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18-P-821                                                Appeals Court

                COMMONWEALTH   vs.   JORGE G. DUARTE.


                           No. 18-P-821.

           Bristol.     October 3, 2019. - April 8, 2020.

            Present:   Green, C.J., Rubin, & Agnes, JJ.


Assault and Battery. Practice, Criminal, Assistance of counsel,
     Continuance, Judicial discretion. Constitutional Law,
     Assistance of counsel. Due Process of Law, Assistance of
     counsel. Attorney at Law, Attorney-client relationship,
     Withdrawal.



     Complaint received and sworn to in the New Bedford Division
of the District Court Department on January 26, 2017.

     Motions to discharge counsel and for a continuance were
heard by Daniel W. O'Malley, J., and the case was tried before
Edward F.X. Lynch, J.


     Sharon L. Sullivan-Puccini for the defendant.
     Robert P. Kidd, Assistant District Attorney, for the
Commonwealth.


    AGNES, J.    A District Court jury convicted the defendant,

Jorge G. Duarte, of assault and battery in violation of G. L.

c. 265, § 13A (a), arising out of his participation in an attack
                                                                      2


on another inmate that occurred at the Bristol County jail and

house of correction (jail).   On appeal, the defendant argues

that the judge abused his discretion by denying the defendant's

request to hire an attorney and, by implication, to obtain a

continuance of the trial that was scheduled for that day,

without affording him an opportunity to be heard.     The defendant

also argues that his trial counsel was ineffective by failing to

object to the repeated description by the prosecutor and

witnesses of the incident as an "assault," failing to object to

evidence that the incident occurred in a specific area in the

jail that housed "troublemakers," and failing to deliver a

proper closing argument.

    Despite the last minute nature of the defendant's request

to hire an attorney and the inevitable continuance that it would

necessitate, under settled law the defendant was entitled to be

heard.   In such circumstances, "the judge [must] give a

defendant an opportunity to make known his reasons for objecting

to appointed counsel before the judge rules on the request."

Commonwealth v. Lee, 394 Mass. 209, 217 (1985).     For this

reason, after oral argument and consistent with the procedure

followed in Commonwealth v. Moran, 388 Mass. 655, 658-659

(1983), we remanded the case to the judge who denied the

defendant's motion with instructions to conduct an evidentiary

hearing at which the defendant would have an opportunity to
                                                                       3


testify without limitation on the subject of his pretrial

request.     The judge conducted such a hearing, made findings and

rulings, and concluded that the defendant's request was without

merit.     Because this determination is well supported by the

record, and we are unable to discern any prejudice to the

defendant, we reject the defendant's argument that he is

entitled to any relief.       We also reject the defendant's claim

that his trial counsel provided ineffective assistance.

Therefore, we affirm the defendant's conviction.

     1.    Background.   a.   The incident.   On January 6, 2017, at

approximately 4:43 P.M., inmates housed in the defendant's unit

at the jail were released from their cells for dinner.1      Shortly

thereafter, an inmate, Tyrell Pina, was pulled to the ground by

another inmate, Jose Cruz, and then attacked by Cruz, the

defendant, and a third inmate.      A video recording (video) of the

incident from the jail's surveillance system was played for the

jury; it shows the defendant repeatedly punching Pina in the

head area while Cruz and the third inmate were simultaneously

kicking Pina.2    After about one minute, correction officers were


     1 The defendant was housed in the "HB Unit" of the jail
which was described as housing persons waiting to be sentenced.
The various witnesses, all of whom worked at the jail, largely
referred to these persons as "inmates."

     2 After a short period of time, the third inmate stopped
while the defendant and Cruz continued to attack Pina.
                                                                      4


able to control the scene.     The incident was witnessed by two

testifying correction officers who identified the defendant as

one of the persons depicted in the video.3    Pina suffered

injuries and required treatment at a local hospital.     While a

nurse was examining the defendant for injuries, the defendant

made a statement suggesting that Pina had previously shot at the

defendant's car while his son was in it, and the defendant asked

the nurse, "What would you have done?"

     b.   Procedural history.    A complaint issued on January 26,

2017, alleging the defendant committed assault and battery in

violation of G. L. c. 265, § 13A (a).     The defendant was

arraigned on March 1, 2017.     The following day, appointed

counsel David P. Tibbetts appeared for the defendant.4    The case

proceeded with pretrial hearings on March 23, 2017, April 6,

2017, and April 19, 2017.     The defendant tendered conditional

guilty pleas at each pretrial hearing date, but was unable to

resolve the case on terms that were satisfactory to him.

