Opinion
No. 11–P–1649.
2013-01-17
COMMONWEALTH v. Michael BENJAMIN.
By the Court (GRASSO, MEADE & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of armed robbery in violation of G.L. c. 265, § 17, and assault by means of a dangerous weapon in violation of G.L. c. 265, § 15B. After a jury-waived trial, the defendant was convicted of being a habitual offender in violation of G.L. c. 279, § 25. Those convictions were affirmed by this court on direct appeal in Commonwealth v. Benjamin, 76 Mass.App.Ct. 1118 (2010). Thereafter, the defendant filed a motion for new trial, which was denied, and the defendant appeals from that denial. We affirm.
1. Waiver. On appeal, the defendant claims the motion judge, who was also the trial judge, erred by denying his motion for new trial where a certain juror should not have been permitted to serve, the jury waiver colloquy was defective, and the defendant received ineffective assistance. However, the first two claims could have been raised on direct appeal, but were not. As a result, they are waived. See Mass.R.Crim.P. 30(c)(2), as appearing in 435 Mass. 1501 (2001); Pisa v. Commonwealth, 384 Mass. 362, 365–366 (1981); Fogarty v. Commonwealth, 406 Mass. 103, 107–108 (1989). Even if these claims were not waived, they are without merit, and thus there is no risk that justice miscarried. First, not only did the defendant not object to the juror with a criminal record being seated, he agreed the juror should not be dismissed. Second, G.L. c. 234A, § 4(7), disqualifies potential jurors from service if the juror has been convicted of a felony within the past seven years. The juror in question had been convicted in 1979, and finished his probationary sentence in 1980. Third, the judge conducted a proper jury waiver colloquy with the defendant, and the defendant signed a written jury waiver form. The colloquy was sufficiently detailed to permit the judge to determine that the defendant's jury waiver decision was both intelligent and voluntary. The absence of a specific inquiry regarding ingestion of medication or drugs, by itself, does not render the judge's acceptance of the waiver improper. The defendant's reliance on Commonwealth v. Ciummei, 378 Mass. 504 (1979), is misplaced. See Commonwealth v. Hendricks, 452 Mass. 97, 107–108 (2008) (“The omission of inquiries suggested as appropriate in Ciummei alone are not enough to make a colloquy inadequate”). Finally, the defendant's affidavit in support of his motion for new trial did not identify any drugs or medication he was taking that would have interfered with his ability to intelligently and voluntarily waive his right to a jury trial.
2. Ineffective assistance. The defendant's motion for new trial also claimed he received ineffective assistance of counsel when counsel did not object to the seating of juror with a criminal record, which we do not need to address further,
and for counsel's failure to investigate the defendant's mental health. We disagree.
Because there is no substantial risk of a miscarriage of justice for the seating of the juror, counsel cannot be found to be ineffective for failing to object to the seating of the juror. See Commonwealth v. Curtis, 417 Mass. 619, 624 n. 4 (1994); Commonwealth v. Farnsworth, 76 Mass.App.Ct. 87, 100 (2010).
Relative to his mental health claim, as the judge found, the defendant failed to meet his burden of showing he had a viable mental health defense that was not raised at trial. In support of this claim, the defendant merely offered his own self-serving affidavit that the judge was not required to credit. As the judge noted, absent from the motion for new trial was any affidavit from the defendant's trial counsel, any affidavit from a mental health professional, or any mental health records. Moreover, during his jury waiver colloquy, the defendant stated he had never been treated for any mental health condition. For the same reasons, trial counsel was not ineffective for not requesting a jury instruction relative to the defendant's ability to form the necessary intent to commit the crimes.
Because the defendant's motion for new trial and supporting affidavit failed to raise a substantial issue, the judge neither erred nor abused his discretion by not holding an evidentiary hearing. See Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1501 (2001); Commonwealth v. Wallis, 440 Mass. 589, 596 (2003).
Order denying motion for new trial affirmed.