
    Commonwealth vs. James W. Barrett.
    Suffolk.
    March 19, 1974.
    January 23, 1975.
    Present: Rose, Goodman, & Grant, JJ.
    
      Evidence, Other offense. Constitutional Law, Assistance of counsel. Practice, Criminal, Assistance of counsel.
    Review of authorities on types of criminal cases requiring appointment of counsel for indigent defendants. [9-16]
    At a murder trial introduction to impeach the defendant’s credibility of three assault and battery convictions resulting from previous trials at which the defendant had been without counsel and which, in the circumstances, may well have contributed to his conviction of second degree murder was reversible error. [16:18]
    Motions for a new trial filed in the Superior Court on April 24, 1972, and August 14, 1973, respectively.
    The proceedings were heard by Beaudreau, J.
    
      John G. S. Flym for the defendant.
    
      Elizabeth C. Casey, Assistant District Attorney, for the Commonwealth.
   Goodman, J.

These are appeals (G. L. c. 278, §§ 33A 33G) from the denials of the defendant’s two motions for a new trial. The defendant, in 1963, was indicted for and convicted of second degree murder. No appeal was taken. In 1972, the defendant filed a motion for a new trial, which was denied. The motion alleged among other grounds that convictions resulting from previous trials at which the defendant had been without counsel had been unconstitutionally used at the trial to impeach the defendant’s credibility; he had testified on his own behalf that he had shot the victim in self-defense. Subsequently, in 1973 the defendant filed a “renewed motion for a new trial.” The motion reiterated and expanded the ground that the uncounseled convictions had been unconstitutionally used and added a number of other grounds. This also was denied.

We hold that a new trial is required because the Commonwealth introduced in evidence to impeach the defendant’s credibility three convictions for assault and battery, viz.: One in the District Court of Chelsea was on May 7, 1956; the defendant pleaded guilty and was fined $50. A second in the Municipal Court of the City of Boston was on December 19, 1959; the defendant was tried, found guilty, and fined $100. A third in the Municipal Court of the City of Boston was on April 4,1961; the defendant was tried, found guilty, and fined $15. Our conclusion is based on (1) the implications of Loper v. Beto, 405 U. S. 473 (1972), and of Argersinger v. Hamlin, 407 U. S. 25 (1972), and related cases and (2) on an examination of the transcript, from which it appears that the uncounseled convictions of assault and battery may well have contributed to the conviction in this case in which the defendant was sentenced to life imprisonment.

1. In Loper v. Beto, 405 U. S. 473, 480, 485 (1972), the majority of the court answered in the affirmative the question: “Does the use of prior, void convictions for impeachment purposes deprive a criminal defendant of due process of law where their use might well have influenced the outcome of the case?” The plurality opinion, at 483, quoting from Gilday v. Scafati, 428 F. 2d 1027,1029 (1st Cir. 1970), cert. den. 400 U. S. 926 (1970), said, “We can put the matter no better than in the words of the Court of Appeals for the First Circuit: \ .. The absence of counsel impairs the reliability of such convictions just as much when used to impeach as when used as direct proof of guilt.’ ” The Loper case thus follows from the principle established in Gideon v. Wainwright, 372 U. S. 335 (1963), that the requirement of counsel “goes to ‘the very integrity of the fact-finding process’ in criminal trials, and that a conviction obtained after a trial in which the defendant was denied the assistance of a lawyer ‘lacked reliability.’ ” Loper v. Beto, supra, at 483-484, quoting, at 484, Linkletter v. Walker, 381 U. S. 618, 639, and fn. 20 (1965). Compare Subilosky v. Commonwealth, 349 Mass. 484, 488 (1965), holding the Gideon case retroactive because “[t]he [uncounseled] judgments lack reliability and this is just as true whether the defendant was convicted before or after the decision in the Gideon case.”

Such a conviction, lacking in reliability, cannot (consistently with Burgett v. Texas, 389 U. S. 109, 115 [1967]) be used “either to support guilt” (Loper case, at 481, quoting the Burgett case, supra) — “the obvious purpose and likely effect of impeaching the defendant’s credibility” (Lo-per case, at 483, quoting Gilday v. Scafati, 428 F. 2d at 1029) —or (consistently with United States v. Tucker, 404 U. S. 443 [1972]) “play[ ] a part in the determination of the length of a convicted defendant’s prison sentence” (Loper case, at 482). See Commonwealth v. Barrett, 1 Mass. App. Ct. 332, 334-337 (1973).

