. L. c. 94C, § 32A (c), (d); and unlawful possession with intent to distribute a class E substance (cyclobenzaprine), as a subsequent offense, G. L. c. 94C, § 32D (a), (b). 4
law effective October 1, 2016.2 The case was continued for
successor counsel to file an appearance, which he did on
November 10, 2016. The case was set for trial on June 7, 2017.
Less than one month before this trial date, the defendant
terminated the services of his second attorney, who filed a
motion to withdraw. In support of the motion, defense counsel
stated that the "defendant has taken his file and indicated that
he wants a new lawyer to represent him." The motion was allowed
ten days later, and successor counsel filed a notice of
appearance the same day. The trial date was again continued;
this time, to October 2, 2017.
The trial date was subsequently continued for various
reasons, including at the request of the defendant, the
defendant's unsuccessful petition seeking leave to take an
interlocutory appeal, and for a brief period at the request of
the Commonwealth. Throughout this period, the defendant
continued to be represented by his third private counsel. The
case was set for trial on October 2, 2018.
Approximately two weeks before this trial date, during a
hearing, the defendant informed the judge that he wanted to hire
a different lawyer. The trial was continued in order to permit
2 The Commonwealth points out that the suspension was imposed more than one month earlier, on August 31, 2016. But this information was not part of the record below, nor is it pertinent to our analysis. 5
the defendant's third lawyer to withdraw and a fourth to appear.
The defendant's fourth private counsel filed his appearance on
September 27, 2018, and, after various additional procedural
events, the case was ultimately scheduled for a final pretrial
conference on June 6, 2019, and for trial on June 17, 2019. At
this point, the case was almost five years old, and much of the
delay was connected to the fact that the defendant had
repeatedly changed counsel.
This brings us to the sequence of events that are at the
center of this appeal. On April 5, 2019, the defendant again
moved to continue the trial date. A Superior Court judge denied
the motion.
The parties appeared in court on June 6, 2019. The
defendant, through his fourth counsel, filed a motion seeking
reconsideration of the denial of his motion to continue the
trial. Although defense counsel acknowledged that the trial
date had been agreed upon, he stated that his office had
mistakenly agreed to a date that conflicted with another trial
he had in Rhode Island. Given the age of the case, and the
number of previous continuances, the judge denied the request
for a further continuance. As soon as the judge announced his
decision, the defendant stated that he was "going on [his] own,"
and would represent himself. He asked to file a "special
appearance," and he stated that he wanted the prosecutor "to 6
certify [his] right to subrogation."3 When the judge inquired of
defense counsel what these statements meant, defense counsel
stated that he thought the defendant was simply frustrated with
the process knowing that the case was coming to an end, that he
(the defendant) "didn't accept the Commonwealth's offer," and
that "he's just expressing some disconcern [sic] with the
process at this point." The judge continued the matter to
permit the defendant to consult with counsel about his options
with respect to proceeding pro se. After that consultation, the
hearing continued during which, as a result of the defendant's
additional statements regarding subrogation, the judge concluded
that the defendant was "confused" and did not understand what he
was doing "from a legal perspective." The judge advised the
defendant that proceeding pro se is generally ill-advised, but
that he recognized the defendant's right to make that decision.
Defense counsel requested that the judge allow the defendant to
have the weekend to think about his options. The judge agreed,
and arranged to have the parties return for a colloquy to
determine whether the defendant continued to wish to proceed pro
se.
3The defendant also filed "[g]eneral correspondence regarding subrogation and trustees, with [the d]efendant's birth certificate." 7
The parties indeed returned four days later, on June 10,
2019. The defendant's fourth lawyer filed a motion to withdraw
on the ground that the defendant had terminated his services.
For two reasons, we set out in detail what transpired during the
remainder of the hearing. First, the details are central to the
issues raised on appeal. Second, they may help trial judges in
future cases recognize some of the hallmark phrases and concepts
used as litigation delaying tactics by a group known as
"sovereign citizens."4
The judge: "All right. Mister Haltiwanger, you wish to terminate the services of your lawyer?"