     The first trial date was June 1, 2017.     On that date, the

Commonwealth reported that it was ready for trial and

represented that it had five witnesses present.     The defendant's


     3 Other employees from the Bristol County sheriff's office
that investigated the incident also testified. Pina did not
testify.

     4 The appointed attorney who represented the defendant at
arraignment withdrew.
                                                                   5


attorney indicated that he was also ready for trial but that the

defendant did not wish to proceed with the trial on that date

because he had an open criminal case and a probation violation

case both pending in the Superior Court.   The defendant was

represented by a different appointed attorney in those cases.

The defendant was concerned about the potential negative impact

that a disposition in his District Court case might have on the

pending Superior Court cases.   Attorney Tibbetts represented to

the court that he communicated with the defendant's Superior

Court attorney and relayed to the court that it was that

attorney's opinion that it would be advantageous to the

defendant to continue the District Court case until after the

Superior Court cases were resolved.   Over the objection of the

Commonwealth, the judge continued the trial until July 25, 2017,

to afford the defendant an opportunity to fully consult with his

Superior Court attorney.   At no point on the June 1, 2017, trial

date, or the three earlier pretrial hearing dates, did the

defendant express dissatisfaction with Attorney Tibbetts.

    When the defendant's case was called for trial on July 25,

2017, the defendant was not present in the court room; he was

instead in the "lock up" area of the court house.   The

Commonwealth again reported it was ready for trial and its

witnesses were again present.   Attorney Tibbetts answered that

he too was ready for trial but that the defendant wanted a new
                                                                   6


attorney that he would hire privately.   The Commonwealth

objected to a further continuance, representing that the

defendant had not resolved his probation violation case when

brought before the Superior Court on July 10, 2017, and July 24,

2017, and that the Commonwealth's witnesses had now been present

for the defendant's District and Superior Court cases on four

occasions.   After a brief recess, the case was called again,

with the defendant still absent from the court room.   Attorney

Tibbetts renewed the defendant's request as follows:

    "I went back downstairs and spoke with the client. He's
    very upset. He feels that I'm not invested enough with his
    case, that he feels that I haven't spent enough time with
    him on the case, he feels that this is -- as he put it,
    it's his life and he needs somebody who will be fully
    invested. He had a -- a case in Superior Court, which is
    why this case got continued. That Superior Court case -- I
    understand he fired that lawyer and he's supposed to be
    hiring private counsel. And as far as this case goes, he
    feels that I put the case on for speedy trial without
    consulting with him, although my memory is we had an oral
    discussion about it in court.

    "I would point out that the case is four and a half months
    old at this point. I don't -- I think we're kind of out of
    speedy trial area anyway with the age of the case. But it
    is also a young case in terms of him getting a new lawyer;
    it's only four and a half months old. He does -- clearly
    does not want me as his lawyer, he wants me out -- off,
    doesn't feel like I've been doing a good job for him. As I
    told you, I'm ready to go and -- I have to renew the motion
    because of his vigorous discussion with me downstairs."

The judge denied the request.   After a second brief recess, the

defendant was brought into the court room for trial before a

different judge.   Although Attorney Tibbetts made reference to
                                                                     7


the defendant's request before the second judge, the defendant

was not afforded an opportunity to be heard on the issue of

hiring an attorney, and the trial judge did not reconsider the

earlier ruling denying the defendant's request.    A trial by jury

commenced and resulted in the defendant's conviction.

     2.   Discussion.   a.   Request to discharge counsel and

implied request for a continuance.    On appeal, the defendant

argues that the judge erroneously denied his request to hire an

attorney without permitting him to be present in the court room

to articulate his reasons for wanting new counsel and that this

error requires reversal of his conviction.    The defendant's oral

request, made through counsel, was effectively a motion to

discharge counsel and, although not explicitly stated, a request

for a continuance so that, if allowed, the new attorney could

adequately prepare for trial.5    See Commonwealth v. Britto, 433

Mass. 596, 600 (2001) ("the most common problem accompanying

[motions for appointment of new counsel is] the need for a

continuance of the trial if the motion is allowed").     Such a


     5 In these circumstances, we do not view the defendant's
request differently because he suggested that he would retain
private counsel instead of asking the court to appoint
substitute counsel. See Commonwealth v. Tuitt, 393 Mass. 801,
803-804 (1985), quoting Commonwealth v. Connor, 381 Mass. 500,
503 (1980) ("The right to employ counsel of one's choice,
particularly when exercised on the day of trial, is, 'in some
circumstances, . . . subordinate to the proper administration of
justice'").
                                                                     8


request requires the judge to weigh the "interests of the courts

and the public in efficient trial administration" as well as the

prejudice to the opposing party against the "showing of good

cause to support the defendant's motion."     Commonwealth v.

