Opinion
No. 10–P–1778.
2012-05-22
COMMONWEALTH v. Russell K. CRAFT.
The judge concluded that he would accept the waiver because the defendant “understands what he is waiving....”
By the Court (KATZMANN, SMITH & GRAINGER, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Russell K. Craft, was found guilty at a jury-waived trial of operating under the influence of alcohol (OUI) and of negligent operation of a motor vehicle. The judge found him not responsible for a motor vehicle lights violation and a marked lane violation. The only issue before us is the defendant's claim that the judge's colloquy with him regarding the waiver of his right to a jury trial was inadequate.
A valid waiver requires both a signed waiver certificate and a colloquy designed to ensure that the waiver is voluntary. Ciummei v. Commonwealth, 378 Mass. 504, 509 (1979). The defendant began the jury waiver process by signing a written jury trial waiver form. That form was also signed by the defendant's attorney, who certified that he had informed the defendant of the differences between a jury trial and a jury-waived trial.
Once a written waiver is presented, a judge is required to conduct a colloquy with the defendant before accepting the waiver. “In the exchange, the judge will advise the defendant of his constitutional right to a jury trial, and will satisfy himself that any waiver by the defendant is made voluntarily and intelligently.” Ciummei v. Commonwealth, supra. Here, however, the judge did not conduct a colloquy with the defendant, but rather engaged in a soliloquy that spread over four pages of the transcript.
A colloquy is defined as “[a]ny formal discussion, such as an oral exchange between a judge, the prosecutor, the defense counsel, and a criminal defendant in which the judge ascertains the defendant's understanding of the proceedings and of the defendant's rights.” Black's Law Dictionary 300 (9th ed.2009).
It proceeded as follows. First, the judge told the defendant that if he did not waive his rights to a jury trial, persons from all over the Cape would be summoned to appear in court as prospective jurors. Once in court, the prospective jurors would be examined for bias and prejudice. The judge then told the defendant that in his experience there were persons, organizations, and religious groups that were against the use of alcohol. (The defendant had been arrested for OUI.) The judge then recounted an episode that occurred when he was a young lawyer. His client at the time was the subject of a jury trial and the judge had left on the jury a ten-year member of Alcoholics Anonymous. The judge stated that if he had known the juror's background, he never would have left him on the jury.
The judge then turned his attention to the count charging the defendant with negligent operation of a motor vehicle and talked about the subjectivity attached to a charge of negligence. He informed the defendant that he has a lot of pet peeves, including people who talk on cell phones. Continuing on that theme, he stated that he had nearly gotten into an accident the previous night because “I was talking about three or four things at the same time that I shouldn't have been doing while driving. That's negligent.” The judge then told the defendant that “[t]wo beers might not be enough to make you under the influence. But it could very well make you negligent if you were opening them and pouring them into a glass or whatever and not paying attention to the road. You see the point?”
DEFENDANT: “Yes.”
JUDGE: “All right. When you do this waiver here, you're giving up the right to have that independent group of people. Do you understand that?”
DEFENDANT: “Yes.”
The judge concluded that he would accept the waiver because the defendant “understands what he is waiving....”
Discussion. We recognize that no case to date has established a rigid list of questions by which a judge determines whether a waiver of a jury trial is intelligent and voluntary. See Commonwealth v. Abreu, 391 Mass. 777, 778–779 (1984). “So long as a colloquy occurs, the sole focus of our review is whether the colloquy provided an evidentiary record on which the judge could find the waiver was voluntary and intelligent.” Commonwealth v. Hendricks, 452 Mass. 97, 107–108 (2008). The court has stressed that “inquiries directed to such a conclusion should not be ‘discharged as a mere matter of rote.’ “ Commonwealth v. Schofield, 391 Mass. 772, 775 (1984), quoting from Patton v. United States, 281 U.S. 276, 312 (1930).
In this matter, the judge did not conduct a colloquy with the defendant, but rather engaged in a soliloquy. The defendant was never asked if he had been pressured, cajoled, or otherwise rendered incapable of rational judgment. Further, “[a]n inquiry about the defendant's level of education seems a common and significant element of a colloquy but was absent here, and, especially as the crime to be tried involved alcohol, one might have expected the judge to inquire where the defendant imbibed that day and thus compromised voluntariness.” Commonwealth v. Towers, 35 Mass.App.Ct. 557, 559 (1993). The judge also never asked the defendant if he was giving up his right to a jury trial freely, willingly, and voluntarily, a question that is typically asked in these situations.
A soliloquy is defined as “the act of talking to oneself.” Webster's Third New International Dictionary 2169 (1993).
The Commonwealth noted in its brief that the same judge's jury waiver colloquy was examined and found to be sufficient in Commonwealth v. Hendricks, 452 Mass. at 106–108. We called for the briefs in Hendricks, and observed that in that case the judge asked the defendant if he was giving up his right to a jury trial freely, willingly, and voluntarily. In the matter before us, the judge never made that inquiry.
We wish to emphasize that “we do not aim, nor did the Supreme Judicial Court, to describe or hint at a specific form of words that will comprise a minimally adequate colloquy.” Commonwealth v. Towers, supra. But, in this matter, the manner in which the judge conducted the “colloquy” and the lack of material questions did not provide “an evidentiary record on which the judge could find the waiver was voluntary and intelligent.” Commonwealth v. Hendricks, supra at 107–108.
Judgments reversed.
Findings set aside.