The defendant: "Mmm-hmm. [acknowledges yes] Yes."
The judge: "Well, you have a trial coming up."
The defendant: "Well, I'm not ready for trial."
The judge: "You're not ready for trial?"
The defendant: "Nope."
The judge: "Why not, sir?"
The defendant: "I need to file my motions."
The judge: "Pardon me?"
4 "Sovereign citizens are anti-government extremists who believe that even though they physically reside in this country, they are separate or 'sovereign' from the United States. As a result, they believe they don't have to answer to any government authority, including courts, taxing entities, motor vehicle departments, or law enforcement." Federal Bureau of Investigation, Stories, Domestic Terrorism: The Sovereign Citizen Movement, https://archives.fbi.gov/archives/news/stories /2010/april/sovereigncitizens_041310/domestic-terrorism-the- sovereign-citizen-movement [https://perma.cc/4V8C-Z2S9]. 8
The defendant: "My motions."
The judge: "What motion?"
[brief pause]
The judge: "This --"
The judge: "This is a motion to withdraw filed by your attorney."
The defendant: "My motion."
The judge: "What I just asked, sir --"
The defendant: "Is this a court of record? Is this a court of record?"
The judge: "Is this a court of record?"
The defendant: "Yes."
The judge: "Yes, it is, sir."
The defendant: "So, on the record, could you certify my rights to subrogation?"
The judge: "Sir, I've told you --"
The defendant: "The prosecutor certify my rights to subrogation."
The judge: "Sir, you're very confused."
The defendant: "No, I'm not. We can't proceed or --"
The judge: "No."
The defendant: "-- until that's resolved first."
The judge: "The -- we're -- sir, you're going to proceed."
The defendant: "No, we cannot proceed." 9
The judge: "All right."
The defendant: "And, I, and I don't consent."
The judge: "It doesn't matter if you consent. Your case is five --"
The defendant: "I do not --"
The judge: "-- years old. It's --"
The defendant: "I do not consent."
The judge: "Irrelevant as far as I'm concerned."
The defendant: "I would like the prosecutor to certify my rights to subrogation in writing, please."
The judge: "Sir, you want to represent yourself?"
The defendant: "Could the prosecutor certify my rights to subrogation, please?"
The judge: "Sir?"
The defendant: "In writing, please."
The judge: "Sir, do you want to wish -- do you wish to represent yourself?"
The defendant: "Could the prosecutor certify my rights to subrogation, please?"
The judge: "The answer is no. All right?"
The defendant: "And, could I get that in writing?"
The judge: "You just had it. All right?"
The defendant: "All right. So, I got it in writing, right? Get it in writing. Okay?"
The judge: "Are you prepared to proceed to trial?" 10
The defendant: "No."
There was then an exchange between the judge and the
prosecutor during which the prosecutor confirmed that the
Commonwealth was ready for trial as scheduled. The hearing then
continued.
The judge: "I'm going to allow the motion to withdraw because you have terminated the services of [the fourth attorney's] office. All right?"
The defendant: "Yeah."
The judge: "Now, do you wish me to appoint standby counsel to you?"
The judge: "Do you wish to represent yourself?"
The defendant: "Are you going to certify my rights to subrogation today? No? Right?"
The judge: "That's what I said, sir."
The defendant: "Okay. Could I get something in writing?"
The judge: "Sir, do you wish to represent yourself?"
The judge: "I could appoint standby counsel for you, sir."
The defendant: "I got [sic] to write my motions."
The judge: "Pardon me?" 11
The defendant: "I have to write my motions."
The judge: "Do you understand that if you can't afford a lawyer, the court will appoint counsel for you?"
The judge: "Do you understand that?"
The defendant: "No, I don't."
