COMMONWEALTH vs. DANIEL J. DELOREY.

QUIRICO, J. Following trial before a jury of six persons in the Central District Court of Worcester (G. L. c. 218, Section 27A, inserted by St. 1972, c. 620, Section 1), the defendant was found guilty on September 23, 1974, on four complaints charging him with operating a motor vehicle (a) while under the influence of intoxicating liquor, (b) at a rate of speed greater than is reasonable and proper, (c) without having a certificate of registration for the vehicle on his person or in the vehicle, and (d) the vehicle having no rear plate light, in violation of G. L. c. 90, Sections 24, 17, 11 and 7 respectively. A fine was imposed on the defendant for each of the four convictions. The case is here on a bill of exceptions alleging error by the trial judge in admitting in evidence the records of the convictions of the defendant for two prior offenses, one operating a motor vehicle while under the influence of intoxicating liquor, and the other for malicious destruction of personal property (G. L. c. 266, Section 127). These two convictions were by a judge of the Central District Court of Worcester on February 20, 1973. The defendant has included no argument in his brief on the alleged error in admitting the record of his prior conviction for malicious destruction of personal property, and we therefore treat any issue based thereon as waived. S.J.C. Rule 1:13, 351 Mass. 738 (1967). Commonwealth v. Bernier, 366 Mass. 717, 719 (1975).

The record of the defendant's prior conviction on February 20, 1973, for operating a motor vehicle while under the influence of intoxicating liquor was offered by the prosecutor to impeach the defendant's credibility in accordance with G. L. c. 233, Section 21. The defendant, having become a witness at his trial, became subject to impeachment under Section 21, which provides that, with exceptions not here material, the record of his conviction of a crime "may be shown to affect his credibility."

The defendant contends that the record of conviction which was offered against him was inadmissible because it failed to show that at the trial for the earlier offense he

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had either (a) been represented by counsel, or (b) waived the right to be represented by counsel. We hold that the judge properly found that the defendant had waived his right to be represented by counsel at the earlier trial, and that the record of his conviction at that trial was properly admitted in the later trial which resulted in the bill of exceptions now before us.

It is appropriate to note at this point that the issue before us is not whether the defendant was entitled to be represented by counsel at the trial of the present cases or the earlier cases. On the dates of the defendant's convictions, S.J.C. Rule 3:10, as amended, 355 Mass. 803 (1969), which is reproduced in the margin, [Note 1] provided that "[i]f a defendant charged with a crime, for which a sentence of imprisonment may be imposed, appears in any court without counsel, the judge shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel." Costarelli v. Municipal Court of the City of Boston, 367 Mass. 35, 44 (1975). Gideon v. Wainwright, 372 U.S. 335 (1963).

It is undisputed that the defendant was not represented by counsel at any stage of the proceedings on the complaint

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which culminated in his trial and conviction on February 20, 1973, for operating while under the influence. He appeared before the court on that complaint on January 4, January 29, February 7, and February 20, 1973. He did not at any time sign a waiver of his right to counsel under S.J.C. Rule 3:10 with reference to that complaint. [Note 2] He requested the judge to assign counsel to represent him under the rule. The judge heard the defendant and received information from a probation officer on the defendant's ability to pay for counsel. On January 29, 1973, the judge found in writing that the defendant was able to pay for counsel, and the finding is filed with the papers in the case, all as required by the rule.

Basically, this is another of the many cases requiring consideration of the consequences of the rule established by the decision in Gideon v. Wainwright, 372 U.S. 335 (1963), making the right to counsel guaranteed by the Sixth Amendment to the United States Constitution applicable to States by virtue of the Fourteenth Amendment. This rule was described in Burgett v. Texas, 389 U.S. 109, 114 (1967), as "making it unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one" (emphasis supplied). In the Burgett case the trial judge had admitted against the defendant, who was being tried for one felony, records showing that he had committed four prior felonies, thus subjecting him to a life sentence under a recidivism statute. The records of the four earlier convictions were silent on the question whether the

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defendant had been represented by counsel in those cases. The Court said (114-115) that "[p]resuming waiver of counsel from a silent record is impermissible," and reversed the conviction.

