Opinion
No. 15–P–956.
09-08-2016
COMMONWEALTH v. Clark McLEAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury-waived trial, a District Court judge found the defendant, Clark McLean, guilty of four counts of indecent assault and battery, not guilty of four other counts of indecent assault and battery, and not guilty of assault and battery by means of a dangerous weapon. The sole issue on appeal is whether the jury waiver colloquy was sufficient to permit a finding that the defendant voluntarily, knowingly, and intelligently waived his jury trial right. We affirm.
Background. Prior to trial, the defendant signed a jury waiver form, after discussion with his counsel. The judge then held a jury waiver colloquy during which he confirmed that the defendant had discussed the waiver form with his counsel; explained that the defendant had a right to have the case heard by a jury of six; explained that the defendant had “the right to return or challenge any two jurors that might be empanelled for any reason or no reason at all”; explained that the judge would hear the evidence and, if warranted, impose a sentence; and explained that the judge would serve two roles by deciding the facts and deciding the sentence if he were to find the defendant guilty. He asked the defendant about his age and education level. He confirmed that the defendant had never been treated for mental illness, had not consumed drugs or alcohol in the past twenty-four hours, and was able to communicate with his counsel regarding the waiver of a jury trial. The judge accepted the waiver, finding on the record that it was “made knowingly and voluntarily.”
The case was tried over three days. The evidence at trial supported the judge's conclusion that the defendant lured the victim to Massachusetts via a ruse, and engaged in “sexual encounters” with her that “were not consensual.”
Discussion. “[T]o effectively waive his right to a jury trial, a defendant must sign a written waiver form pursuant to G.L. c. 263, § 6, and the trial judge must conduct a colloquy to assure himself that the defendant's waiver was voluntary, knowing, and intelligent.” Commonwealth v. Dussault, 71 Mass.App.Ct. 542, 547 (2008), citing Ciummei v. Commonwealth, 378 Mass. 504, 509 (1979) (footnote omitted). “[N]o particular form of words is required for an adequate jury trial waiver colloquy.” Commonwealth v. Garcia, 88 Mass.App.Ct. 307, 310 (2015). Rather, “the colloquy must provide evidence sufficient for an appellate court to conclude that the judge had adequate information properly to satisfy himself that any waiver by the defendant was made voluntarily and intelligently.” Ibid., citing Commonwealth v. Schofield, 391 Mass. 772, 775–776 (1984). See Cypher, Criminal Practice & Procedure § 31.13, at 713 (4th ed. 2014) (“Once a colloquy occurs, the sole focus of the reviewing court 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”).
General Laws c. 263, § 6, as appearing in St.1979, c. 344, § 19, provides, in relevant part: “Any defendant in a criminal case other than a capital case, whether begun by indictment or upon complaint, may, if he shall so elect, when called upon to plead, or later and before a jury has been impanelled to try him upon such indictment or complaint, waive his right to trial by jury by signing a written waiver thereof and filing the same with the clerk of the court.”
In the present case, the defendant signed the written District Court jury waiver form, and the judge conducted the colloquy described supra. Contrary to the defendant's contention, the colloquy was sufficient for the judge to find that the jury waiver was voluntary and intelligent. In addition to explaining the defendant's right to a jury trial and right to challenge jurors (and thus participate in jury selection with his counsel), the judge explained that he would be serving dual roles by determining the facts and imposing sentence, if warranted. The judge also inquired into issues bearing on voluntariness, including age, mental illness, absence of drug or alcohol use, and education. Compare Garcia, supra (“thin” jury waiver colloquy sufficient even though judge did not ask about defendant's level of education, did not ask whether any promises had been made to defendant, did not provide any details about procedure attendant upon jury trial, and did not explain that vote of six jurors must be unanimous).
We note the thorough effort by the defendant's appellate counsel to catalogue, compare, and distinguish jury waiver colloquy cases decided by Massachusetts appellate courts.
Furthermore, at the commencement of the colloquy, the judge held in his hand a signed copy of the jury waiver form, and confirmed that the defendant had signed the form after discussion with his counsel. That form contains a “defense counsel's certificate” confirming that counsel explained to the defendant “[t]hat the jury consists of members of the community; [t]hat the defendant may participate in their selection; [t]hat the verdict of the jury must be unanimous; [t]hat the jury must decide guilt or innocence while the judge makes rulings of law in the course of the trial and instructs the jury on the law, and imposes sentence in case of guilt; and [t]hat when a jury is waived, the judge alone decides guilt or innocence in accordance with the facts and the law.” See Commonwealth v. Hernandez, 42 Mass.App.Ct. 780, 785 (1997) (holding that “in addition to considering the defendant's answers to the questions posed during the colloquy, a judge may also rely upon the information contained in the jury waiver form signed by the defendant and in defense counsel's certificate when making a determination whether the defendant's jury waiver is made voluntarily and intelligently”). Sufficient evidence exists on this record that the defendant's waiver was voluntary and intelligent.
The Commonwealth's “Motion to Expand the Record” to include a copy of the standard jury waiver form used in the Taunton division of the District Court Department was allowed, without objection, by a judge of the Taunton division. Although the original signed copy of the waiver was not located, there appears to be no dispute on the record before us that the defendant signed that form.
We decline the defendant's invitation to mandate uniformity in the jury trial waiver colloquy. See Garcia, 88 Mass.App.Ct. at 311.
Judgments affirmed.