Commonwealth v. Haltiwanger ( 2021 )


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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.