MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
When the fourth attorney appointed to represent the defendant (fourth counsel) moved to withdraw as counsel, citing an irreconcilable breakdown in the attorney-client relationship, a judge of the Superior Court (first judge) allowed the motion to withdraw, but warned the defendant that the next attorney appointed as his counsel would be his last -- and that if he was unable to get along with that attorney, he would be required to represent himself at trial. Thereafter, shortly before the scheduled trial date, the fifth attorney appointed as counsel to the defendant (fifth counsel) moved to withdraw, again citing an irreconcilable breakdown in the relationship. A different judge of the Superior Court (second judge) allowed the motion to withdraw, and required the defendant to proceed to trial pro se, with the assistance of standby counsel. We conclude that the defendant did not effectively waive his right to counsel, and therefore vacate the judgments on that basis.
2
Discussion. At a hearing held on June 13, 2019, on the motion of fourth counsel to withdraw, the first judge administered the following warning to the defendant:
“I am giving you warning, sir, right now, and you should take -- you may want to take a look. You have access to Court -- to the Court cases. I know you do -- in prison. Commonwealth v. Pena, P-E-N-A. It appears at 462 Mass. 183. Its a 2012 case.
Im warning you, right now, sir, on the record, this will be your last attorney. If you cant get along with this attorney, if you think that this attorney isnt representing your interest, your alternative will be youll represent yourself at trial.
You understand that, Mr. Hullum?”
The defendant initially responded, “Yes,” but then asked for clarification: “I just dont understand what youre saying.” The following exchange then occurred:
“THE COURT: What Im telling you is Im going to give you one more attorney. If youre not happy with that attorney, if you, for some reason, at a later point in time, you have a breakdown in relations with that attorney, and you want the Court to discharge that attorney, your choice will be represent yourself. [sic]
You understand that?
MR. HULLUM: No, I heard what you -- I dont agree with -- Im going to represent myself, like voluntarily?
․
I heard that, but Im not waiving my right to counsel. Thats all ․ Im saying, Your Honor.
THE COURT: If -- what Im saying, sir, is Im holding that you are going to waive your right to counsel, if you cant get along with the next Court appointed attorney. Thats what Pena provides. And thats what Im going to hold.”
Following appointment of fifth counsel, the defendant appeared before the second judge twelve days later, on June 25, 2019. On that occasion, fifth counsel requested leave to withdraw as the defendants counsel. At the conclusion of the hearing, the second judge took the matter under advisement and continued the case to July 8, 2019. When the matter continued on July 8, the second judge allowed fifth counsels motion to withdraw, and directed the defendant to proceed pro se at trial.
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“It is well established that an indigent defendant who refuses, without good cause, to proceed with appointed counsel may be deemed, by his conduct, to have waived his right to an attorney.” Commonwealth v. Pena, 462 Mass. 183, 192 (2012). “ ‘Waiver by conduct’ may occur where a defendant fails to engage counsel within a reasonable time after the defendant has been given an express warning about the implications and consequences of proceeding without counsel.” Id. “The key to waiver by conduct is misconduct occurring after an express warning has been given to the defendant about the defendants behavior and the consequences of proceeding without counsel. See United States v. Goldberg, [67 F.3d 1092, 1100-1102 (3d Cir. 1995)] (waiver by conduct ‘requires that a defendant be warned about the consequences of his conduct, including the risks of proceeding pro se,’ together with finding that defendant has engaged in misconduct[ ]).” Commonwealth v. Means, 454 Mass. 81, 91-92 (2009).
In the present case, the first judge expressly warned the defendant that his inability to establish an effective working relationship with the next attorney appointed to represent him would result in the loss of his right to the assistance of counsel. However, the defendant received no colloquy or other explanation describing the implications or risks of proceeding without counsel at trial. Nor did either the first or second judge enter a finding concerning the defendants misconduct. The established prerequisites for waiver of counsel by conduct, as set out in the above-quoted language from Means and Pena, were not satisfied. The defendants deemed waiver of his right to counsel was therefore ineffective.
Conclusion. On indictments one, three, five, seven, nine, and eleven, the judgments are vacated and the verdicts are set aside. As to indictment thirteen, charging assault with intent to murder or maim, the judgment is reversed, the verdict is set aside, and the indictment is to be dismissed.
So ordered.
Reversed
FOOTNOTES
2
. However, indictment thirteen, charging assault with intent to murder or maim, shall be dismissed; as the Commonwealth concedes, substantive amendments (including, as relevant here, a change to the name of the victim identified in the indictment) are impermissible. Accordingly, any subsequent trial shall not include trial on that indictment.
3
. The second judge appointed an attorney to serve as standby counsel for the defendant at trial.