Commonwealth v. Hempel

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 19-P-63 Appeals Court COMMONWEALTH vs. JAMIE T. HEMPEL. No. 19-P-63. Barnstable. November 5, 2025. - August 12, 2026. Present: Rubin, Brennan, & Wood, JJ. Constitutional Law, Assistance of counsel, Waiver of constitutional rights. Practice, Criminal, Assistance of counsel, Self-representation, Waiver, New trial. Waiver. Indictments found and returned in the Superior Court Department on May 15, 2015. The cases were tried before Gary A. Nickerson, J., and a motion for a new trial, filed on February 1, 2023, was heard by Michael K. Callan, J. Dana Goldblatt for the defendant. Elizabeth A. Sweeney, Assistant District Attorney, for the Commonwealth. RUBIN, J. After a jury trial in the Superior Court, the defendant was convicted of home invasion, G. L. c. 265, § 18C; assault with the intent to murder, G. L. c. 265, § 15; assault and battery by means of a dangerous weapon (an axe), G. L.  2 c. 265, § 15A (b); and assault by means of a dangerous weapon, G. L. c. 265, § 15B (b). He timely filed a notice of appeal. We stayed the appeal and ultimately dismissed it without prejudice pending the adjudication of postconviction motions. The defendant filed a motion for a new trial, which, because the trial judge had retired, was heard by a different judge and denied without an evidentiary hearing. The defendant timely appealed from the denial of the motion, and we reinstated his direct appeal and consolidated them. The consolidated appeals are now before us. On appeal, the defendant primarily argues that he was allowed to represent himself for a portion of the trial, relegating his attorney (trial counsel) to the role of standby counsel, but that the trial judge failed to provide the warnings and make the inquiry required under art. 12 of the Massachusetts Declaration of Rights before a waiver of the right to counsel can be found knowing and intelligent. We agree. The defendant's convictions therefore must be vacated and the case remanded for a new trial should the Commonwealth decide to proceed with one. 1. Background. a. The crimes. We recite the facts that the jury could have found. On March 23, 2015, the defendant kicked open the locked front door of Susan Finn's apartment, without permission. Finn was in the apartment with her  3 boyfriend, Kevin Eldridge, her friend Karen Doyle (then Karen Kane), whom she knew through Eldridge, and Karen's1 husband of twenty-eight years, Matthew Kane. The defendant was holding an axe with both hands. He came in and swung the axe at Finn's head, just missing her. He continued to come after Finn with the axe; Finn was subsequently taken by ambulance to the hospital where she received stitches on her shoulder; in addition, her pants had a cut down the back. Eldridge and Matthew struggled with the defendant, and Matthew was hit twice by the defendant with a blunt part of the axe causing bruising. b. Appointment of counsel. After the defendant was indicted, he was assigned three different court-appointed lawyers before his trial counsel was appointed.2 On May 11, 2016, two months before the trial date, the defendant filed a motion for appointment of new counsel. At the motion hearing, trial counsel reported that "there is a strong disagreement between what I think the correct trial posture is and what Mr. Hempel says." The judge inquired about the defendant's experience with the court system, focusing on the 1 Because some witnesses shared a surname at the time of the crimes, we use first names in this section to avoid confusion. 2 The first lawyer withdrew because of a conflict. The motions of the second and third lawyers to withdraw were allowed, but the record before us does not reveal the basis for their withdrawals.  4 number of court appearances the defendant had made in order to assess his "familiarity with the court process." The judge noted that there were at least seventeen restraining order appearances, which are in civil cases, and at least two criminal cases in Florida "a while back." (The then-forty-four year old defendant said these cases were from twenty-five years previously when he had been nineteen.) The judge ultimately concluded that the issue was not the lawyer, but the defendant. He denied the motion, saying, "I'm not granting your motion. You have an absolute right to represent yourself, and you may do so. [Trial counsel] will remain as your trial counsel. If you wish to exercise your right to represent yourself, you certainly may do that as well, sir; in which case, [trial counsel] would be your standby counsel." Before the next pretrial conference, held on June 16, 2016, the defendant filed a motion to dismiss his attorney. At the hearing, the judge excused the prosecutor and closed the court room. The defendant then aired a laundry list of complaints about his attorney, after which trial counsel stated that the defendant "wants to call some witnesses that I cannot call" because "I think I would have an ethical issue." The judge said, "I assume rightly or wrongly, the concern is whether there's a question of perjury or subornation