Opinion
11-P-856
03-08-2012
COMMONWEALTH v. GEORGE S. McBRIER.
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, George S. McBrier, appeals from the denial of his motion for a new trial submitted pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). As grounds for his motion, he claims that he neither knowingly, intelligently, and voluntarily waived his right to a jury trial nor accepted the jury-waived trial resulting in his conviction of three offenses. For the following reasons, we affirm the denial of his motion.
Background. By complaint issued on November 5, 2007, the Commonwealth charged the defendant with (1) assault by means of a dangerous weapon (knife), G. L. c. 265, § 15B; (2) threat to commit a crime, G. L. c. 275, § 2; and (3) assault and battery by means of a dangerous weapon (shod foot), G. L. c. 265, § 15A.
On February 28, 2008, he appeared for trial in District Court. At that time, the defendant signed a waiver of his right to trial by jury. The trial judge proceeded to conduct a colloquy. In the course of the colloquy the judge asked the defendant whether he had taken any medications during the previous twenty-four hours. The defendant replied that he was taking medication for pain, muscle relaxation, depression, and anxiety. The judge then asked whether those medications 'affect your ability to understand the nature of these proceedings?' The defendant replied that he understood the three charges against him and that a conviction of them would result in his incarceration. The judge continued the colloquy concerning the nature of the rights surrendered by a waiver of a jury trial, received additional answers from the defendant, and concluded that the waiver was knowing, intelligent, and voluntary.
At the conclusion of trial, the judge convicted the defendant of all three charges and imposed concurrent sentences of eighteen months in the house of correction upon the charges of assault by means of a dangerous weapon and assault and battery by means of a dangerous weapon and of six months upon the charge of threat to commit a crime.
In April of 2010, the defendant filed a motion for a new trial. By supporting affidavit and memorandum of law, he alleged and argued that his consumption of seven prescribed medications at the time of the February 28, 2008, trial had prevented his 'rational understanding' of his choice between a bench trial and a jury trial. The trial judge served as the motion judge. He conducted an evidentiary hearing on August 26, 2010. The gist of the defendant's testimony at the evidentiary hearing was that he had taken his multiple medications on that day and that he had no memory whatsoever of the waiver colloquy. His contention to the judge was that the medications had impaired any capacity to act knowingly or voluntarily on that day.
By subsequent written findings and rulings, the judge denied the motion. He found that he remembered the defendant, who appeared 'alert and responsive throughout the colloquy'; that he did not credit the defendant's affidavit, nor a supporting affidavit from his girlfriend at the time of trial, alleging that medications had impaired his understanding or voluntariness; and that he did not believe testimony of the defendant at the subsequent evidentiary hearing that he had ingested all of the claimed medications during the twenty-four hours before the trial date of February 28, 2008.
Analysis. We review the decision of the motion judge for a significant error of law or an abuse of discretion. See Commonwealth v. Grace, 397 Mass. 303, 307 (1986); Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006); Commonwealth v. Candelario, 446 Mass. 847, 858 (2006). If the same judge served as both the trial and motion judge, his findings and rulings receive special deference. See Commonwealth v. Murphy, 442 Mass. 485, 499 (2004). In that circumstance, the motion judge may rely upon his knowledge of events at trial. See Commonwealth v. Little, 384 Mass. 262, 269 (1981). Finally, the reviewing court appropriately defers to the credibility determinations of such a motion judge in both his assessment of an affidavit submitted in support of the motion for a new trial and, all the more so, in his assessment of the testimony of witnesses at an evidentiary hearing on the motion. See Commonwealth v. Thomas, 399 Mass. 165, 167 (1987); Commonwealth v. Ridge, 455 Mass. 307, 325 (2009).
Here, the motion judge indicated that he remembered the waiver colloquy and the trial of the defendant. He found, from his direct observation, that the defendant had acted knowingly and voluntarily at the time of the waiver. He observed the testimony of the defendant at the evidentiary hearing upon the subsequent motion. He specifically disbelieved the defendant's representations that he had consumed the claimed quantity of medications and that those medications had impaired his ability to act intelligently and voluntarily at the time of the waiver. Those determinations are conclusive and permit no room for contradiction on the part of an appellate court.
Order denying motion for new trial affirmed.
By the Court (Rapoza, C.J., Grainger & Sikora, JJ.),