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19-P-63 Appeals Court
COMMONWEALTH vs. JAMIE T. HEMPEL.
No. 19-P-63.
Barnstable. November 5, 2025. - August 12, 2026.
Present: Rubin, Brennan, & Wood, JJ.
Constitutional Law, Assistance of counsel, Waiver of
constitutional rights. Practice, Criminal, Assistance of
counsel, Self-representation, Waiver, New trial. Waiver.
Indictments found and returned in the Superior Court Department on May 15, 2015.
The cases were tried before Gary A. Nickerson, J., and a motion for a new trial, filed on February 1, 2023, was heard by Michael K. Callan, J.
Dana Goldblatt for the defendant.
Elizabeth A. Sweeney, Assistant District Attorney, for the Commonwealth.
RUBIN, J. After a jury trial in the Superior Court, the
defendant was convicted of home invasion, G. L. c. 265, § 18C;
assault with the intent to murder, G. L. c. 265, § 15; assault
and battery by means of a dangerous weapon (an axe), G. L.
2
c. 265, § 15A (b); and assault by means of a dangerous weapon,
G. L. c. 265, § 15B (b). He timely filed a notice of appeal.
We stayed the appeal and ultimately dismissed it without
prejudice pending the adjudication of postconviction motions.
The defendant filed a motion for a new trial, which, because the
trial judge had retired, was heard by a different judge and
denied without an evidentiary hearing. The defendant timely
appealed from the denial of the motion, and we reinstated his
direct appeal and consolidated them. The consolidated appeals
are now before us.
On appeal, the defendant primarily argues that he was
allowed to represent himself for a portion of the trial,
relegating his attorney (trial counsel) to the role of standby
counsel, but that the trial judge failed to provide the warnings
and make the inquiry required under art. 12 of the Massachusetts
Declaration of Rights before a waiver of the right to counsel
can be found knowing and intelligent. We agree. The
defendant's convictions therefore must be vacated and the case
remanded for a new trial should the Commonwealth decide to
proceed with one.
1. Background. a. The crimes. We recite the facts that
the jury could have found. On March 23, 2015, the defendant
kicked open the locked front door of Susan Finn's apartment,
without permission. Finn was in the apartment with her
3
boyfriend, Kevin Eldridge, her friend Karen Doyle (then Karen
Kane), whom she knew through Eldridge, and Karen's1 husband of
twenty-eight years, Matthew Kane. The defendant was holding an
axe with both hands. He came in and swung the axe at Finn's
head, just missing her. He continued to come after Finn with
the axe; Finn was subsequently taken by ambulance to the
hospital where she received stitches on her shoulder; in
addition, her pants had a cut down the back. Eldridge and
Matthew struggled with the defendant, and Matthew was hit twice
by the defendant with a blunt part of the axe causing bruising.
b. Appointment of counsel. After the defendant was
indicted, he was assigned three different court-appointed
lawyers before his trial counsel was appointed.2
On May 11, 2016, two months before the trial date, the
defendant filed a motion for appointment of new counsel. At the
motion hearing, trial counsel reported that "there is a strong
disagreement between what I think the correct trial posture is
and what Mr. Hempel says." The judge inquired about the
defendant's experience with the court system, focusing on the
1 Because some witnesses shared a surname at the time of the crimes, we use first names in this section to avoid confusion.
2 The first lawyer withdrew because of a conflict. The motions of the second and third lawyers to withdraw were allowed, but the record before us does not reveal the basis for their withdrawals.
4
number of court appearances the defendant had made in order to
assess his "familiarity with the court process." The judge
noted that there were at least seventeen restraining order
appearances, which are in civil cases, and at least two criminal
cases in Florida "a while back." (The then-forty-four year old
defendant said these cases were from twenty-five years
previously when he had been nineteen.) The judge ultimately
concluded that the issue was not the lawyer, but the defendant.
He denied the motion, saying, "I'm not granting your motion.
You have an absolute right to represent yourself, and you may do
so. [Trial counsel] will remain as your trial counsel. If you
wish to exercise your right to represent yourself, you certainly
may do that as well, sir; in which case, [trial counsel] would
be your standby counsel."
Before the next pretrial conference, held on June 16, 2016,
the defendant filed a motion to dismiss his attorney. At the
hearing, the judge excused the prosecutor and closed the court
room. The defendant then aired a laundry list of complaints
about his attorney, after which trial counsel stated that the
defendant "wants to call some witnesses that I cannot call"
because "I think I would have an ethical issue." The judge
said, "I assume rightly or wrongly, the concern is whether
there's a question of perjury or subornation of perjury," to
which trial counsel responded, "Yes." The judge said, "[T]here
5
is a standard procedure for that." He said without elaboration
that "basically it involves you stepping aside for that purpose,
for that limited purpose," suggesting he was talking about the
procedure approved in Commonwealth v. Mitchell, 438 Mass. 535,
552, cert. denied, 539 U.S. 907 (2003), under which a defendant
may exercise the right to testify in the defendant's own
defense, despite trial counsel's knowledge that the defendant
will testify falsely, by delivering narrative testimony without
the lawyer's participation. See Mass. R. Prof. C. 3.3 (a) (3),
as appearing in 471 Mass. 1416 (2015) ("lawyer shall not
knowingly . . . offer evidence that the lawyer knows to be
false"). See also Mass. R. Prof. C. 3.3 (e) comment 11B
(attorney "knows" that defendant client intends to "testify
falsely" if attorney has "a firm basis in objective fact" for
his "good faith" determination defendant will do so). The judge
then said, with the prosecutor still excused from the hearing,
"Everybody should [b]one up on that and be ready for that." The
judge denied the defendant's motion to dismiss his attorney.
c. The trial. On the day the trial began, the judge asked
the defendant, "Are you going to be representing yourself? Is
[trial counsel] going to be then relegated to the role of
standby counsel? Are you going to use [trial counsel] as your
counsel?" The defendant replied, "[Y]ou said that he would be a
standby. So, I was kind of going by that assumption." The
6
judge said they would proceed however the defendant and counsel
decided. The judge then asked "[w]hether it would be
appropriate for [trial counsel] to represent you in all matters
but the calling of [the witness trial counsel could not
ethically call, Karen Doyle]." Trial counsel confirmed that
there was an ethical issue, and that under Mitchell, he could
not call one particular witness the defendant wanted him to
call. See Mass. R. Prof. C. 3.3 (a) (3); Mitchell, 438 Mass. at
547. Trial counsel then said, "I don't think any other attorney
could represent Mr. Hempel because it's going to be the same
issue."