There was then an exchange during which the judge informed
the defendant that the judge wanted the defendant to speak with
someone in the probation department to determine whether the
defendant qualified for appointed counsel, and he refused to
speak with probation. The hearing then continued as follows:
The clerk: "Your Honor, would you like me to swear him in?"
The judge: "Yes."
The clerk: "Please raise your right hand, sir."
The clerk: "Your Honor, he's refusing to raise his right hand."
The judge: "Sir, are you refusing to raise your right hand?"
The defendant: "I don't swear."
The judge: "All right. Sir, please tell me your name and age."
The defendant: "Jason, Upper Case, Lower Case, Haltiwanger, Upper Case, Lower Case." 12
The judge: "How old are you, sir?"
The defendant: "44."
The judge: "How far have you gone in school, sir?"
The defendant: "What does this have to do with going to trial?"
The judge: "How far have you gone in school, please?"
The judge: "Are you refusing to answer my question?"
The judge: "I'm trying to determine, sir, if you are competent to represent yourself."
The defendant: "Mmm-hmm."
The judge: "Understand what I'm trying to do?"
The judge: "All right. You refuse to answer that question?"
The defendant: "I plead the Fifth."
The judge then continued with a colloquy designed to
permit him to determine whether the defendant's waiver of
counsel was knowing and voluntary. Among other things, the
judge inquired into the defendant's knowledge of legal
matters, his lack of legal training, his experience in
defending himself, his knowledge of court room rules and
procedures, the requirements of picking a jury, the charges
against the defendant and the penalties they carried, the 13
need to examine witnesses, and the need to preserve
objections at trial. The defendant's answers were either
off point (such as stating that he was pleading "the
Fifth"), or else indicated that he did not have knowledge
of the matters about which the judge was inquiring. The
defendant also repeated his refusal to meet with someone in
probation to see if he qualified for court-appointed
counsel. After this unproductive colloquy, the hearing
continued:
The judge: "Counsel, has there ever been any question in your mind with regard to this man's competency?"
Fourth counsel: "No. Not -- excuse me, Your Honor. Not since last Friday."
The defendant: "And, before I go to trial, I need her to, a bond, I need your oath of office and a foreign registration."
The defendant: "Oath of office and foreign registration before we could even proceed."
The judge: "Okay. All right. Do you understand the magnitude of representing yourself, sir?"
The defendant: "I need the oath of office and foreign registration before we can even proceed to trial." 14
The judge: "Okay."
The judge: "All right, sir. Do we have a waiver of counsel for him?"
A waiver of counsel form was then provided to the
defendant. At the same time, the judge inquired whether a
psychologist was available to examine the defendant. The
defendant submitted the signed waiver form, and the hearing
concluded with the following exchange:
The judge: "Sir, were you trying to say 'without prejudice' here?"
The judge: "So, you waive your right to counsel, but you're signing this as 'without prejudice,' correct?"
The judge: "Okay. Sir, I'm going to order you to be back here tomorrow at two o'clock in the afternoon. I have a question as to whether or not you're competent to stand trial. And, I'm going to have you appointed -- I'm going to have you interviewed by the court psychiatrist[5] to see if, in fact, you are competent to stand trial."
The defendant: "Hmm."
The judge: "All right?"
The defendant: "Yup."
5 It appears that the examiner was actually a psychologist rather than a psychiatrist, although nothing in this opinion turns on the distinction. 15
The judge allowed the fourth lawyer's motion to withdraw.
The judge made no findings (written or oral) regarding the
defendant's competency to waive his right to counsel, nor
did the judge certify the waiver or complete the bottom
half of the preprinted waiver of counsel form.6
The defendant appeared the following day, but refused
to be interviewed by the court psychologist. The judge
conducted a brief hearing at which the defendant
represented himself, and the court psychologist was
present. It does not appear that the prosecutor was
present. In pertinent part, the two-page transcript of
this hearing shows:
The judge: "Doctor, I had asked you to come in today to conduct a 15A exam of Mister Haltiwanger."
