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13-P-1076                                               Appeals Court

                  COMMONWEALTH   vs.   DONALD GIBSON.


                            No. 13-P-1076.

       Hampden.        February 18, 2015. - August 10, 2015.

            Present:    Green, Grainger, & Massing, JJ.


Practice, Criminal, Probation, Revocation of probation,
     Assistance of counsel. Due Process of Law, Probation
     revocation, Assistance of counsel. Constitutional Law,
     Assistance of counsel.



     Indictments found and returned in the Superior Court
Department on February 22, 2006.

     A hearing on an order to show cause why the defendant
should not be deemed to have forfeited his right to counsel at a
probation revocation proceeding was had before C. Jeffrey
Kinder, J., and a proceeding for revocation of probation was
heard by Richard J. Carey, J.


     Glynis Mac Veety for the defendant.
     Bethany C. Lynch, Assistant District Attorney, for the
Commonwealth, submitted a brief.


    GREEN, J.     After a hearing at which the defendant proceeded

without counsel, a judge of the Superior Court found that the

defendant had violated conditions of his probation, and entered
                                                                     2


an order revoking his probation and imposing a sentence.    On

appeal, the defendant challenges the judge's ruling before the

revocation hearing that he had forfeited his right to counsel.1

We discern no error in the ruling, and discern no merit in the

defendant's other claims of error in the revocation proceeding

itself.   We accordingly affirm the order of revocation.

     Background.    On August 8, 2008, the defendant was convicted

by a jury on two charges of indecent assault and battery on a

child under fourteen.    He was sentenced on count one to not less

than eight years and not more than ten years in State prison.

On count two he was sentenced to probation for fifteen years to

run concurrently with the sentence on count one, with the

condition, among others, that he have no contact with the victim

(the defendant's daughter) or her mother without their express

authorization.2    On September 14, 2011, the probation department

filed a notice of surrender alleging that the defendant, while

still incarcerated, had sent letters to the victim.    Following a

hearing on April 16, 2013, at which the defendant proceeded

without counsel, a Superior Court judge found the defendant in

violation of the conditions of his probation, revoked his

     1
       The defendant also claims various errors in the revocation
hearing itself, as discussed in more detail below.
     2
       A panel of this court affirmed the convictions in an
unpublished memorandum of decision. See Commonwealth v. Gibson,
78 Mass. App. Ct. 1119 (2011).
                                                                   3


probation and sentenced him to not less than seven years and not

more than eight years from and after the sentence he was then

serving.

     The relationship between the defendant and his several

court-appointed attorneys was tumultuous throughout the

proceedings.   Prior to the defendant's conviction, four

attorneys were permitted to withdraw from their representation

of him for various reasons, including:   (1) accusations by the

defendant of participation by his first attorney in a conspiracy

with the district attorney against the defendant, (2)

accusations by the defendant of unethical conduct by his second

attorney, (3) threats by the defendant against his third

attorney of physical violence and complaint to the Board of Bar

Overseers, and (4) disagreements over trial strategy and a

breakdown of the professional relationship with his fourth

attorney.   During the pendency of the probation revocation

proceedings, three more attorneys were permitted to withdraw,

based on:   (1) the defendant's combative attitude, (2) breakdown

of the professional relationship, and (3) threats by the

defendant to sue his last attorney and report him to the Board

of Bar Overseers.3


     3
       The parties did not include within the record appendix
copies of the affidavits of counsel submitted with their
respective motions to withdraw from representation of the
defendant. Following oral argument, we requested from the trial
                                                                   4


     At the hearing, held on June 28, 2012, at which the last

attorney, attorney Dunphy, was appointed to represent the

defendant, the judge warned the defendant that he would have to

work with his newly-appointed counsel, or else he would have to

proceed without counsel.4   Despite that warning, the relationship




court copies of those motions and supporting affidavits, all of
which were before the hearing judge when he ruled on the
question of forfeiture. The trial court thereafter transmitted
all of the requested affidavits but one, which it was unable to
locate. The affidavits substantiate the summary descriptions of
the breakdown in the relationship between the defendant and each
appointed counsel in disturbing detail, including direct and
implied threats to kill (or have others kill) one of his
appointed counsel, and a consistent pattern of accusing counsel
of conspiring to work against the defendant's interest, requests
that counsel communicate messages from the defendant to the
victim (in violation of the condition of his probation that he
have no contact with the victim or her mother), and insisting
that counsel pursue unspecified but frivolous or meritless
avenues of defense.
     4
       The transcript of the hearing reveals the following
exchange:

     Mr. Dunphy: "I think I'll be able to take care of Mr.
     Gibson, Judge."