The next morning, prior to the beginning of jury selection,
the judge announced, "I am going to conduct a hearing or a
colloquy with Defense counsel and Mr. Hempel and the Court. The
courtroom will be closed." The defendant reported that he and
trial counsel had discussed "me questioning the witness that
[trial counsel] didn't want to question . . . . And then to
have [trial counsel] do the things that I feel are . . . in my
best interest for him to do . . . so that I don't hurt myself."
The defendant was concerned that he would not be able to act in
his own best interests because "I only have a [general
educational development certificate (GED)]." The judge
responded, "[Y]ou and I have had a fair amount of dealings
. . . . [Y]ou are always articulate. You always have something
7
pertinent to say. You always have something right on point to
tell me. . . . [Y]ou have no trouble making your thoughts and
concerns known to me. You are very articulate."
The judge then explained to the defendant that, although
Mitchell was "different than our situation where we're dealing
with a witness," Mitchell was still the only Massachusetts case
that gave him guidance, even though it involved a defendant who
was going to testify falsely as opposed to potential witness
perjury. He also said, "[W]hether that would be an appropriate
way to handle a witness, I don't have any guidance from the
Supreme Court of our state on that subject. But it would seem
to me that's one model, one way to do it."
The judge explained to the defendant trial counsel's
ethical concern in calling Doyle to ensure that the defendant
had "a very clear understanding" of the issue. This is required
under Mitchell when a defendant insists on testifying despite
trial counsel being ethically bound not to call that defendant.
See Mitchell, 438 Mass. at 552 (defendant must "clearly
understand the situation he has created"). The judge also
warned the defendant that he risked further legal consequences,
including further prosecution, if he were to suborn perjury by
calling Doyle himself.
The defendant continuously expressed concerns about his
ability to represent himself. He said, "[Trial counsel] should
8
talk because he has a law background -- it's probably the best
way to proceed." Trial counsel worried that if he were to
cross-examine the Commonwealth's witnesses but then "sit here
with [his] hands underneath [him]" while the defendant presented
his own case, that would be a "red flag" to jurors. The judge
again brought up Mitchell but was candidly unsure about whether
the procedure in that case would be "an appropriate way to
handle a witness."
The judge discussed how the Mitchell approach worked in the
case of a defendant testifying. The defendant expressed concern
about how it would work in his case. The judge then said, "But,
you know, Mr. Hempel, you are an intelligent man. . . . I don't
care how far you went in school. . . . You know, I have had
people that are dropouts that are a hell of a lot brighter than
some of the lawyers I see, you know? . . . It's the simple
truth." The judge then said, "[I]f I were making a decision
about this, I would say, [w]ell, Mitchell is my best guidance.
That's my decision. But how to conduct the trial really is
between you two. I can't make your tactical decisions."
The judge said he needed to know, "Are we proceeding in a
fairly strict sort of Mitchell format? In other words, [trial
counsel is] carrying the ball but for that witness? Or are we
going to proceed where you are representing -- you know, in the
past, you have said, I want to represent myself. You have told
9
me that any number of times." The judge allowed the defendant
and trial counsel to meet privately, and when they returned,
trial counsel said, "I will cross-examine the Commonwealth's
witnesses, and Mr. Hempel will handle his witness and
himself. . . . And then I will do the closing."
Trial counsel delivered an opening statement and crossexamined the Commonwealth's witnesses. During the defense case,
trial counsel called and examined one defense witness. The
defendant then called and examined Doyle as a witness. Doyle
testified that on the day of the attack, she "waved" the
defendant into Finn's apartment and then a third party attacked
the defendant with an axe. She testified that she ran out the
back door as soon as the fight began, and flagged down a passing
motorist who took her to the police station. She testified that
while there, she was hysterical, terrified, and under the
influence of illegal drugs.
On cross-examination, Doyle was confronted with prior
verbal, written, and recorded statements that she made to the
police that were inconsistent with her trial testimony. This
included that Doyle had told multiple police officers and a
dispatcher that "Jamie Hempel was armed with an axe and a knife
and he was killing everyone at [Finn's address]." She
continuously asked whether Finn was okay, implying that she
10
understood Finn, rather than the defendant, was a victim of the
attack.
The prosecutor also presented Doyle's previous statements
describing in some detail the defendant's past violent conduct
and threats, including evidence that she was afraid of the
defendant and had sought a G. L. c. 209A restraining order
against him on the very morning of the home invasion. These
threats included not only physical violence against Doyle, but a
threat to kill her. The prosecutor played a recording of
Doyle's police interview to refresh her recollection. Doyle
also admitted to abusing substances, often with the defendant,
including on the day of the attack. During cross-examination,
trial counsel objected to one of the prosecutor's questions.
After a lunch recess, and before conducting redirect
examination, the defendant asked to speak to the judge. The
judge obliged but recommended that the defendant speak to trial
counsel first, to which the defendant replied,
"No. I know what to say. I don't want to talk to him
anymore. The statement that [the prosecutor] just read
from the Eastham police, okay, I didn't have any of that
before it was read into -- I don't know how that was
allowed. And before I called this witness, I didn't know
none of this was going to be called [sic] if I called
[Doyle] to the stand."
The judge responded, "I don't know what your conversations have
and haven't been with [trial counsel]. . . . I don't know what
you were and weren't aware of in any of this."