In Loper v. Beto, 405 U.S. 473 (1972), the trial judge admitted records of prior convictions to impeach the defendant's credibility as a witness. The records were silent on the question whether the defendant was represented by counsel in those cases. In its decision in the Loper case the Supreme Court described the rule of the Gideon case (481) as "a clear and simple constitutional rule: In the absence of a waiver, a felony conviction is invalid if it was obtained in a court that denied the defendant the help of a lawyer" (emphasis supplied). Treating the case as one where there was no waiver by the defendant, the Court said (483) "that the use of convictions constitutionally invalid under Gideon v. Wainwright to impeach a defendant's credibility deprives him of due process of law," and it then (483) quoted from Gilday v. Scafati, 428 F.2d 1027, 1029 (1st Cir.), cert. denied, 400 U.S. 926 (1970), the statement that "[t]he absence of counsel impairs the reliability of such convictions just as much when used to impeach as when used as direct proof of guilt."

Since the Burgett case was decided by the United States Supreme Court, this court has also decided a number of cases involving claims of infirmity of convictions or pleas of guilty of crimes where the defendant, being entitled to be represented by counsel either under the Sixth Amendment to the United States Constitution or under S.J.C. Rule 3:10, neither had counsel nor waived his right to counsel. Some of the cases involved direct appeals from or postconviction attacks on the convictions or pleas, while others involved objections to the use of the records of convictions to impeach credibility under G. L. c. 233, Section 21. Our decisions on this subject fall into three groups discussed below. In the first group we held that there was error and afforded relief, in the second we held

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that if there was error it was harmless beyond a reasonable doubt, and in the third we held that there was no error.

1. In Williams v. Commonwealth, 350 Mass. 732 (1966), we set aside a probation revocation grounded on a plea of guilty, stating the following reason therefor (734): "Here the record fails to reveal whether the petitioner was indigent. There is nothing to show whether the petitioner could have retained his own counsel and chose not to do so. There is nothing to indicate that the petitioner was informed of his right to have counsel, that he elected to proceed without counsel, or that he either waived counsel or refused to sign a waiver." Substantially the same factual situation and legal result prevailed in Cardran v. Commonwealth, 356 Mass. 351, 354 (1969), MacDonnel v. Commonwealth, 353 Mass. 277, 281 (1967), and Commonwealth v. Barrett, 3 Mass. App. Ct. 8, 9-16 (1975). In Walter v. Bonito, 367 Mass. 117, 123 n.1 (1975), the plaintiff called the defendant as his own witness and was then allowed to impeach his credibility by a record of his prior conviction of a crime. We held that this was error, but did so without reaching the defendant's claim that he had not been represented by counsel in the earlier case.

2. In Subilosky v. Commonwealth, 358 Mass. 390, 392-394 (1970), and Gilday v. Commonwealth, 355 Mass. 799 (1969), where records of prior convictions of the defendants in cases in which they neither had counsel nor waived their right to counsel were admitted to impeach the credibility of the defendants as witnesses, this court concluded that the improper use of such records was "harmless beyond a reasonable doubt," citing the case of Chapman v. California, 386 U.S. 18, 24 (1967). On the applicability of the "harmless error" rule to such a case, see the later decision in Loper v. Beto, 405 U.S.

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473, 483 n.12 (1972), and cases cited therein. In Commonwealth v. Boudreau, 362 Mass. 378, 382 (1972), decided after the Loper case, there is a suggestion of the applicability of the "harmless error" rule to such a case. For a civil case in which the denial of a new trial was upheld because the error, if any, in admitting records of "uncounselled" convictions to impeach the plaintiff's credibility, had not "injuriously affected the substantial rights" of the plaintiff, see Carey v. Zayre of Beverly Inc., 367 Mass. 125, 134-135 (1975).