of perjury," to which trial counsel responded, "Yes." The judge said, "[T]here  5 is a standard procedure for that." He said without elaboration that "basically it involves you stepping aside for that purpose, for that limited purpose," suggesting he was talking about the procedure approved in Commonwealth v. Mitchell, 438 Mass. 535, 552, cert. denied, 539 U.S. 907 (2003), under which a defendant may exercise the right to testify in the defendant's own defense, despite trial counsel's knowledge that the defendant will testify falsely, by delivering narrative testimony without the lawyer's participation. See Mass. R. Prof. C. 3.3 (a) (3), as appearing in 471 Mass. 1416 (2015) ("lawyer shall not knowingly . . . offer evidence that the lawyer knows to be false"). See also Mass. R. Prof. C. 3.3 (e) comment 11B (attorney "knows" that defendant client intends to "testify falsely" if attorney has "a firm basis in objective fact" for his "good faith" determination defendant will do so). The judge then said, with the prosecutor still excused from the hearing, "Everybody should [b]one up on that and be ready for that." The judge denied the defendant's motion to dismiss his attorney. c. The trial. On the day the trial began, the judge asked the defendant, "Are you going to be representing yourself? Is [trial counsel] going to be then relegated to the role of standby counsel? Are you going to use [trial counsel] as your counsel?" The defendant replied, "[Y]ou said that he would be a standby. So, I was kind of going by that assumption." The  6 judge said they would proceed however the defendant and counsel decided. The judge then asked "[w]hether it would be appropriate for [trial counsel] to represent you in all matters but the calling of [the witness trial counsel could not ethically call, Karen Doyle]." Trial counsel confirmed that there was an ethical issue, and that under Mitchell, he could not call one particular witness the defendant wanted him to call. See Mass. R. Prof. C. 3.3 (a) (3); Mitchell, 438 Mass. at 547. Trial counsel then said, "I don't think any other attorney could represent Mr. Hempel because it's going to be the same issue." The next morning, prior to the beginning of jury selection, the judge announced, "I am going to conduct a hearing or a colloquy with Defense counsel and Mr. Hempel and the Court. The courtroom will be closed." The defendant reported that he and trial counsel had discussed "me questioning the witness that [trial counsel] didn't want to question . . . . And then to have [trial counsel] do the things that I feel are . . . in my best interest for him to do . . . so that I don't hurt myself." The defendant was concerned that he would not be able to act in his own best interests because "I only have a [general educational development certificate (GED)]." The judge responded, "[Y]ou and I have had a fair amount of dealings . . . . [Y]ou are always articulate. You always have something  7 pertinent to say. You always have something right on point to tell me. . . . [Y]ou have no trouble making your thoughts and concerns known to me. You are very articulate." The judge then explained to the defendant that, although Mitchell was "different than our situation where we're dealing with a witness," Mitchell was still the only Massachusetts case that gave him guidance, even though it involved a defendant who was going to testify falsely as opposed to potential witness perjury. He also said, "[W]hether that would be an appropriate way to handle a witness, I don't have any guidance from the Supreme Court of our state on that subject. But it would seem to me that's one model, one way to do it." The judge explained to the defendant trial counsel's ethical concern in calling Doyle to ensure that the defendant had "a very clear understanding" of the issue. This is required under Mitchell when a defendant insists on testifying despite trial counsel being ethically bound not to call that defendant. See Mitchell, 438 Mass. at 552 (defendant must "clearly understand the situation he has created"). The judge also warned the defendant that he risked further legal consequences, including further prosecution, if he were to suborn perjury by calling Doyle himself. The defendant continuously expressed concerns about his ability to represent himself. He said, "[Trial counsel] should  8 talk because he has a law background -- it's probably the best way to proceed." Trial counsel worried that if he were to cross-examine the Commonwealth's witnesses but then "sit here with [his] hands underneath [him]" while the defendant presented his own case, that would be a "red flag" to jurors. The judge again brought up Mitchell but was candidly unsure about whether the procedure in that case would be "an appropriate way to handle a witness." The judge discussed how the Mitchell approach worked in the case of a defendant testifying. The defendant expressed concern about how it would work in his case. The judge then said, "But, you know, Mr. Hempel, you are an intelligent man. . . . I don't care how far you went in school. . . . You know, I have had people that