11
Trial counsel then notified the judge that the defendant
intended to handle the cross-examination of any Commonwealth
rebuttal witnesses and present his own closing argument. The
defendant confirmed that he wanted trial counsel to stay on as
standby counsel. The judge responded, "If you're telling me
that you're taking over the case, then that means that if
there's any case in rebuttal, you would be doing the crossexamination and closing arguments." The defendant responded,
"Yeah, that's not a problem." The judge then said, "The Court
has had numerous dealings with Mr. Hempel and the Court has no
concern that the gentleman suffers from any mental health
condition that would preclude him from going forward." At no
point did the judge conduct a colloquy, ask any questions, or
give any warnings to the defendant to ensure that his decision
to represent himself for the remainder of the trial was knowing
and intelligent.
The defendant conducted redirect examination of Doyle, and
the prosecutor conducted recross-examination. The defendant
decided not to testify and rested his case. The prosecutor
called two rebuttal witnesses, and the defendant chose not to
cross-examine them.
At the charge conference the next day, trial counsel made
two brief comments, including agreeing with the prosecutor about
which theory of assault was at issue in the case. After
12
discussion of the charge ended, the judge explained to the
defendant what he could argue in closing argument. After the
judge said that the defendant could argue the facts and
reasonable inferences therefrom, he began to say that the
defendant could argue that they were not sufficient to support a
finding that all the required elements were proven. The judge
stopped, though, and said, "I assume you've had a talk with
[trial counsel] about what are the elements of the crimes, as
far as what the government has to prove." The defendant said,
"Not really." The judge then told the defendant in "rough form"
what the elements of each of the seven counts of the indictment
were. The defendant then delivered his own closing argument.
2. Discussion. a. Standard of review. "Under the Sixth
Amendment to the United States Constitution and art. 12 [of the
Massachusetts Declaration of Rights], the defendant has a right
to counsel at every 'critical stage' of the criminal process."
Commonwealth v. Johnson, 80 Mass. App. Ct. 505, 510 (2011),
quoting Commonwealth v. Woods, 427 Mass. 169, 174 (1998). Here,
the defendant claims that his waiver of the right to counsel was
not knowing and intelligent and therefore violated the Sixth
Amendment and art. 12. "[W]e review claims of violations of the
right to counsel de novo, making an 'independent determination
of the correctness of the judge's application of constitutional
principle to the facts found.'" Commonwealth v. Means, 454
13
Mass. 81, 88 (2009), quoting Commonwealth v. Currie, 388 Mass.
776, 784 (1983).
b. Waiver of the right to counsel. A defendant has the
freedom to waive his right to counsel and represent himself.
See Commonwealth v. Johnson, 424 Mass. 338, 340 (1997). Indeed,
he has a constitutional right to represent himself. See Faretta
v. California, 422 U.S. 806, 807 (1975). But when a defendant
seeks to represent himself and, therefore, necessarily to waive
his right to counsel, a judge "bears a 'serious and weighty
responsibility' to ascertain whether the waiver is knowing and
intelligent." Commonwealth v. Barros, 494 Mass. 100, 112
(2024), quoting Commonwealth v. Cavanaugh, 371 Mass. 46, 53
(1976).
"Under art. 12 of the Massachusetts Declaration of Rights,
a criminal defendant's waiver of the right to counsel must be
made knowingly and intelligently, with 'adequate[] aware[ness]
of [(1)] the seriousness of the charges, [(2)] the magnitude of
[the] undertaking, [(3)] the availability of advisory counsel,
and [(4)] the disadvantages of self-representation." Barros,
494 Mass. at 100-101, quoting Commonwealth v. Martin, 425 Mass.
718, 720 (1997).
The judge must conduct a "careful inquiry on the record" to
determine whether the waiver is knowing and intelligent. Means,
454 Mass. at 89. "[Article] 12 always requires this inquiry"
14
(emphasis added). Barros, 494 Mass. at 106. The trial judge
must ask the defendant "questions designed to establish that the
defendant understands the implications of his choice,"
Commonwealth v. Cote, 74 Mass. App. Ct. 709, 712 (2009),
including "the magnitude of [the] undertaking" and "the
disadvantages of self-representation," Barros, supra at 101. To
ensure that a defendant's waiver of counsel is knowing and
intelligent, the judge must "provi[de] . . . information to the
defendant concerning the risks of being unrepresented."
Commonwealth v. Clemens, 77 Mass. App. Ct. 232, 240 (2010). See
Iowa v. Tovar, 541 U.S. 77, 88-89 (2004) (pursuant to Sixth
Amendment, "before a defendant may be allowed to proceed pro se,
he must be warned specifically of the hazards ahead"). The
defendant must "be made aware of the dangers and disadvantages
of self-representation" (citation omitted). Barros, 494 Mass.
at 105. The requirement that the judge ensures that the
defendant has a subjective understanding of the disadvantages of
self-representation "embodies a realistic recognition of the
obvious truth that the average defendant does not have the
professional legal skill to protect himself when brought before
a tribunal with power to take his life or liberty." Id. at 104,
quoting Johnson v. Zerbst, 304 U.S. 458, 462-463 (1938). Our
courts, though, "have not prescribed the questions that a judge
must pose to an accused who desires to represent himself."
15
Commonwealth v. Barnes, 399 Mass. 385, 390 (1987).
c. Standby counsel. A defendant who has properly waived
his right to counsel may be appointed so-called "standby
counsel." See, e.g., Commonwealth v. Leonardi, 76 Mass. App.
Ct. 271, 275-276 (2010). This is provided for by S.J.C. Rule
3.10, § 4, as appearing in 475 Mass. 1301 (2016), which states,
"Notwithstanding a party's waiver of counsel, where the
interests of justice so require, the judge may assign standby
counsel to assist the party in the course of the proceedings
regardless of whether the party is indigent." Standby counsel
can be appointed to aid a defendant in any number of ways, so
long as standby counsel does not interfere with the selfrepresented defendant's constitutional right to represent
himself, recognized in Faretta, 422 U.S. at 807. See McKaskle
v. Wiggins, 465 U.S. 168, 178 (1984). Where a defendant
proceeds with standby counsel, the judge must ensure that the
defendant's waiver of counsel is knowing and intelligent, just
as the judge must do in cases of self-representation in which no
standby counsel is appointed. See S.J.C. Rule 3.10, §§ 3, 4;
Martin, 425 Mass. at 719-720.
