Commonwealth v. Haltiwanger

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20-P-517 Appeals Court

COMMONWEALTH vs. JASON HALTIWANGER.

No. 20-P-517.

Plymouth. February 1, 2021. – May 11, 2021.

Present: Wolohojian, Desmond, & Grant, JJ.

Controlled Substances. Due Process of Law, Competency to stand
trial, Assistance of counsel, Fair trial, Continuance.
Constitutional Law, Waiver of constitutional rights,
Assistance of counsel, Right of defendant in criminal case
to act pro se, Public trial. Practice, Criminal,
Continuance, Competency to stand trial, Defendant's
competency, Psychiatric examination, Assistance of counsel,
Waiver, Self-representation, Public trial, Defendant pro
se, Fair trial. Evidence, Competency, Certificate of drug
analysis. Mental Impairment. Fair Trial. Attorney at
Law, Withdrawal. Judge.

Indictments found and returned in the Superior Court
Department on October 24, 2014.

The cases were tried before Thomas J. Perrino, J.

Mark Booker for the defendant.
Jessica L. Kenny, Assistant District Attorney, for the
Commonwealth.
2

WOLOHOJIAN, J. In the course of conducting a pretrial

hearing that, among other things, included a colloquy regarding

the defendant's waiver of his right to counsel, the judge became

concerned about the defendant's competence. Despite that

concern, the judge accepted the defendant's waiver. At the same

time, the judge arranged a G. L. c. 123, § 15 (a), examination

to take place the following day. Although the defendant

appeared for that examination, he refused to be examined and, as

a result, the psychologist offered no opinion as to the

defendant's competence. Without any further inquiry into the

defendant's competence or making any findings, the judge allowed

the defendant to proceed to trial pro se aided by appointed

standby counsel. We conclude that it was error to accept the

defendant's waiver of counsel without further inquiry into his

competence and making appropriate findings. However, in the

unusual circumstances of this case, where the defendant does not

argue that he was incompetent to stand trial, the record does

not otherwise contain substantial evidence of incompetence, and

there is reason to think that the defendant's conduct was that

of a so-called "sovereign citizen" seeking to deliberately

manipulate the court rather than the product of incompetence, we

conclude that the appropriate remedy in this case is for the

defendant to file a motion for new trial rather than to vacate

the judgments.
3

Separately, we conclude that the evidence was insufficient

to prove the composition of the pills that were the basis of the

defendant's conviction of possession with intent to distribute a

class E substance, subsequent offense, and reject the

defendant's remaining arguments.

Background. In October 2014, the defendant was indicted

for various drug offenses.1 The charges were based on drugs

found by police when they executed search warrants for the

defendant's car and apartment, and his girlfriend's car (which

the defendant was driving at the time of the search).

The defendant was represented by private counsel when he

was arraigned on November 12, 2014, and he continued to be

represented by that lawyer for almost the next two years.

During that time, the case was actively litigated. On December

22, 2015, the Commonwealth certified that it had complied with

its discovery obligations, and on May 17, 2016, the case was set

for trial on October 24, 2016.

Less than two weeks before trial, defense counsel filed a

motion to withdraw, citing his suspension from the practice of

1 The charges were: unlawful distribution of a class B
substance (oxycodone), as a subsequent offense, G. L. c. 94C,
§ 32A (c), (d); trafficking in cocaine, G. L. c. 94C, § 32E (b);
unlawful possession with intent to distribute a class B
substance (oxycodone), as a subsequent offense, G. L. c. 94C,
§ 32A (c), (d); and unlawful possession with intent to
distribute a class E substance (cyclobenzaprine), as a
subsequent offense, G. L. c. 94C, § 32D (a), (b).
4

law effective October 1, 2016.2 The case was continued for

successor counsel to file an appearance, which he did on

November 10, 2016. The case was set for trial on June 7, 2017.

Less than one month before this trial date, the defendant

terminated the services of his second attorney, who filed a

motion to withdraw. In support of the motion, defense counsel

stated that the "defendant has taken his file and indicated that

he wants a new lawyer to represent him." The motion was allowed

ten days later, and successor counsel filed a notice of

appearance the same day. The trial date was again continued;

this time, to October 2, 2017.

The trial date was subsequently continued for various

reasons, including at the request of the defendant, the

defendant's unsuccessful petition seeking leave to take an

interlocutory appeal, and for a brief period at the request of

the Commonwealth. Throughout this period, the defendant

continued to be represented by his third private counsel. The

case was set for trial on October 2, 2018.