are dropouts that are a hell of a lot brighter than some of the lawyers I see, you know? . . . It's the simple truth." The judge then said, "[I]f I were making a decision about this, I would say, [w]ell, Mitchell is my best guidance. That's my decision. But how to conduct the trial really is between you two. I can't make your tactical decisions." The judge said he needed to know, "Are we proceeding in a fairly strict sort of Mitchell format? In other words, [trial counsel is] carrying the ball but for that witness? Or are we going to proceed where you are representing -- you know, in the past, you have said, I want to represent myself. You have told  9 me that any number of times." The judge allowed the defendant and trial counsel to meet privately, and when they returned, trial counsel said, "I will cross-examine the Commonwealth's witnesses, and Mr. Hempel will handle his witness and himself. . . . And then I will do the closing." Trial counsel delivered an opening statement and cross- examined the Commonwealth's witnesses. During the defense case, trial counsel called and examined one defense witness. The defendant then called and examined Doyle as a witness. Doyle testified that on the day of the attack, she "waved" the defendant into Finn's apartment and then a third party attacked the defendant with an axe. She testified that she ran out the back door as soon as the fight began, and flagged down a passing motorist who took her to the police station. She testified that while there, she was hysterical, terrified, and under the influence of illegal drugs. On cross-examination, Doyle was confronted with prior verbal, written, and recorded statements that she made to the police that were inconsistent with her trial testimony. This included that Doyle had told multiple police officers and a dispatcher that "Jamie Hempel was armed with an axe and a knife and he was killing everyone at [Finn's address]." She continuously asked whether Finn was okay, implying that she  10 understood Finn, rather than the defendant, was a victim of the attack. The prosecutor also presented Doyle's previous statements describing in some detail the defendant's past violent conduct and threats, including evidence that she was afraid of the defendant and had sought a G. L. c. 209A restraining order against him on the very morning of the home invasion. These threats included not only physical violence against Doyle, but a threat to kill her. The prosecutor played a recording of Doyle's police interview to refresh her recollection. Doyle also admitted to abusing substances, often with the defendant, including on the day of the attack. During cross-examination, trial counsel objected to one of the prosecutor's questions. After a lunch recess, and before conducting redirect examination, the defendant asked to speak to the judge. The judge obliged but recommended that the defendant speak to trial counsel first, to which the defendant replied, "No. I know what to say. I don't want to talk to him anymore. The statement that [the prosecutor] just read from the Eastham police, okay, I didn't have any of that before it was read into -- I don't know how that was allowed. And before I called this witness, I didn't know none of this was going to be called [sic] if I called [Doyle] to the stand." The judge responded, "I don't know what your conversations have and haven't been with [trial counsel]. . . . I don't know what you were and weren't aware of in any of this."  11 Trial counsel then notified the judge that the defendant intended to handle the cross-examination of any Commonwealth rebuttal witnesses and present his own closing argument. The defendant confirmed that he wanted trial counsel to stay on as standby counsel. The judge responded, "If you're telling me that you're taking over the case, then that means that if there's any case in rebuttal, you would be doing the cross- examination and closing arguments." The defendant responded, "Yeah, that's not a problem." The judge then said, "The Court has had numerous dealings with Mr. Hempel and the Court has no concern that the gentleman suffers from any mental health condition that would preclude him from going forward." At no point did the judge conduct a colloquy, ask any questions, or give any warnings to the defendant to ensure that his decision to represent himself for the remainder of the trial was knowing and intelligent. The defendant conducted redirect examination of Doyle, and the prosecutor conducted recross-examination. The defendant decided not to testify and rested his case. The prosecutor called two rebuttal witnesses, and the defendant chose not to cross-examine them. At the charge conference the next day, trial counsel made two brief comments, including agreeing with the prosecutor about which theory of assault was at issue in the case. After  12 discussion of the charge ended, the judge explained to the defendant what he could argue in closing argument. After the judge said that the defendant could argue the facts and reasonable inferences therefrom, he began to say that the defendant could argue that they were not sufficient to support a finding that all the required elements were proven. The judge stopped, though, and said, "I assume you've had a talk with [trial counsel] about what are the elements of the crimes, as far as what the government has to prove." The defendant said, "Not really." The judge then told the defendant in "rough form" what the elements of each of the seven counts of the indictment were. The defendant then delivered his own closing argument. 