Opinion
No. 11–P–1701.
2013-02-4
COMMONWEALTH v. Robert BROWN.
By the Court (GRASSO, BERRY & KAFKER, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial, a judge of the Superior Court concluded that the defendant is a sexually dangerous person (SDP) and ordered him committed to the Massachusetts Treatment Center. See G.L. c. 123A, §§ 1, 12–14. On appeal, the defendant contends that (1) his waiver of the right to a jury trial was inadequate, and (2) reference to his refusal to engage in sex offender treatment was error.
The defendant's argument regarding refusal of sex offender treatment arises in the context of a submission treated as a filing pursuant to Mass.R.A.P. 16(l), as amended, 386 Mass. 1247 (1982).
1. Background. As pertinent here, on the day of trial, the defendant signed and presented the judge with a form that expressed the defendant's intention to waive a jury trial and have the matter determined by the judge as fact finder. As the judge began to engage the defendant in a colloquy, defense counsel inquired whether the judge would be willing to entertain a continuance rather than proceeding with trial. As grounds, counsel stated that the defendant had related that things were proceeding too quickly for him to understand. The judge inquired further and learned that counsel's concerns related to the defendant's inability to recall matters, such as the waiver of jury, that they had discussed a few weeks previously. Thus alerted, the judge engaged the defendant in a colloquy and satisfied herself that the defendant was competent
and desired to have the matter decided by the judge rather than by a jury. The judge concluded that the defendant's waiver of a jury trial was intelligent and voluntary, and the matter proceeded to trial.
The defendant does not challenge the judge's determination of competence, or the denial of his motion for a continuance. See Commonwealth v. Nieves, 446 Mass. 583, 592 (2006) (counsel may exercise rights on behalf of even incompetent defendant in SDP proceeding).
2. The jury waiver. The defendant's contention that his waiver of a jury trial was constitutionally inadequate fails for the fundamental reason that the right to a jury in SDP trials is statutorily, not constitutionally, mandated. “Sexually dangerous person trials are civil, not criminal, in nature, and the right to a jury trial in such a case is statutorily created, rather than required by either Federal or State Constitution.” Commonwealth v.. Dresser, 71 Mass.App.Ct. 454, 457 (2008).
In any event, the colloquy conducted provides an adequate basis to support the judge's determination that the defendant's waiver of a jury trial was intelligent and voluntary.
When the Commonwealth filed its petition for commitment in October, 2010, the relevant statute provided that the trial in an SDP commitment proceeding “shall be by jury unless affirmatively waived by the person named in the petition.” G.L. c. 123A, § 14( a ), inserted by St.1999, c. 74, § 8. By the time of the defendant's trial in January, 2011, the statute had changed, now providing that “[e]ither the person named in the petition or the petitioning party may demand, in writing, that the case be tried to a jury and, upon such demand, the case shall be tried to a jury.” G .L. c. 123A, § 14( a ), as amended by St.2010, c. 256, § 77. While we think the amended statute governs the defendant's trial, see Commonwealth v. Dalrymple, 428 Mass. 1014, 1015 (1998), the defendant's claim that he was deprived of his right to a jury trial fails under both versions.
Viewed in reference to the amended statute, the defendant never demanded that his case be tried by a jury. Indeed, the converse is true. He affirmatively requested that the case be tried jury waived. Viewed in reference to the earlier statute, wherein trial is to be by jury unless affirmatively waived by the defendant (“the person named in the petition”), the facts establish such a waiver overwhelmingly. See Commonwealth v. Dresser, supra at 457 (where right conferred by statute, traditional indicia of waiver apply, including waiver by inaction, express agreement, or failure to object). The defendant both signed a jury waiver and expressed to the judge his desire that the matter be determined by the judge as fact finder, rather than by a jury.
3. Refusal to engage in treatment. We reject the defendant's claim that his adjudication must be reversed because of alleged evidentiary references to his refusal to engage in sex offender treatment. See Commonwealth v. Hunt, 462 Mass. 807, 816–819 (2012) (in SDP proceeding, evidence defendant did not receive treatment admissible, but error to admit evidence defendant refused such treatment where conditioned upon waiver of confidentiality). Even were we to apply the new evidentiary rule set forth in Hunt to the defendant's adjudication, see Commonwealth v. Dagley, 442 Mass. 713, 720–721 (2004), there is no basis in the record for concluding that the Commonwealth emphasized the defendant's refusal to participate in sex offender treatment as opposed to his not having received such treatment. See Hunt, supra at 818 (what is relevant is whether defendant received sex offender treatment, not why he did not). Indeed, to the extent that reference to the defendant's refusal to engage in treatment arose at all, it arose as a result of defense counsel's inquiring into the availability of such treatment on cross-examination of the Commonwealth's expert. Also absent from the record is any basis for concluding that treatment was available to the defendant only upon a waiver of confidentiality. See id. at 819. In these circumstances, we discern no basis for disturbing the judgment.
Judgment affirmed.