Approximately two weeks before this trial date, during a

hearing, the defendant informed the judge that he wanted to hire

a different lawyer. The trial was continued in order to permit

2 The Commonwealth points out that the suspension was
imposed more than one month earlier, on August 31, 2016. But
this information was not part of the record below, nor is it
pertinent to our analysis.
5

the defendant's third lawyer to withdraw and a fourth to appear.

The defendant's fourth private counsel filed his appearance on

September 27, 2018, and, after various additional procedural

events, the case was ultimately scheduled for a final pretrial

conference on June 6, 2019, and for trial on June 17, 2019. At

this point, the case was almost five years old, and much of the

delay was connected to the fact that the defendant had

repeatedly changed counsel.

This brings us to the sequence of events that are at the

center of this appeal. On April 5, 2019, the defendant again

moved to continue the trial date. A Superior Court judge denied

the motion.

The parties appeared in court on June 6, 2019. The

defendant, through his fourth counsel, filed a motion seeking

reconsideration of the denial of his motion to continue the

trial. Although defense counsel acknowledged that the trial

date had been agreed upon, he stated that his office had

mistakenly agreed to a date that conflicted with another trial

he had in Rhode Island. Given the age of the case, and the

number of previous continuances, the judge denied the request

for a further continuance. As soon as the judge announced his

decision, the defendant stated that he was "going on [his] own,"

and would represent himself. He asked to file a "special

appearance," and he stated that he wanted the prosecutor "to
6

certify [his] right to subrogation."3 When the judge inquired of

defense counsel what these statements meant, defense counsel

stated that he thought the defendant was simply frustrated with

the process knowing that the case was coming to an end, that he

(the defendant) "didn't accept the Commonwealth's offer," and

that "he's just expressing some disconcern [sic] with the

process at this point." The judge continued the matter to

permit the defendant to consult with counsel about his options

with respect to proceeding pro se. After that consultation, the

hearing continued during which, as a result of the defendant's

additional statements regarding subrogation, the judge concluded

that the defendant was "confused" and did not understand what he

was doing "from a legal perspective." The judge advised the

defendant that proceeding pro se is generally ill-advised, but

that he recognized the defendant's right to make that decision.

Defense counsel requested that the judge allow the defendant to

have the weekend to think about his options. The judge agreed,

and arranged to have the parties return for a colloquy to

determine whether the defendant continued to wish to proceed pro

se.

3The defendant also filed "[g]eneral correspondence
regarding subrogation and trustees, with [the d]efendant's birth
certificate."
7

The parties indeed returned four days later, on June 10,

2019. The defendant's fourth lawyer filed a motion to withdraw

on the ground that the defendant had terminated his services.

For two reasons, we set out in detail what transpired during the

remainder of the hearing. First, the details are central to the

issues raised on appeal. Second, they may help trial judges in

future cases recognize some of the hallmark phrases and concepts

used as litigation delaying tactics by a group known as

"sovereign citizens."4

The judge: "All right. Mister Haltiwanger, you wish to
terminate the services of your lawyer?"

The defendant: "Mmm-hmm. [acknowledges yes] Yes."

The judge: "Well, you have a trial coming up."

The defendant: "Well, I'm not ready for trial."

The judge: "You're not ready for trial?"

The defendant: "Nope."

The judge: "Why not, sir?"

The defendant: "I need to file my motions."

The judge: "Pardon me?"

4 "Sovereign citizens are anti-government extremists who
believe that even though they physically reside in this country,
they are separate or 'sovereign' from the United States. As a
result, they believe they don't have to answer to any government
authority, including courts, taxing entities, motor vehicle
departments, or law enforcement." Federal Bureau of
Investigation, Stories, Domestic Terrorism: The Sovereign
Citizen Movement, https://archives.fbi.gov/archives/news/stories
/2010/april/sovereigncitizens_041310/domestic-terrorism-the-
sovereign-citizen-movement [https://perma.cc/4V8C-Z2S9].
8

The defendant: "My motions."

The judge: "What motion?"

[brief pause]

The judge: "This --"

The defendant: "My motions."

The judge: "This is a motion to withdraw filed by your
attorney."

The defendant: "My motion."

The judge: "What I just asked, sir --"

The defendant: "Is this a court of record? Is this a
court of record?"

The judge: "Is this a court of record?"

The defendant: "Yes."

The judge: "Yes, it is, sir."

The defendant: "So, on the record, could you certify my
rights to subrogation?"

