voluntary waiver in Massachusetts

2000We address first the claim that the judge erred in determining that the defendant’s statement was made voluntarily. 6 “In reviewing a trial judge’s determination that a voluntary waiver was made, the judge’s subsidiary findings will not be disturbed, if they are warranted by the evidence, and his resolution of conflicting testimony will be accepted.” Commonwealth v. Tavares, 385 Mass. 140, 144-145 , cert. denied, 457 U.S. 1137 (1982), quoting Commonwealth v. Santo, 375 Mass. 299, 303 (1978).

2000The judge determined that the psychologist was credible. “ ‘In reviewing a trial judge’s determination that a voluntary waiver was made, the judge’s subsidiary findings will not be disturbed, if they are warranted by the evidence, and his resolution of conflicting testimony will be accepted.’ Commonwealth v. Santo, 375 Mass. 299, 303 (1978). . . .

2000Although the judge’s ultimate findings are open for review, ‘a finding of voluntary waiver is “entitled to substantial deference by this court.” Commonwealth v. White, 374 Mass. 132, 138 (1977), aff’d, 439 U.S. 280 (1978).’ Commonwealth v. Tabor, [ 376 Mass. 811, 822 (1978)].

1987“In reviewing a trial judge’s determination that a voluntary waiver was made, the judge’s subsidiary findings will not be *657 disturbed, if they are warranted by the evidence, and his resolution of conflicting testimony will be accepted.” Commonwealth v. Tabor, 376 Mass. 811, 822 (1978), quoting Commonwealth v. Santo, 375 Mass. 299, 303 (1978).

2003See Commonwealth v. Appleby, 389 Mass. 359, 366-367 , cert. denied, 464 U.S. 941 (1983), quoting from Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir. 1976) (“[A defendant’s] refusal without good cause to proceed with able appointed counsel is a ‘voluntary’ waiver [of the right to counsel]”).

1985When counsel of that calibre is made available to a defendant, his refusal to accept such representation is a voluntary waiver of the right to counsel, Commonwealth v. Appleby, 389 Mass. 359, 366-367 (1983); Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir. 1976), and the waiver is effective if the decision is made with “a sense of the magnitude of the undertaking and the ‘disadvantages of self-representation’ . . .: an awareness that there are technical rules governing the conduct of a trial, and that presenting a defense is not a simple matter of telling one’s story. . . .

2003See Commonwealth v. Appleby, 389 Mass. 359, 366-367 , cert. denied, 464 U.S. 941 (1983), quoting from Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir. 1976) (“[A defendant’s] refusal without good cause to proceed with able appointed counsel is a ‘voluntary’ waiver [of the right to counsel]”).

1985When counsel of that calibre is made available to a defendant, his refusal to accept such representation is a voluntary waiver of the right to counsel, Commonwealth v. Appleby, 389 Mass. 359, 366-367 (1983); Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir. 1976), and the waiver is effective if the decision is made with “a sense of the magnitude of the undertaking and the ‘disadvantages of self-representation’ . . .: an awareness that there are technical rules governing the conduct of a trial, and that presenting a defense is not a simple matter of telling one’s story. . . .

1984Although a finding by the trial judge of a voluntary waiver is entitled to substantial deference by this court, Commonwealth v. White, 374 Mass. 132, 138 (1977), aff’d, 439 U.S. 280 (1978), we also “ ‘indulge every reasonable presumption against waiver’ of fundamental constitutional rights.” Id. at 137, quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938).

1983The judge’s finding of a voluntary waiver is “entitled to substantial deference by this court,” Commonwealth v. White, 374 Mass. 132, 138 (1977), aff'd by an equally divided Court, 439 U.S. 280 (1978), and “his resolution of conflicting testimony will be accepted.” Commonwealth v. Santo, 375 Mass. 299, 303 (1978).

2014See Commonwealth v. Means, 454 Mass. 81, 89 (2009) (“judge must ensure by careful inquiry on the record” that waiver is made voluntarily and with understanding of magnitude of undertaking, and that defendant appreciates seriousness of charge and potential penalties). 32 Appellate counsel disassociated himself from this argument, pursuant to Commonwealth v. Moffett, 383 Mass. 201, 217 (1981).

