411 Mass. 149

September 10, 1991 - November 4, 1991

Middlesex County


At a criminal trial, where the defendant was permitted to represent himself with the aid of standby counsel appointed to assist him, the judge acted within his discretion in limiting the role of standby counsel merely to responding to the defendant's requests for advice, and this restriction on standby counsel's participation in the trial did not violate the defendant's Federal constitutional rights to have the assistance of counsel or to represent himself. [152-155]

The record of a criminal trial provided no support to the defendant's contention that his sentence, which exceeded the Commonwealth's recommendation, was motivated either by the judge's bias or by an intention to punish the defendant for contempt committed during the trial. [155-156]

INDICTMENT found and returned in the Superior Court Department on March 22, 1988.

The case was tried before James D. McDaniel, Jr., J.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

David Duncan for the defendant.

William F. Bloomer, Assistant District Attorney, for the Commonwealth.

LIACOS, C.J. Indicted for trafficking in cocaine (G. L. c. 94C, Section 32E [1988 ed.]) and for assault and battery on a police officer (G. L. c. 265, Section 13D [1990 ed.]), the defendant, Bert M. Molino, was convicted by a Superior Court jury on both indictments. He appeals from his conviction of trafficking

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in cocaine. [Note 1] We transferred the case to this court on our own motion. The defendant argues that the trial judge violated his constitutional rights to due process and a fair trial by excessively limiting the role of standby counsel. He also contends that the judge based the sentence on impermissible considerations. We affirm.

1. Procedural history. The defendant was indicted on March 22, 1988, for trafficking in cocaine and assault and battery on a police officer. He chose to represent himself at trial without counsel. The judge allowed the defendant to proceed pro se but appointed standby counsel to assist him. See S.J.C. Rule 3:10, Section 5, as appearing in 397 Mass. 1217 (1986).

The judge imposed strict limitations on the role of standby counsel during trial. Counsel could only respond to requests for advice made by the defendant; he could not offer any unsolicited advice. Our review of the record shows, for example, that standby counsel was not allowed to prompt the defendant to object during the Commonwealth's questioning of witnesses, to question witnesses, to draft motions or pleadings, or to talk at sidebar conference (unless he was responding to the defendant's question). The judge repeatedly admonished standby counsel to remain within these boundaries. [Note 2] The

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judge did permit the defendant to submit at least two motions

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prepared by counsel, to adopt jury instructions prepared by counsel, and to have counsel attend sidebar conferences. The defendant did not object to standby counsel's presence and did ask his advice on several occasions during the trial.

2. Limitations on the role of standby counsel. The defendant argues that the judge's restrictions on standby counsel's participation in the trial were an abuse of discretion that violated his right to a fair trial and to due process. [Note 3] The argument is that, even when a defendant decides to represent himself, he has a constitutional right to some level of assistance from counsel. We disagree. Our reading of Federal law indicates that this is an area left to the broad discretion of the trial judge.

The Sixth Amendment to the United States Constitution guarantees defendants the right to counsel, see, e.g., Gideon v. Wainwright, 372 U.S. 335 (1963); it also guarantees the right to self-representation, see Faretta v. California, 422 U.S. 806 (1975). [Note 4] There is no constitutional right, however, to "hybrid representation," that is, representation in part by counsel and in part by oneself. See, e.g., McKaskle v. Wiggins,

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465 U.S. 168, 183 (1984). [Note 5] The defendant can either proceed pro se, or he can accept counsel; in the former situation, he waives his right to counsel, and, in the latter, he must submit to full participation by counsel. "A defendant does not have a constitutional right to choreograph special appearances by counsel." Id. Hybrid representation is not prohibited; appointment of counsel in any hybrid situation is left to the discretion of the trial judge. See, e.g., United States v. Nivica, 887 F.2d 1110, 1121 (1st Cir. 1989), cert. denied, 494 U.S. 1005 (1990).

The defendant raises the issue whether, under Federal law, there is a constitutional guarantee of a minimum level of

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participation by standby counsel at trial. [Note 6] "[I]f the district [trial] court had discretion to deny hybrid representation outright, it had discretion, in [assigning standby counsel], to place reasonable limitations and conditions upon the arrangement." Nivica, supra at 1121. Because the judge had discretion to deny the defendant standby counsel, he also had the discretion to appoint counsel with any reasonable limitations. [Note 7] The judge did not abuse his discretion, nor were the defendant's constitutional rights violated.