2. Discussion. a. Standard of review. "Under the Sixth Amendment to the United States Constitution and art. 12 [of the Massachusetts Declaration of Rights], the defendant has a right to counsel at every 'critical stage' of the criminal process." Commonwealth v. Johnson, 80 Mass. App. Ct. 505, 510 (2011), quoting Commonwealth v. Woods, 427 Mass. 169, 174 (1998). Here, the defendant claims that his waiver of the right to counsel was not knowing and intelligent and therefore violated the Sixth Amendment and art. 12. "[W]e review claims of violations of the right to counsel de novo, making an 'independent determination of the correctness of the judge's application of constitutional principle to the facts found.'" Commonwealth v. Means, 454  13 Mass. 81, 88 (2009), quoting Commonwealth v. Currie, 388 Mass. 776, 784 (1983). b. Waiver of the right to counsel. A defendant has the freedom to waive his right to counsel and represent himself. See Commonwealth v. Johnson, 424 Mass. 338, 340 (1997). Indeed, he has a constitutional right to represent himself. See Faretta v. California, 422 U.S. 806, 807 (1975). But when a defendant seeks to represent himself and, therefore, necessarily to waive his right to counsel, a judge "bears a 'serious and weighty responsibility' to ascertain whether the waiver is knowing and intelligent." Commonwealth v. Barros, 494 Mass. 100, 112 (2024), quoting Commonwealth v. Cavanaugh, 371 Mass. 46, 53 (1976). "Under art. 12 of the Massachusetts Declaration of Rights, a criminal defendant's waiver of the right to counsel must be made knowingly and intelligently, with 'adequate[] aware[ness] of [(1)] the seriousness of the charges, [(2)] the magnitude of [the] undertaking, [(3)] the availability of advisory counsel, and [(4)] the disadvantages of self-representation." Barros, 494 Mass. at 100-101, quoting Commonwealth v. Martin, 425 Mass. 718, 720 (1997). The judge must conduct a "careful inquiry on the record" to determine whether the waiver is knowing and intelligent. Means, 454 Mass. at 89. "[Article] 12 always requires this inquiry"  14 (emphasis added). Barros, 494 Mass. at 106. The trial judge must ask the defendant "questions designed to establish that the defendant understands the implications of his choice," Commonwealth v. Cote, 74 Mass. App. Ct. 709, 712 (2009), including "the magnitude of [the] undertaking" and "the disadvantages of self-representation," Barros, supra at 101. To ensure that a defendant's waiver of counsel is knowing and intelligent, the judge must "provi[de] . . . information to the defendant concerning the risks of being unrepresented." Commonwealth v. Clemens, 77 Mass. App. Ct. 232, 240 (2010). See Iowa v. Tovar, 541 U.S. 77, 88-89 (2004) (pursuant to Sixth Amendment, "before a defendant may be allowed to proceed pro se, he must be warned specifically of the hazards ahead"). The defendant must "be made aware of the dangers and disadvantages of self-representation" (citation omitted). Barros, 494 Mass. at 105. The requirement that the judge ensures that the defendant has a subjective understanding of the disadvantages of self-representation "embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty." Id. at 104, quoting Johnson v. Zerbst, 304 U.S. 458, 462-463 (1938). Our courts, though, "have not prescribed the questions that a judge must pose to an accused who desires to represent himself."  15 Commonwealth v. Barnes, 399 Mass. 385, 390 (1987). c. Standby counsel. A defendant who has properly waived his right to counsel may be appointed so-called "standby counsel." See, e.g., Commonwealth v. Leonardi, 76 Mass. App. Ct. 271, 275-276 (2010). This is provided for by S.J.C. Rule 3.10, § 4, as appearing in 475 Mass. 1301 (2016), which states, "Notwithstanding a party's waiver of counsel, where the interests of justice so require, the judge may assign standby counsel to assist the party in the course of the proceedings regardless of whether the party is indigent." Standby counsel can be appointed to aid a defendant in any number of ways, so long as standby counsel does not interfere with the self- represented defendant's constitutional right to represent himself, recognized in Faretta, 422 U.S. at 807. See McKaskle v. Wiggins, 465 U.S. 168, 178 (1984). Where a defendant proceeds with standby counsel, the judge must ensure that the defendant's waiver of counsel is knowing and intelligent, just as the judge must do in cases of self-representation in which no standby counsel is appointed. See S.J.C. Rule 3.10, §§ 3, 4; Martin, 425 Mass. at 719-720. Appointing standby counsel to assist a defendant is a form of "hybrid representation." Commonwealth v. Molino, 