NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

18-P-821 Appeals Court

COMMONWEALTH vs. JORGE G. DUARTE.

No. 18-P-821.

Bristol. October 3, 2019. - April 8, 2020.

Present: Green, C.J., Rubin, & Agnes, JJ.

Assault and Battery. Practice, Criminal, Assistance of counsel, 

Continuance, Judicial discretion. Constitutional Law, 

Assistance of counsel. Due Process of Law, Assistance of 

counsel. Attorney at Law, Attorney-client relationship, 

Withdrawal.

Complaint received and sworn to in the New Bedford Division 

of the District Court Department on January 26, 2017.

Motions to discharge counsel and for a continuance were 

heard by Daniel W. O'Malley, J., and the case was tried before 

Edward F.X. Lynch, J.

Sharon L. Sullivan-Puccini for the defendant.

Robert P. Kidd, Assistant District Attorney, for the 

Commonwealth.

AGNES, J. A District Court jury convicted the defendant, 

Jorge G. Duarte, of assault and battery in violation of G. L. 

c. 265, § 13A (a), arising out of his participation in an attack 
2

on another inmate that occurred at the Bristol County jail and 

house of correction (jail). On appeal, the defendant argues 

that the judge abused his discretion by denying the defendant's

request to hire an attorney and, by implication, to obtain a 

continuance of the trial that was scheduled for that day, 

without affording him an opportunity to be heard. The defendant 

also argues that his trial counsel was ineffective by failing to 

object to the repeated description by the prosecutor and 

witnesses of the incident as an "assault," failing to object to 

evidence that the incident occurred in a specific area in the 

jail that housed "troublemakers," and failing to deliver a 

proper closing argument.

Despite the last minute nature of the defendant's request 

to hire an attorney and the inevitable continuance that it would 

necessitate, under settled law the defendant was entitled to be 

heard. In such circumstances, "the judge [must] give a 

defendant an opportunity to make known his reasons for objecting 

to appointed counsel before the judge rules on the request." 

Commonwealth v. Lee, 394 Mass. 209, 217 (1985). For this 

reason, after oral argument and consistent with the procedure 

followed in Commonwealth v. Moran, 388 Mass. 655, 658-659 

(1983), we remanded the case to the judge who denied the 

defendant's motion with instructions to conduct an evidentiary 

hearing at which the defendant would have an opportunity to 
3

testify without limitation on the subject of his pretrial 

request. The judge conducted such a hearing, made findings and 

rulings, and concluded that the defendant's request was without 

merit. Because this determination is well supported by the 

record, and we are unable to discern any prejudice to the 

defendant, we reject the defendant's argument that he is 

entitled to any relief. We also reject the defendant's claim 

that his trial counsel provided ineffective assistance. 

Therefore, we affirm the defendant's conviction.

1. Background. a. The incident. On January 6, 2017, at 

approximately 4:43 P.M., inmates housed in the defendant's unit 

at the jail were released from their cells for dinner.1 Shortly 

thereafter, an inmate, Tyrell Pina, was pulled to the ground by 

another inmate, Jose Cruz, and then attacked by Cruz, the 

defendant, and a third inmate. A video recording (video) of the 

incident from the jail's surveillance system was played for the 

jury; it shows the defendant repeatedly punching Pina in the 

head area while Cruz and the third inmate were simultaneously 

kicking Pina.2 After about one minute, correction officers were 

 

1 The defendant was housed in the "HB Unit" of the jail 

which was described as housing persons waiting to be sentenced. 

The various witnesses, all of whom worked at the jail, largely 

referred to these persons as "inmates."

2 After a short period of time, the third inmate stopped 

while the defendant and Cruz continued to attack Pina.
4

able to control the scene. The incident was witnessed by two 

testifying correction officers who identified the defendant as 

one of the persons depicted in the video.3 Pina suffered 

injuries and required treatment at a local hospital. While a 

nurse was examining the defendant for injuries, the defendant 

made a statement suggesting that Pina had previously shot at the 

defendant's car while his son was in it, and the defendant asked 

the nurse, "What would you have done?"

b. Procedural history. A complaint issued on January 26, 

2017, alleging the defendant committed assault and battery in 

violation of G. L. c. 265, § 13A (a). The defendant was 

arraigned on March 1, 2017. The following day, appointed 

counsel David P. Tibbetts appeared for the defendant.4 The case 

proceeded with pretrial hearings on March 23, 2017, April 6, 

2017, and April 19, 2017. The defendant tendered conditional 

guilty pleas at each pretrial hearing date, but was unable to 

resolve the case on terms that were satisfactory to him.