In Argersinger v. Hamlin, 407 U. S. at 32, the Supreme Court of the United States held that the rationale of the Gideon case “has relevance to any criminal trial, where an accused is deprived of his liberty” and held void an uncoun-seled conviction of an offense punishable by imprisonment up to six months or a fine of $1,000, for which the petitioner was sentenced to ninety days in jail. The court went on to say, “We need not consider the requirements of the Sixth Amendment as regards the right to counsel where loss of liberty is not involved, however, for here petitioner was in fact sentenced to jail.” Argersinger v. Hamlin, supra, at 37. This was in reply to Mr. Justice Powell’s concurring opinion arguing that the need for counsel cannot, under the rationale of Powell v. Alabama, 287 U. S. 45, 68-69 (1932), and Gideon v. Wainwright, 372 U. S. at 343-345, depend on whether imprisonment results. He points out (p. 48) that “[sjerious consequences also may result from convictions not punishable by imprisonment” and predicts (p. 51) that “[t]he thrust of the Court’s position indicates, however, that when a decision must be made, the rule will be extended to all petty-offense cases except perhaps the most minor traffic violations.”

We need not in this case attempt to anticipate just what distinctions will ultimately be developed. See United States v. Sawaya, 486 F. 2d 890, 892, and fn. 2 (1st Cir. 1973), discussing various possibilities and citing cases. See also Wood v. Superintendent Caroline Correctional Unit, 355 F. Supp. 338, 341-344 (E. D. Va. 1973); Note, 35 Ohio St. L. J. 168,170-176 (1974). But it is perhaps significant that after the decision in the Gideon case, decided March 18, 1963, the Supreme Judicial Court in Commonweath v. O’Leary, 347 Mass. 387, 390 (decided April 29, 1964), admonished, in view of the possible implications of the Gideon case and related decisions by the Supreme Court of the United States, that “it would be wise [at a trial in a District Court] to offer to appoint counsel except for the most trifling of offences for which no sentence of imprisonment may be imposed.” The O’Leary case, moreover, was decided at a time when Rule 10 of the General Rules of the Supreme Judicial Court (345 Mass. 792; effective December 21, 1962) provided for appointment of counsel for an indigent defendant “charged with a noncapital felony.” Indeed, soon thereafter, on June 29, 1964, Rule 10 was changed so that it has since provided for the assignment of counsel for an indigent defendant “charged with a crime, for which a sentence of imprisonment may be imposed____” 347 Mass. 809 (1964). Compare Olvera v. Beto, 429 F. 2d 131, 132 (5th Cir. 1970); Gilliard v. Carson, 348 F. Supp. 757, 762-763 (M. D. Fla. 1972).

This indication that the classification in Rule 10 may represent the view of the Supreme Judicial Court as to the ultimate scope of the Gideon case (but see MacDonnel v. Commonwealth, 353 Mass. 277, 280 [1967]) is reinforced in Williams v. Commonwealth, 350 Mass. 732, 733-734 (1966), in which an indigent defendant without counsel pleaded guilty in a Municipal Court to five complaints, “some of which were sufficiently serious to have resulted in the confinement of the petitioner.” They were placed on file without fine or sentence of imprisonment. The court said (p. 734), “In these proceedings the petitioner [defendant] was entitled to be represented by counsel” and cited Gideon v. Wainwright, while referring also to Rule 10. Similarly, in applying its Rule 3:10, 351 Mass. 791 (1967), the Supreme Judicial Court held in Cardran v. Commonwealth, 356 Mass. 351, 353-354 (1969), that a defendant appearing without counsel in a District Court to withdraw an appeal to the Superior Court was entitled to counsel, though he had only been fined in the District Court. The court pointed out that “[i]n one of the complaints the petitioner was charged with an offence ‘for which a sentence of imprisonment may be imposed.’ G. L. c. 90, § 24 (1) (a).” As in Williams v. Commonwealth, supra, the court was concerned with the classification of the offense rather than the outcome of the particular case.