411 Mass. 149, 153 n.5 (1991). "In the typical hybrid representation, a trial court acts in its discretion to appoint standby counsel  16 for a pro se defendant . . . ." Banks v. Horn, 271 F.3d 527, 539 (3d Cir. 2001), rev'd, 536 U.S. 266 (2002). Thirty-five years ago, in dictum in a footnote, the Supreme Judicial Court, however, said, "The term 'hybrid representation' encompasses two forms of attorney-client relationships. First, the attorney may act as cocounsel to the defendant: Both the attorney and the defendant may address the court, question witnesses, and join in the conduct of the trial. Second, the attorney acts in a purely advisory capacity, providing the defendant with advice on how to present the case, but not actually participating in the presentation of the case. Standby counsel usually falls in the latter category." Molino, supra, citing Locks v. Sumner, 703 F.2d 403, 407 (9th Cir.), cert. denied, 464 U.S. 933 (1983). The appointment of standby counsel is commonplace. We see it routinely, and indeed, before a defendant may knowingly and intelligently waive his right to counsel, he must be adequately aware of "the availability of advisory counsel." Barros, 494 Mass. at 101. By contrast, Molino, 411 Mass. at 153 n.5, is the only reported Massachusetts case in which a relationship between an attorney and defendant has ever been described as "cocounsel." d. Application of Mitchell. In its brief, the Commonwealth states that defense counsel "acted as standby counsel for the defendant's case, including [handling] the direct examination of Doyle and the defendant's closing argument." It argues, though, that the inquiry ordinarily  17 mandated by our case law for a valid waiver of the right to counsel was not required here because, although the defendant did knowingly and intelligently waive his right to counsel, the case is controlled by Mitchell, 438 Mass. at 550. There, the court held that no colloquy was required when a defendant gave narrative testimony, rather than be questioned by counsel, because he insisted on testifying falsely and counsel could not ethically suborn perjury. See id. at 550-551. Here, the judge essentially adopted a broadened Mitchell model to allow the defendant to call and examine Doyle, whom, because trial counsel knew she would perjure herself, trial counsel could not ethically call. This was not an unreasonable approach as, at the time of trial, Commonwealth v. Leiva, 484 Mass. 766, 774-775 (2020), discussed infra, had not yet been decided. Indeed, it is fair to say that the judge took some care with respect to the calling and examination of Doyle to ensure that the law, as he understood it, was followed. But Mitchell is of no application here. Mitchell does not stand for the proposition that there are circumstances where a defendant can waive his right to counsel and represent himself without the inquiry required by art. 12. Indeed, the court has, subsequent to the trial in this case, made clear that, despite some of its language, Mitchell, in which the defendant chose to exercise his constitutional right to testify in his own behalf  18 despite counsel's inability ethically to call or examine him, did not involve the defendant representing himself and did not implicate the right to counsel in any way. See Leiva, 484 Mass. at 776 n.9. The court in Leiva, explained, "To the extent that the court in Mitchell suggested that direction of narrative testimony requires a defendant's limited waiver of the right to counsel's assistance, we clarify that where a trial judge implementing [Mass. R. Prof. C. 3.3 (e)] exercises discretion to direct that a defendant's testimony take narrative form (should the defendant persist in the decision to testify falsely), this does not leave the defendant 'unrepresented' during that testimony. Where the defendant decides to testify under these circumstances, that decision carries a rule-based relinquishment of the right to direct examination by counsel, which counsel is accordingly duty-bound to explain as part of the remonstration requirement [(i.e., the requirement under rule 3.3 (e) that counsel 'strongly . . . discourage' the client from perjuring himself and 'advis[e] that such a course [of conduct] is unlawful, will have substantial adverse consequences, and should not be followed')]." Id. Leiva thus explains that Mitchell leaves intact the rule that waiver of the right to counsel requires the searching on- the-record inquiry described by the court in Barros, 494 Mass. at 100-101, even in a situation where the Mitchell procedure is used for a defendant exercising the constitutional right to testify in the defendant's own behalf despite counsel's inability ethically to call and examine the defendant. e. The defendant's self-representation. On this record, we conclude that once the defendant conducted the redirect examination of Doyle, and until the conclusion of the trial, he  19 represented himself, with the assistance of standby counsel.3 That is because prior to Doyle's redirect examination, the defendant flatly discharged trial counsel, and asked that he be appointed standby