The first trial date was June 1, 2017. On that date, the 

Commonwealth reported that it was ready for trial and 

represented that it had five witnesses present. The defendant's 

 

3 Other employees from the Bristol County sheriff's office 

that investigated the incident also testified. Pina did not 

testify.

4 The appointed attorney who represented the defendant at 

arraignment withdrew.
5

attorney indicated that he was also ready for trial but that the 

defendant did not wish to proceed with the trial on that date 

because he had an open criminal case and a probation violation 

case both pending in the Superior Court. The defendant was 

represented by a different appointed attorney in those cases. 

The defendant was concerned about the potential negative impact 

that a disposition in his District Court case might have on the 

pending Superior Court cases. Attorney Tibbetts represented to 

the court that he communicated with the defendant's Superior 

Court attorney and relayed to the court that it was that 

attorney's opinion that it would be advantageous to the 

defendant to continue the District Court case until after the 

Superior Court cases were resolved. Over the objection of the 

Commonwealth, the judge continued the trial until July 25, 2017,

to afford the defendant an opportunity to fully consult with his 

Superior Court attorney. At no point on the June 1, 2017, trial 

date, or the three earlier pretrial hearing dates, did the 

defendant express dissatisfaction with Attorney Tibbetts.

When the defendant's case was called for trial on July 25, 

2017, the defendant was not present in the court room; he was 

instead in the "lock up" area of the court house. The 

Commonwealth again reported it was ready for trial and its 

witnesses were again present. Attorney Tibbetts answered that 

he too was ready for trial but that the defendant wanted a new 
6

attorney that he would hire privately. The Commonwealth 

objected to a further continuance, representing that the 

defendant had not resolved his probation violation case when

brought before the Superior Court on July 10, 2017, and July 24, 

2017, and that the Commonwealth's witnesses had now been present 

for the defendant's District and Superior Court cases on four 

occasions. After a brief recess, the case was called again, 

with the defendant still absent from the court room. Attorney 

Tibbetts renewed the defendant's request as follows:

"I went back downstairs and spoke with the client. He's 

very upset. He feels that I'm not invested enough with his 

case, that he feels that I haven't spent enough time with 

him on the case, he feels that this is -- as he put it, 

it's his life and he needs somebody who will be fully 

invested. He had a -- a case in Superior Court, which is 

why this case got continued. That Superior Court case -- I 

understand he fired that lawyer and he's supposed to be 

hiring private counsel. And as far as this case goes, he 

feels that I put the case on for speedy trial without 

consulting with him, although my memory is we had an oral 

discussion about it in court.

"I would point out that the case is four and a half months 

old at this point. I don't -- I think we're kind of out of 

speedy trial area anyway with the age of the case. But it 

is also a young case in terms of him getting a new lawyer; 

it's only four and a half months old. He does -- clearly 

does not want me as his lawyer, he wants me out -- off, 

doesn't feel like I've been doing a good job for him. As I 

told you, I'm ready to go and -- I have to renew the motion 

because of his vigorous discussion with me downstairs."

The judge denied the request. After a second brief recess, the 

defendant was brought into the court room for trial before a 

different judge. Although Attorney Tibbetts made reference to 
7

the defendant's request before the second judge, the defendant 

was not afforded an opportunity to be heard on the issue of 

hiring an attorney, and the trial judge did not reconsider the 

earlier ruling denying the defendant's request. A trial by jury 

commenced and resulted in the defendant's conviction.

2. Discussion. a. Request to discharge counsel and 

implied request for a continuance. On appeal, the defendant 

argues that the judge erroneously denied his request to hire an 

attorney without permitting him to be present in the court room 

to articulate his reasons for wanting new counsel and that this 

error requires reversal of his conviction. The defendant's oral 

request, made through counsel, was effectively a motion to 

discharge counsel and, although not explicitly stated, a request 

for a continuance so that, if allowed, the new attorney could 

adequately prepare for trial.5 See Commonwealth v. Britto, 433 

Mass. 596, 600 (2001) ("the most common problem accompanying 

[motions for appointment of new counsel is] the need for a 

continuance of the trial if the motion is allowed"). Such a 

 

5 In these circumstances, we do not view the defendant's 

request differently because he suggested that he would retain 

private counsel instead of asking the court to appoint 

substitute counsel. See Commonwealth v. Tuitt, 393 Mass. 801, 

803-804 (1985), quoting Commonwealth v. Connor, 381 Mass. 500, 

503 (1980) ("The right to employ counsel of one's choice, 

particularly when exercised on the day of trial, is, 'in some 

circumstances, . . . subordinate to the proper administration of 

justice'").
8

request requires the judge to weigh the "interests of the courts 

and the public in efficient trial administration" as well as the 

prejudice to the opposing party against the "showing of good 

cause to support the defendant's motion." Commonwealth v. 