The judge: "Sir, I've told you --"

The defendant: "The prosecutor certify my rights to
subrogation."

The judge: "Sir, you're very confused."

The defendant: "No, I'm not. We can't proceed or --"

The judge: "No."

The defendant: "-- until that's resolved first."

The judge: "The -- we're -- sir, you're going to proceed."

The defendant: "No, we cannot proceed."
9

The judge: "All right."

The defendant: "And, I, and I don't consent."

The judge: "It doesn't matter if you consent. Your case
is five --"

The defendant: "I do not --"

The judge: "-- years old. It's --"

The defendant: "I do not consent."

The judge: "Pardon me?"

The defendant: "I do not consent."

The judge: "Irrelevant as far as I'm concerned."

The defendant: "I would like the prosecutor to certify my
rights to subrogation in writing, please."

The judge: "Sir, you want to represent yourself?"

The defendant: "Could the prosecutor certify my rights to
subrogation, please?"

The judge: "Sir?"

The defendant: "In writing, please."

The judge: "Sir, do you want to wish -- do you wish to
represent yourself?"

The defendant: "Could the prosecutor certify my rights to
subrogation, please?"

The judge: "The answer is no. All right?"

The defendant: "And, could I get that in writing?"

The judge: "You just had it. All right?"

The defendant: "All right. So, I got it in writing,
right? Get it in writing. Okay?"

The judge: "Are you prepared to proceed to trial?"
10

The defendant: "No."

There was then an exchange between the judge and the

prosecutor during which the prosecutor confirmed that the

Commonwealth was ready for trial as scheduled. The hearing then

continued.

The judge: "I'm going to allow the motion to withdraw
because you have terminated the services of [the fourth
attorney's] office. All right?"

The defendant: "Yeah."

The judge: "Now, do you wish me to appoint standby counsel
to you?"

The defendant: "No."

The judge: "Do you wish to represent yourself?"

[brief pause]

The defendant: "Are you going to certify my rights to
subrogation today? No? Right?"

The judge: "That's what I said, sir."

The defendant: "Okay. Could I get something in writing?"

The judge: "Sir, do you wish to represent yourself?"

The defendant: "Yes."

The judge: "All right."

[brief pause]

The judge: "I could appoint standby counsel for you, sir."

The defendant: "I got [sic] to write my motions."

The judge: "Pardon me?"
11

The defendant: "I have to write my motions."

The judge: "All right."

[brief pause]

The judge: "Do you understand that if you can't afford a
lawyer, the court will appoint counsel for you?"

[brief pause]

The judge: "Do you understand that?"

The defendant: "No, I don't."

There was then an exchange during which the judge informed

the defendant that the judge wanted the defendant to speak with

someone in the probation department to determine whether the

defendant qualified for appointed counsel, and he refused to

speak with probation. The hearing then continued as follows:

The clerk: "Your Honor, would you like me to swear him
in?"

The judge: "Yes."

The clerk: "Please raise your right hand, sir."

[brief pause]

The clerk: "Your Honor, he's refusing to raise his right
hand."

The judge: "Sir, are you refusing to raise your right
hand?"

The defendant: "I don't swear."

The judge: "All right. Sir, please tell me your name and
age."

The defendant: "Jason, Upper Case, Lower Case,
Haltiwanger, Upper Case, Lower Case."
12

The judge: "How old are you, sir?"

The defendant: "44."

The judge: "How far have you gone in school, sir?"

The defendant: "What does this have to do with going to
trial?"

The judge: "How far have you gone in school, please?"

[brief pause]

The judge: "Are you refusing to answer my question?"

[brief pause]

The judge: "I'm trying to determine, sir, if you are
competent to represent yourself."

The defendant: "Mmm-hmm."

The judge: "Understand what I'm trying to do?"

[brief pause]

The judge: "All right. You refuse to answer that
question?"

The defendant: "I plead the Fifth."

The judge then continued with a colloquy designed to

permit him to determine whether the defendant's waiver of

counsel was knowing and voluntary. Among other things, the

judge inquired into the defendant's knowledge of legal

matters, his lack of legal training, his experience in

defending himself, his knowledge of court room rules and

procedures, the requirements of picking a jury, the charges

against the defendant and the penalties they carried, the
13

need to examine witnesses, and the need to preserve

objections at trial. The defendant's answers were either

off point (such as stating that he was pleading "the

Fifth"), or else indicated that he did not have knowledge

of the matters about which the judge was inquiring. The

defendant also repeated his refusal to meet with someone in

probation to see if he qualified for court-appointed

counsel. After this unproductive colloquy, the hearing

continued:

The judge: "Counsel, has there ever been any question in
your mind with regard to this man's competency?"

