Opinion
15-P-368
03-09-2016
COMMONWEALTH v. MAURICE SCOTT.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a bench trial in the District Court, the defendant was convicted of operating a motor vehicle with a suspended license and committing an assault and battery on a police officer. He appeals from the latter, asserting that he did not waive his right to a trial by jury voluntarily and that the evidence was insufficient to support his conviction.
The conviction on the charge of operating with a suspended license was placed on file and is not before us.
Trial by jury. The Commonwealth asserts that a review of the record as a whole shows that the defendant's waiver of a jury trial was voluntary. See Commonwealth v. Towers, 35 Mass. App. Ct. 557, 558-559 (1993). The transcript of the colloquy contains the notation "no audible response" after the judge asked the defendant whether he understood that he was giving up his right to a trial by jury, and provided a somewhat incoherent response to the judge's follow-up explanation that she, and no jury, would "sit and listen to the evidence and decide on your innocence or guilt." Immediately following this statement the judge asked the defendant if he had been afforded the opportunity and ability to speak with counsel about "this decision," and if he were satisfied with his counsel. The defendant answered both questions in the affirmative.
The court: "That's fine. All right. Mr. Scott, this is a jury waiver form. Before I can accept your waiver, I have to ask you a series of questions, okay." The defendant: "Okay, yeah." The court: "State your name and age?" The defendant: "Maurice Scott, I'm 36." The court: "And how far have you gone in school, Mr. Scott?" The defendant: "I graduated high school." The court: "High School. Have you had any drugs, alcohol or medication today that would affect your ability to understand questions I'm about to ask you?" The defendant: "No." The court: "Do you understand, sir, by executing this form you're giving up your right to have a jury trial today?" The defendant: "(No audible response)." The court: "You understand you're going to have a jury waived trial before me. I'm going to sit and listen to the evidence and decide on your innocence or guilt, okay?" The defendant: "Mm-hmm." The court: "You've had sufficient time to talk with Attorney Carlson about this decision?" The defendant: "Yes." The court: "And you're satisfied with him as your counsel?" The defendant: "Yes." The court: "All right. Mr. Scott has known [sic] a knowing and intelligent waiver of his right to be tried by a jury. So if you'd like a few moments to step out, ADA Buckingham -- just have a seat, Mr. Scott, okay, and then we'll proceed right along, all right." (Emphasis added.)
The transcript suggests that the judge believed she had heard affirmative responses to the two questions at issue, as she did not repeat them but continued to the remaining questions, even though the recording instrument received the defendant's answers as inaudible or indistinct.
The Commonwealth points additionally to the written jury waiver form bearing the defendant's signature, with the additional signature of defense counsel certifying that he had explained the import of a jury waiver to his client. Finally, at the conclusion of the colloquy the judge stated that "Mr. Scott has known [sic] a knowing and intelligent waiver of his right to be tried by a jury."
"Determination of the adequacy of a [jury waiver] colloquy depends on the facts of each case." Commonwealth v. Ridlon, 54 Mass. App. Ct. 146, 150 (2002), citing Commonwealth v. Abreu, 391 Mass. 777, 779 (1984). "Given the defendant's answers to the other questions, the written waiver, and his counsel's certification, there was sufficient support for the judge's decision to accept [the defendant's] waiver [of] his right to a jury trial as willingly and voluntarily made." Commonwealth v. Ridlon, supra (quotation omitted).
The defendant was no stranger to court room proceedings.
Sufficiency of the evidence. The defendant raises this issue for the first time on appeal. He claims that the incident underlying the charge of assault and battery comprised an unwarranted strip search conducted by the police with excessive force; he asserts that consequently the Commonwealth's evidence was insufficient because the prosecutor failed to establish that he was not acting in self-defense when he kicked the trooper. Self-defense is an affirmative defense that must be raised at trial if the Commonwealth is to be charged with a burden to disprove it. See Commonwealth v. Graham, 62 Mass. App. Ct. 642, 651 (2004); Commonwealth v. Eberle, 81 Mass. App. Ct. 235, 239 (2012). The defendant did not raise the issue at trial.
The defendant's reliance on Commonwealth v. Graham, supra, is unavailing. The decision in that case was based on "circumstances where the evidence supports a claim of excessive or unnecessary force by police." Id. at 653. The testimony in this case, viewed in the light most favorable to the defendant, Commonwealth v. Galvin, 56 Mass. App. Ct. 698, 699 (2002), and cases cited, describes a lawful arrest after which the defendant engaged in evasive behavior in the back of the police cruiser. The testimony of the arresting officer, Trooper Sean Bellao, was that the defendant "was just constantly moving out of our vision." The police viewed this behavior as "concerning" and determined they should conduct a search of the defendant once they arrived at the police barracks. As the troopers "were attempting to conduct the search," the defendant was "very agitated, he was upset, he did not want to be searched." The undisputed testimony of the trooper during direct examination by the Commonwealth continued as follows:
Q. "Okay. And despite his being upset, did you continue with the search?"
A. "Yes, we did."
Q. "And can you just describe his behaviors as you were continuing with the search?"
A. "He was -- he had to be forced to the floor, he was kicking and screaming, swearing, continued to actively resist and fight us as we were trying to get his clothes off."
Q. "Okay. And so as -- after he was taken to the floor and you describe him as kicking and screaming, were you able to see where he was kicking?"
A. "He was kicking wildly."
Q. "Okay. And did anything happen as a result of him kicking?"
A. "He struck my left leg."
Q. "Okay. And was he wearing a shoe at the time?"
A. "No, he was not."
Q. "And how many troopers were attempting to subdue him while he was on the floor at this time?"
A. "At that time, I want to say there was at least three or four of us."
Q. "Okay. And during this entire interaction, did he continue to kick and scream?"
A. "Yes, he did."
While we need not consider the Commonwealth's evidence, there was no other evidence related to the search from which a finding adverse to the Commonwealth could be made. We discern no error in the judge's denial of the defendant's motion for a required finding of not guilty.
The defendant's argument to the judge was that the defendant "balked" at the search because "he didn't want to be exposed, nude, he didn't want to be stripped of his dignity" and that the defendant's actions "were not unjustified, they were not assault and battery without justification or excuse." That assertion does not rise to the level of a claim of unnecessary or excessive force. Even were we to perceive error, we would conclude that there was no substantial risk of a miscarriage of justice.
Judgment affirmed.
By the Court (Vuono, Grainger & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 9, 2016.