     Judge: "You know what, Mr. Dunphy? I know you'll be able
     to take care of him, because if you can't take care of him,
     he's going to have to take care of himself.

          "Mr., Mr. . . . I'm talking to you, sir. So look at
     me and listen. I, I read prior counsel's affidavit and I
     was troubled by the contents of her affidavit. You will
     not get another attorney appointed to represent you, do you
     understand me, sir?"

     The defendant: "If they don't do me justice, I can't keep
     them on. So that's why I had to . . ."
                                                                       5


between the defendant and his attorney was marked by

difficulties similar to those in his previous appointments.       On

September 4, 2012, the defendant filed a motion requesting the

appointment of a new attorney and, on September 10, the attorney

filed a motion to withdraw.    After a hearing on September 13,

2012, a different judge allowed the attorney's motion to

withdraw and then appointed him for standby purposes only.

Thereafter, on February 26, 2013, the attorney filed a motion to

withdraw as standby counsel.    On that date, the judge entered an

order directing the defendant to show cause why he should not be

deemed to have forfeited his right to counsel, and a forfeiture

hearing was scheduled for the following day.

    On the following day, the judge appointed new counsel to

represent the defendant for purposes of the hearing on the

question of forfeiture.    At the forfeiture hearing, the judge

heard testimony of the withdrawing attorney and a report from

the attorney appointed that morning.    He also had before him the

affidavits of the seven attorneys who previously had moved to

withdraw.   Based on his review of that material, he concluded

that "this is the rare case where the defendant has forfeited


    Judge: "Do you understand?     It's a yes or no.   Do you
    understand?"

    The defendant:    "Yes."

    Judge:   "Thank you.   Very good.   Okay, Mr. Dunphy."
                                                                     6


his right to counsel in this probation violation action by his

own egregious conduct."

    Discussion.     Absent forfeiture or waiver of the right to an

attorney, "a probationer is entitled to the effective assistance

of counsel at a probation violation hearing whenever

imprisonment may result."     Commonwealth v. Pena, 462 Mass. 183,

188 (2012).   An appellate court reviewing a trial court's ruling

that a defendant has waived or forfeited his right to counsel

for a probation violation hearing "give[s] substantial deference

to [the] judge's factual findings . . . [but] 'review[s] 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.'"

Id. at 192 n.10, quoting from Commonwealth v. Means, 454 Mass.

81, 88 (2009).

    The Supreme Judicial Court in Means identified "four

considerations that generally govern whether forfeiture is

appropriate."    Id. at 93.   "First, forfeiture of counsel

typically is applied in circumstances where a criminal defendant

has had more than one appointed counsel."     Ibid., citing United

States v. Leggett, 162 F.3d 237, 240 (3d Cir. 1998), cert.

denied, 528 U.S. 868 (1999) (second appointed counsel).       See

United States v. McLeod, 53 F.3d 322, 325 (11th Cir. 1995)

(second appointed counsel); People v. Gilchrist, 239 A.D.2d 306
                                                                   7


(N.Y. 1997) (fourth appointed counsel); People v. Sloane, 262

A.D.2d 431 (N.Y. 1999) (third appointed counsel); State v.

Carruthers, 35 S.W.3d 516, 538-539 (Tenn. 2000), cert. denied,

533 U.S. 953 (2001) (fourth appointed counsel).   In determining

whether the defendant had forfeited his right to counsel, the

hearing judge properly considered his conduct throughout the

proceedings that began with his indictment in 2006 and continued

through the April, 2013, hearing on his violations of probation.5

During the pendency of those proceedings, seven attorneys moved

for leave to withdraw from representing the defendant because of

his misconduct, a consideration that weighed strongly in favor

of forfeiture.

     "Second, forfeiture rarely is applied to deny a defendant

representation during trial.   It is more commonly invoked at

other stages of a criminal matter, such as a motion for a new

trial, sentencing, appeal, and pretrial proceedings."