The witness: "Yes."
The judge: "Have you had a chance to speak with him?"
The witness: "Briefly, Judge. He declined interview."
6 The bottom section of the waiver of counsel form is to be completed and signed by the judge. In pertinent part, it provides:
"CERTIFICATE AND FINDINGS OF JUDGE
"In accordance with Supreme Judicial Court Rule 3:10, as amended, and G. L. c. 211D, § 5, I hereby certify that I have informed the party or parent or guardian named above of the right to counsel in this case. I further certify that, after an oral colloquy with the party or parent or guardian, I find said party or parent or guardian is competent to waive counsel and has knowingly and voluntarily elected to proceed without counsel." 16
The judge: "He declined to be interviewed?"
The judge: "I see. All right. Thank you for your service."
. . .
The judge: "Mister Haltiwanger?"
The judge: "See you here Monday morning for trial."
The defendant: "I'm going to go file a suit for civil rights actions 'cause you're making me go to trial not being prepared for it."
The judge: "All right. Thank you."
The judge made no further inquiry into the defendant's
competence, nor did he make any findings on that topic.
On the morning of trial, the parties appeared before
the same judge who had handled the hearings we outlined
above. The defendant was uncooperative. Among other
things, he refused to be addressed by the judge as "Mister
Haltiwanger," saying, "My name is Jason and I'm the living
man." He also objected to having standby counsel
appointed. When the judge nonetheless appointed standby
counsel, the defendant asked if the court was "on the
record," and then stated that he refused to consent to the
proceedings. He also demanded that "bond be immediately
brought forward," and made references to his "damages." He 17
stated that he was not prepared to go forward to trial
because he had never received any files. The judge
reviewed the case file, and saw that the case had been
extensively litigated over five years. The judge further
noted that the defendant had terminated the services of
each of his previous four attorneys within days of each
impending trial date,7 and concluded that the defendant was
attempting to manipulate the court for the purpose of
delay. The defendant told the judge that he was neither
consenting to the proceedings nor would he proceed. When
he confirmed his refusal to proceed, the judge revoked bail
and ordered the defendant into custody. The judge then
referred the case for trial before a different judge in
another session.
When the parties appeared before the trial judge, the
defendant was represented on a limited basis by a new
private attorney. This final private attorney appeared
solely for the purposes of again requesting a continuance
of the trial,8 which the trial judge denied in light of the
7 The timing of the withdrawal of the first attorney cannot be laid at the defendant's door, because it followed on the heels of that lawyer's suspension.
8 The lawyer also asked that the defendant's name appear with only the initial letter capitalized. 18
extensive history of continuances and proceedings we have
set out above.
Trial then took place with the defendant representing
himself, aided by standby counsel.9 Indictments 1 and 2
(unlawful distribution of a class B substance, subsequent
offense) were dismissed on the Commonwealth's motion. The
jury returned guilty verdicts on the remaining charges.
After the defendant waived his right to a jury trial, the
trial judge found him guilty of the subsequent offense
portions of the distribution charges. This appeal
followed.
Discussion. The defendant raises three issues
relating to the procedural history we have set out above.
First, he contends that it was an abuse of discretion to
deny his motion to continue the trial. We dispose of this
argument in the margin.10 Second, he argues that the
9 Standby counsel was not one of the defendant's previous lawyers.
10It is not clear whether the defendant's argument concerns the motion to continue made by his fourth counsel, or the one made on the morning of trial by the attorney who made a limited appearance on his behalf. Regardless, there was no abuse of discretion in denying either motion given that the trial date had been agreed upon long in advance, the basis for the requested continuance was a problem of defense counsel's own making, and in light of the extensive history of terminating defense counsel each time trial approached, which permitted the finding that the defendant was attempting to manipulate the court. See Commonwealth v. Fernandez, 480 Mass. 334, 340 19
hearing judge erred in failing to hold a competency hearing
or to make any findings concerning competency. Third, the
defendant argues that it was error to accept his waiver of
counsel in light of the hearing judge's bona fide question
as to the defendant's competence. Because these two
arguments are related, we discuss them together. After
that discussion, we turn to the defendant's claims that the
court room was impermissibly closed during jury selection,
that there were errors in the prosecutor's cross-
examination of one of the witnesses, and that the evidence
was insufficient to prove that the pills in his possession
were in fact cyclobenzaprine, a class E substance.