2010See Commonwealth v. Means, 454 Mass. at 90-91 ; Commonwealth v. Pamplona, 58 Mass. App. Ct. 239, 240 (2003) (defendant’s refusal, without good cause, to proceed with appointed counsel constituted a voluntary waiver of his right to counsel).

2010See Commonwealth v. Means, 454 Mass. at 90-91 ; Commonwealth v. Pamplona, 58 Mass. App. Ct. 239, 240 (2003) (defendant’s refusal, without good cause, to proceed with appointed counsel constituted a voluntary waiver of his right to counsel).

2008See, e.g., United States v. Allen, 895 F.2d 1577 (10th Cir. 1990) (court properly treated defendant’s dilatory conduct as request to proceed pro se); United States v. Bauer, 956 F.2d 693, 695 (7th Cir.), cert. denied, 506 U.S. 882 (1992) (failure to hire counsel where defendant has financial ability to do so constitutes a waiver by conduct); Commonwealth v. Pamplona, 58 Mass. App. Ct. 239, 240 (2003) (defendant’s refusal without good cause to proceed with appointed counsel constituted a voluntary waiver of his right to counsel).

2004See also Commonwealth v. Nero, supra at 718 (unintentional misstatement about strength of identification evidence against suspect did not render statement involuntary; where other evidence known to suspect was strong, single misstatement “had very little if any influence on his decision to talk to the police”).

1995However, “[although officially dispensed misinformation is always relevant to, and a warning signal for, the issue whether there has been a voluntary waiver of the right to remain silent, the resolution of the issue turns, in the end, on an analysis of the entire circumstances in which a damaging admission has been made.” Commonwealth v. Nero, 14 Mass. App. Ct. 714, 717 (1982).

2003See Commonwealth v. Appleby, 389 Mass. 359, 366-367 , cert. denied, 464 U.S. 941 (1983), quoting from Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir. 1976) (“[A defendant’s] refusal without good cause to proceed with able appointed counsel is a ‘voluntary’ waiver [of the right to counsel]”).

1989See Commonwealth v. Appleby, 389 Mass. 359, 366-367 , cert. denied, 464 U.S. 941 (1983); Commonwealth v. Lee, 394 Mass. at 216 ; Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir. 1976).

1984See Commonwealth v. Tabor, 376 Mass. 811, 822 (1978); Commonwealth v. Murphy, 362 Mass. 542, 550 (1972) (Hennessey, J., concurring).

1982See Commonwealth v. Tabor, 376 Mass. 811, 822 (1978); Commonwealth v. Murphy, 362 Mass. 542, 550 (1972) (Hennessey, J., concurring).

2000We address first the claim that the judge erred in determining that the defendant’s statement was made voluntarily. 6 “In reviewing a trial judge’s determination that a voluntary waiver was made, the judge’s subsidiary findings will not be disturbed, if they are warranted by the evidence, and his resolution of conflicting testimony will be accepted.” Commonwealth v. Tavares, 385 Mass. 140, 144-145 , cert. denied, 457 U.S. 1137 (1982), quoting Commonwealth v. Santo, 375 Mass. 299, 303 (1978).

1994“In reviewing a . . . judge’s determination that a voluntary waiver was made, the judge’s subsidiary findings will not be disturbed, if they are warranted by the evidence, and his resolution of conflicting testimony will be accepted.” Commonwealth v. D’Entremont, 36 Mass. App. Ct. 474, 477 (1994), quoting Commonwealth v. Tavares, 385 Mass. 140, 144-145 , cert. denied, 457 U.S. 1137 (1982).

1987Commonwealth v. Mahnke, 368 Mass. 662, 666 (1975), cert. denied, 425 U.S. 959 (1976).

1978Commonwealth v. Mahnke, 368 Mass. 662, 666 (1975), cert. denied, 425 U.S. 959 (1976).