Appointing standby counsel to assist a defendant is a form
of "hybrid representation." Commonwealth v. Molino, 411 Mass.
149, 153 n.5 (1991). "In the typical hybrid representation, a
trial court acts in its discretion to appoint standby counsel
16
for a pro se defendant . . . ." Banks v. Horn, 271 F.3d 527,
539 (3d Cir. 2001), rev'd, 536 U.S. 266 (2002). Thirty-five
years ago, in dictum in a footnote, the Supreme Judicial Court,
however, said,
"The term 'hybrid representation' encompasses two forms of
attorney-client relationships. First, the attorney may act
as cocounsel to the defendant: Both the attorney and the
defendant may address the court, question witnesses, and
join in the conduct of the trial. Second, the attorney
acts in a purely advisory capacity, providing the defendant
with advice on how to present the case, but not actually
participating in the presentation of the case. Standby
counsel usually falls in the latter category."
Molino, supra, citing Locks v. Sumner, 703 F.2d 403, 407 (9th
Cir.), cert. denied, 464 U.S. 933 (1983).
The appointment of standby counsel is commonplace. We see
it routinely, and indeed, before a defendant may knowingly and
intelligently waive his right to counsel, he must be adequately
aware of "the availability of advisory counsel." Barros, 494
Mass. at 101. By contrast, Molino, 411 Mass. at 153 n.5, is the
only reported Massachusetts case in which a relationship between
an attorney and defendant has ever been described as
"cocounsel."
d. Application of Mitchell. In its brief, the
Commonwealth states that defense counsel "acted as standby
counsel for the defendant's case, including [handling] the
direct examination of Doyle and the defendant's closing
argument." It argues, though, that the inquiry ordinarily
17
mandated by our case law for a valid waiver of the right to
counsel was not required here because, although the defendant
did knowingly and intelligently waive his right to counsel, the
case is controlled by Mitchell, 438 Mass. at 550. There, the
court held that no colloquy was required when a defendant gave
narrative testimony, rather than be questioned by counsel,
because he insisted on testifying falsely and counsel could not
ethically suborn perjury. See id. at 550-551.
Here, the judge essentially adopted a broadened Mitchell
model to allow the defendant to call and examine Doyle, whom,
because trial counsel knew she would perjure herself, trial
counsel could not ethically call. This was not an unreasonable
approach as, at the time of trial, Commonwealth v. Leiva, 484
Mass. 766, 774-775 (2020), discussed infra, had not yet been
decided. Indeed, it is fair to say that the judge took some
care with respect to the calling and examination of Doyle to
ensure that the law, as he understood it, was followed.
But Mitchell is of no application here. Mitchell does not
stand for the proposition that there are circumstances where a
defendant can waive his right to counsel and represent himself
without the inquiry required by art. 12. Indeed, the court has,
subsequent to the trial in this case, made clear that, despite
some of its language, Mitchell, in which the defendant chose to
exercise his constitutional right to testify in his own behalf
18
despite counsel's inability ethically to call or examine him,
did not involve the defendant representing himself and did not
implicate the right to counsel in any way. See Leiva, 484 Mass.
at 776 n.9. The court in Leiva, explained,
"To the extent that the court in Mitchell suggested that
direction of narrative testimony requires a defendant's
limited waiver of the right to counsel's assistance, we
clarify that where a trial judge implementing [Mass. R.
Prof. C. 3.3 (e)] exercises discretion to direct that a
defendant's testimony take narrative form (should the
defendant persist in the decision to testify falsely), this
does not leave the defendant 'unrepresented' during that
testimony. Where the defendant decides to testify under
these circumstances, that decision carries a rule-based
relinquishment of the right to direct examination by
counsel, which counsel is accordingly duty-bound to explain
as part of the remonstration requirement [(i.e., the
requirement under rule 3.3 (e) that counsel 'strongly . . .
discourage' the client from perjuring himself and 'advis[e]
that such a course [of conduct] is unlawful, will have
substantial adverse consequences, and should not be
followed')]."
Id. Leiva thus explains that Mitchell leaves intact the rule
that waiver of the right to counsel requires the searching onthe-record inquiry described by the court in Barros, 494 Mass.
at 100-101, even in a situation where the Mitchell procedure is
used for a defendant exercising the constitutional right to
testify in the defendant's own behalf despite counsel's
inability ethically to call and examine the defendant.
e. The defendant's self-representation. On this record,
we conclude that once the defendant conducted the redirect
examination of Doyle, and until the conclusion of the trial, he
19
represented himself, with the assistance of standby counsel.3
That is because prior to Doyle's redirect examination, the
defendant flatly discharged trial counsel, and asked that he be
appointed standby counsel. The judge agreed. Trial counsel's
two comments at the charge conference the next day did not go
beyond the ordinary role of standby counsel. Even assuming
these comments amounted to substantial participation, at least
when the defendant does not object, as was the case here,
standby counsel can "participat[e] [in a case] outside the
presence of the jury," McKaskle, 465 U.S. at 179, for example at
a charge conference.
Our dissenting colleague concludes that throughout the
trial, including both during the direct examination of Doyle and
the period after Doyle's cross-examination, the defendant had
the other form of hybrid representation, in which the client and
the attorney are "cocounsel," rather than the attorney acting as
standby counsel. Post at .
As we have described, this is contrary both to what the
judge and the defendant said, and to what the defendant did as
3 Although much of this case has revolved around the calling and examination of Doyle, given the clarity of what happened after her cross-examination, we need not determine the nature of the defendant's legal representation during that process.