Chavis, 415 Mass. 703, 712 (1993).   Good cause includes "a

conflict of interest, incompetence of counsel, or an

irreconcilable breakdown in communication."    Id.   The test is

not a "mechanical" one.   Id. at 711.   It has been repeatedly

held that "[a] motion to discharge counsel, when made on the eve

of trial, or on the day on which trial is scheduled to begin,

'is a matter left to the sound discretion of the trial judge.'"

Commonwealth v. Tuitt, 393 Mass. 801, 804 (1985), quoting Moran,

388 Mass. at 659.

    To properly exercise that discretion, it has also been held

that "when a defendant requests that new counsel be appointed,

the judge should allow the defendant to state his reasons for

wanting to discharge his attorney so that the judge's discretion

can be exercised on an informed basis."     Lee, 394 Mass. at 217,

citing Moran, 388 Mass. at 659.   Although some of the cases,

such as Lee, 394 Mass. at 217, speak in terms of what the judge

"should" do when faced with such a request, we reiterate that

when a defendant requests a discharge of counsel and a

continuance on the eve of or the first day of trial, the judge

must afford the defendant the opportunity to be heard before
                                                                   9


ruling on the request.   See Tuitt, 393 Mass. at 804 (defendant

must be permitted to present reasons for dissatisfaction on

motion to discharge counsel); Moran, supra ("the decision to

honor a defendant's request for change of appointed counsel is a

matter left to the sound discretion of the trial judge, but

after he has given the defendant the opportunity to articulate

his reasons"); Commonwealth v. Clemens, 77 Mass. App. Ct. 232,

23 (2010) ("We acknowledge the pressure a District Court judge

faces with large volumes of cases and the need to process them

efficiently, but such concerns cannot excuse the failure to

provide an opportunity for the defendant to address the court

about dissatisfaction with counsel").    Cf. Commonwealth v.

Delacruz, 463 Mass. 504, 508-511 & n.8 (2012) (rejecting

argument that defendant was not afforded opportunity to be heard

where defendant made "tentative inquiries" at pretrial hearing

about whether trial date could be moved so that potential

private counsel could enter appearance and "no mention was made

at any time that appointed counsel was insufficient in any

way").   "The appropriate practice, which should have been

followed at the time of trial in this case, is to hear the

defendant's offer of specifications so that the judge's

discretion will be exercised on an informed basis" (quotation

and citation omitted).   Moran, supra.   Although this hearing

need not "satisfy a particular formula[,] . . . the judge [must]
                                                                  10


give a defendant an opportunity to make known his reasons for

objecting to appointed counsel before the judge rules on the

request."   Lee, supra.6

     The defendant in this case was not afforded an adequate

opportunity to articulate his reasons supporting his request for

new counsel.   When the issue of representation by counsel was

discussed in court, the defendant was not present in the court

room and was instead in the lock-up area of the court house.7    In



     6See Chavis, 415 Mass. at 710-712 (defendant had fair
opportunity to explain dissatisfaction where he made pro se oral
motion to discharge counsel on day of trial and was afforded
opportunity to personally explain reasons for request); Lee, 394
Mass. at 217 (defendants had adequate opportunity where
"[t]hroughout the pretrial proceedings and at trial the
defendants were given ample opportunity to voice their concerns
about appointed counsel, and they did so"); Tuitt, 393 Mass. 805
(rejecting argument judge did not inquire of defendant where
judge displayed "exemplary patience by listening to the
defendant express, on three separate occasions, his charge that
counsel had not made any effort to 'properly prepare this
case'"); Commonwealth v. Appleby, 389 Mass. 359, 368-369 (1983)
(defendant was given two opportunities to speak but did not
advance any reasons of his own as to why he was dissatisfied
with counsel); Commonwealth v. Price, 17 Mass. App. Ct. 955, 957
(1983) (judge made adequate inquiry). Cf. Moran, 388 Mass. at
657-658, 660 (court did not approve of judge's handling of oral
requests for new counsel on two occasions, one just before trial
and one during trial, where judge did not inquire of defendant
and instead said "quite clearly, he is not going to be afforded
the opportunity to change counsel"); Clemens, 77 Mass. App. Ct.
at 238 ("judge's colloquy with the defendant, once he was given
the opportunity to speak on this subject, was inadequate both
for the defendant to justify his dissatisfaction with counsel
and for the judge to make an informed decision").
     7 We do not fault the defendant for not speaking up to
address the trial judge directly once the defendant was brought
into the court room after he learned that his request was
                                                                   11