2011See generally Commonwealth v. Selby , 420 Mass, at 662 & n.1 (despite false statement about suspect’s handprint being found at crime scene, Miranda waiver and confession both voluntary where “all other relevant factors specific to the instant case indicate a voluntary waiver was made” and trickery was only factor suggesting involuntariness); Commonwealth v. Edwards, 420 Mass. 666, 671 (1995) (confession admissible where nothing other than use of trickery would suggest involuntariness).

2004See Commonwealth v. Selby, supra at 662 n.1, 664-665 (despite false statement about retrieval of suspect’s handprint and fingerprint from scene, waiver and confession both voluntary where “all other relevant factors specific to the instant case indicate a voluntary waiver was made” and trickery was only factor suggesting involuntariness); Commonwealth v. Edwards, supra (confession admissible where nothing other than use of trickery would suggest involuntariness).

2014See Commonwealth v. Means, 454 Mass. 81, 89 (2009) (“judge must ensure by careful inquiry on the record” that waiver is made voluntarily and with understanding of magnitude of undertaking, and that defendant appreciates seriousness of charge and potential penalties). 32 Appellate counsel disassociated himself from this argument, pursuant to Commonwealth v. Moffett, 383 Mass. 201, 217 (1981).

2008See, e.g., United States v. Allen, 895 F.2d 1577 (10th Cir. 1990) (court properly treated defendant’s dilatory conduct as request to proceed pro se); United States v. Bauer, 956 F.2d 693, 695 (7th Cir.), cert. denied, 506 U.S. 882 (1992) (failure to hire counsel where defendant has financial ability to do so constitutes a waiver by conduct); Commonwealth v. Pamplona, 58 Mass. App. Ct. 239, 240 (2003) (defendant’s refusal without good cause to proceed with appointed counsel constituted a voluntary waiver of his right to counsel).

2008See, e.g., United States v. Allen, 895 F.2d 1577 (10th Cir. 1990) (court properly treated defendant’s dilatory conduct as request to proceed pro se); United States v. Bauer, 956 F.2d 693, 695 (7th Cir.), cert. denied, 506 U.S. 882 (1992) (failure to hire counsel where defendant has financial ability to do so constitutes a waiver by conduct); Commonwealth v. Pamplona, 58 Mass. App. Ct. 239, 240 (2003) (defendant’s refusal without good cause to proceed with appointed counsel constituted a voluntary waiver of his right to counsel).

2005See, e.g., United States v. Dalli, 424 F.2d 45, 48 (2d Cir.), cert. denied, 400 U.S. 821 (1970) (“Although a defendant has a right to be present at a suppression hearing where testimony is to be taken . . . this right is not absolute and may be relinquished by acts or statements of the defendant which constitute a voluntary waiver” [citations omitted]); People v. Stubbs, 25 Ill.

2005See, e.g., United States v. Dalli, 424 F.2d 45, 48 (2d Cir.), cert. denied, 400 U.S. 821 (1970) (“Although a defendant has a right to be present at a suppression hearing where testimony is to be taken . . . this right is not absolute and may be relinquished by acts or statements of the defendant which constitute a voluntary waiver” [citations omitted]); People v. Stubbs, 25 Ill.

2005See, e.g., United States v. Dalli, 424 F.2d 45, 48 (2d Cir.), cert. denied, 400 U.S. 821 (1970) (“Although a defendant has a right to be present at a suppression hearing where testimony is to be taken . . . this right is not absolute and may be relinquished by acts or statements of the defendant which constitute a voluntary waiver” [citations omitted]); People v. Stubbs, 25 Ill.

2004See Commonwealth v. Selby, supra at 662 n.1, 664-665 (despite false statement about retrieval of suspect’s handprint and fingerprint from scene, waiver and confession both voluntary where “all other relevant factors specific to the instant case indicate a voluntary waiver was made” and trickery was only factor suggesting involuntariness); Commonwealth v. Edwards, supra (confession admissible where nothing other than use of trickery would suggest involuntariness).

2004See Commonwealth v. Hosey, 368 Mass. 571 , 577- 579 (1975).

2003Commonwealth v. Fowler, 431 Mass. 30, 38 (2000).