Opinion
No. 14–P–343.
08-04-2016
COMMONWEALTH v. Gregory FALCON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this consolidated appeal, the defendant alleges that the trial judge erred by not conducting a jury-waiver colloquy. We affirm.
The defendant's appeal from the denial of his new trial motion was consolidated with his direct appeal. On appeal, the defendant raises only the issue that he raised in his new trial motion.
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Background. Around 11:49 A.M. on September 29, 2011, Boston police officers responded to the home of Lori Kelly, who told them that the defendant recently had hit her. The officers “observed Kelly to have a black eye and she told officers that [the defendant] pushed his way out of the apartment earlier on the date and time above.” The defendant was arrested, and on September 30, 2011, a criminal complaint issued charging him with assault and battery on Kelly on September 29, 2011. The case was docketed in the Central Division of the Boston Municipal Court Department as number 1101CR005212 (11–5212).
Five weeks later, the defendant was charged with two new offenses against Kelly, assault and battery by means of a dangerous weapon (stairs) and assault and battery causing serious bodily injury. The case was docketed as 1101CR006067 (11–6067). A judge other than the trial judge allowed a motion by the Commonwealth to join the cases; however, he later allowed the defendant's motion for reconsideration of that ruling. Case 11–6067 was tried before a jury; the defendant was represented by the same attorney who represented him in 11–5212; and, on September 24, 2013, the defendant was convicted of the lesser included offense of assault and battery.
On October 18, 2013, 11–5212 was called for trial and both sides answered ready. Defense counsel advised the trial judge that, after considering his experience in 11–6067, the defendant “ha[d] decided this time around that he would like” a bench trial. The judge engaged the defendant in a jury-waiver colloquy and found that he freely and voluntarily was waiving his right to a jury trial; the defendant also signed a jury waiver form. The Commonwealth then moved to amend the complaint to allege that the offense occurred on September 28, 2011, when the defendant punched the victim (resulting in the black eye observed by the police), and not on September 29, when the defendant was arrested and Kelly reported that he pushed her. The judge denied the motion after hearing from both parties and, when the case was recalled, he continued it for trial to November 1, 2013, with the presumption that the Commonwealth would “have [its] new complaint, this will be dismissed and in the place of the other and we'll go forward.” Defense counsel confirmed that the defendant “still wants to go jury waived,” although “[t]hat could always change[; y]ou never know.” The judge stated that he would “leave it open as to November 1st as to whether or not [the trial] will be jury or jury waived.”
On October 25, 2013, criminal complaint docket number 1301CR006391 issued (13–6391), charging the defendant with committing an assault and battery upon Kelly on September 28, 2011. The complaint was supported by the police report from 11–5212. On November 1, 2013, the Commonwealth dismissed 11–5212 with the defendant's consent, and, also with his consent, the judge transferred the jury waiver, the motions in limine, and the bail from 11–5212 to 13–6391. The defendant was convicted after the ensuing jury-waived trial. In his sentencing memorandum, the defendant stated that he “elected a bench trial after a successful colloquy.”
Six months later, the defendant moved for a new trial alleging that he “was given neither an oral [n]or written colloquy regarding his decision to waive his constitutional right to a trial by his peers.” The defendant claimed that the judge's failure to hold a colloquy in 13–6391 violated the “bright-line rule” established in Ciummei v. Commonwealth, 378 Mass. 504, 509 (1979). After a hearing, the trial judge denied the motion on the record and later issued written findings.
Discussion. We review the judge's denial of the motion for a new trial “only to determine whether there has been a significant error of law or other abuse of discretion,” extending “special deference” to his action because he was the trial judge. Commonwealth v. Grace, 397 Mass. 303, 307 (1986). We observe no error of law or abuse of discretion here.
In Ciummei, supra, the Supreme Judicial Court held that a “colloquy shall be held in any instance of a waiver of the right to trial by jury.” The court “established no rigid pattern which must invariably be followed in conducting a colloquy before accepting a waiver of the right to trial by jury”; “[s]o long as a colloquy occurs, the sole focus of our review 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.” Commonwealth v. Abreu, 391 Mass. 777, 779 (1984).
Here, after he was convicted by a jury one month earlier in 11–6067, the defendant expressed his intention to proceed without a jury “this time around.” The judge conducted a full colloquy, which the defendant agreed was “successful,” before accepting the defendant's waiver in 11–5212. The colloquy, together with the defendant's express agreement to transfer the jury waiver from 11–5212 to 13–6391, provided ample “evidence for determining whether the waiver [in 13–6391] was made knowingly and voluntarily” in satisfaction of Ciummei. Commonwealth v. Pavao, 423 Mass. 798, 802 (1996).
The defendant's claim that a new colloquy was required because 11–5212 and 13–6391 relate to separate incidents is belied by the record and lacks merit: 13–6391 was based upon the same allegations as 11–5212; the complaints were supported by the same police report; and defense counsel noted before trial that “[a]ll of the discovery is the same in the new issued complaint as well as the 5212 complaint.” The defendant was present for all of the hearings and he was fully aware that the Commonwealth was refiling the complaint in order to correct the date of the alleged offense but not the substance thereof. It therefore is clear to us that the colloquy between the judge and the defendant referred to the defendant's decision to waive a jury trial on allegations that he had committed an assault and battery on Kelly on or around September 28, 2011, regardless of the docket number assigned to the case. Compare Commonwealth v. Hernandez, 42 Mass.App.Ct. 780, 786 (1997). The defendant does not argue (nor could he in light of the record) that he understood the colloquy and waiver only to apply to 11–5212, and, in these circumstances, we agree with the trial judge that a second colloquy and waiver for 13–6391 was unnecessary. “To hold otherwise would elevate form over substance.” Ibid.
Judgment affirmed.
Order denying motion for new trial affirmed.