Commonwealth v. Tuitt

¶1(dissenting). The court today holds that a defendant may not “waive his right to counsel for the purpose of proceeding pro se, but at the same time . . . retain his right to counsel for the purpose of challenging the denial of his motion to discharge counsel.” Ante at 808. By so holding, I believe that the court impermissibly burdens the defendant’s right to represent himself in criminal proceedings, which is guaranteed under both art. 12 of the Declaration of Rights of the Massachusetts Constitution, and the Sixth and Fourteenth Amendments to the United States Constitution. See Faretta v. California, 422 U.S. 806, 818-832 (1975); Commonwealth v. Mott, 2 Mass. App. Ct. 47, 51 (1974).

¶2This is not a case where the defendant has made an ambiguous request so that he may proceed pro se and later “turn about and urge that he was improperly denied counsel.” Ante at 807-808, quoting Meeks v. Craven, 482 F.2d 465, 467 (9th Cir, 1973). The defendant, while asserting his right to represent himself, did refuse to use the language required by the trial judge, perhaps believing that if he stated that he “waived counsel” he would thereby waive his right to appeal the denial of his motion to “dismiss court appointed attorney” which, in substance, included a motion for leave to obtain new counsel. Such a belief would not have been unreasonable. We have never held that the use of particular words or phrases is essential to the exercise of the right to proceed pro se. As the court acknowledges, we have held that a defendant who refuses, without good cause, to proceed with able, appointed counsel has validly waived his right to counsel. Ante at 808. See Commonwealth v. Appleby, 389 Mass. 359, 366-367 (1983). The court now holds, however, without citation to any authority, that this is not true when “refusal to proceed with counsel is accompanied by an explicit refusal to waive one’s right to counsel.” Ante at 808.

¶3The court relies on a number of cases which stand for the proposition that a defendant’s right to represent himself may be exercised only if the defendant “unequivocally” waives his right to counsel, and holds that the defendant did not make such an unequivocal waiver. In each of the cited cases in which *816the court held that there was no unequivocal waiver, however, the defendant’s request was ambiguous, such that the trial judge could not reasonably conclude that the defendant had waived his right to counsel.

¶4In this case, there was nothing “equivocal” about the defendant’s assertion of his desire to represent himself, given the judge’s denial of his motion to discharge counsel. While the defendant made it clear that he continued to insist that he had a right to obtain counsel of his choice, he made it equally clear that, presented with the choice of proceeding pro se or proceeding with what he perceived to be unprepared counsel, he preferred to represent himself.1 The trial judge’s ruling on the *817motion to proceed pro se shows that the judge understood exactly what the defendant wanted to do. In a memorandum denying that motion, the judge stated: “[The defendant] indicated that he had no intent to waive his right to an attorney but that if he could not have attorneys of his choosing, then he would prefer to represent himself in that he did not want [appointed counsel] to represent him.”

¶5The majority also relies on United States v. Halbert, 640 F.2d 1000 (9th Cir. 1981), stating that the right to counsel and the right to proceed pro se are only available in the disjunctive. Ante at 807. Halbertinvolved a defendant who requested that he be allowed to represent himself as cocounsel with his retained counsel. Id. at 1009. There is no constitutional right to such “hybrid representation.” Commonwealth v. Brown, 378 Mass. 165, 176 (1979). United States v. Wolfish, 525 F.2d 457, 463 (2d Cir. 1975), cert. denied, 423 U.S. 1059 (1976). K.B. Smith, Criminal Practice and Procedure § 991 (2d ed. 1983). In this case, however, the defendant did not attempt to exercise simultaneously his right to be represented by counsel and his right to represent himself. Rather, he asserted that he had a right *818to counsel of his choice, and, alternatively, if the judge would not recognize that right, he had the right to represent himself. As such, Halbertis inapposite.

¶6I agree with the court that the trial judge correctly held that the defendant was not entitled to obtain new counsel. Nevertheless, the defendant had a right to appeal that ruling. The dialogue set forth in the margin strongly suggests that he believed that by stating that he waived his right to counsel he would effectively waive his objection to the judge’s denial of his motion to discharge counsel. The judge said nothing that would discourage that belief. “A criminal defendant may be asked ... to choose between waiver and another course of action as long as the choice presented to him is not constitutionally offensive.” Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir. 1976). The trial judge properly could have required the defendant to choose between proceeding pro se and proceeding with his appointed counsel. Commonwealth v. Appleby, supra at 368. However, the judge could not constitutionally condition the right to proceed pro se on the defendant’s making a statement that he could reasonably have believed might constitute a waiver of his right to appeal the judge’s denial of his motion to discharge counsel and obtain new counsel.

¶7It is true that “[a] trial judge always has a problem when a defendant waives his right to counsel and asserts his right to try his own case. Later, ... the defendant is quite likely to mount a collateral attack upon his trial or plea, claiming either that he did not understand what he was doing or that the court should have forced counsel upon him.” Meeksv. Craven, supra at 467.1 do not agree that the record permits an inference of “manipulative behavior,” see ante at 814 n.15, but, in any event, that is an irrelevant consideration. Concern for the possible manipulations of criminal defendants does not justify limiting a defendant’s constitutionally guaranteed right to represent himself, if, as here, he has clearly and unambiguously insisted on that right. I would reverse the defendant’s convictions and order a new trial.