A somewhat different classification is recommended in the American Bar Association Project on Standards for Criminal Justice, Standards Relating to Providing Defense Services, § 4.1, pp. 37-38 (Approved Draft, 1968), which was quoted by Chief Justice Burger, concurring in Arger-singer v. Hamlin, 407 U. S. at 43. These standards state: “Counsel should be provided in all criminal proceedings for offenses punishable by loss of liberty, except those types of offenses for which such punishment is not likely to be imposed, regardless of their denomination as felonies, misdemeanors or otherwise.” The commentary on those standards, quoted by the majority in the Argersinger case, states, “It should be noted that the standard does not recommend a determination of the need for counsel in terms of the facts of each particular case; it draws a categorical line at those types of offenses for which incarceration as a punishment is a practical possibility” (emphasis in original). Similarly, in the Report by the President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society, 150 (1967), it was recommended that counsel be provided “to every criminal defendant who faces a significant penalty....” Under any of these formulations, or the formulation in Rule 3:10, the assignment of counsel would be required in cases of assault and battery, which carries a possible penalty of two and one-half years in a house of correction or a $500 fine. G. L. c. 265, § 13A. Indeed, in attempting to estimate the need for lawyers in misdemeanor cases, the Task Force Report: The Courts (Task Force on Administration of Justice, The President’s Commission on Law Enforcement and Administration of Justice) 55 (1967), classes among those offenses as to which the need is greatest “[s]ome misdemeanor cases, such as simple assault and petty larceny, [which] are less serious counterparts of felonies----They may present legal or factual issues as difficult as their comparable felony offenses, and the result of conviction may be incarceration for as long as a year or a substantial fine.”

However, even if we take the view — for which some justification can be found in the Argersinger case — that an unconstitutional deprivation of counsel occurs only where the consequence of the proceeding is imprisonment, we still conclude on the record in this case that the uncounseled assault and battery convictions were used to “support guilt” (Loper v. Beto, 405 U. S. at 481, quoting Burgett v. Texas, 389 U. S. at 115) in a proceeding which resulted in imprisonment, indeed in life imprisonment, as provided in G. L. c. 265, § 2.6 That the imprisonment may in a somewhat technical sense be termed collateral does not seem to us of importance. As was said in Note, Ohio St. L. J. 168,183-184 (1974), of the “approach [which] would prohibit the collateral use of misdemeanor convictions of uncounseled indigents who were not imprisoned... [i]t would subvert the Court’s purpose to allow imprisonment to result indirectly from uncounseled misdemeanor trials____Since the Court prohibited imprisonment based upon an unreliable conviction obtained at an unfair trial, the Court would probably not permit unreliable trials to have a delayed impact resulting in imprisonment.”

The consideration of collateral consequences in charting the scope of procedural safeguards required by the Constitution or otherwise is not an unfamiliar practice. Thus, e. g., in Mayer v. Chicago, 404 U. S. 189 (1971), the court held that an indigent defendant who was convicted of violating two city ordinances, each carrying a maximum fine of $500, and who was fined $250 for each violation was entitled free of charge to a record adequate for appellate review. The court pointed out that even if it were material, as the respondent contended, that the penalty was only a fine, yet “[t]he practical effects of conviction of even petty offenses of the kind involved here are not to be minimized____ The collateral consequences of conviction may be even more serious____” Id. at 197. See Sibron v. New York, 392 U. S. 40, 55 (1968); Matthews v. Florida, 463 F. 2d 679, 681 (5th Cir. 1972); Note, 88 Harv. L. Rev. 373, 381 (1974).

The approach in this case has been taken in other jurisdictions and in somewhat analogous situations. For example, in State v. Kirby, 33 Ohio Misc. 48 (Ct. C. P. 1972), the court held that an uncounseled conviction of possession of a harmful intoxicant which resulted in a fine of $25 could not be used as one of the bases for a subsequent felony conviction of the same offense. The court said, citing the Argersinger and Burgett cases, “[W]hen an allegation of prior convictions of the misdemeanor... is used to enhance punishment, it effectively becomes a ‘serious offense’ (here a felony) which requires [counsel or waiver] ... before it can be used in the subsequent prosecution.” State v. Kirby, 33 Ohio Misc, at 51-52. See United States v. Alderman, 46 C. M. R. 298, 302-303 (1973); Marston v. Oliver, 485 F. 2d 705, 708 (4th Cir. 1973), cert. den. sub nom. Marston v. State Farm Superintendent, 417 U. S. 936 (1974) (dictum: “So far as its direct or collateral consequences are the loss of liberty on the part of the defendant, Argersinger applies.”).