counsel. The judge agreed. Trial counsel's two comments at the charge conference the next day did not go beyond the ordinary role of standby counsel. Even assuming these comments amounted to substantial participation, at least when the defendant does not object, as was the case here, standby counsel can "participat[e] [in a case] outside the presence of the jury," McKaskle, 465 U.S. at 179, for example at a charge conference. Our dissenting colleague concludes that throughout the trial, including both during the direct examination of Doyle and the period after Doyle's cross-examination, the defendant had the other form of hybrid representation, in which the client and the attorney are "cocounsel," rather than the attorney acting as standby counsel. Post at . As we have described, this is contrary both to what the judge and the defendant said, and to what the defendant did as 3 Although much of this case has revolved around the calling and examination of Doyle, given the clarity of what happened after her cross-examination, we need not determine the nature of the defendant's legal representation during that process.  20 the case proceeded.4 The judge said after the cross-examination of Doyle that trial counsel would serve as standby counsel, not cocounsel. And while during the examination of Doyle the judge appears to have been trying to employ Mitchell, which, before Leiva, he might reasonably have understood as some kind of limited self-representation model, the judge never suggested that Mitchell provided "guidance on how to implement the cocounsel model of representation." Post at . Indeed, the judge never used the term cocounsel, nor did he refer to Molino. Perhaps more fundamentally, although our dissenting colleague recognizes that "[h]ybrid representation with the attorney acting as an advisor effectively waives the right to counsel and thus must be accompanied by a defendant's knowing and voluntary waiver," post at , the dissent also states that in the cocounsel model, the defendant need not execute a knowing and intelligent waiver of the right to counsel, id. at . There is no support for this suggestion in our case law, and it is also contrary to the Commonwealth's argument on appeal. Perhaps most notably, our dissenting colleague cites none. Instead, it has long been the rule that there must be a knowing and intelligent waiver of the right to counsel in such 4 We also disagree with our colleague that the defendant "remain[ed] fully represented" throughout the proceedings. Post at .  21 circumstances. As the United States Court of Appeals for the First Circuit explained fifty years ago, in a case in which a trial judge allowed the defendant himself to examine witnesses and argue his case, with counsel available at all times for consultation or for resumption of the full conduct of the trial, "the arrangement at [the defendant's] trial raises the issue of effective waiver of counsel: whatever label is attached to it, the net result was that [the defendant] had less than the full representation by counsel to which, absent a valid waiver, he was entitled under the Sixth Amendment. . . . We can conceive of no reason why the standard for waiving part of a constitutional right should be different from the standard for waiver of the entire right. Respondent argues, and we agree, that it is within the discretion of a trial court to allow the sort of hybrid arrangement that was adopted in this case. . . . But it does not follow that such an arrangement is the equivalent of full representation by counsel for purposes of waiver . . . ." Maynard v. Meachum, 545 F.2d 273, 277 (1st Cir. 1976). Among other things, the application of this bright-line rule means that courts avoid the substantial problems that would arise if they were required -- both in the trial court and on appeal –- to determine in cases of hybrid representation in just how much self-representation the defendant was going to or had engaged. f. Lack of inquiry. Once the defendant began to represent himself and trial counsel was relegated to standby counsel, the judge did not engage in the "careful inquiry on the record" required to determine whether the waiver was knowing and intelligent. Means, 454 Mass. at 89. He did not provide  22 information to the defendant of the risks of self- representation. Nor did he ask any questions at all. This was a violation of art. 12. Although Barros held "that art. 12 always requires this inquiry to ensure that a defendant's waiver of counsel is knowing and intelligent, at any stage of a case," Barros, 494 Mass. at 106, in that case despite the absence of the required on-the-record inquiry, the court reviewed the record to determine whether it "leave[s] us 'confident' that this defendant knowingly and intelligently waived his constitutional right to assistance of counsel," id. at 111, quoting Martin, 425 Mass. at 720. We thus also review the record to determine whether it leaves us confident that at the time of waiver the defendant had "adequate[] aware[ness] of [(1)] the seriousness of the charges, [(2)] the magnitude of [the] undertaking, [(3)] the