Chavis, 415 Mass. 703, 712 (1993). Good cause includes "a 

conflict of interest, incompetence of counsel, or an 

irreconcilable breakdown in communication." Id. The test is 

not a "mechanical" one. Id. at 711. It has been repeatedly 

held that "[a] motion to discharge counsel, when made on the eve 

of trial, or on the day on which trial is scheduled to begin, 

'is a matter left to the sound discretion of the trial judge.'" 

Commonwealth v. Tuitt, 393 Mass. 801, 804 (1985), quoting Moran, 

388 Mass. at 659.

To properly exercise that discretion, it has also been held 

that "when a defendant requests that new counsel be appointed, 

the judge should allow the defendant to state his reasons for 

wanting to discharge his attorney so that the judge's discretion 

can be exercised on an informed basis." Lee, 394 Mass. at 217, 

citing Moran, 388 Mass. at 659. Although some of the cases, 

such as Lee, 394 Mass. at 217, speak in terms of what the judge 

"should" do when faced with such a request, we reiterate that 

when a defendant requests a discharge of counsel and a 

continuance on the eve of or the first day of trial, the judge 

must afford the defendant the opportunity to be heard before 
9

ruling on the request. See Tuitt, 393 Mass. at 804 (defendant 

must be permitted to present reasons for dissatisfaction on 

motion to discharge counsel); Moran, supra ("the decision to 

honor a defendant's request for change of appointed counsel is a 

matter left to the sound discretion of the trial judge, but 

after he has given the defendant the opportunity to articulate 

his reasons"); Commonwealth v. Clemens, 77 Mass. App. Ct. 232, 

23 (2010) ("We acknowledge the pressure a District Court judge 

faces with large volumes of cases and the need to process them 

efficiently, but such concerns cannot excuse the failure to 

provide an opportunity for the defendant to address the court 

about dissatisfaction with counsel"). Cf. Commonwealth v. 

Delacruz, 463 Mass. 504, 508-511 & n.8 (2012) (rejecting 

argument that defendant was not afforded opportunity to be heard 

where defendant made "tentative inquiries" at pretrial hearing 

about whether trial date could be moved so that potential 

private counsel could enter appearance and "no mention was made 

at any time that appointed counsel was insufficient in any 

way"). "The appropriate practice, which should have been 

followed at the time of trial in this case, is to hear the 

defendant's offer of specifications so that the judge's 

discretion will be exercised on an informed basis" (quotation 

and citation omitted). Moran, supra. Although this hearing 

need not "satisfy a particular formula[,] . . . the judge [must] 
10

give a defendant an opportunity to make known his reasons for 

objecting to appointed counsel before the judge rules on the 

request." Lee, supra.6

The defendant in this case was not afforded an adequate 

opportunity to articulate his reasons supporting his request for 

new counsel. When the issue of representation by counsel was 

discussed in court, the defendant was not present in the court 

room and was instead in the lock-up area of the court house.7 In 

 

6 See Chavis, 415 Mass. at 710-712 (defendant had fair 

opportunity to explain dissatisfaction where he made pro se oral 

motion to discharge counsel on day of trial and was afforded 

opportunity to personally explain reasons for request); Lee, 394 

Mass. at 217 (defendants had adequate opportunity where 

"[t]hroughout the pretrial proceedings and at trial the 

defendants were given ample opportunity to voice their concerns 

about appointed counsel, and they did so"); Tuitt, 393 Mass. 805

(rejecting argument judge did not inquire of defendant where 

judge displayed "exemplary patience by listening to the 

defendant express, on three separate occasions, his charge that 

counsel had not made any effort to 'properly prepare this 

case'"); Commonwealth v. Appleby, 389 Mass. 359, 368-369 (1983) 

(defendant was given two opportunities to speak but did not 

advance any reasons of his own as to why he was dissatisfied 

with counsel); Commonwealth v. Price, 17 Mass. App. Ct. 955, 957

(1983) (judge made adequate inquiry). Cf. Moran, 388 Mass. at 

657-658, 660 (court did not approve of judge's handling of oral 

requests for new counsel on two occasions, one just before trial 

and one during trial, where judge did not inquire of defendant 

and instead said "quite clearly, he is not going to be afforded 

the opportunity to change counsel"); Clemens, 77 Mass. App. Ct. 

at 238 ("judge's colloquy with the defendant, once he was given 

the opportunity to speak on this subject, was inadequate both 

for the defendant to justify his dissatisfaction with counsel 

and for the judge to make an informed decision").