20
the case proceeded.4 The judge said after the cross-examination
of Doyle that trial counsel would serve as standby counsel, not
cocounsel. And while during the examination of Doyle the judge
appears to have been trying to employ Mitchell, which, before
Leiva, he might reasonably have understood as some kind of
limited self-representation model, the judge never suggested
that Mitchell provided "guidance on how to implement the
cocounsel model of representation." Post at . Indeed, the
judge never used the term cocounsel, nor did he refer to Molino.
Perhaps more fundamentally, although our dissenting
colleague recognizes that "[h]ybrid representation with the
attorney acting as an advisor effectively waives the right to
counsel and thus must be accompanied by a defendant's knowing
and voluntary waiver," post at , the dissent also states that
in the cocounsel model, the defendant need not execute a knowing
and intelligent waiver of the right to counsel, id. at .
There is no support for this suggestion in our case law, and it
is also contrary to the Commonwealth's argument on appeal.
Perhaps most notably, our dissenting colleague cites none.
Instead, it has long been the rule that there must be a
knowing and intelligent waiver of the right to counsel in such
4 We also disagree with our colleague that the defendant "remain[ed] fully represented" throughout the proceedings. Post at .
21
circumstances. As the United States Court of Appeals for the
First Circuit explained fifty years ago, in a case in which a
trial judge allowed the defendant himself to examine witnesses
and argue his case, with counsel available at all times for
consultation or for resumption of the full conduct of the trial,
"the arrangement at [the defendant's] trial raises the
issue of effective waiver of counsel: whatever label is
attached to it, the net result was that [the defendant] had
less than the full representation by counsel to which,
absent a valid waiver, he was entitled under the Sixth
Amendment. . . . We can conceive of no reason why the
standard for waiving part of a constitutional right should
be different from the standard for waiver of the entire
right. Respondent argues, and we agree, that it is within
the discretion of a trial court to allow the sort of hybrid
arrangement that was adopted in this case. . . . But it
does not follow that such an arrangement is the equivalent
of full representation by counsel for purposes of waiver
. . . ."
Maynard v. Meachum, 545 F.2d 273, 277 (1st Cir. 1976). Among
other things, the application of this bright-line rule means
that courts avoid the substantial problems that would arise if
they were required -- both in the trial court and on appeal –-to determine in cases of hybrid representation in just how much
self-representation the defendant was going to or had engaged.
f. Lack of inquiry. Once the defendant began to represent
himself and trial counsel was relegated to standby counsel, the
judge did not engage in the "careful inquiry on the record"
required to determine whether the waiver was knowing and
intelligent. Means, 454 Mass. at 89. He did not provide
22
information to the defendant of the risks of selfrepresentation. Nor did he ask any questions at all. This was
a violation of art. 12.
Although Barros held "that art. 12 always requires this
inquiry to ensure that a defendant's waiver of counsel is
knowing and intelligent, at any stage of a case," Barros, 494
Mass. at 106, in that case despite the absence of the required
on-the-record inquiry, the court reviewed the record to
determine whether it "leave[s] us 'confident' that this
defendant knowingly and intelligently waived his constitutional
right to assistance of counsel," id. at 111, quoting Martin, 425
Mass. at 720. We thus also review the record to determine
whether it leaves us confident that at the time of waiver the
defendant had "adequate[] aware[ness] of [(1)] the seriousness
of the charges, [(2)] the magnitude of [the] undertaking,
[(3)] the availability of advisory counsel, and [(4)] the
disadvantages of self-representation." Barros, supra at 101,
quoting Martin, supra.
The record does not do so here. In light of the
discussions surrounding the possibility of the defendant
utilizing a modified Mitchell procedure to call and examine
Doyle, without a clear statement from the judge informing the
defendant, the record does not give us confidence that the
defendant was adequately aware of the disadvantages of self23
representation. Likewise, even though the record reveals the
defendant understood the seriousness of the punishment he faced,
and showed some familiarity with the criminal justice system in
having been a defendant before, where he was not aware of the
elements of the offenses with which he was charged, we cannot
say with confidence that the record reveals that he had an
understanding of the magnitude of the undertaking.5 The
defendant's purported waiver of counsel therefore lacked the
required knowingness and intelligence in violation of art. 12.
Such "violations of right to counsel are not subject to harmless
error analysis." Barros, 494 Mass. at 113, citing Means, 454
Mass. at 88-89. Consequently, we must vacate the defendant's
convictions, set aside the verdicts, and remand the case to the
Superior Court for further proceedings consistent with this
opinion, including a new trial should the Commonwealth decide to
proceed with one.6
So ordered.
5 The dissent indicates the defendant had further
experiences as a defendant in the criminal justice system than those noted by the trial judge, apparently referring to court activity record information (CARI) that was submitted with the motion for a new trial. Even were it permissible for us to review this material, which was not in the record at trial, the number of criminal cases in which the defendant was involved cannot overcome the defendant's lack of understanding demonstrated on the trial record.
6 Given our conclusion, we do not reach the defendant's other claims underlying the denial of his motion for a new trial.
BRENNAN, J. (dissenting). In Commonwealth v. Molino, 411
Mass. 149, 152-153 & n.5 (1991), the Supreme Judicial Court
described two distinct forms of hybrid representation in a
criminal trial. In the first model, the attorney and the
defendant act as cocounsel and both "may address the court,
question witnesses, and join in the conduct of trial." Id. at
153 n.5. Although unorthodox, and perhaps inadvisable,
permitting this form of hybrid representation is within a
judge's discretion. See id. at 152. See also LeBaron v.
Commonwealth, 464 Mass. 1020, 1020 (2013). A defendant and an
attorney acting collaboratively as cocounsel is not the same as
self-representation and thus does not trigger the waiver of
counsel requirements recently reaffirmed by the Supreme Judicial
Court in Commonwealth v. Barros, 494 Mass. 100, 112 (2024).