We note that, while the judge had discretion to prohibit unsolicited participation by standby counsel, he also had discretion to allow such participation. [Note 8] See McKaskle, supra at 176. We are cognizant of the worth of the argument that there is limited utility in assigning standby counsel who can advise a defendant only when the defendant requests such advice. Most defendants will not know what questions to ask and will gain only a fraction of the advice that counsel could offer. It may be appropriate, in the future, for a trial judge

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who appoints standby counsel to allow such counsel to offer unsolicited advice to the defendant if the defendant so desires. Such advice will not violate the defendant's Faretta right, as the defendant will retain control over his or her defense, and the jury will see only the defendant presenting the case. [Note 9]

3. Sentencing considerations. The defendant contends that the trial judge imposed a sentence based on improper considerations. During the trial the defendant was found twice in contempt, but the judge imposed no penalty on these findings. The sentence on the trafficking charge exceeded the Commonwealth's recommendation by three years. In imposing this sentence, the judge, in open court, referred to five prior convictions for distribution of controlled substances, as well as to other offenses of which the defendant had been convicted. The defendant appealed from the trafficking sentence to the Appellate Division of the Superior Court, G. L. c. 278, Section 28A (1990 ed.), which upheld the sentence. Nevertheless, the defendant argues that the judge's "appearance of bias" violated his right to due process. Furthermore, the defendant asserts that, when the judge imposed a sentence three years longer than what the prosecution recommended, he was punishing him for contempt in violation of Mass. R. Crim. P. 43, 44, 378 Mass. 919 , 920 (1979). [Note 10]

Our review of criminal sentences is limited. See Commonwealth v. Coleman, 390 Mass. 797, 804 (1984). Under G. L. c. 278, Sections 28A-28C (1990 ed.), the Appellate Division of the Superior Court has the authority to review an otherwise lawful sentence. This was done, and the sentence was left undisturbed. This court will consider a sentence only to determine if it is illegal or unconstitutional. See, e.g., Commonwealth v. Sanchez, 405 Mass. 369, 379 n.7 (1989).

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The defendant's sentence is neither illegal nor unconstitutional. The sentence falls within the range permitted by statute. See G. L. c. 94C, Section 32E (b) (2) (1988 ed.); Commonwealth v. Celeste, 358 Mass. 307, 310 (1970). The record reveals that the judge relied primarily on the defendant's past convictions, a permissible consideration. See Coleman, supra at 805. We perceive no evidence of bias and no evidence that the judge was punishing the defendant for contempt.

Judgment affirmed.


[Note 1] Pursuant to the statutory minimum and maximum limits, the judge sentenced the defendant to a term of from twelve to fifteen years at the Massachusetts Correctional Institution at Cedar Junction. The verdict of guilty on the assault and battery on a police officer was placed on file with the defendant's consent; hence it is not before us on this appeal. See DuPont v. Superior Court, 401 Mass. 122, 123 (1987).

[Note 2] There is no claim that the defendant was not fully apprised of his rights to have counsel or to proceed pro se; nor is it claimed that the judge failed fully to advise the defendant of the limited role of standby counsel from the outset, as well as during the trial. A sampling of the colloquies in the transcript shows the following:

THE JUDGE: "Yes. Before we go any further, I believe I will go through this colloquy as to whether or not you want him to represent -- do you understand what it means to represent yourself?"


". . .

THE JUDGE: "That is all he [standby counsel] is available for, to advise you. You can get all the advice in the world, he is not going to ask any questions of any witness, he doesn't necessarily draft any motions or anything for you, that is entirely up to you. You may get information from him, draft your own motions if you want to. In other words, the law is on stand-by counsel that he is to be seen and not heard. Do you know why that is so, do you know why?"

THE DEFENDANT: "Because I am representing myself."

THE JUDGE: "Yes. He might appear in all the stages, you are at the helm of your ship and not [standby counsel]."

". . .

THE JUDGE: "[Standby counsel], you are to be seen and not heard, that goes for any motion you drafted, because it looks to me like you are representing this defendant and he is not truly representing himself."

STANDBY COUNSEL: "I have never acted as stand-by counsel in a case before, and frankly I am not familiar with the restrictions. [The defendant], in the cell block, asked me, told me he was going to make a motion under [Mass. R. Crim. P. 36, 378 Mass. 909 (1978)] and asked me to write something down on paper to get the motion before the Court.

"In addition, he asked me to prepare a couple of other motions, which I have done while I was seated here and I am just handing them to him."

THE JUDGE: "Any motions he has, you give to him now, because the law is clear that stand-by counsel does nothing more than advise, is there and available and ready to advise him. He has to appear to be representing himself entirely, and that goes for any motions that are filed and any discussions he may want to have with the Court.

"That is what it means for him to go pro se, just as if he were his own lawyer. That is what he wants to be and that is what he is going to be."

STANDBY COUNSEL: "I assume Your Honor means he can stop and consult with counsel, stand-by counsel at various times?"


STANDBY COUNSEL: "And I can advise him and ask him to take certain actions?"

THE JUDGE: "No, you can't do anything except advise him. You may not even talk to me."

STANDBY COUNSEL: "Excuse me, that was not my understanding. For the record, I object."

THE JUDGE: "I will tell you what it is, you better read [McKaskle v. Wiggins, 465 U.S. 168 (1984)]."

". . .

THE JUDGE: "I am going to tell you again . . . you are stand-by counsel, you are not to take any active participation in this trial other than to advise him what he asks for, is that clear?"