7 We do not fault the defendant for not speaking up to 

address the trial judge directly once the defendant was brought 

into the court room after he learned that his request was 
11

these circumstances, the defendant could have had meaningful 

information to add on the issue, and the judge's failure to 

provide the defendant the opportunity to be heard precluded the 

judge from making an informed exercise of discretion. What 

makes a judge's choice to allow or deny a motion an exercise of 

sound judicial discretion is the fair weighing of the factors 

relevant to the decision. See L.L. v. Commonwealth, 470 Mass. 

169, 185 n.27 (2014).

As noted earlier, we remanded the case (consistent with the 

procedure followed in Moran, 388 Mass. at 658) to the motion 

judge who had denied the defendant's request, with directions to 

conduct an evidentiary hearing that afforded the defendant, 

defendant's counsel, and the trial prosecutor the opportunity to 

present testimony on the subject of the defendant's request. At 

this hearing, the defendant testified that he wanted to 

discharge his attorney because the attorney had not prepared the 

case for trial adequately; failed to meet with or discuss the 

case with the defendant to his satisfaction; had not responded 

to telephone calls; had not fit him for clothing; had not and 

would not fight for him; and that there was a breakdown in 

communications. The motion judge prepared detailed findings of 

 

denied. The defendant "was entitled to proceed on the basis of 

the conventional understanding that a litigant's communications 

with the court are handled by the litigant's lawyer." United 

States v. Prochilo, 187 F.3d 221, 226-227 (1st Cir. 1999).
12

fact. He evaluated the defendant's testimony and noted that 

"the undersigned judge does not credit [the defendant's stated] 

reasons and, instead, finds that the defendant's wish to 

discharge his attorney on July 25, 2017 was nothing more than a 

back-door attempt to achieve a (second) continuance of his trial 

given that his Superior Court probation violation case had still 

not been resolved." These findings, which are well supported by 

the record, are fatal to the defendant's claim that he was 

prejudiced by the motion judge's handling of his request or is 

entitled to reversal of his conviction. Even in cases where the 

judge fails to afford the defendant an opportunity to be heard 

on a request to discharge counsel, a new trial is not required 

where that opportunity is later afforded to the defendant and it 

can be determined that the request was without merit. See 

Moran, supra at 658-659 (defendant was not prejudiced by failure 

to hear from defendant prior to trial where, on remand, trial 

judge held hearing with defendant, defense counsel, and 

prosecutor, and judge determined new trial was not warranted); 

Clemens, 77 Mass. App. Ct. at 239 (reversal not required where 

defendant gave reasons posttrial and appellate court determined 

there was insufficient cause to remove counsel). See also 

Lamoureux v. Commonwealth, 353 Mass. 556, 560-561 (1968) 

(exceptions overruled despite failure of trial judge to hear 

offer of specifications where defendant was later afforded 
13

evidentiary hearing before single justice of Supreme Judicial 

Court who made detailed findings that demonstrated inadequacy of 

complaints).

b. Ineffective assistance of counsel. It is regrettable 

that the prosecutor and witnesses repeatedly referred to the 

incident using the conclusory term "assault" where the defendant 

was on trial for assault and battery. See Commonwealth v. 

Dargon, 457 Mass. 387, 396 (2010) (in rape case, failure to 

redact words "assault" and "assailant" that appeared twentythree times on documentary evidence was error); Commonwealth v. 

Coleman, 366 Mass. 705, 711 (1975) (medical examiner not 

permitted to testify that death was "homicide"); Commonwealth v. 

McNickles, 22 Mass. App. Ct. 114, 121 n.10 (1986) ("Prosecutors 

would be well advised to take special care to instruct their 

witnesses, prior to putting them on the stand and asking their 

opinions, to avoid such terms as 'rape,' 'sexual assault,' and 

the like"). The incident could have been adequately described 

for the jury in a myriad of other ways without using the term 

that constituted an element of the crime for which the defendant 

was on trial. While we discern no such intent from the 

prosecutor or witnesses in this case, avoiding the use of the 

term "assault" would have eliminated the risk that the jury 

could have interpreted the questioning or testimony as an 

opinion from the Commonwealth or law enforcement witnesses on 
14

the issue of the defendant's guilt. See Mass. G. Evid. § 704 

(2020).