[brief pause]

Fourth counsel: "No. Not -- excuse me, Your Honor. Not
since last Friday."

[brief pause]

The judge: "All right."

The defendant: "And, before I go to trial, I need her to,
a bond, I need your oath of office and a foreign
registration."

The judge: "Pardon me?"

The defendant: "Oath of office and foreign registration
before we could even proceed."

The judge: "Okay. All right. Do you understand the
magnitude of representing yourself, sir?"

[brief pause]

The defendant: "I need the oath of office and foreign
registration before we can even proceed to trial."
14

The judge: "Okay."

[brief pause]

The judge: "All right, sir. Do we have a waiver of
counsel for him?"

A waiver of counsel form was then provided to the

defendant. At the same time, the judge inquired whether a

psychologist was available to examine the defendant. The

defendant submitted the signed waiver form, and the hearing

concluded with the following exchange:

The judge: "Sir, were you trying to say 'without
prejudice' here?"

The defendant: "Mmm-hmm. [acknowledges yes] Yes."

The judge: "So, you waive your right to counsel, but
you're signing this as 'without prejudice,' correct?"

The defendant: "Yes."

The judge: "Okay. Sir, I'm going to order you to be back
here tomorrow at two o'clock in the afternoon. I have a
question as to whether or not you're competent to stand
trial. And, I'm going to have you appointed -- I'm going
to have you interviewed by the court psychiatrist[5] to see
if, in fact, you are competent to stand trial."

The defendant: "Hmm."

The judge: "All right?"

The defendant: "Yup."

5 It appears that the examiner was actually a psychologist
rather than a psychiatrist, although nothing in this opinion
turns on the distinction.
15

The judge allowed the fourth lawyer's motion to withdraw.

The judge made no findings (written or oral) regarding the

defendant's competency to waive his right to counsel, nor

did the judge certify the waiver or complete the bottom

half of the preprinted waiver of counsel form.6

The defendant appeared the following day, but refused

to be interviewed by the court psychologist. The judge

conducted a brief hearing at which the defendant

represented himself, and the court psychologist was

present. It does not appear that the prosecutor was

present. In pertinent part, the two-page transcript of

this hearing shows:

The judge: "Doctor, I had asked you to come in today to
conduct a 15A exam of Mister Haltiwanger."

The witness: "Yes."

The judge: "Have you had a chance to speak with him?"

The witness: "Briefly, Judge. He declined interview."

6 The bottom section of the waiver of counsel form is to be
completed and signed by the judge. In pertinent part, it
provides:

"CERTIFICATE AND FINDINGS OF JUDGE

"In accordance with Supreme Judicial Court Rule 3:10, as
amended, and G. L. c. 211D, § 5, I hereby certify that I
have informed the party or parent or guardian named above
of the right to counsel in this case. I further certify
that, after an oral colloquy with the party or parent or
guardian, I find said party or parent or guardian is
competent to waive counsel and has knowingly and
voluntarily elected to proceed without counsel."
16

The judge: "He declined to be interviewed?"

The witness: "Yes."

The judge: "I see. All right. Thank you for your
service."

. . .

The judge: "Mister Haltiwanger?"

The defendant: "Yes."

The judge: "See you here Monday morning for trial."

The defendant: "I'm going to go file a suit for civil
rights actions 'cause you're making me go to trial not
being prepared for it."

The judge: "All right. Thank you."

The judge made no further inquiry into the defendant's

competence, nor did he make any findings on that topic.

On the morning of trial, the parties appeared before

the same judge who had handled the hearings we outlined

above. The defendant was uncooperative. Among other

things, he refused to be addressed by the judge as "Mister

Haltiwanger," saying, "My name is Jason and I'm the living

man." He also objected to having standby counsel

appointed. When the judge nonetheless appointed standby

counsel, the defendant asked if the court was "on the

record," and then stated that he refused to consent to the

proceedings. He also demanded that "bond be immediately

brought forward," and made references to his "damages." He
17

stated that he was not prepared to go forward to trial

because he had never received any files. The judge

reviewed the case file, and saw that the case had been

extensively litigated over five years. The judge further

noted that the defendant had terminated the services of

each of his previous four attorneys within days of each

impending trial date,7 and concluded that the defendant was

attempting to manipulate the court for the purpose of

delay. The defendant told the judge that he was neither

consenting to the proceedings nor would he proceed. When

he confirmed his refusal to proceed, the judge revoked bail

and ordered the defendant into custody. The judge then

referred the case for trial before a different judge in

another session.

