Opinion
10-P-841
08-04-2011
COMMONWEALTH v. JOSE CLAUDIO.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was charged with assault and battery on a public employee (corrections officer), in violation of G. L. c. 127, § 38B. After a bench trial, the defendant was found guilty. The sole issue on appeal is whether the defendant voluntarily and intelligently waived his right to a jury trial.
Discussion. Massachusetts law requires that a defendant who foregoes his right to trial by jury must first sign a written waiver, G. L. c. 263, § 6, and that a recorded colloquy between the judge and the defendant be conducted. Ciummei v. Commonwealth, 378 Mass. 504, 509 (1979). '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.' Ibid. 'So long as a colloquy occurs, the sole focus of our review [on appeal] is whether the colloquy has provided an evidentiary record upon which the trial judge could find the waiver of a defendant was voluntary and intelligent.' Commonwealth v. Abreu, 391 Mass. 777, 779 (1984).
There is no dispute in this case that the defendant signed the written waiver form required by G. L. c. 263, § 6. Nor is there any dispute that a colloquy was conducted (through an interpreter) during which the judge explained to the defendant that he had a choice between a trial before a jury or a judge, and that a jury trial would require all six jurors to agree as to a guilty or a not guilty verdict. The judge asked the defendant if he understood his options regarding a bench or a jury trial and also whether he had had a chance to discuss his options with his attorney. The defendant answered both questions in the affirmative. The judge also inquired as to the defendant's education and whether he had taken any drugs, alcohol, or medicine in the previous twenty-four hours. Finally, the judge asked the defendant if he had any questions for his attorney or the judge.
The judge's colloquy closely tracked the language suggested by the Supreme Judicial Court in Ciummei, supra at 509-510. Indeed, the defendant's sole complaint regarding the colloquy is that the judge did not specifically ask whether the defendant had been 'pressured or cajoled' into proceeding with a jury-waived trial. The defendant argues that by not making this inquiry, the judge had no basis to determine whether the defendant's waiver was voluntary.
As the judge accepted the defendant's waiver, it is clear that he found it was made voluntarily and intelligently. After reviewing the colloquy, we conclude that it was sufficient to sustain the judge's finding in this regard. We first note that the defendant signed the written jury waiver form. The colloquy acts as a 'further safeguard . . . to ensure that a jury waiver is made voluntarily and knowingly' (emphasis supplied). Commonwealth v. Osborne, 445 Mass. 776, 780 (2006). The Supreme Judicial Court stated in Osborne that '[its] decision to require a colloquy in [Ciummei] was not driven by constitutional considerations. Rather, we grafted the additional safeguard onto the written waiver 'in aid of sound judicial administration." Id. at 781 n.9, quoting from Ciummei, supra at 509. Moreover, the Supreme Judicial Court has held that the omission of some of its suggested colloquy language (set out in Ciummei) 'alone [is] not enough to make the colloquy inadequate.' Abreu, 391 Mass. at 779.
Here, the judge and the defendant engaged in a relatively extensive colloquy in which the defendant was informed of his rights and was given the opportunity to ask questions of both his trial counsel and the judge. Contrast id. at 778 (colloquy, which consisted of one conclusory question to defendant -- 'Felix Abreu, do I understand that you have waived your right to trial by jury and you want to have the case heard by a single justice through the interpreter?' -- was inadequate). During the colloquy, the judge also had the chance to observe the defendant's demeanor, which 'would have assisted the judge in sensing whether pressure . . . [was] in the picture.' Commmonwealth v. Onouha, 46 Mass. App. Ct. 904, 905 (1998). In Onouha, the defendant protested that the judge 'did not inquire whether the defendant had been subjected to any pressure to waive trial by jury, whether the defendant was under the influence of intoxicants, and whether the defendant understood the difference between a jury trial and a bench trial.' Ibid. The Onouha court acknowledged that the colloquy in that case was 'sparse,' but nonetheless concluded that it was sufficient to affirm the judgment. Id. at 904, 905. The colloquy conducted in this case, however, was significantly more thorough than what passed muster in Onouha.
Finally, we observe that the defendant does not claim that he was in fact pressured to waive his right to trial by jury. See id. at 905 ('Significantly, the defendant does not suggest that he was either pressured, intoxicated, or uninformed when he tendered his waiver'). For all of these reasons, we conclude that the defendant's waiver of his right to trial by jury was voluntary and intelligent.
. Though we affirm here, we reiterate that it is better practice for trial judges to expressly ask defendants if they are voluntarily waiving their right to a jury trial. See Onouha, 46 Mass. App. Ct. at 905.
Judgment affirmed.
By the Court (Rapoza, C.J., Cypher & Carhart, JJ.),