these circumstances, the defendant could have had meaningful

information to add on the issue, and the judge's failure to

provide the defendant the opportunity to be heard precluded the

judge from making an informed exercise of discretion.   What

makes a judge's choice to allow or deny a motion an exercise of

sound judicial discretion is the fair weighing of the factors

relevant to the decision.   See L.L. v. Commonwealth, 470 Mass.

169, 185 n.27 (2014).

    As noted earlier, we remanded the case (consistent with the

procedure followed in Moran, 388 Mass. at 658) to the motion

judge who had denied the defendant's request, with directions to

conduct an evidentiary hearing that afforded the defendant,

defendant's counsel, and the trial prosecutor the opportunity to

present testimony on the subject of the defendant's request.     At

this hearing, the defendant testified that he wanted to

discharge his attorney because the attorney had not prepared the

case for trial adequately; failed to meet with or discuss the

case with the defendant to his satisfaction; had not responded

to telephone calls; had not fit him for clothing; had not and

would not fight for him; and that there was a breakdown in

communications.   The motion judge prepared detailed findings of



denied. The defendant "was entitled to proceed on the basis of
the conventional understanding that a litigant's communications
with the court are handled by the litigant's lawyer." United
States v. Prochilo, 187 F.3d 221, 226-227 (1st Cir. 1999).
                                                                  12


fact.   He evaluated the defendant's testimony and noted that

"the undersigned judge does not credit [the defendant's stated]

reasons and, instead, finds that the defendant's wish to

discharge his attorney on July 25, 2017 was nothing more than a

back-door attempt to achieve a (second) continuance of his trial

given that his Superior Court probation violation case had still

not been resolved."   These findings, which are well supported by

the record, are fatal to the defendant's claim that he was

prejudiced by the motion judge's handling of his request or is

entitled to reversal of his conviction.   Even in cases where the

judge fails to afford the defendant an opportunity to be heard

on a request to discharge counsel, a new trial is not required

where that opportunity is later afforded to the defendant and it

can be determined that the request was without merit.     See

Moran, supra at 658-659 (defendant was not prejudiced by failure

to hear from defendant prior to trial where, on remand, trial

judge held hearing with defendant, defense counsel, and

prosecutor, and judge determined new trial was not warranted);

Clemens, 77 Mass. App. Ct. at 239 (reversal not required where

defendant gave reasons posttrial and appellate court determined

there was insufficient cause to remove counsel).   See also

Lamoureux v. Commonwealth, 353 Mass. 556, 560-561 (1968)

(exceptions overruled despite failure of trial judge to hear

offer of specifications where defendant was later afforded
                                                                   13


evidentiary hearing before single justice of Supreme Judicial

Court who made detailed findings that demonstrated inadequacy of

complaints).

    b.   Ineffective assistance of counsel.    It is regrettable

that the prosecutor and witnesses repeatedly referred to the

incident using the conclusory term "assault" where the defendant

was on trial for assault and battery.    See Commonwealth v.

Dargon, 457 Mass. 387, 396 (2010) (in rape case, failure to

redact words "assault" and "assailant" that appeared twenty-

three times on documentary evidence was error); Commonwealth v.

Coleman, 366 Mass. 705, 711 (1975) (medical examiner not

permitted to testify that death was "homicide"); Commonwealth v.

McNickles, 22 Mass. App. Ct. 114, 121 n.10 (1986) ("Prosecutors

would be well advised to take special care to instruct their

witnesses, prior to putting them on the stand and asking their

opinions, to avoid such terms as 'rape,' 'sexual assault,' and

the like").    The incident could have been adequately described

for the jury in a myriad of other ways without using the term

that constituted an element of the crime for which the defendant

was on trial.    While we discern no such intent from the

prosecutor or witnesses in this case, avoiding the use of the

term "assault" would have eliminated the risk that the jury

could have interpreted the questioning or testimony as an

opinion from the Commonwealth or law enforcement witnesses on
                                                                    14


the issue of the defendant's guilt.   See Mass. G. Evid. § 704

(2020).