When the parties appeared before the trial judge, the

defendant was represented on a limited basis by a new

private attorney. This final private attorney appeared

solely for the purposes of again requesting a continuance

of the trial,8 which the trial judge denied in light of the

7 The timing of the withdrawal of the first attorney cannot
be laid at the defendant's door, because it followed on the
heels of that lawyer's suspension.

8 The lawyer also asked that the defendant's name appear
with only the initial letter capitalized.
18

extensive history of continuances and proceedings we have

set out above.

Trial then took place with the defendant representing

himself, aided by standby counsel.9 Indictments 1 and 2

(unlawful distribution of a class B substance, subsequent

offense) were dismissed on the Commonwealth's motion. The

jury returned guilty verdicts on the remaining charges.

After the defendant waived his right to a jury trial, the

trial judge found him guilty of the subsequent offense

portions of the distribution charges. This appeal

followed.

Discussion. The defendant raises three issues

relating to the procedural history we have set out above.

First, he contends that it was an abuse of discretion to

deny his motion to continue the trial. We dispose of this

argument in the margin.10 Second, he argues that the

9 Standby counsel was not one of the defendant's previous
lawyers.

10It is not clear whether the defendant's argument concerns
the motion to continue made by his fourth counsel, or the one
made on the morning of trial by the attorney who made a limited
appearance on his behalf. Regardless, there was no abuse of
discretion in denying either motion given that the trial date
had been agreed upon long in advance, the basis for the
requested continuance was a problem of defense counsel's own
making, and in light of the extensive history of terminating
defense counsel each time trial approached, which permitted the
finding that the defendant was attempting to manipulate the
court. See Commonwealth v. Fernandez, 480 Mass. 334, 340
19

hearing judge erred in failing to hold a competency hearing

or to make any findings concerning competency. Third, the

defendant argues that it was error to accept his waiver of

counsel in light of the hearing judge's bona fide question

as to the defendant's competence. Because these two

arguments are related, we discuss them together. After

that discussion, we turn to the defendant's claims that the

court room was impermissibly closed during jury selection,

that there were errors in the prosecutor's cross-

examination of one of the witnesses, and that the evidence

was insufficient to prove that the pills in his possession

were in fact cyclobenzaprine, a class E substance.

1. Competency and waiver of the right to counsel. In

order to accept a defendant's waiver of his right to

counsel, a judge must determine both that the waiver is

knowing and voluntary and that the defendant is competent

to make it. Godinez v. Moran, 509 U.S. 389, 400-401

(1993). "[T]he competence that is required of a defendant

seeking to waive his right to counsel is the competence to

waive the right, not the competence to represent himself."

(2018), quoting Commonwealth v. Pena, 462 Mass. 183, 189 (2012)
("Whether a motion for continuance should be granted lies within
the sound discretion of the judge, whose action will not be
disturbed unless there is patent abuse of that discretion, which
is to be determined in the circumstances of each case"). See
also Commonwealth v. Johnson, 424 Mass. 338, 341-343 (1997).
20

Indiana v. Edwards, 554 U.S. 164, 172 (2008), quoting

Godinez, 509 U.S. at 399. If a defendant is incompetent,

then any waiver of his rights has no effect. Vuthy Seng v.

Commonwealth, 445 Mass. 536, 549 (2005), S.C., 456 Mass.

490 (2010).

Because mental illness itself is not a unitary

concept, there is no "single mental competency standard for

deciding both (1) whether a defendant who is represented by

counsel can proceed to trial[11] and (2) whether a defendant

who goes to trial must be permitted to represent himself."

Edwards, 554 U.S. at 175. Instead, this evaluation is to

be made by trial court judges based on the circumstances

presented and their own observations. See id. at 175-177,

and cases cited. If those circumstances and observations

raise a "'bona fide doubt' as to the defendant's ability to

make an informed decision to proceed without counsel," a

separate inquiry into competency is required (citation

omitted). Commonwealth v. Barnes, 399 Mass. 385, 389

(1987), construing Westbrook v. Arizona, 384 U.S. 150

(1966) (per curiam). See Commonwealth v. Hill, 375 Mass.