Alternatively, the attorney may operate "in a purely advisory
capacity" without participating in case presentation. Molino,
supra at 153 n.5. The second model is akin to selfrepresentation with standby counsel. Id.
Throughout postconviction litigation, the defendant has
framed the central issues as self-representation and deprivation
of counsel. The decision denying the defendant's motion for a
new trial and the majority opinion in this appeal, although
reaching different conclusions, both reflect an analytical
approach that responds to the defendant's framework. I see this
2
trial through a different lens, in which the attorney-defendant
relationship was never severed; rather, the defense approach
throughout the trial fit the "cocounsel" hybrid representation
model described in Molino, 411 Mass. at 153 n.5. I disagree
with the majority that there was a break in the cocounsel
relationship prior to the redirect examination of the
defendant's primary witness, Karen Doyle, and that thereafter
counsel acted only in a standby role. Ante at . I therefore
disagree that the defendant was deprived of his constitutional
right to counsel, thereby creating structural error that
mandates reversal. To the contrary, the defendant was
represented by experienced counsel, while the judge also
indulged the defendant's insistence that he be allowed to
participate actively as cocounsel, primarily so the defense
could present a witness whom his attorney was prohibited
ethically from calling. The defendant chose to act as cocounsel
and to take the lead at certain junctures of the trial with a
full understanding of the nature of counsel's role.
I discern no error in the judge's decision to monitor the
situation rather than move immediately to a waiver of counsel
colloquy in the aftermath of the defendant's emotional outburst
following the prosecutor's cross-examination of Doyle. Because
the defendant and counsel continued to act collaboratively as
cocounsel for the remainder of trial -- just as they had prior
3
to this inflection point -- no colloquy was required. I would
affirm the defendant's convictions and therefore respectfully
dissent.
Discussion. 1. A defendant and attorney may act as
cocounsel. "The Sixth Amendment to the United States
Constitution and art. 12 of the Massachusetts Declaration of
Rights each provide criminal defendants with a right to choose
between pleading through a lawyer and representing oneself"
(quotation and citation omitted). Commonwealth v. Miranda, 484
Mass. 799, 818, cert. denied, 141 S. Ct. 683 (2020). "To gain
assistance, a defendant need not surrender control entirely to
counsel." Id. at 819, quoting McCoy v. Louisiana, 584 U.S. 414,
421 (2018). A represented defendant must cede authority over
trial management and strategy to counsel, including the decision
whether to call a particular witness; however, a selfrepresented defendant has the right to "control the organization
and content of his own defense" (citation omitted). Miranda,
supra at 819. When a defendant decides to self-represent, the
judge must make certain that the defendant's waiver of counsel
is knowing and intelligent. See Barros, 494 Mass. at 112.
"A defendant does not have a constitutional right to
choreograph special appearances by counsel" (quotation and
citation omitted). Molino, 411 Mass. at 153. Nevertheless, a
judge has discretion to permit hybrid representation in one of
4
two forms: (1) the defendant and attorney act as cocounsel,
sharing the right and responsibility of addressing the court,
questioning witnesses, and otherwise conducting the trial; or
(2) the attorney may operate as an advisor only but does not
participate in case presentation. Id. at 153 n.5
To the extent the cocounsel model of hybrid representation
has been permitted by criminal trial judges, it does not appear
to have been subject to appellate review. Therefore, no
appellate case exists to provide judges with a mechanical or
legal framework for employing the cocounsel model at trial.
Similarly, there is no appellate guidance regarding the
defendant's requisite level of understanding or the judge's role
in explaining the particulars of cocounsel representation. What
is evident from Molino, 411 Mass. at 153 n.5, however, is that
the cocounsel approach does not require a defendant to give up
any rights, let alone the fundamental right of representation by
counsel. Sharing the rights and responsibilities of
representation with counsel is a boon. A defendant who acts as
cocounsel with trial counsel remains fully represented while
also enjoying benefits traditionally denied a represented
defendant, such as addressing the court directly, having an
equal voice in trial strategy, and participating in the
presentation of the case. See id. See also Mitchell, 438 Mass.
at 552 (judge should instruct counsel on how to proceed with
5
narrative testimony and ensure defendant understands situation).
Just as testifying on one's own behalf is not selfrepresentation, see Commonwealth v. Leiva, 484 Mass. 766, 776
n.9 (2020), sharing responsibilities with counsel is not selfrepresentation that requires a knowing and intelligent waiver of
counsel.
In contrast to the cocounsel approach, the advisory model
of hybrid representation is indistinguishable from selfrepresentation with standby counsel; indeed, the court in Molino
stated that "[s]tandby counsel usually falls in the [advisor]
category." Molino, 411 Mass. at 153 n.5. Standby counsel does
not formally represent the defendant and does not protect the
defendant's interests in the same way or to the same extent as
counsel. See id. at 152-154. See also Commonwealth v.
Leonardi, 76 Mass. App. Ct. 271, 275-276 (2010). Hybrid
representation with the attorney acting as an advisor
effectively waives the right to counsel and thus must be
accompanied by a defendant's knowing and voluntary waiver. See
Molino, supra at 150 n.2 (describing defendant with this hybrid
model as proceeding pro se and recounting necessary colloquy).
2. The defendant made an informed decision to proceed at
trial as cocounsel with his attorney. Although the judge was
not required to conduct a formal colloquy with the defendant
regarding cocounsel representation, a conscientious judge acts
6
as the "guiding spirit and controlling mind at a trial."
Commonwealth v. Campbell, 371 Mass. 40, 45 (1976), quoting
Goldman v. Ashkins, 266 Mass. 374, 380 (1929). As such, the
judge here had numerous discussions before and during trial with
the defendant and his attorney regarding counsel's role at
trial. These interactions reflected the judge's response to the
fluidity of the circumstances, changing dynamics during the
trial, and the defendant's mercurial attitude toward counsel.
At each such juncture, the judge took pains to inform the
defendant about his choices and gave the defendant ample time to
confer with his attorney.