3. Several cases decided by this court involved the sufficiency of the evidence to establish that a witness whom it is sought to impeach by a record of a prior conviction either "had or waived counsel in the proceeding certified by the record." Gilday v. Commonwealth, 355 Mass. 799 (1969). In Commonwealth v. Boudreau, 362 Mass. 378, 382 (1972), we held that it was sufficient that on the complaint in the earlier case there was an entry "For defendant--D. Kurzon, Esq." in the space provided for that purpose. We reached the same conclusion in Commonwealth v. Deeran, 364 Mass. 193, 197-198 (1973), where the entry on the complaint offered as the record of earlier conviction was: "I find this defendant not indigent. (signed) John W. McLeod, Justice. Defendant did not want counsel." In reaching this conclusion we said: "We find nothing in Loper v. Beto . . . [405 U.S. 473 (1972)] about any constitutional requirements that waiver of counsel be proved in any particular way . . . . In the circumstances of this case, failure to prove compliance with the formal requirements of Rule 3:10 does not prevent use of the prior conviction to impeach the defendant."

In this case, as in the Deeran case, the decisive question is whether there was sufficient evidence in the record of the defendant's earlier conviction to establish a waiver by him of his right to be represented by counsel. We hold that there was.

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If we assume that the defendant's bill of exceptions adequately raises the question whether the evidence was sufficient to support the finding that he was able to pay for counsel, the question is not argued in his brief. By reason of that finding the defendant was not entitled to have counsel assigned to represent him at public expense. He was entitled to obtain counsel at his own expense and he had a reasonable time to do so between January 29, 1973, and his trial on February 20, 1973. We do not substitute our judgment for that of the trial judge on the factual issue whether the defendant was able to pay for counsel. We conclude that the legal effect of what occurred in this case is that the defendant intentionally and knowingly waived his constitutional right to be represented by counsel at the trial of February 20, 1973. He therefore cannot now be heard to complain that there was a constitutional defect in his conviction. For a discussion of waiver of the right to counsel, see Schneckloth v. Bustamonte, 412 U.S. 218, 235-240 (1973), and Johnson v. Zerbst, 304 U.S. 458, 464-465 (1938).

The defendant's emphasis on the absence from the record of the several forms established by S.J.C. Rule 3:10 is misplaced. The rule establishes three forms to be used by the courts in the administration of the rule. The first is a waiver to be signed by a defendant acknowledging that he has been informed of his right to have counsel appointed for him, electing to proceed without counsel, and waiving his right to such counsel. The second is a certificate to be signed by the judge to the effect that the defendant was informed of his right to have counsel appointed for him, that the defendant elected to proceed without counsel and signed a waiver of counsel. The third form is also a certificate of the judge in the same language as the second except for the last clause which certifies instead that the defendant refused to sign a waiver of counsel. Thus none of the forms applies to the facts of this case where the judge, having found that the defendant was able to pay for counsel, did

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not inform him of any right to have counsel appointed for him.

By reason of our conclusions and holdings above we do not reach the other grounds on which the Commonwealth argued in support of the admissibility of the record of the defendant's prior conviction. [Note 3]

Exceptions overruled.

HENNESSEY, J. (concurring). I concur in the result and the reasoning. Nevertheless, I consider it useful to comment once more, as I did in a concurring opinion in the case of Commonwealth v. DiMarzo, 364 Mass. 669, 678-683 (1974), that unfair prejudice to the defendant may result in some cases where proof of prior convictions is received for impeachment purposes. No matter how carefully the jury may be instructed as to the limited purpose of the evidence, common sense and experience indicate that jurors in some cases may well regard the prior convictions of the defendant as proof of guilt. "The danger of prejudice most clearly arises when the prior convictions [as in the instant case] are similar in nature to the indictments on trial." Commonwealth v. DiMarzo, supra at 680. I suggest once more that justice may be assisted by legislative attention to the problem. See Commonwealth v. DiMarzo, supra at 683.