1. Competency and waiver of the right to counsel. In
order to accept a defendant's waiver of his right to
counsel, a judge must determine both that the waiver is
knowing and voluntary and that the defendant is competent
to make it. Godinez v. Moran, 509 U.S. 389, 400-401
(1993). "[T]he competence that is required of a defendant
seeking to waive his right to counsel is the competence to
waive the right, not the competence to represent himself."
(2018), quoting Commonwealth v. Pena, 462 Mass. 183, 189 (2012) ("Whether a motion for continuance should be granted lies within the sound discretion of the judge, whose action will not be disturbed unless there is patent abuse of that discretion, which is to be determined in the circumstances of each case"). See also Commonwealth v. Johnson, 424 Mass. 338, 341-343 (1997). 20
Indiana v. Edwards, 554 U.S. 164, 172 (2008), quoting
Godinez, 509 U.S. at 399. If a defendant is incompetent,
then any waiver of his rights has no effect. Vuthy Seng v.
Commonwealth, 445 Mass. 536, 549 (2005), S.C., 456 Mass.
490 (2010).
Because mental illness itself is not a unitary
concept, there is no "single mental competency standard for
deciding both (1) whether a defendant who is represented by
counsel can proceed to trial[11] and (2) whether a defendant
who goes to trial must be permitted to represent himself."
Edwards, 554 U.S. at 175. Instead, this evaluation is to
be made by trial court judges based on the circumstances
presented and their own observations. See id. at 175-177,
and cases cited. If those circumstances and observations
raise a "'bona fide doubt' as to the defendant's ability to
make an informed decision to proceed without counsel," a
separate inquiry into competency is required (citation
omitted). Commonwealth v. Barnes, 399 Mass. 385, 389
(1987), construing Westbrook v. Arizona, 384 U.S. 150
(1966) (per curiam). See Commonwealth v. Hill, 375 Mass.
11To be competent to stand trial, a defendant must have "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and [have] a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402 (1960). See Commonwealth v. Vailes, 360 Mass. 522, 524 (1971). 21
50, 60 (1978); Commonwealth v. Johnson, 80 Mass. App. Ct.
505, 511-512 (2011). Only if a "substantial question of
possible doubt" regarding the defendant's competence
exists, must the judge sua sponte undertake the required
inquiry. Commonwealth v. Boateng, 438 Mass. 498, 503
(2003), quoting Hill, 375 U.S. at 54.
Although a separate inquiry must be conducted where
the judge has a bona fide doubt about the defendant's
competence, the scope of that inquiry is not rigid.
Instead, "[t]he scope of the inquiry into a mentally ill
defendant's competence to waive counsel and self-represent
are determined by the circumstances at hand." Commonwealth
v. Means, 454 Mass. 81, 96 (2009). Thus, a full
evidentiary hearing into competency is not required in
every instance because "not every instance of abnormal
behavior or sign of mental disorder constitutes a
sufficient basis to trigger the hearing requirement."
Commonwealth v. Martin, 35 Mass. App. Ct. 96, 98 (1993).
See Commonwealth v. Corbett, 98 Mass. App. Ct. 34, 38-40
(2020). Instead, a judge may, in his discretion, choose to
order an evaluation by a court psychologist or physician
pursuant to G. L. c. 123, § 15. The judge may also "rely
on [his or] her own observations and direct knowledge of
events, testimony from court officers and court staff, and 22
the defendant's statements and conduct, as well as the
impressions of counsel." Commonwealth v. Scionti, 81 Mass.
