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Appeals Court of Massachusetts.



Decided: February 10, 2021

By the Court (Blake, Desmond & Hand, JJ.1)


After a jury-waived trial in the Superior Court, the defendant was convicted of manslaughter while operating a motor vehicle under the influence of intoxicating liquor, G. L. c. 265, § 13 1/2; motor vehicle homicide while operating under the influence of intoxicating liquor or having a blood alcohol concentration over 0.08 percent, G. L. c. 90, § 24G (b); and operating a motor vehicle under the influence of intoxicating liquor, causing serious bodily injury, G. L. c. 90, § 24L (2). After sentencing,2 the defendant filed a timely appeal of his convictions; the appeal was stayed to allow the defendant to file a motion for new trial. The motion for new trial, in which the defendant argued that he was denied his right to a jury trial based on infirmities in the judge's jury-waiver colloquy, was denied by the trial judge; the defendant timely appealed that ruling as well. We consolidated the appeals. Concluding that the judge's colloquy was sufficient to demonstrate that the defendant's waiver of his jury right was knowing, intelligent, and voluntary, and that the judge therefore neither erred nor abused her discretion in denying the defendant's motion for new trial arguing otherwise, we affirm the denial of the motion for new trial. As we determine that the defendant was not denied his right to a jury trial, we also affirm the judgments.

Discussion. The defendant did not object to the judge's colloquy when it was given. In his motion for new trial, however, the defendant argued that the colloquy did not inform the defendant (1) of the requirement that the jury's verdict be unanimous; (2) that in a bench trial, the judge alone performs the jury's function, and imposes sentence in the event of conviction; or (3) that the entitlement to a jury trial is a constitutional right. The defendant raises the same challenges on appeal. Reviewing the judge's denial of the defendant's motion for a significant error of law or other abuse of discretion, see Commonwealth v. Camacho, 483 Mass. 645, 648 (2019), we discern none.3

1. Unanimity requirement. It is undisputed that the judge did not specifically inform the defendant that a jury would be required to return unanimous verdicts on the crimes with which the defendant was charged; the judge noted as much in her thoughtful memorandum of decision on the defendant's motion for new trial.4 We agree with the judge that this circumstance did not demonstrate the defendant's entitlement to a new trial.

While a judge must engage in a colloquy before accepting a criminal defendant's waiver of his right to a jury trial, see Ciummei v. Commonwealth, 378 Mass. 504, 506-507 (1979), the contours of the colloquy are left to the discretion of the judge. See Commonwealth v. Hardy, 427 Mass. 379, 382 (1998), quoting Commonwealth v. Abreau, 391 Mass. 777, 779 (1984) (“We have said that ‘no rigid pattern ․ must invariably be followed in conducting a colloquy before accepting a waiver of the right to trial by jury’ ”). See also Commonwealth v. Hendricks, 452 Mass. 97, 107 (2008) (same). In Ciummei, the court suggested certain areas of inquiry appropriate to such a colloquy, see 378 Mass. at 509-510; however, as our appellate courts have subsequently observed, “[t]he omission of [those inquiries] alone are not enough to make a colloquy inadequate,” Hendricks, supra. “So long as a colloquy occurs, the sole focus of [appellate] review is whether the colloquy provided an evidentiary record on which the judge could find the waiver was voluntary and intelligent.” Id. at 107-108. The colloquy at issue did so.

Here, the judge had an opportunity to consider the defendant's demeanor, his responses to her questions, and the defendant's completion of the required jury waiver form.5 See Hardy, 427 Mass. at 382-383, and cases cited (waiver signed by counsel and defendant, judge's discussion of jury and bench trials, and defendant's general demeanor and responses “sufficient evidence” for judge's conclusion that waiver was “voluntary and intelligent”); Commonwealth v. Onouha, 46 Mass. App. Ct. 904, 904 (1998) (even colloquy characterized as “sparse” may be adequate), cited with approval in Hendricks, 452 Mass. at 107. The judge informed the defendant of his right to a jury trial, and outlined the jury selection process; the defendant confirmed that he understood. See Ciummei, 378 Mass. at 509-510. The judge further advised the defendant that if he chose to waive the jury and proceed with a bench trial, “sometimes ․ just called a judge trial, ․ I will hear the evidence and determine your guilt or innocence.” Again, the defendant confirmed his understanding of those facts. In response to the judge's subsequent questions, the defendant confirmed that he was given the time he needed to confer with his attorney about his jury right, and that no one had forced him to give up “that constitutional right.” See id. at 510. The judge also determined that the defendant was not under the influence of drugs or alcohol, and the defendant denied any mental health concerns. See Onouha, supra at 905 (defendant's intoxication relevant to voluntariness of waiver). The judge's colloquy was sufficient to establish that the defendant was competent and had “indicated a comprehension of the nature of [his] choice” to waive his right to a jury trial. Ciummei, supra at 510. Accordingly, we conclude that the colloquy was not deficient for lack of specific reference to the jury unanimity requirement.

2. Remaining arguments. To the extent the defendant contended that the colloquy failed to inform him that by waiving the jury he was giving up a constitutional right, or that in a jury-waived case, the judge performs the function of the jury, we are not persuaded. As we have noted, supra, the judge's colloquy specifically referred to the defendant's decision to waive a jury trial as a waiver of a “constitutional right,” and the judge explained that by signing the jury waiver, the defendant was “giving up that right [to be tried by a jury] and ․ [was] proceeding in front of [the judge, to] determine [the defendant's] guilt or innocence.” The defendant confirmed his understanding of both concepts.

Conclusion. Discerning no error or abuse of discretion in the jury-waiver colloquy or in the judge's order denying the defendant's motion for new trial, the judgments and the denial of the motion are affirmed.

Judgments affirmed.

Order denying motion for new trial affirmed.


2.   The judge sentenced the defendant to a prison term of five to six years on the manslaughter conviction and a consecutive term of two years and six months in the house of correction on the conviction for operating a motor vehicle while under the influence of intoxicating liquor, six months of which to be served and the two-year balance suspended with conditions of probation. Concluding, correctly, that the motor vehicle homicide conviction under G. L. c. 90, § 24G (b), was a lesser included offense of the manslaughter charge, see Commonwealth v. Guaman, 90 Mass. App. Ct. 36, 45 (2016) (felony motor vehicle homicide, G. L. c. 90, § 24G [a], charged under theory of negligent operation, lesser included offense of involuntary manslaughter under G. L. c. 265, § 13 1/2), the judge placed the motor vehicle homicide conviction on file “pending appeal.”

3.   We note that where, as here, the motion judge is also the trial judge, we afford “special deference” to the judge's ruling on a motion for new trial. See Commonwealth v. Fappiano, 69 Mass. App. Ct. 727, 730 (2007), quoting Commonwealth v. Buck, 64 Mass. App. Ct. 760, 762 (2005).

4.   The record includes a transcription of the judge's colloquy on which both parties rely, and the defendant does not dispute that he signed the required jury waiver form, see G. L. c. 263, § 6, included in the record; the facts underlying the defendant's convictions are not at issue in this appeal.

5.   We note that the waiver form the defendant signed and provided to the judge included defense counsel's certification that he had explained to his client, inter alia, that the jury's verdict must be unanimous.

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