     However, even if the failure to object to this

characterization of the incident fell measurably below the

standards of the ordinary fallible lawyer, we reject the

defendant's claim of ineffective assistance of counsel based on

this error as the defendant has failed to demonstrate he was

"likely deprived . . . of an otherwise available, substantial

ground of defence."   Commonwealth v. Saferian, 366 Mass. 89, 96

(1974).   See Commonwealth v. Randolph, 438 Mass. 290, 295-296

(2002) (equating ineffective assistance of counsel standard to

substantial risk of miscarriage of justice standard in cases

where waiver stems from omission by defense counsel).    Based on

the evidence presented at trial, there was no substantial risk

of a miscarriage of justice.   The issue was not whether the

defendant violently and repeatedly struck Pina.   That was

abundantly clear from the video and the testimony.    Instead, the

issue was whether based on the totality of the evidence --

particularly the lack of any audio and the circumstances of

living in jail -- the Commonwealth had proved beyond a

reasonable doubt that the defendant was not acting with

justification, i.e., acting in self-defense.8


     8 The judge instructed the jury on self-defense over the
Commonwealth's objection.
                                                                  15


     Similarly, the defendant has not demonstrated ineffective

assistance based on counsel's failure to object to the evidence

that the incident occurred in a "maximum unit for jailers" and

later himself elicited on cross-examination from a witness that

the unit housed "troublemakers."   While the defendant's presence

in this unit invited a negative inference about the defendant's

character (which was mitigated by a forceful limiting

instruction), permitting and eliciting this evidence may have

been a strategic decision because it invited that same inference

about Pina's character.   An attack on Pina's credibility

provided needed support for the defendant's claim of self-

defense and furthered the theory advanced by counsel that people

in jail sometimes have problems with each other, that fights

like this could occur at any time, and that jail was a dangerous

place to be.   On this record, considering the other evidence

that would inevitably be before the jury, the potential benefits

of the evidence, and the lack of an affidavit from defense

counsel, we cannot say that counsel's decision was "manifestly

unreasonable."9   Commonwealth v. Kolenovic, 471 Mass. 664, 674

(2015).   See Commonwealth v. Zinser, 446 Mass. 807, 812 (2006)




     9 There likely are circumstances where it would fall
measurably below the ordinary fallible lawyer standard to permit
admission of evidence that the defendant is not only in jail but
also in a specific part of a jail for troublemakers.
                                                                     16


(when claim of ineffective assistance of counsel is raised for

first time on direct appeal, relief is not available unless "the

factual basis appears indisputably on the trial record"

[quotation and citation omitted]).

     Last, the defendant argues his counsel was ineffective by

making the statement in closing that, "in [his] client's

opinion, this evidence doesn't rise to the level of guilty

beyond a reasonable doubt."     Counsel should not have identified

his client's opinion as the reason that the evidence did not

rise to the reasonable doubt standard.     Defense counsel's

statement created a risk that the jury would understand the

statement as counsel disassociating himself from the defendant's

position.     Instead, the statement should have been more

forcefully delivered by simply arguing that the evidence

presented to the jury did not meet this standard.10    However, we

reject the defendant's claim that this statement or trial

counsel's entire summation left him "denuded of a defense" or

"conceded guilt."     See Commonwealth v. Moseley, 483 Mass. 295,

307 (2019).    This is not a case where at the "eleventh hour"

counsel abandoned a substantial defense for one that was


     10 It may be that this is what counsel intended to convey.
"[I]t is far too easy to examine a transcript and point to ways
to 'do it better.'" Commonwealth v. Moseley, 483 Mass. 295, 308
(2019), quoting Commonwealth v. Degro, 432 Mass. 319, 333
(2000).
                                                                   17


"exceptionally weak," Commonwealth v. Street, 388 Mass. 281,

281, 286 (1983), or a case where counsel asked the jury to

believe the testimony of a witness "a hundred percent" where

belief of that testimony would have required the jury to convict

the defendant of murder in the first degree, see Commonwealth v.

Triplett, 398 Mass. 561, 568-569 (1986).   Instead, faced with a

challenging case where the defendant was recorded on video

committing the crime, and the video was corroborated by multiple

witnesses, counsel consistently advanced the theory discussed

supra and concluded by asking the jurors to "agree that my

client is not guilty."   The defendant failed to satisfy the

prejudice prong set forth in Saferian, 366 Mass. at 96.

                                    Judgment affirmed.