STANDBY COUNSEL: "Yes, it's clear. I object to that, though, Judge."

". . .

THE JUDGE: "As stand-by counsel, it's is [sic] not your function. He is the one who has to try this case himself, he is the one who is at the helm, he must travel those perilous waters alone because he choose [sic] to do so. Of course you are a lawyer and you know when to object and when not to, but you are not to tell him that.

"This is his case, he reaches over to you and says, `Gee, should I object to that?', then you may advise him. It's not your function to tell him when to object and not to object, and furthermore, it's not your function to write out motions for him because he may later say, that is not the motion I want. He is at the helm of his own ship."

[Note 3] While the defendant bases his argument on both the Federal and the State Constitutions, we do not consider the State claim. As defense counsel conceded at oral argument, the State claim was not raised prior to this appeal. "An issue not fairly raised before the trial judge will not be considered for the first time on appeal." Commonwealth v. Marchionda, 385 Mass. 238, 242 (1982). This court generally will not consider arguments based on State constitutional grounds when those arguments have not been raised at trial and have not been argued separately from any Federal claim. See Commonwealth v. Oakes, 407 Mass. 92, 98 (1990).

[Note 4] When a defendant waives counsel and exercises his Faretta right, a judge may appoint standby counsel "to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant's self-representation is necessary." Faretta, supra at 834-835 n.46.

[Note 5] 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. See Locks v. Sumner, 703 F.2d 403, 407 (9th Cir.), cert. denied, 464 U.S. 933 (1983).

There is no Federal constitutional right to either form of hybrid representation. For cases holding that there is no Federal right to cocounsel, see, e.g., Cross v. United States, 893 F.2d 1287, 1291-1292 (11th Cir.), cert. denied, 111 S. Ct. 138 (1990); United States v. Tutino, 883 F.2d 1125, 1141 (2d Cir. 1989), cert. denied, 493 U.S. 1081 (1990); United States v. Oakey, 853 F.2d 551, 553 (7th Cir. 1988), cert. denied, 488 U.S. 1033 (1989); United States v. Tarantino, 846 F.2d 1384, 1420 (D.C. Cir.), cert. denied, 488 U.S. 867 (1988); United States v. Halbert, 640 F.2d 1000, 1009 (9th Cir. 1981); United States v. Williams, 534 F.2d 119, 123 (8th Cir.), cert. denied, 429 U.S. 894 (1976). For cases holding that there is no right to standby counsel, see, e.g., Neal v. Texas, 870 F.2d 312, 315-316 (5th Cir. 1989); Locks, supra at 407-408; United States v. Gigax, 605 F.2d 507, 517 (10th Cir. 1979).

Our cases interpreting Federal law seem in accord. "[T]he right to represent oneself and the right to counsel are available only in the `disjunctive.'" Commonwealth v. Tuitt, 393 Mass. 801, 807 (1985), citing United States v. Halbert, supra. "A defendant who is permitted to conduct the whole or any part of his own defense in a criminal case does so in his individual capacity, is solely and individually responsible for his decision to do so and for the consequences resulting therefrom, and is not entitled to any title or designation of `counsel' or `co-counsel' in connection therewith." Commonwealth v. Brown, 378 Mass. 165, 176 (1979).

[Note 6] In McKaskle, supra, the United States Supreme Court considered the upper limit on standby counsel's participation, that is, the point at which the imposition of standby counsel interferes with the defendant's right to self-representation. The Court held that appointment of standby counsel does not violate the Faretta right so long as the defendant retains "actual control" over his case and counsel's participation does not "destroy the jury's perception that the defendant is representing himself." McKaskle, supra at 178.

[Note 7] We recognize that the McKaskle Court held that "both Faretta's logic and its citation of [United States v. Dougherty, 473 F.2d 1113, 1124-1126 (D.C. Cir. 1972)] indicate that no absolute bar on standby counsel's unsolicited participation is appropriate or was intended." McKaskle, supra at 176. Our reading of McKaskle and the many Federal cases that have followed it, see note 5, supra, leads us to conclude that the Court did not intend to foreclose the possibility of strict limitations on standby counsel's participation but rather intended to give the trial judges more discretion than a "seen but not heard" rule would have allowed. Id. at 173.

[Note 8] The defendant contends that the judge misunderstood the extent of his discretion concerning the role of standby counsel, and that this mistake requires a new trial. The defendant cites Commonwealth v. Ruiz, 400 Mass. 214 (1987), a case in which a judge did not exercise his discretion in allowing impeachment by prior convictions. We discover nothing in the record to sustain the defendant's claim. The judge manifested clearly his awareness of his powers and of current law. Ruiz is inapposite.

[Note 9] Judges retain their discretion to prohibit standby counsel from speaking to the bench, the witnesses, or the jury. Judges also retain their discretion to appoint or not appoint standby counsel.

[Note 10] No such objections were raised during the postverdict hearing on sentencing.