The same approach was followed in State v. Reagan, 103 Ariz. 287, 289 (1968), before the Argersinger case, when Arizona held that there was no requirement for counsel in the case of petty theft (not categorized as a “serious offense”) but that “it effectively becomes a ‘serious offense’ which requires that the record of that prior conviction show that defendant was represented by counsel, or... waived his right to counsel, before it can be used in the subsequent [felony] prosecution.” See Mure v. State, 478 P. 2d 926, 928 (Okla. Crim. App. 1970). And in People v. Brooks, 16 Mich. App. 759, 761 (1969), the court held that a misdemeanor, which the Michigan courts had held did not require appointment of counsel, could not be used as a basis for revocation of probation. Compare Williams v. Commonwealth, 350 Mass. at 734.

2. Our examination of the transcript convinces us that the injection into this trial for second degree murder of the three assault and battery convictions might well have influenced the jury and contributed to the verdict. The defendant admitted on the witness stand that he shot the victim, one Poulos, in the doorway of a restaurant on Tremont Street in Boston. He testified that Poulos had initiated a homosexual relationship with him which had continued intermittently over the years. After he had refused to continue the relationship, he was told in May and the early part of June of 1963 by various people that Pou-los had been looking for him and was threatening to kill him. “He had a gun and now he was getting very vicious and violent and drinking every day, going up and down Tremont and Shawmut Avenue looking for me.”

On the evening of the shooting, the defendant had been in the South End, and as he was going home he saw Poulos in the doorway of a restaurant. He testified that Poulos “looked at me and said, ‘Oh, you are just the one I’m looking for,’ and he made a motion in his back pocket, pulled out something and came at me. And I froze, just froze, and I pulled the gun out and just kept firing at him.” The defendant’s companion described the shooting as follows: “He [Poulos] was standing there and he made a smirk. It was a mean look____And then he motioned with his hands. His hands went back and he took a step or two steps — I’m not sure — towards Jimmy [the defendant]. And then right at that time, I heard shots fired.” There was other testimony that, when shot, the victim had a brass cylinder in his hand which he usually carried with him as a weapon and which was known as a “little Herman.”

Besides the defendant’s companion, the defense had seven other witnesses, including the owner of a café in the area, the manager of another, and the proprietress of a variety store in the neighborhood, all of whom corroborated various aspects of the defendant’s testimony. Some characterized Poulos as “violent” and “vicious,” and testified that he had threatened to Mil the defendant and that he had displayed a gun — threats which were communicated to the defendant. There was clearly sufficient evidence to permit the jury to consider both self-defense and voluntary manslaughter, and indeed the trial judge gave instructions on both.

The Commonwealth countered with an attempt to show that the defendant also engaged in what the Commonwealth’s brief characterizes as “contentious behavior,” that he had attempted to emulate Poulos, and even carried a similar brass cylinder as a weapon. This attempt to establish, on cross-examination, that the defendant also had a propensity for fighting was not particularly successful. There was similar cross-examination of the manager of a café. The Commonwealth attempted to elicit: that “[y]ou have seen Jimmy Barrett in fights, haven’t you?” and that “if someone attacked either one of the two [Barrett or Poulos], they would stand back to back?” The witness replied that he had heard that, but he had never seen it and that “[t]he only time [he had] ... ever seen Jimmy fighting was with [Poulos].” The assault and battery convictions indicated a predisposition to violence of the same general nature, though different in degree, as the crime with which the defendant was charged. They clearly struck at the credibility of the defense and contributed to the Commonwealth’s contention. Indeed, it might well be that the Commonwealth, in its closing, exploited these convictions for this purpose. Under these circumstances a new trial is required. Commonwealth v. Barrett, 1 Mass. App. Ct. 332,335-337 (1973). Commonwealth v. Avery, 1 Mass. App. Ct. 827 (1973). Compare Howard v. Craven, 446 F. 2d 586, 587 (9th Cir. 1971); White v. State, 11 Md. App. 423,433 (1971); People v. Sanders, 43 Mich. App. 698, 708-709 (1972).