Commonwealth v. Means, 454 Mass. at 93.   The defendant in the

present case was represented by counsel during his trial.    The

hearing judge's ruling that the defendant had forfeited counsel


     5
       "A probation violation proceeding is not considered to be
a new criminal prosecution because the Commonwealth already has
met its burden of proving guilt beyond a reasonable doubt."
Commonwealth v. Pena, 462 Mass. at 190. See Commonwealth v.
Wilcox, 446 Mass. 61, 65 (2006). Instead, "a probation
violation hearing is part of the sentencing process."
Commonwealth v. Pena, supra at 191 n.8.
                                                                   8


for purposes of his probation violation hearing did not "deal as

serious a blow to [the] defendant as would the forfeiture of

counsel at the trial itself."   Id. at 94, quoting from United

States v. Leggett, 162 F.3d at 251 n.14.

    "Third, forfeiture may be an appropriate response to the

defendant's threats of violence or acts of violence against

defense counsel or others."   Commonwealth v. Means, supra.

Although the hearing judge's findings about the defendant's

conduct toward his appointed counsel were somewhat summary in

nature, they adequately supported his conclusion that the

defendant's conduct warranted forfeiture.   The judge found --

based on the affidavits filed by the defendant's various

appointed counsel in support of their respective motions to

withdraw -- that the defendant had engaged in a persistent

pattern of hostility and threatening conduct toward them that

included threats of physical violence to at least one attorney,

as well as repeated accusations of unethical conduct coupled

with threats to report counsel to the Board of Bar Overseers and

the Attorney General for claimed misconduct and to file suit

against them.   It is apparent, from a December 1, 2012, letter

from attorney Dunphy to the defendant, that the defendant

faulted attorney Dunphy for, among other things, refusing to

engage in unethical conduct, including communicating with the

defendant's daughter to pass along a message from the defendant
                                                                        9


in violation of the terms and conditions of the defendant's

probation, and providing the defendant with addresses for his

daughter and his former wife.     The defendant's "behavior toward

his counsel was repeatedly abusive, threatening, and coercive."

United States v. McLeod, 53 F.3d at 326, cited with approval in

Commonwealth v. Means, 454 Mass. at 94.     See People v. Sloane,

262 A.D.2d at 432 (defendant forfeited his right to counsel

after he moved to discharge third appointed attorney by "his

persistent pattern of threatening, abusive, obstreperous, and

uncooperative behavior with successive assigned counsel").

    "The fourth and final area of general agreement . . . is

that forfeiture should be a last resort in response to the most

grave and deliberate misconduct."     Commonwealth v. Means, 454

Mass. at 95.     Here, a series of "experienced and skilled

criminal defense lawyers" had been appointed to represent the

defendant.     Almost without exception, those lawyers came to the

point of being unable to represent the defendant.     The defendant

was warned at least once that he was risking his right to

representation by his continued abuse of appointed counsel.        He

knew what was at stake in the probation violation hearing.

After he had been warned that the court would not appoint

successor counsel, the defendant nonetheless moved to have

attorney Dunphy removed and new counsel appointed on the

frivolous ground that attorney Dunphy was senile or had memory
                                                                    10


problems.   The final hearing on the defendant's probation

violations was repeatedly delayed due, at least in part, to his

multiple changes in counsel.   Appointment of yet another

attorney would have delayed the final probation violation

hearing even further.

     The judge "g[a]ve notice of and conduct[ed] a[n

evidentiary] hearing in which the defendant [wa]s given a full

and fair opportunity to show why [the sanction of forfeiture of

counsel] should not be imposed."    Id. at 100.   He allowed the

defendant to be heard on whether attorney Dunphy should be

permitted to withdraw as counsel.    He took evidence, including

evidence on the defendant's mental competence,6 and heard

argument on the question why the defendant should not be found

to have forfeited his right to counsel.     See id. at 97.    The

judge was not required to credit the defendant's unsupported

claim that his mental state was impaired by "a brain tumor deep

within the center of [his] brain."    See Commonwealth v. McMahon,

443 Mass. 409, 422-424 (2005) (judge could rely on his

observations of defendant, with other evidence, in concluding

that defendant was competent).     See also Commonwealth v.

