Commonwealth v. Ruben Alfonso.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-552

COMMONWEALTH

vs.

RUBEN ALFONSO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in District Court the defendant was

convicted of reckless operation of a motor vehicle (G. L. c. 90,

§ 24 [2] [a]), leaving the scene of property damage (G. L.

c. 90, § 24 [2] [a]), and assault by means of a dangerous weapon

(G. L. c. 265, § 15B [b]). The judge held the sentencing

hearing approximately one month later, at which the defendant,

at his request, represented himself pro se, and the judge

allowed the defendant's trial counsel to withdraw. The

defendant was ultimately sentenced to three years of

incarceration.

On appeal, the defendant argues that aspects of the

prosecutor's closing argument resulted in a substantial risk of

a miscarriage of justice, primarily contending that the

prosecutor improperly defined the concept of "beyond a
reasonable doubt." He also argues that the judge erred in

failing to ensure that the defendant knowingly and voluntarily

waived his right to counsel at sentencing. We affirm.

Background. We summarize the facts the jury could have

found, reserving some details for later discussion.

On October 25, 2020, the sixteen year old victim was

returning from Haverhill, Massachusetts, to his home in

Manchester, New Hampshire, when he encountered a road closure in

Methuen. The victim parked on a side street to check his global

positioning system (GPS) device and try to find an alternative

route home, and noticed a group gathered by a nearby vehicle,

which the victim described as a maroon Honda CRV (maroon car).

A man from the group approached the victim's vehicle, which

prompted the victim to drive away. A few minutes later, while

the victim was stopped at another location, the maroon car

approached the victim from the rear and then parked in front of

his vehicle. The victim drove off, but the maroon car followed.

The maroon car eventually hit the victim's driver's side door,

and both vehicles came to a stop. The victim then saw the

driver of the maroon car get out of the vehicle, and observed

that it was the same man who had approached his vehicle earlier,

and that the man appeared to be reaching for something. The

victim, feeling threatened, sped off. The maroon car followed

the victim into the parking lot of a nearby business, where the

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maroon car crashed into the back of the victim's vehicle before

driving away.

The victim flagged down a nearby State police trooper, who

contacted the Methuen Police Department. After arriving on the

scene, a Methuen police officer walked the parking lot with the

victim, and found a license plate near where the maroon car had

collided with the victim's vehicle. The officer searched the

registry of motor vehicles (RMV) database, which returned that

the license plate was registered to a red sport utility vehicle

(SUV) owned by the defendant, Ruben Alfonso.1 A few days later,

another Methuen police officer conducted a photograph array with

the victim. The victim picked out the defendant's photograph as

the individual he had encountered, indicating at one point that

the picture was the "perfect image" of the individual. However,

during this same meeting the victim also stated that he was only

fifty percent sure that the picture depicted the perpetrator.

At trial, the Commonwealth presented the above facts

through testimony of the victim, the two Methuen police

officers, and the State trooper, as well as video evidence from

the police car and police body cameras. In closing, the

1 We note that although the victim described the vehicle as a
maroon Honda CRV, the RMV documentation indicates that the
defendant's vehicle was a red Mazda CX9. Neither party has
addressed this discrepancy, and it has no bearing on our
analysis.

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prosecutor argued that the evidence proved beyond a reasonable

doubt that it was the defendant who had crashed into the

victim's vehicle. Specifically, the prosecutor argued:

"You have [the victim]'s identification of the defendant
through this photo array. And, I would suggest to you that
[the victim] didn't really say that he was 100 percent
certain. . . .

"But you don't just have his 50 percent. You have the
other 50 percent that gets you to 100 percent. That gets
you beyond a reasonable doubt in this case. And, that's
the fact of this title from the RMV. You're going to see
with this document that the registration of the car, the
license plate right here is registered to [the defendant].
That's the 50, this is the other 50. We're at a 100 here."

The defendant did not object to this argument. The jury found

the defendant guilty of reckless operation of a motor vehicle,

leaving the scene of property damage, and assault with a

dangerous weapon, and the matter was continued for sentencing.

Prior to the sentencing hearing the defendant wrote a

letter to the trial court criticizing his counsel's "poor

representation" at trial. Defense counsel became aware of the

letter on or shortly before the date for sentencing, and, after

conferring with his client, sought to withdraw his

representation at the sentencing hearing. Counsel also advised

the judge that the defendant had indicated that he was "willing

to represent himself at sentencing." The judge then inquired of

the defendant, who confirmed that he did not want trial counsel

to represent him at the sentencing hearing and that he was

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"sure" he wanted to represent himself. The judge advised the

defendant that he could consult a different attorney, and also

offered the defendant additional time to prepare before

beginning the hearing. The defendant declined both offers.2 The

judge allowed counsel's motion to withdraw, and, after hearing

from the Commonwealth and the defendant,3 advised that the

defendant would be sentenced to two years of incarceration,

followed by eighteen months of probation.