11To be competent to stand trial, a defendant must have
"sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding -- and [have] a
rational as well as factual understanding of the proceedings
against him." Dusky v. United States, 362 U.S. 402, 402 (1960).
See Commonwealth v. Vailes, 360 Mass. 522, 524 (1971).
21

50, 60 (1978); Commonwealth v. Johnson, 80 Mass. App. Ct.

505, 511-512 (2011). Only if a "substantial question of

possible doubt" regarding the defendant's competence

exists, must the judge sua sponte undertake the required

inquiry. Commonwealth v. Boateng, 438 Mass. 498, 503

(2003), quoting Hill, 375 U.S. at 54.

Although a separate inquiry must be conducted where

the judge has a bona fide doubt about the defendant's

competence, the scope of that inquiry is not rigid.

Instead, "[t]he scope of the inquiry into a mentally ill

defendant's competence to waive counsel and self-represent

are determined by the circumstances at hand." Commonwealth

v. Means, 454 Mass. 81, 96 (2009). Thus, a full

evidentiary hearing into competency is not required in

every instance because "not every instance of abnormal

behavior or sign of mental disorder constitutes a

sufficient basis to trigger the hearing requirement."

Commonwealth v. Martin, 35 Mass. App. Ct. 96, 98 (1993).

See Commonwealth v. Corbett, 98 Mass. App. Ct. 34, 38-40

(2020). Instead, a judge may, in his discretion, choose to

order an evaluation by a court psychologist or physician

pursuant to G. L. c. 123, § 15. The judge may also "rely

on [his or] her own observations and direct knowledge of

events, testimony from court officers and court staff, and
22

the defendant's statements and conduct, as well as the

impressions of counsel." Commonwealth v. Scionti, 81 Mass.

App. Ct. 266, 272-273 (2012). But, regardless of the form

of inquiry, it must be on the record, Means, 454 Mass. at

96, and written findings must be made, S.J.C. Rule 3:10,

§ 3, as appearing in 475 Mass. 1301 (2016);12 Mass. R. Crim.

P. 8, as amended, 397 Mass. 1226 (1986).

Here, as a result of his colloquy to determine whether

the defendant was knowingly and voluntarily waiving the

right to counsel, the hearing judge became concerned about

the defendant's competence. Among other things, in

response to the judge's questions, the defendant referenced

completely irrelevant matters, including subrogation, and

which letters of his name were to be capitalized. Almost

all of the defendant's answers to the judge's questions

were off point or nonsensical. The judge briefly inquired

of the defendant's fourth counsel whether he had any

concerns about the defendant's competence. But that

inquiry led only to the not-so-clear response that counsel

12"Before allowing a waiver of counsel, the judge, after
conducting a colloquy with the party, shall make written
findings that the party is competent to waive counsel and that
the party has knowingly and voluntarily elected to proceed
without counsel." S.J.C. Rule 3:10, § 3.
23

had not had a concern since three days earlier.13 In these

circumstances, the judge was well within his discretion in

ordering that the defendant be evaluated by the court

psychologist the following day.

But the judge should not have accepted the defendant's

waiver of counsel while simultaneously harboring a bona

fide doubt regarding the defendant's competence. Nor

should the judge have accepted the waiver without making a

written finding regarding competence and explaining the

basis for that finding. Although we have held that failure

to make a written finding of competence, or to certify the

defendant's waiver, is not necessarily conclusive of a lack

of valid waiver, see Commonwealth v. Najjar, 96 Mass. App.

Ct. 569, 580-581 (2019); Commonwealth v. Pamplona, 58 Mass.

App. Ct. 239, 242-243 (2003), we have never overlooked

these requirements where -- as here -- the judge stated

that he had a doubt about the defendant's competence. In

the face of the judge's explicit concern about the

defendant's competence, this is not a case where we can

13This statement was inscrutable without further inquiry by
the judge. It is equally possible that the lawyer was referring
to the lawyer's impressions when he appeared with the defendant
at the hearing the previous Thursday, or to impressions the
lawyer formed that day outside of court, or to the defendant's
filings (which included mention of subrogation) the previous
Thursday. The judge should have probed the meaning of fourth
counsel's statement.
24

assume that the judge made an implicit finding to the

contrary. Contrast Commonwealth v. Federici, 427 Mass.

740, 745 (1998) (record permitted inferential finding that

waiver was voluntary and intelligent).

The situation did not meaningfully change the

following day. The judge received no information from the

court psychologist other than that the defendant had

refused to be evaluated. There was no input from counsel

(it is not apparent that the prosecutor was even present

and, by this point, the defendant was proceeding pro se),

and the judge made no inquiry of the defendant into his

mental health status or history. See Johnson, 80 Mass.