The defendant makes a number of other contentions. Apart from those we have noted in passing, we do not deal with them. Many of them will probably not recur at a new trial, and in connection with those that may, it seems likely that the course of a new trial may be so different that any further discussion would not be helpful.

Orders denying motions for a new trial reversed.

Judgment reversed.

Verdict set aside. 
      
       The defendant’s indictment for unlawfully carrying a firearm (on which he was also found guilty) was placed on file. Commonwealth v. Houston, 2 Mass. App. Ct. 845 (1974). Further, the defendant’s briefs are not directed to that indictment.
     
      
       The defendant’s conviction for burglary in 1959 was also introduced to impeach his credibility. We accept the express findings of the judge that the defendant was represented by counsel when he pleaded guilty and was sentenced in that case. The trial judge could choose to rely on the docket entries and the papers in the case, which indicated that defense counsel had filed an appearance for the defendant on the date he pleaded guilty, rather than on an affidavit in which the affiant stated “special reasons... [he] would [have] remember[ed]” the appearance of the defendant’s attorney, about fourteen years previously, or on the defendant’s testimony at the hearing on the motion. The attorney had no recollection or records of the matter. See Gilday v. Commonwealth, 355 Mass. 799 (1969); Commonwealth v. Boudreau, 362 Mass. 378, 381-382 (1972); Commonwealth v. Brown, 2 Mass. App. Ct. 76, 82 (1974).
     
      
       Mr. Justice White’s concurrence would seem merely to emphasize the issues which might be raised on remand to the Court of Appeals.
     
      
       Renumbered 3:10, effective June 1, 1967, 351 Mass. 731 (1967).
     
      
       While we have looked to Rule 3:10 and its predecessor as administered by the Supreme Judicial Court for guidance in attempting to determine the reach of the constitutional entitlement to counsel, we have not based our decision on the rule because we are doubtful of the extent to which it might be held retroactive. Nor has either party mentioned the rule. Moreover, the retroactivity of Gideon v. Wainwright, 372 U. S. 335 (1963), Loper v. Beto, 405 U. S. 473 (1972), and Argersinger v. Hamlin, 407 U. S. 25 (1972) (see Berry v. Cincinnati, 414 U. S. 29 [1973]) is clear. See generally School Comm. of Springfield v. Board of Educ. 366 Mass. 315, 339-350 (1974) (Tauro, C.J., addendum).
     
      
       As previously indicated, we need not anticipate a case in which the trial judge has discretion to impose only a fine and has exercised it.
     
      
       Cases taking a contrary view are Cottle v. Wainwright, 477 F. 2d 269, 275 (5th Cir. 1973), vacated on other grounds 414 U. S. 895 (1973); Aldrighetti v. State, 507 S. W. 2d 770, 772 (Texas Crim. App. 1974); State v. McGrew, 127 N. J. Super. 327, 329-330 (1974).
     
      
       This is not to say that there was not sufficient evidence of second degree murder; our examination of the transcript indicates that there was.
     
      
       One defense witness, the owner of a café, was cross-examined as follows:
      Q. (by the prosecuting attorney) “And I suppose you knew Steve as a vicious fellow, too?”
      A. “Yes, a fighter.”
      Q. “What about Jimmy Barrett; did you ever see him in fights?”
      A. “No, sir, I never did.”
      Q. “Did you ever see him with a Little Herman of his own or something of that nature?”
      A. “No, sir.”
     
      
       The closing argument was not recorded, but a present member of the bar, who was a spectator at the trial when the prosecutor made his closing argument to the jury, stated in an affidavit, “I further remember that... [the prosecuting attorney] repeatedly referred to certain prior convictions of the defendant, arguing not only that the defendant’s credibility was in question, but also stressing that three of those convictions were for crimes of violence, assault and battery offenses, and that this evidence of past violence made it reasonable to infer that the defendant had acted intentionally and with malice in the homicide of Steven Poulos.”
     