However, even if the failure to object to this 

characterization of the incident fell measurably below the 

standards of the ordinary fallible lawyer, we reject the 

defendant's claim of ineffective assistance of counsel based on 

this error as the defendant has failed to demonstrate he was 

"likely deprived . . . of an otherwise available, substantial 

ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 

(1974). See Commonwealth v. Randolph, 438 Mass. 290, 295-296 

(2002) (equating ineffective assistance of counsel standard to 

substantial risk of miscarriage of justice standard in cases 

where waiver stems from omission by defense counsel). Based on 

the evidence presented at trial, there was no substantial risk 

of a miscarriage of justice. The issue was not whether the 

defendant violently and repeatedly struck Pina. That was 

abundantly clear from the video and the testimony. Instead, the 

issue was whether based on the totality of the evidence --

particularly the lack of any audio and the circumstances of 

living in jail -- the Commonwealth had proved beyond a 

reasonable doubt that the defendant was not acting with 

justification, i.e., acting in self-defense.8

 

8 The judge instructed the jury on self-defense over the 

Commonwealth's objection.
15

Similarly, the defendant has not demonstrated ineffective 

assistance based on counsel's failure to object to the evidence 

that the incident occurred in a "maximum unit for jailers" and 

later himself elicited on cross-examination from a witness that 

the unit housed "troublemakers." While the defendant's presence 

in this unit invited a negative inference about the defendant's 

character (which was mitigated by a forceful limiting 

instruction), permitting and eliciting this evidence may have 

been a strategic decision because it invited that same inference 

about Pina's character. An attack on Pina's credibility 

provided needed support for the defendant's claim of selfdefense and furthered the theory advanced by counsel that people 

in jail sometimes have problems with each other, that fights 

like this could occur at any time, and that jail was a dangerous 

place to be. On this record, considering the other evidence 

that would inevitably be before the jury, the potential benefits 

of the evidence, and the lack of an affidavit from defense 

counsel, we cannot say that counsel's decision was "manifestly 

unreasonable."9 Commonwealth v. Kolenovic, 471 Mass. 664, 674 

(2015). See Commonwealth v. Zinser, 446 Mass. 807, 812 (2006) 

 

9 There likely are circumstances where it would fall 

measurably below the ordinary fallible lawyer standard to permit 

admission of evidence that the defendant is not only in jail but 

also in a specific part of a jail for troublemakers.
16

(when claim of ineffective assistance of counsel is raised for 

first time on direct appeal, relief is not available unless "the 

factual basis appears indisputably on the trial record"

[quotation and citation omitted]).

Last, the defendant argues his counsel was ineffective by 

making the statement in closing that, "in [his] client's 

opinion, this evidence doesn't rise to the level of guilty 

beyond a reasonable doubt." Counsel should not have identified 

his client's opinion as the reason that the evidence did not 

rise to the reasonable doubt standard. Defense counsel's 

statement created a risk that the jury would understand the 

statement as counsel disassociating himself from the defendant's 

position. Instead, the statement should have been more 

forcefully delivered by simply arguing that the evidence 

presented to the jury did not meet this standard.10 However, we 

reject the defendant's claim that this statement or trial 

counsel's entire summation left him "denuded of a defense" or 

"conceded guilt." See Commonwealth v. Moseley, 483 Mass. 295, 

307 (2019). This is not a case where at the "eleventh hour" 

counsel abandoned a substantial defense for one that was 

 

10 It may be that this is what counsel intended to convey. 

"[I]t is far too easy to examine a transcript and point to ways 

to 'do it better.'" Commonwealth v. Moseley, 483 Mass. 295, 308 

(2019), quoting Commonwealth v. Degro, 432 Mass. 319, 333

(2000).
17

"exceptionally weak," Commonwealth v. Street, 388 Mass. 281, 

281, 286 (1983), or a case where counsel asked the jury to 

believe the testimony of a witness "a hundred percent" where 

belief of that testimony would have required the jury to convict 

the defendant of murder in the first degree, see Commonwealth v. 

Triplett, 398 Mass. 561, 568-569 (1986). Instead, faced with a 

challenging case where the defendant was recorded on video 

committing the crime, and the video was corroborated by multiple 

witnesses, counsel consistently advanced the theory discussed 

supra and concluded by asking the jurors to "agree that my 

client is not guilty." The defendant failed to satisfy the 

prejudice prong set forth in Saferian, 366 Mass. at 96.

Judgment affirmed.