App. Ct. at 512, 514 (reversal where no inquiry made into

defendant's current or past mental health). In short, the

record contains nothing to suggest how or whether the

judge's concern of the previous day had dissipated. Again,

the judge made no findings, nor did he certify the waiver.

The questions of the defendant's waiver of counsel and

of his competence were never again revisited. With the

benefit of standby counsel, the defendant represented

himself at trial. It is true that standby counsel never

alerted the judge that he was concerned about the
25

defendant's competence,14 nor does the trial transcript

reflect anything else that would raise such a concern. It

is also true that the defendant does not now argue that he

was incompetent to stand trial. But whether the defendant

was competent to stand trial does not necessarily answer

the question whether he was competent on an earlier date to

waive his right to counsel. Without contemporaneous

findings by the judge who accepted the waiver, we cannot

ourselves determine whether the defendant's apparent

competence to stand trial is indicative of an earlier

competence to waive the right to counsel. See Commonwealth

v. Adkinson, 80 Mass. App. Ct. 570, 585 (2011).

The Commonwealth points out that the defendant's

statements closely followed a "script" available on the

Internet promoted and used by a group known as sovereign

citizens to disrupt and delay criminal prosecution. A

sovereign citizen

"is one of a loosely-formed group of citizens who
believe that they are sovereign individuals, beyond
the reach of any criminal court. These so-called
'sovereign citizens' share a common vernacular and
courtroom strategy. Courts across the country have
encountered their particular brand of obstinacy -- not
consenting to trial, arguing over the proper format
and meaning of their names, raising nonsensical

14The absence of any alert does not constitute waiver of
the argument, but does bear on whether the defendant was
competent to stand trial. Commonwealth v. Wentworth, 53 Mass.
App. Ct. 82, 89 n.4 (2001).
26

challenges to subject matter jurisdiction, making
irrelevant references to the Uniform Commercial Code,
and referring to themselves as trustees or security
interest holders."

Lewis v. State, 532 S.W.3d 423, 430-431 (Tex. Ct. App.

2016). See United States v. Benabe, 654 F.3d 753, 762-764

(7th Cir. 2011), cert. denied, 565 U.S. 1132, 565 U.S.

1133, 565 U.S. 1226, 566 U.S. 969 (2012) (describing

sovereign citizen tactics); note 4, supra (describing

sovereign citizens).

The Commonwealth invites us to take judicial notice of

sovereign citizen tactics and to conclude that the

defendant was not genuinely confused during the waiver

colloquy, but rather was using sovereign citizen tactics to

deceive the judge and to manipulate the judicial process.

Setting aside the doubtful proposition that the various

articles provided in the Commonwealth's supplemental

appendix can properly be the subject of judicial notice,

see Mass. G. Evid. § 201 (2021), there is also the problem

that the Commonwealth did not put any of these materials

before the hearing judge below. "When a defendant asserts

irrelevant or nonsensical arguments, it becomes difficult

to discern whether he lacks a complete understanding of the

proceedings or whether he is simply attempting to subvert

them." Lewis, 532 S.W.3d at 431. That task is all the
27

more difficult when the Commonwealth does not put forward

information that might have helped the judge to assess the

situation correctly.15 Once the judge sua sponte raised a

concern about the defendant's competency, the Commonwealth

had the burden to establish the defendant's competency.16

See Commonwealth v. Crowley, 393 Mass. 393, 400 (1984)

(Commonwealth has burden of proof of competency once issue

has been raised by parties or by judge on his own). See

also Commonwealth v. Chatman, 466 Mass. 327, 336 (2013).

In any event, we cannot ourselves in the first instance

make a fact-dependent evaluation of the defendant's

statements and conduct during the waiver of counsel

colloquy.

We now turn to the question of remedy for the unusual

situation with which we are presented, where a judge

accepted a waiver of counsel while expressing a bona fide

15The Commonwealth's failure is understandable in the
circumstances presented here. Lack of competence had not
previously been raised by the defense or the judge, and it
appears that the first indication that the defendant may have
been resorting to sovereign citizen tactics occurred on the last
hearing date before the waiver colloquy.