From the outset, it was apparent to the judge that the
defendant had extensive experience in the criminal justice
system1 and wanted to control the proceedings in this case. As
the majority observes, counsel was the defendant's fourth
appointed attorney in this case. The judge responded initially
by setting clear parameters on the defendant's choices:
representation by counsel or self-representation with standby
counsel. When it became evident that part of the conflict with
counsel was the defendant's strong belief that Doyle was
1 The defendant's criminal history included fifteen other criminal cases in Massachusetts, and he was the subject of eighteen restraining orders.
7
essential to his defense, but counsel could not examine her, the
judge sought a solution that would address these competing
concerns. To be sure, the judge was under no obligation to
propose a hybrid solution. However, a judge may at times need
to resort to unorthodox solutions to vexing issues that arise
during the ebb and flow of trial.
Here, the defendant faced an exceptionally strong
prosecution case. As discussed, he was an experienced litigant
who was expressing displeasure with his fourth appointed
counsel. The defendant consistently communicated a desire to be
represented by counsel. He also strongly believed that his only
avenue of defense was Doyle, whom his attorney was unable to
call as a witness. The judge certainly could have left the
defendant with the choice of representation by counsel at the
cost of calling Doyle or calling Doyle at the cost of his right
to representation by counsel. Instead, the judge afforded the
defendant the option of hybrid cocounsel representation as a
middle road that could satisfy both of the defendant's competing
needs. The judge described each choice of representation to the
defendant in detail and responded to the defendant's questions.
He warned the defendant that by questioning Doyle, the defendant
could expose himself to criminal prosecution for suborning
perjury. The judge reviewed the Mitchell decision with the
defendant and informed him that it was the only Massachusetts
8
case providing guidance on how to implement the cocounsel model
of representation. He candidly expressed initial uncertainty
about how to navigate this unchartered territory and consulted
with counsel about the proper approach. The judge spoke in
plain terms, including using "tag team" as a metaphor to explain
the cocounsel model to the defendant. On several occasions, the
judge emphasized that the choice of representation was the
defendant's to make. The judge gave the defendant the
opportunity to discuss his options with counsel before asking
the defendant whether he preferred "a Mitchell format" or
"reduc[ing] [trial counsel] to advising you, and you're going to
be carrying the ball." The defendant told the judge he was
satisfied with an arrangement whereby he and counsel would share
trial tasks and confirmed to the judge that he would be
permitted to "step in" any time during the trial if he felt
"something is not going right." Ultimately, therefore, the
defendant made an informed choice to act as cocounsel with his
attorney at trial so he could reap the benefits of
representation by counsel while also actively directing and
participating in his defense, including calling Doyle as a
witness.
3. The defendant acted as cocounsel with his trial
attorney throughout the trial. The trial record in this case
demonstrates that the attorney-client relationship fell under
9
the cocounsel model of hybrid representation, and that there was
no break in that relationship for the duration of the trial.
a. The trial began with a collaborative cocounsel approach
between the defendant and counsel. Once it was settled that the
defendant would proceed with a cocounsel approach to trial, the
judge told the defendant he was welcome to be present for any
sidebar conferences. Counsel took the lead in arguing motions
in limine. The defendant, however, raised the issue of
attorney-led voir dire of jurors and personally discussed its
"pros and cons" with the judge. The judge left the decision on
how to proceed to the defendant and counsel together. Counsel
then took the primary role during jury empanelment. Counsel
presented the opening for the defense, but only after the
defendant told the judge directly that he wanted an opening
statement notwithstanding counsel's inclination to waive it.
Counsel also cross-examined the Commonwealth's witnesses during
its case-in-chief. Both counsel and the defendant addressed the
judge when an issue arose about a juror's potential exposure to
the defendant during a break in the trial. At the close of the
Commonwealth's case, counsel moved for a required finding of not
guilty on the defendant's behalf. After the judge denied the
motion, counsel questioned the first defense witness. The judge
then asked the defendant whether he "wish[ed] to proceed further
as we had discussed." The defendant responded affirmatively.
10
The judge instructed the jury that "under our system of justice,
every defendant has the right to participate in his or her
trial. I understand from counsel that Mr. Hempel wishes to
exercise his right to participate . . . by calling a witness.
Is that correct, gentlemen?" The defendant responded, "Yes,
sir." The judge continued, "And presenting evidence. It's
altogether appropriate that he be allowed to do that." The
defendant conducted Doyle's direct examination, but counsel
objected during the prosecutor's cross-examination and argued
the admissibility of prior statements the prosecutor sought to
offer in evidence to impeach Doyle.
b. The defendant did not unequivocally assert his right to
self-representation and thus a waiver of counsel was not
required. After Doyle's cross-examination, the defendant
complained to the judge that he was not aware that Doyle would
be impeached with her prior statements. The defendant stated he
did not want to talk to counsel, and counsel confirmed the
defendant no longer wanted him to question witnesses or make the
closing argument. The judge expressed concern that the
defendant's self-representation at that juncture of the trial
could "become[] an appellate issue" and began to inquire if the
defendant wanted to "discharge [his] lawyer"; however, the
defendant interrupted, saying that counsel could "stay on
standby for now." The judge explained the advisory role of
11
standby counsel if the defendant was "taking over the case," to
which the defendant responded, "[I]t is what it is at this
point."
The majority concludes that the defendant's statements
during this exchange "flatly discharged" counsel. Ante at .
I disagree.
A defendant's assertion of the right to self-representation
is triggered by a clear and unequivocal declaration to the trial
judge that the defendant wants to self-represent and does not
want counsel. See Faretta v. California, 422 U.S. 806, 835
(1975). The defendant's choice must be "unequivocal, . . .
voluntarily and knowingly made, . . . asserted in a timely
manner, . . . and not sought for an improper purpose, such as
delaying or disrupting the trial" (quotation and citation
omitted). Commonwealth v. Barbosa, 99 Mass. App. Ct. 132, 137
(2021). Thus, whether a defendant asserts the right to selfrepresentation is not based solely on the words spoken to the
judge but must be assessed contextually and with deference to
the trial judge, whose perspective inherently animates the
analysis.