Before formally imposing that sentence, however, the judge

addressed a separate larceny charge involving the defendant, as

to which the defendant was represented by the same attorney. As

to the separate larceny charge, the defendant expressed his

desire to plead guilty, and to proceed pro se on that charge as

well. Once again, the defendant declined the judge's offer to

consult another attorney in connection with that decision. As

to the larceny charge, the judge then conducted a colloquy with

the defendant before accepting his plea, inquiring about the

defendant's state of mind, his right to an attorney, and his

2 The defendant also signed a waiver of counsel form in
connection with his decision to proceed pro se at sentencing,
but the record is unclear as to precisely when the defendant did
so.
3 In addition to hearing from the defendant, the judge had before

her a sentencing memorandum filed by defense counsel before he
withdrew from the case.

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desire to proceed without one. Among other things, that

colloquy included the following exchange:

Q.: "Now, sir, you do understand that you have an absolute
right to have an attorney, and I can appoint an attorney to
represent you here today. You understand that?"

A.: "I completely understand, and I receive [sic]."

Q.: "And, you do not want to have an attorney?"

A.: "No, I don't want an attorney."

Q.: "And, sir, do you understand that it would be helpful
to have an attorney, because they're familiar obviously
with the law and the legal rulings. But you essentially
would be expected to act like your own attorney, even
though you wouldn't have had the benefit of having gone to
law school?"

A.: "Yes, I do understand that."

The judge also asked the defendant whether anyone was "forcing,"

"threatening" or "promising" him anything to forgo those rights,

which the defendant answered in the negative.

After accepting the defendant's plea, and having the

defendant sign a tender of plea form, the judge sentenced the

defendant on the larceny charge, and also on the charges for

reckless operation of a motor vehicle, leaving the scene of

property damage, and assault with a dangerous weapon. As to the

larceny charge, the judge sentenced the defendant to one year of

incarceration. On the motor vehicle charges, there was

additional discussion in which the defendant requested to "just

do the time" in lieu of any period of probation. He said he

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would not "accept the restitution" and that he would "violate."

He added, "I'll do time for that." The judge then amended the

sentence she initially had indicated, and instead imposed a

total of three years of incarceration with no probation. This

appeal followed.

Discussion. 1. Closing argument. The defendant first

challenges aspects of the prosecutor's closing argument as

improper, primarily contending that the prosecutor incorrectly

redefined the reasonable doubt standard by reducing it to a

mathematical equation. Because the defendant did not object, we

review for a substantial risk of a miscarriage of justice.

Commonwealth v. Jones, 471 Mass. 138, 148 (2015).

As an initial matter, to the extent the defendant suggests

that prosecutors must refrain from any discussion of the

reasonable doubt standard, we disagree. In Commonwealth v.

Lester, 486 Mass. 239 (2020), for example, the Supreme Judicial

Court found no error in a prosecutor's closing argument that

discussed the beyond a reasonable doubt standard, in which the

prosecutor noted that it was "not proof beyond all doubt," and

that it was incapable of being "measure[d]." Id. at 250 & n.26.

The court reasoned that the prosecutor's references to the

standard were not incorrect, and thus not improper. See id. at

250. Other cases similarly hold that mere references to the

reasonable doubt standard do not constitute error. See, e.g.,

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Commonwealth v. Cook, 419 Mass. 192, 203 (1994) (not improper to

argue to jury that they should "not be intimidated by the phrase

'beyond a reasonable doubt'"); Commonwealth v. Atkins, 386 Mass.

593, 602 (1982).

It is nonetheless true that prosecutors should not attempt

to redefine reasonable doubt, nor should they reduce it to a

mathematical equation. See, e.g., Commonwealth v. Ferreira, 460

Mass. 781, 788 (2011) (error to mathematically quantify beyond a

reasonable doubt standard); Commonwealth v. Snow, 30 Mass. App.

Ct. 443, 447 (1991) ("prosecutor should not have attempted an

explanation of reasonable doubt"). But the prosecutor here did

neither. True, the prosecutor referenced percentages in her

argument, but she did not commit the error of "equat[ing]

reasonable doubt to a percentage." Commonwealth v. Santana, 477

Mass. 610, 628 (2017). The prosecutor did not say or suggest,

for example, that the jury could convict the defendant on

ninety-eight percent assuredness. Contrast Ferreira, supra at

787. Instead, the prosecutor described the two key pieces of

evidence -- the victim's identification of the defendant and the

license plate found in the parking lot -- and argued why that

evidence taken together proved the defendant's guilt beyond a

reasonable doubt. While not ideally phrased, the argument was

not improper. See Commonwealth v. Quigley, 391 Mass. 461, 464

(1984), cert. denied, 471 U.S. 1115 (1985) ("permissible" to

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argue that prosecutor has met "burden of proof by producing

sufficient evidence of guilt beyond a reasonable doubt").

2. Sentencing hearing. The defendant next challenges the

judge's waiver of counsel colloquy, primarily contending that it

was constitutionally inadequate because the judge did not

sufficiently ensure that the defendant's waiver was knowing and

intelligent. The defendant also argues that the judge did not

comply with S.J.C. Rule 3:10, § 3, as appearing in 475 Mass.