16One week after the truncated hearing, the judge concluded
that the defendant, by his repeated terminations of counsel, had
been attempting to manipulate the court to delay trial. That
finding was certainly supported by the record. But the judge
did not find, and the Commonwealth did not suggest, that the
defendant was manipulating the court by making nonsensical
statements.
28

concern regarding the defendant's competence and without

ever making any finding of competence, but where the

appellate record suggests that the judge's concern may have

been the product of deliberate manipulation by the

defendant rather than of his mental infirmity. Although

our cases have not yet dealt with this precise situation,

many of them have vacated a defendant's conviction where

the judge either did not adequately inquire into competency

or make a finding of competency before accepting a waiver.

See, e.g., Means, 454 Mass. at 95-96, 98-100; Hill, 375

Mass. at 51-62; Johnson, 80 Mass. App. Ct. at 512, 514-515;

Commonwealth v. Wertheimer, 19 Mass. App. Ct. 930, 930-932

(1984). These cases have done so on one or both of two

theories: either that the error was structural or that it

is impossible to make a retrospective finding of competence

as of a particular date.

However, the record on appeal in each of those cases

contained substantial evidence raising serious doubt

regarding the defendant's competency, whether because of

long-standing mental illness, expert testimony, or the

defendant's extreme conduct. This is not such a case.

Indeed, as we noted above, the defendant does not argue

that he was incompetent to stand trial and -- apart from

his statements during the waiver colloquy -- there was no
29

evidence of mental infirmity past or present. Moreover,

the significance of those statements has been cast into

serious doubt given that they appear to have been taken

from the so-called sovereign citizen litigation delay

"playbook." In these circumstances, we conclude, as in

Commonwealth v. Simpson, 428 Mass. 646 (1999), that the

question of the validity of the defendant's waiver of

counsel should be raised in the first instance via a motion

for new trial, with the Commonwealth having the burden of

proof as to competence.17,18 Id. at 654.

2. Remaining issues. The defendant's three remaining

arguments concern various aspects of the trial, and may be

addressed in brief. First, the defendant's argument that

the trial judge closed the court room during jury selection

17The Commonwealth also argues that the defendant abandoned
his right to counsel, as evidenced by his firing of successive
counsel to create delay and by his statement that he was going
to go to trial on his own. However, abandonment of counsel
requires, at a minimum, that the defendant be warned "that he
will lose his right to an attorney if he engages in dilatory or
abusive conduct towards his attorney." Means, 454 Mass. at 90-
91. See Commonwealth v. Clemens, 77 Mass. App. Ct. 232, 240-243
(2010) (implied waiver of counsel is not automatic consequence
of defendant's insistence on discharge of attorney; warning of
such consequence is required). No such warning was given here.

18The significance of the defendant's prior experience with
the criminal justice system as it may bear on the question
whether the defendant was deliberately manipulating the judicial
system rather than laboring under a mental affliction, may also
be considered in connection with the motion for new trial.
30

in violation of the Sixth Amendment to the United States

Constitution is not supported by the record. The judge

merely sequestered witnesses from the court room during the

"testimonial portion" of the trial. Even were we to read

this to mean that the witnesses were sequestered during

jury empanelment, the Sixth Amendment was not infringed.

See Commonwealth v. Collins, 470 Mass. 255, 272-273 (2014);

Commonwealth v. Buckman, 461 Mass. 24, 29 (2011), cert.

denied, 567 U.S. 920 (2012).

Although we agree with the defendant's argument that

the prosecutor went beyond the scope of proper examination

when she cross-examined the defendant's business partner

about the defendant's prior drug dealing (an error the

Commonwealth concedes on appeal), he has not shown that the

error resulted in a substantial risk of a miscarriage of

justice. Among other things, the trial judge gave a

targeted curative instruction, and the evidence against the

defendant was extremely strong. See Commonwealth v.

Vazquez, 478 Mass. 443, 450-451 (2017).

Finally, we agree with the defendant's argument --

which the Commonwealth concedes -- that, in the absence of

chemical analysis, visual inspection of the pills was

insufficient to prove beyond a reasonable doubt the

chemical composition of the supposed class E pills in the
31

defendant's possession. See Commonwealth v. Paine, 86

Mass. App. Ct. 432, 436 (2014).

Conclusion. On the indictments charging possession

with intent to distribute a class E substance

(cyclobenzaprine), as a subsequent offense, G. L. c. 94C,

§ 32D (a), (b), the judgments are reversed, the verdict and

finding are set aside, and judgments shall enter for the

defendant. The remaining judgments are affirmed, "but with

the recognition that a motion for a new trial" may be filed

by the defendant or his counsel on the question of his

competence at the time he waived his right to counsel.

Simpson, 428 Mass. at 655.

So ordered.