Here, the defendant's expression of displeasure with
counsel was not new; it was a recurring theme that had required
deft management by the judge even prior to the commencement of
trial. When deciding how to respond to the defendant's
12
statements in the aftermath of Doyle's cross-examination, the
judge was aware that (1) the defendant was on his fourth
attorney in the case and had twice sought pretrial to replace
him with a fifth lawyer; (2) the defendant told the judge before
the trial began that he could not get a fair trial in the county
where the trial was taking place; (3) the defendant had been
consulting with an "in-house" attorney at the jail, who had
provided advice different from appointed counsel's; (4) the
defendant had extensive experience with the criminal justice
system; (5) the defendant's history and behavior caused the
judge concern from the outset of the trial that the defendant
was "instigat[ing] difficulties" with counsel "in an effort to
derail the trial"; (6) the defendant was responding emotionally
to a difficult moment in the trial; and (7) the defendant stated
that he did not want counsel to continue "[b]ecause of
ineffective counsel, the same reasons why I've tried to fire him
right along, since day one." Moreover, the judge was required
to weigh the significance of the defendant's assertions in real
time, without notice, with jurors waiting to enter the court
room, and with the evidence nearly concluded.
Faced with these circumstances, the judge chose to monitor
the situation rather than respond in the moment to the
defendant's outburst. At the conclusion of his exchange with
the defendant, the judge noted that the defendant did not
13
"suffer[] from any mental health condition that would preclude
him from going forward." The judge then brought the jurors back
into the court room and resumed the trial. Despite the
defendant's statement that he no longer wanted his attorney to
represent him, the defendant and counsel immediately fell back
into their collaborative cocounsel relationship. The judge made
a record of his observations of the interactions between the
defendant and counsel the morning after the defendant "announced
that he wished to take over." Specifically, the judge stated
that the defendant appeared to be seeking advice from counsel on
the form and subject matter of his redirect examination of Doyle
and their relationship "still appear[ed] to be a collaboration."
Additionally, for the remainder of trial, the judge continued to
refer to the attorney as "your counsel" when speaking to the
defendant, counsel called the defendant "my client," and the
defendant agreed to consult with counsel before making critical
decisions, such as whether to testify.
On this record, I discern no error in the judge's implicit
determination that the defendant did not assert unequivocally
his right to self-representation. Based on the defendant's
mercurial attitude toward counsel throughout pendency of the
case, the timing and circumstances of the defendant's statements
regarding counsel's continued representation, and the judge's
legitimate concern that the defendant was attempting to disrupt
14
the trial or manufacture appellate issues, the judge exercised
sound judgment by not reflexively turning to a waiver of counsel
colloquy and instead "observ[ing] carefully" to see whether
counsel was relegated to a standby role.
c. The defendant and counsel continued to act as
cocounsel. Although the defendant stated that he no longer
wanted counsel to represent him after the prosecutor's crossexamination of Doyle, his behavior demonstrated otherwise. Once
the trial resumed, the nature of the defendant's relationship
with his attorney remained unchanged from the cocounsel
collaboration the defendant had chosen at the outset of trial.
Counsel instructed the defendant how to present a statement to
Doyle to rehabilitate her testimony and assisted the defendant
with questioning Doyle. Counsel also addressed the
admissibility of a statement the prosecutor sought to introduce
in evidence during the recross-examination of Doyle. After
Doyle's testimony, the defendant and counsel conferred before
jointly addressing witness and closing argument issues with the
judge. The defendant discussed with counsel whether he should
testify before telling the judge he would exercise his right not
to testify. Counsel formally rested on the defendant's behalf.
During the Commonwealth's rebuttal case, the defendant and
counsel consulted with each other before declining to question
one of the witnesses. Counsel informed the judge there was no
15
surrebuttal evidence from the defense. Counsel again took the
lead during the charge conference, but the defendant weighed in
with the judge on the request for a self-defense instruction.
The defendant delivered his own closing argument. Before the
case was sent to the jury, the defendant and counsel
individually indicated satisfaction with the form of the
exhibits and the verdict slips. Both commented on the judge's
proposed response to a jury question during deliberations.
After the jury verdict, counsel presented a sentencing argument
on the defendant's behalf.
This level of involvement by counsel went well beyond the
role of advisor. See Molino, 411 Mass. at 153 n.5; Leonardi, 76
Mass. App. Ct. at 275-276. Just as before Doyle's redirect
examination, counsel shared responsibility with the defendant
for strategy and advocacy. I therefore disagree with the
majority's conclusion that, beginning with the redirect
examination of Doyle, counsel "did not go beyond the ordinary
role of standby counsel." Ante at . On the contrary, even
to the extent the defendant's participation became more active
on certain tasks, counsel maintained equal, if not primary,
responsibility for safeguarding the defendant's interests. I
therefore conclude that the cocounsel -- or "tag-team" --relationship between the defendant and counsel remained
consistent in this trial from beginning to end.
16
Conclusion. The defendant was a forty-four year old adult
with extensive court experience working with his fourth attorney
at the time of trial in this case. His choices throughout the
trial, including cocounsel representation, were fully informed
and made after consultation with experienced counsel. Because
cocounsel representation is not self-representation, a knowing
and intelligent waiver of counsel was not required. Under the
circumstances of this case and considering the context in which
they were made, the defendant's statements that he wanted to
"fire" counsel after Doyle's cross-examination were not a clear
and unequivocal declaration that he wanted to represent himself
for the remainder of the trial, and thus the judge was not
required to conduct a waiver of counsel colloquy. Because of
the trial judge's flexibility and exercise of discretion, the
defendant received the trial he asked for; that the result was
not what he hoped for does not change this reality. I discern
no error in the judge's decision to permit the defendant to act
as cocounsel with his attorney nor in the manner the judge
implemented this hybrid model of representation at trial.
For these reasons, I respectfully dissent.