App. Ct. 266, 272-273 (2012). But, regardless of the form
of inquiry, it must be on the record, Means, 454 Mass. at
96, and written findings must be made, S.J.C. Rule 3:10,
§ 3, as appearing in 475 Mass. 1301 (2016);12 Mass. R. Crim.
P. 8, as amended, 397 Mass. 1226 (1986).
Here, as a result of his colloquy to determine whether
the defendant was knowingly and voluntarily waiving the
right to counsel, the hearing judge became concerned about
the defendant's competence. Among other things, in
response to the judge's questions, the defendant referenced
completely irrelevant matters, including subrogation, and
which letters of his name were to be capitalized. Almost
all of the defendant's answers to the judge's questions
were off point or nonsensical. The judge briefly inquired
of the defendant's fourth counsel whether he had any
concerns about the defendant's competence. But that
inquiry led only to the not-so-clear response that counsel
12"Before allowing a waiver of counsel, the judge, after conducting a colloquy with the party, shall make written findings that the party is competent to waive counsel and that the party has knowingly and voluntarily elected to proceed without counsel." S.J.C. Rule 3:10, § 3. 23
had not had a concern since three days earlier.13 In these
circumstances, the judge was well within his discretion in
ordering that the defendant be evaluated by the court
psychologist the following day.
But the judge should not have accepted the defendant's
waiver of counsel while simultaneously harboring a bona
fide doubt regarding the defendant's competence. Nor
should the judge have accepted the waiver without making a
written finding regarding competence and explaining the
basis for that finding. Although we have held that failure
to make a written finding of competence, or to certify the
defendant's waiver, is not necessarily conclusive of a lack
of valid waiver, see Commonwealth v. Najjar, 96 Mass. App.
Ct. 569, 580-581 (2019); Commonwealth v. Pamplona, 58 Mass.
App. Ct. 239, 242-243 (2003), we have never overlooked
these requirements where -- as here -- the judge stated
that he had a doubt about the defendant's competence. In
the face of the judge's explicit concern about the
defendant's competence, this is not a case where we can
13This statement was inscrutable without further inquiry by the judge. It is equally possible that the lawyer was referring to the lawyer's impressions when he appeared with the defendant at the hearing the previous Thursday, or to impressions the lawyer formed that day outside of court, or to the defendant's filings (which included mention of subrogation) the previous Thursday. The judge should have probed the meaning of fourth counsel's statement. 24
assume that the judge made an implicit finding to the
contrary. Contrast Commonwealth v. Federici, 427 Mass.
740, 745 (1998) (record permitted inferential finding that
waiver was voluntary and intelligent).
The situation did not meaningfully change the
following day. The judge received no information from the
court psychologist other than that the defendant had
refused to be evaluated. There was no input from counsel
(it is not apparent that the prosecutor was even present
and, by this point, the defendant was proceeding pro se),
and the judge made no inquiry of the defendant into his
mental health status or history. See Johnson, 80 Mass.
App. Ct. at 512, 514 (reversal where no inquiry made into
defendant's current or past mental health). In short, the
record contains nothing to suggest how or whether the
judge's concern of the previous day had dissipated. Again,
the judge made no findings, nor did he certify the waiver.
The questions of the defendant's waiver of counsel and
of his competence were never again revisited. With the
benefit of standby counsel, the defendant represented
himself at trial. It is true that standby counsel never
alerted the judge that he was concerned about the 25
defendant's competence,14 nor does the trial transcript
reflect anything else that would raise such a concern. It
is also true that the defendant does not now argue that he
was incompetent to stand trial. But whether the defendant
was competent to stand trial does not necessarily answer
the question whether he was competent on an earlier date to
waive his right to counsel. Without contemporaneous
findings by the judge who accepted the waiver, we cannot
ourselves determine whether the defendant's apparent
competence to stand trial is indicative of an earlier
competence to waive the right to counsel. See Commonwealth
v. Adkinson, 80 Mass. App. Ct. 570, 585 (2011).