availability of advisory counsel, and [(4)] the disadvantages of self-representation." Barros, supra at 101, quoting Martin, supra. The record does not do so here. In light of the discussions surrounding the possibility of the defendant utilizing a modified Mitchell procedure to call and examine Doyle, without a clear statement from the judge informing the defendant, the record does not give us confidence that the defendant was adequately aware of the disadvantages of self-  23 representation. Likewise, even though the record reveals the defendant understood the seriousness of the punishment he faced, and showed some familiarity with the criminal justice system in having been a defendant before, where he was not aware of the elements of the offenses with which he was charged, we cannot say with confidence that the record reveals that he had an understanding of the magnitude of the undertaking.5 The defendant's purported waiver of counsel therefore lacked the required knowingness and intelligence in violation of art. 12. Such "violations of right to counsel are not subject to harmless error analysis." Barros, 494 Mass. at 113, citing Means, 454 Mass. at 88-89. Consequently, we must vacate the defendant's convictions, set aside the verdicts, and remand the case to the Superior Court for further proceedings consistent with this opinion, including a new trial should the Commonwealth decide to proceed with one.6 So ordered. 5 The dissent indicates the defendant had further experiences as a defendant in the criminal justice system than those noted by the trial judge, apparently referring to court activity record information (CARI) that was submitted with the motion for a new trial. Even were it permissible for us to review this material, which was not in the record at trial, the number of criminal cases in which the defendant was involved cannot overcome the defendant's lack of understanding demonstrated on the trial record. 6 Given our conclusion, we do not reach the defendant's other claims underlying the denial of his motion for a new trial.  BRENNAN, J. (dissenting). In Commonwealth v. Molino, 411 Mass. 149, 152-153 & n.5 (1991), the Supreme Judicial Court described two distinct forms of hybrid representation in a criminal trial. In the first model, the attorney and the defendant act as cocounsel and both "may address the court, question witnesses, and join in the conduct of trial." Id. at 153 n.5. Although unorthodox, and perhaps inadvisable, permitting this form of hybrid representation is within a judge's discretion. See id. at 152. See also LeBaron v. Commonwealth, 464 Mass. 1020, 1020 (2013). A defendant and an attorney acting collaboratively as cocounsel is not the same as self-representation and thus does not trigger the waiver of counsel requirements recently reaffirmed by the Supreme Judicial Court in Commonwealth v. Barros, 494 Mass. 100, 112 (2024). Alternatively, the attorney may operate "in a purely advisory capacity" without participating in case presentation. Molino, supra at 153 n.5. The second model is akin to self- representation with standby counsel. Id. Throughout postconviction litigation, the defendant has framed the central issues as self-representation and deprivation of counsel. The decision denying the defendant's motion for a new trial and the majority opinion in this appeal, although reaching different conclusions, both reflect an analytical approach that responds to the defendant's framework. I see this  2 trial through a different lens, in which the attorney-defendant relationship was never severed; rather, the defense approach throughout the trial fit the "cocounsel" hybrid representation model described in Molino, 411 Mass. at 153 n.5. I disagree with the majority that there was a break in the cocounsel relationship prior to the redirect examination of the defendant's primary witness, Karen Doyle, and that thereafter counsel acted only in a standby role. Ante at . I therefore disagree that the defendant was deprived of his constitutional right to counsel, thereby creating structural error that mandates reversal. To the contrary, the defendant was represented by experienced counsel, while the judge also indulged the defendant's insistence that he be allowed to participate actively as cocounsel, primarily so the defense could present a witness whom his attorney was prohibited ethically from calling. The defendant chose to act as cocounsel and to take the lead at certain junctures of the trial with a full understanding of the nature of counsel's role. I discern no error in the judge's decision to monitor the situation rather than move immediately to a waiver of counsel colloquy in the aftermath of the defendant's emotional outburst following the prosecutor's cross-examination of Doyle. Because the defendant and counsel continued to act collaboratively as cocounsel for the remainder of trial -- just as they had prior  3 to this inflection point -- no colloquy was required. I would affirm the defendant's convictions and therefore respectfully dissent. Discussion. 1. A defendant and attorney may act as cocounsel. "The Sixth Ame