Opinion
No. 11–P–1708.
2013-01-14
COMMONWEALTH v. Brandon R. VICENTE.
Focusing on the transfer of the case to a new judge, the defendant asserts that the second colloquy was inadequate to demonstrate a knowing and voluntary waiver.
By the Court (KAFKER, MILKEY & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a bench trial in District Court, the defendant was convicted of assault and battery by means of a dangerous weapon, aggravated assault and battery, threats to commit a crime, and malicious destruction of property over $250. Discerning no merit in the defendant's appeal, we affirm.
1. Waiver of jury trial. The defendant signed a written form indicating that he was waiving his rights to a trial by jury, and he confirmed his desire to do so in a colloquy with the judge before whom the trial was scheduled to commence. We need not state the details of that colloquy because the defendant makes no claim that it was inadequate. After the initial colloquy, the case was then transferred to a second judge for the actual trial. Less than one-half hour after the defendant's jury-waiver colloquy with the initial judge, the trial judge engaged the defendant in the following additional colloquy:
The record is not entirely clear as to the reasons for the transfer, although it appears to be nothing more than the product of the two judges having to juggle a busy trial docket.
The judge: “Sir, it's my understanding that when you were in the other courtroom, you went through the jury waiver colloquy with Judge Wright, is that correct?”
The defendant: “Yes, sir.”
The judge: “Alright. So you understand that same waiver applies, just a different judge.”
The defendant: “Yes, sir.”
Focusing on the transfer of the case to a new judge, the defendant asserts that the second colloquy was inadequate to demonstrate a knowing and voluntary waiver.
As an initial matter, we agree with the Commonwealth that the defendant has no right to condition his jury waiver on trial before a particular judge. In any event, the defendant did not seek to withdraw his jury waiver once the case was reassigned, but instead reconfirmed his desire to move forward with a bench trial. As noted, the defendant makes no claim that the first colloquy (given less than one-half hour earlier) was inadequate. Under these circumstances, the defendant has the burden of demonstrating that his jury waiver was invalid. Commonwealth v. Backus, 78 Mass.App.Ct. 625, 629 (2011). He has not carried that burden on the record before us.
Where a defendant has waived his right to a jury trial, “it is within the trial judge's discretion whether a defendant should be permitted to withdraw his waiver.” Commonwealth v. Backus, 78 Mass.App.Ct. 625, 628–629 (2011), quoting from Commonwealth v. Kopsala, 58 Mass.App.Ct. 387, 391 (2003).
The defendant asserts that the transcript indicates that his attorney may have been absent when the trial judge conducted his brief colloquy even though trial commenced immediately thereafter with counsel plainly present. We agree with the Commonwealth that this is not a fair reading of the record given the presumption of regularity in such proceedings. Backus, supra at 629.
2. Introduction of an X-ray. The victim of the assault testified that doctors provided her an X-ray of her hand (which she claimed the defendant had broken). The judge admitted the X-ray in evidence, but with the following qualification:
“I'm gonna allow this in for the limited purpose of being the X-ray that was shown and given to her of her hand to take from the hospital.... But I want it clear that at least at this point, and maybe at the end of the trial, I'm—I don't think that without the testimony, even though it shows it's broken, I'm gonna adopt that it's broken.... I'm not admitting it to show a break.”
Later, in explaining his verdict, the judge made it clear that he did not rely on the X-ray and in fact declined to credit the victim's testimony that her hand was in fact broken:
“In this case, although I don't find that there was sufficient evidence to find that the limb was broken, because nobody except the victim testified that the limb was broken, I do find that the injury was serious under the statute because she couldn't use her hand for a long time, it was serious enough to warrant two forms of treatment, so I'm gonna find him guilty on count two.”
On appeal, the defendant claims that the X-ray was improperly admitted (over his objection) without proper authentication. Regardless of whether the defendant can show error, he cannot show prejudice, because the judge expressly disavowed any reliance on the X-ray. For similar reasons, the defendant's argument fares no better when recast as a claim that his Sixth Amendment rights were violated by the absence at trial of testimony from those who took the X-ray.
3. Sufficiency of the evidence. There is no merit in the defendant's argument that the evidence was insufficient as to whether he caused more than $250 in property damage. In evaluating sufficiency of the evidence, we must, of course, determine whether “ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318–319 (1979). Viewing the victim's testimony in this light, we agree with the Commonwealth that the judge reasonably could have concluded that the amount of the damage exceeded $250.
Judgments affirmed.