The Commonwealth points out that the defendant's
statements closely followed a "script" available on the
Internet promoted and used by a group known as sovereign
citizens to disrupt and delay criminal prosecution. A
sovereign citizen
"is one of a loosely-formed group of citizens who believe that they are sovereign individuals, beyond the reach of any criminal court. These so-called 'sovereign citizens' share a common vernacular and courtroom strategy. Courts across the country have encountered their particular brand of obstinacy -- not consenting to trial, arguing over the proper format and meaning of their names, raising nonsensical
14The absence of any alert does not constitute waiver of the argument, but does bear on whether the defendant was competent to stand trial. Commonwealth v. Wentworth, 53 Mass. App. Ct. 82, 89 n.4 (2001). 26
challenges to subject matter jurisdiction, making irrelevant references to the Uniform Commercial Code, and referring to themselves as trustees or security interest holders."
Lewis v. State, 532 S.W.3d 423, 430-431 (Tex. Ct. App.
2016). See United States v. Benabe, 654 F.3d 753, 762-764
(7th Cir. 2011), cert. denied, 565 U.S. 1132, 565 U.S.
1133, 565 U.S. 1226, 566 U.S. 969 (2012) (describing
sovereign citizen tactics); note 4, supra (describing
sovereign citizens).
The Commonwealth invites us to take judicial notice of
sovereign citizen tactics and to conclude that the
defendant was not genuinely confused during the waiver
colloquy, but rather was using sovereign citizen tactics to
deceive the judge and to manipulate the judicial process.
Setting aside the doubtful proposition that the various
articles provided in the Commonwealth's supplemental
appendix can properly be the subject of judicial notice,
see Mass. G. Evid. § 201 (2021), there is also the problem
that the Commonwealth did not put any of these materials
before the hearing judge below. "When a defendant asserts
irrelevant or nonsensical arguments, it becomes difficult
to discern whether he lacks a complete understanding of the
proceedings or whether he is simply attempting to subvert
them." Lewis, 532 S.W.3d at 431. That task is all the 27
more difficult when the Commonwealth does not put forward
information that might have helped the judge to assess the
situation correctly.15 Once the judge sua sponte raised a
concern about the defendant's competency, the Commonwealth
had the burden to establish the defendant's competency.16
See Commonwealth v. Crowley, 393 Mass. 393, 400 (1984)
(Commonwealth has burden of proof of competency once issue
has been raised by parties or by judge on his own). See
also Commonwealth v. Chatman, 466 Mass. 327, 336 (2013).
In any event, we cannot ourselves in the first instance
make a fact-dependent evaluation of the defendant's
statements and conduct during the waiver of counsel
colloquy.
We now turn to the question of remedy for the unusual
situation with which we are presented, where a judge
accepted a waiver of counsel while expressing a bona fide
15The Commonwealth's failure is understandable in the circumstances presented here. Lack of competence had not previously been raised by the defense or the judge, and it appears that the first indication that the defendant may have been resorting to sovereign citizen tactics occurred on the last hearing date before the waiver colloquy.
16One week after the truncated hearing, the judge concluded that the defendant, by his repeated terminations of counsel, had been attempting to manipulate the court to delay trial. That finding was certainly supported by the record. But the judge did not find, and the Commonwealth did not suggest, that the defendant was manipulating the court by making nonsensical statements. 28
concern regarding the defendant's competence and without
ever making any finding of competence, but where the
appellate record suggests that the judge's concern may have
been the product of deliberate manipulation by the
defendant rather than of his mental infirmity. Although
our cases have not yet dealt with this precise situation,
many of them have vacated a defendant's conviction where
the judge either did not adequately inquire into competency
or make a finding of competency before accepting a waiver.