1301 (2016), because the judge did not (1) make written findings

that the defendant was "competent to waive counsel and that [he]

knowingly and voluntarily elected to proceed without counsel,"

or (2) "certify in writing that the [defendant] executed the

waiver in the judge's presence."

"[W]e review claims of violations of the right to counsel

de novo." Commonwealth v. Means, 454 Mass. 81, 88 (2009).

Although the right to counsel at all critical stages of criminal

proceedings is fundamental, "[c]riminal defendants may

voluntarily . . . proceed without a lawyer." Id. at 89.

Indeed, it is their constitutional right to do so. See

Commonwealth v. Martin, 425 Mass. 718, 720-721 (1997) ("United

States Constitution and the Massachusetts Constitution protect a

defendant's right to proceed pro se"). A criminal defendant may

therefore waive counsel by "affirmative request"; to be

effective, however, the waiver "'must be voluntary' and must

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involve 'an informed and intentional relinquishment of a known

right'" (citation omitted). Means, supra. The inquiry focuses

on "the defendant's subjective understanding of his decision and

its consequences." Commonwealth v. Barnes, 399 Mass. 385, 391

(1987). "We have not prescribed the questions that a judge must

pose to an accused who desires to represent himself nor is there

any 'particular piece of information that is essential to an

effective waiver of counsel.'" Id. at 390, quoting Maynard v.

Meachum, 545 F.2d 273, 279 (1st Cir. 1976). At bottom, "[w]e

must be confident that the defendant was 'adequately aware of

the seriousness of the charges, the magnitude of his

undertaking, the availability of advisory counsel, and the

disadvantages of self-representation'" (citations omitted).

Martin, supra at 720.

Here, the judge's colloquy, in toto, established that the

defendant knowingly and voluntarily waived counsel for his

sentencing. Before the judge allowed the defendant to proceed

pro se, the judge ensured that the defendant understood that he

was on for sentencing, provided the defendant the opportunity to

consult with another attorney, and offered him time to prepare

before beginning the hearing. The defendant nonetheless

represented that he was "sure" he wanted to represent himself,

and declined to consult with different counsel or to take

additional time to prepare. Moreover, before the defendant was

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formally sentenced on the motor vehicle charges, the judge

engaged in a waiver colloquy involving another criminal

complaint wherein the judge (1) advised the defendant of his

right to an attorney,4 (2) explained why an attorney would be

helpful, and (3) inquired into the defendant's state of mind,

including whether the defendant's decision was made free of

coercion. The defendant represented that he understood his

rights and what he was giving up by proceeding pro se, and gave

the judge no indication that his decision was anything other

than knowing and voluntary. See Commonwealth v. Pamplona, 58

Mass. App. Ct. 239, 242 (2003) (no error where "defendant

repeatedly rebuffed the judge's offer for counsel"). We are

accordingly satisfied that the defendant "subjective[ly]

underst[ood]" both "his decision and its consequences." Barnes,

399 Mass at 391.

Supporting this conclusion is that the defendant signed a

waiver of counsel form, representing that he had been informed

of his right to an attorney and that he had decided to waive

that right. While that form was not strictly compliant with

4 The defendant contends that he was not advised of rights other
than his right to an attorney. We note that it is unclear what
other rights the defendant contends he should have been informed
of at the sentencing stage; the defendant had already had a jury
trial, at which he was represented by counsel. Moreover, the
defendant was afforded his right to appear and to be heard at
his sentencing hearing, and he also had the benefit of a
sentencing memorandum filed by counsel before counsel withdrew.

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S.J.C. Rule 3:10, § 3, because the judge made no written

findings and did not certify that the defendant executed the

form in her presence, this "is not conclusive of a lack of

waiver." Pamplona, 58 Mass. App. Ct. at 243. See Commonwealth

v. Haltiwanger, 99 Mass. App. Ct. 543, 557 (2021) ("we have held

that failure to make a written finding of competency, or to

certify the defendant's waiver, is not necessarily conclusive of

a lack of valid waiver"). "The absence of a written counsel

waiver does not alone require reversal, provided there is

sufficient other evidence in the record to demonstrate that the

waiver was voluntary and intelligent." Commonwealth v.

Leonardi, 76 Mass. App. Ct. 271, 277 (2010). Here, as indicated

supra, the record reveals evidence sufficient to establish that

the defendant's waiver was knowing and voluntary, especially

considering the defendant's firm and repeated rejections of

offers to consult with counsel. See Commonwealth v. Najjar, 96

Mass. App. Ct. 569, 581 (2019) (waiver effective despite lack of

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signed form, in light of informative colloquy and defendant's

"unequivocal responses").5

Judgments affirmed.

By the Court (Henry,
Desmond & Englander, JJ.6),

Clerk

Entered: July 13, 2023.

5 "Other points, relied on by the defendant[] but not discussed
in this opinion, have not been overlooked. We find nothing in
them that requires discussion." Commonwealth v. Domanski, 332
Mass. 66, 78 (1954).
6 The panelists are listed in order of seniority.

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