COMMONWEALTH v. HAMM (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of violating an abuse prevention order in violation of G. L. c. 209A, § 7. On appeal, he claims there was insufficient evidence to support his conviction, and that he did not properly waive his right to a six-person jury. We affirm.

1. Abuse prevention order. The defendant claims that his conduct at issue was incidental to a legitimate and lawful activity and conducted in good faith, and therefore could not be the basis of a violation of the abuse prevention order. We disagree.

When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 152 (1999), quoting Woodby v. Immigration and Naturalization Servs., 385 U.S. 276, 282 (1966). Rather, the relevant “question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979).

When evaluating sufficiency, the evidence must be reviewed with specific reference to the substantive elements of the offense. See Latimore, 378 Mass. at 677-678. To prove a violation of a G. L. c. 209A order, the Commonwealth must prove four elements: “(1) that a court had issued an abuse protection order; (2) that the order was in effect on the date when its violation allegedly occurred; (3) that the defendant knew the relevant terms of the order were in effect, either by having received a copy of the order or by having learned of the terms of the order in some other way; and (4) that the defendant violated a term of the order.” Commonwealth v. Shea, 467 Mass. 788, 794 (2014). The defendant only contests the fourth element.

Here, in the light most favorable to the Commonwealth, the jury was entitled to find as follows. The abuse prevention order prohibited the defendant from contacting the victim with one exception: the parties could “text each other only about the care and parenting time with” their daughter. On November 18, 2017, within a five-hour period, the defendant sent four texts to the victim. They were: “How is [she] doing?”; twice repeating the inquiry with added question marks, “How is [she] doing???”; and concluding with a message in all capital letters, “HOW IS [SHE] DOING?” The defendant sent two additional texts within minutes on November 23, 2017, a single text on November 28, 2017, and two texts within two minutes on December 2, 2017. All made the same inquiry.

On December 6, 2017, the defendant's text was different. On this occasion, he wrote “How is [she] doing? John will be getting ahold of me later.” The victim was both frightened and confused by the cryptic message. She did not know to whom he was referring or what his point was. No person named “John” was involved in her daughter's caretaking: no teachers, neighbors, doctors, babysitters, or family members. However, the victim had been on a few dates in the recent months with a man named John, a new friend with no known connection to the defendant. The victim reported the text message to the police.

Based on the evidence, the jury were entitled to conclude that the defendant's texts displayed increasing frustration with the victim. He peppered his queries with unnecessary additional punctuation and then resorted to the use of all capital letters, which signifies shouting in texting parlance. See Leon v. Cormier, 91 Mass. App. Ct. 216, 219 n.6 (2017). These texts were followed by the defendant's text message that referenced “John,” a man who had no role in the victim's daughter's childcare or parenting. Rather, John was a man whom the victim had recently begun dating. The message could reasonably be understood to mean the defendant knew of the relationship and wanted to let the victim know that he did. Similarly, as the judge characterized it at sentencing, it was “really a shot across the bow.” The record amply supports the jury's conclusion that the defendant's text referencing “John” was not merely incidental to lawful activity, and instead fell outside the childcare and parenting exception to the no contact order. See Shea, 467 Mass. at 794. See also Commonwealth v. Stewart, 52 Mass. App. Ct. 755, 759 (2001) (strictly construing no contact exceptions).²

2. Jury of six waiver. The defendant also claims that because the judge's colloquy with him was inadequate, he did not knowingly and voluntarily waive his right to a six-person jury. We disagree.

When a defendant chooses to waive the right to be tried by the full complement of a jury, the waiver must be knowing and voluntary. Commonwealth v. Bennefield, 482 Mass. 250, 256 (2019). To accomplish this, the judge must engage in a colloquy with the defendant to ensure that the waiver is, in fact, knowing and voluntary. The principles that such a colloquy should cover are found in Ciummei v. Commonwealth, 378 Mass. 504, 509-510 (1979).

In this case, the venire consisted of eleven potential jurors. At the completion of jury selection, there remained only five jurors. The judge indicated that he would only continue if both parties agreed to a trial with five jurors. After providing counsel some time to consult with the defendant, both parties agreed to proceed with five jurors. See G. L. c. 234A, § 68 (valid judgment may be based upon a verdict rendered by fewer jurors than required where all parties agree). Before doing so, the judge conducted a colloquy with the defendant. The judge ensured that the defendant understood that in the usual case, seven jurors are selected, six of whom will deliberate and reach a unanimous verdict, and one of whom will serve as an alternate. With five jurors, the judge stated there would be no alternate. The judge explained that it may be easier for a jury of five to reach a unanimous decision than a jury of six; the defendant indicated that he understood. The defendant agreed that he had had sufficient time to discuss the decision with his attorney and that he was satisfied with his attorney's advice. The judge further ensured that no one had forced the defendant, or threatened him, or made any promises to him to waive his right to a trial with six jurors. The defendant expressed his wish to proceed with five jurors.

Despite his advised and counseled agreement at the time, the defendant now claims that the colloquy was inadequate. However, “[t]he defendant does not claim that he was uninformed or misinformed by defense counsel, or that he was pressured or under any disability at the time of the colloquy.” Commonwealth v. Mendonca, 50 Mass. App. Ct. 684, 690 (2001). What he does claim is that the judge failed to inquire if the defendant had had consumed any drugs or alcohol in the previous twenty-four hours, whether he took any medications that impacted his ability to make decisions or to understand his circumstances, or whether he suffered from any illnesses -- including mental illnesses -- that may impact his ability to make rational decisions. While the judge did not make these inquiries, such explicit questions are unnecessary where the judge may rely on the defendant's demeanor and responses during the colloquy. See Commonwealth v. Hardy, 427 Mass. 379, 383 (1998); Commonwealth v. Onouha, 46 Mass. App. Ct. 904, 905 (1998).

The defendant also claims that the judge never explained that he had an “absolute constitutional right” to a jury of six or that if he chose not to proceed, he would be able on a future date to have a six-person jury. However, the judge did explain what the usual procedure was, and how this trial would differ if the defendant chose to proceed. Also, the defendant was not told his only option was to proceed with five jurors. Indeed, the parties discussed that although the case was “two hundred and fifty days old,” it was still under the one year limit. See Mass. R. Crim. P. 36 (b) (1) (C), as amended 422 Mass. 1503 (1996). This discussion implies there was still time to proceed at a future date with a six-person jury. Finally, although the defendant is correct that the judge did not make an explicit finding that the defendant's waiver was knowing and voluntary, the fact the matter proceeded after the colloquy indicates that such a finding was made implicitly.

In the end, there are no rigid requirements for what a proper jury-waiver colloquy must include. Ciummei, 378 Mass. at 509-510. Here, the colloquy the judge conducted provided this court with “an evidentiary record on which the judge could find the waiver was voluntary and intelligent.” Commonwealth v. Hendricks, 452 Mass. 97, 107-108 209 (2008). We require no more.

Judgment affirmed.

FOOTNOTES

2.   At trial, the defendant testified that he had learned through a friend that the victim was dating a man named John. The defendant did not know John, but managed to obtain his contact information. Frustrated with the victim's lack of response to his texts, the defendant sent John a message asking about the wellbeing of his daughter. The defendant claimed that his text to the victim that “John will be getting ahold of me later” was simply wishful thinking. As the jury was free to disbelieve the defendant, his testimony did not cause the Commonwealth's case to deteriorate. See Commonwealth v. O'Laughlin, 446 Mass. 188, 203-204 (2006). To the contrary, the defendant's testimony arguably strengthened the Commonwealth's case because he confirmed that the “John” in the text indeed referred to the man whom the victim was dating.