See, e.g., Means, 454 Mass. at 95-96, 98-100; Hill, 375
Mass. at 51-62; Johnson, 80 Mass. App. Ct. at 512, 514-515;
Commonwealth v. Wertheimer, 19 Mass. App. Ct. 930, 930-932
(1984). These cases have done so on one or both of two
theories: either that the error was structural or that it
is impossible to make a retrospective finding of competence
as of a particular date.
However, the record on appeal in each of those cases
contained substantial evidence raising serious doubt
regarding the defendant's competency, whether because of
long-standing mental illness, expert testimony, or the
defendant's extreme conduct. This is not such a case.
Indeed, as we noted above, the defendant does not argue
that he was incompetent to stand trial and -- apart from
his statements during the waiver colloquy -- there was no 29
evidence of mental infirmity past or present. Moreover,
the significance of those statements has been cast into
serious doubt given that they appear to have been taken
from the so-called sovereign citizen litigation delay
"playbook." In these circumstances, we conclude, as in
Commonwealth v. Simpson, 428 Mass. 646 (1999), that the
question of the validity of the defendant's waiver of
counsel should be raised in the first instance via a motion
for new trial, with the Commonwealth having the burden of
proof as to competence.17,18 Id. at 654.
2. Remaining issues. The defendant's three remaining
arguments concern various aspects of the trial, and may be
addressed in brief. First, the defendant's argument that
the trial judge closed the court room during jury selection
17The Commonwealth also argues that the defendant abandoned his right to counsel, as evidenced by his firing of successive counsel to create delay and by his statement that he was going to go to trial on his own. However, abandonment of counsel requires, at a minimum, that the defendant be warned "that he will lose his right to an attorney if he engages in dilatory or abusive conduct towards his attorney." Means, 454 Mass. at 90- 91. See Commonwealth v. Clemens, 77 Mass. App. Ct. 232, 240-243 (2010) (implied waiver of counsel is not automatic consequence of defendant's insistence on discharge of attorney; warning of such consequence is required). No such warning was given here.
18The significance of the defendant's prior experience with the criminal justice system as it may bear on the question whether the defendant was deliberately manipulating the judicial system rather than laboring under a mental affliction, may also be considered in connection with the motion for new trial. 30
in violation of the Sixth Amendment to the United States
Constitution is not supported by the record. The judge
merely sequestered witnesses from the court room during the
"testimonial portion" of the trial. Even were we to read
this to mean that the witnesses were sequestered during
jury empanelment, the Sixth Amendment was not infringed.
See Commonwealth v. Collins, 470 Mass. 255, 272-273 (2014);
Commonwealth v. Buckman, 461 Mass. 24, 29 (2011), cert.
denied, 567 U.S. 920 (2012).
Although we agree with the defendant's argument that
the prosecutor went beyond the scope of proper examination
when she cross-examined the defendant's business partner
about the defendant's prior drug dealing (an error the
Commonwealth concedes on appeal), he has not shown that the
error resulted in a substantial risk of a miscarriage of
justice. Among other things, the trial judge gave a
targeted curative instruction, and the evidence against the
defendant was extremely strong. See Commonwealth v.
Vazquez, 478 Mass. 443, 450-451 (2017).
Finally, we agree with the defendant's argument --
which the Commonwealth concedes -- that, in the absence of
chemical analysis, visual inspection of the pills was
insufficient to prove beyond a reasonable doubt the
chemical composition of the supposed class E pills in the 31
defendant's possession. See Commonwealth v. Paine, 86
Mass. App. Ct. 432, 436 (2014).
Conclusion. On the indictments charging possession
with intent to distribute a class E substance
(cyclobenzaprine), as a subsequent offense, G. L. c. 94C,
§ 32D (a), (b), the judgments are reversed, the verdict and
finding are set aside, and judgments shall enter for the
defendant. The remaining judgments are affirmed, "but with
the recognition that a motion for a new trial" may be filed
by the defendant or his counsel on the question of his
competence at the time he waived his right to counsel.
Simpson, 428 Mass. at 655.
So ordered.