Pamplona, 58 Mass. App. Ct. 239, 243 (2003) (proper for judge to

     6
       The Supreme Judicial Court has held that forfeiture and
waiver by conduct are "inapplicable where the defendant is
determined mentally incompetent to waive the right to counsel
and proceed pro se." Commonwealth v. Means, 454 Mass. at 95.
                                                                   11


rely on defendant's conduct and demeanor in determining

competence).7

     The hearing judge understood that forfeiture of counsel is

a measure of last resort.    His conclusion that this was the

"rare" case in which the defendant, by his egregious conduct,

had forfeited his right to counsel at his probation violation

hearing was well supported by the record.    See Commonwealth v.

Means, 454 Mass. at 92-96.    See also United States v. McLeod, 53

F.3d at 326; People v. Sloane, 262 A.D.2d at 432.    There was no

error.8


     7
       We note as well that the judge subsequently ordered a
competency examination of the defendant at the commencement of
the probation revocation hearing itself. Following examination,
the court's forensic psychologist testified to his opinion that
the defendant "has a rational and meaningful understanding of
what this hearing is about . . . [,] understands the gravity and
the consequences for him . . .[, and] to the best of his
ability, he is prepared to try to convince the [c]ourt about his
innocence. So, with that said, I believe he is competent to go
forward at this time."
     8
       Our view of the case obviates any need for us to consider
the Commonwealth's argument that the judge's ruling could be
affirmed on the alternative basis that the defendant waived his
right to counsel by his conduct. We note, however, that the
judge who warned the defendant that attorney Dunphy would be the
last attorney appointed to represent him, see note 4, supra, did
not include in her warning a colloquy about the implications and
consequences of proceeding without counsel. See Commonwealth v.
Pena, 462 Mass. at 192. In any circumstances where a defendant
is warned that his conduct could result in the loss of the right
to counsel, and require the defendant to proceed without
counsel, better practice would be to accompany the warning with
a colloquy concerning the implications and consequences of
proceeding without counsel.
                                                                     12


    The defendant's remaining claims require little discussion.

As the Commonwealth observes in its brief, the docket of the

case reflects that the defendant's counsel twice filed motions

for funds for a private investigator, and both motions were

allowed.   The judge accordingly could reasonably reject as false

the defendant's assertions that his former counsel did not

request funds for an investigator.     In any event, the

defendant's request to commence a new investigation on the eve

of his scheduled revocation hearing would have further delayed

the hearing, which had already been postponed several times.

Similarly, the judge did not abuse his discretion in refusing

the defendant's late request to pursue hospital records, and to

hire an expert to interpret them, as the request would have

caused unnecessary delay in the hearing.     The connection of the

records to the matters at issue in the revocation hearing was

tenuous at best, and the judge allowed the defendant to present

prison medical records addressing the same subject matter.     See

Commonwealth v. Pena, 462 Mass. at 192-195 (judge must balance

request for additional time against fair and efficient

administration of justice).

    As for the defendant's claim that the revocation hearing

judge unfairly curtailed his cross-examination of the victim and

her mother, we discern no abuse of discretion.     See Commonwealth

v. Odoardi, 397 Mass. 28, 34 (1986).     The lines of examination
                                                                  13


that are the subject of the defendant's claim were both

irrelevant and potentially abusive.9

     Finally, there is no basis for the defendant's claims,

advanced pursuant to Commonwealth v. Moffett, 383 Mass. 201

(1981), (1) that the evidence established that the victim gave

express permission to the defendant to contact her, and (2) that

his actions were justified by the defense of necessity.   As to

the first, the victim testified unequivocally that she did not

give express permission to the defendant to contact her, and the

judge was entitled to credit her testimony.   See Commonwealth v.

Pugh, 462 Mass. 482, 495 (2012).   For the same reason, the judge

was not required to accept the defendant's assertion that the

victim was engaged in prostitution, that the defendant's motive

for writing the letters was to "rescue" the victim from

prostitution, or that the defendant reasonably could expect that

the sexually explicit letters he wrote to her were likely to

accomplish that purpose.


     9
       During the defendant's cross-examination of the victim,
the judge attempted to guide the defendant toward relevant lines
of inquiry, and ultimately curtailed the defendant's examination
when the defendant asked her whether the reason he wrote
sexually explicit letters to her was to make her feel that
prostitution was a really nasty profession that she should
abandon. The judge curtailed questioning of the victim's mother
when the defendant sought repeatedly to question her about her
knowledge of the conditions of his probation and her motivation
in opening the letters he sent to the victim, following warnings
by the judge that the questions were irrelevant.
                            14


Order revoking probation and
  imposing sentence affirmed.
