Commonwealth v. Duart , 477 Mass. 630 ( 2017 )

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SJC-12302
COMMONWEALTH vs. PETER J. DUART.
Dukes. May 4, 2017. - August 17, 2017.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, &
Cypher, JJ.
Judge. Practice, Criminal, New trial, Disqualification of
judge, Assistance of counsel.
Indictments found and returned in the Superior Court
Department on April 5, 2010.
A motion for a new trial, filed on February 18, 2015, was
heard by Charles J. Hely, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Afton M. Templin for the defendant.
Elizabeth A. Sweeney, Assistant District Attorney, for the
Commonwealth.
HINES, J. Following a jury-waived trial in the Superior
Court, the defendant, Peter Duart, was convicted of rape,
subsequent offense, G. L. c. 265, § 22 (b); and indecent assault
and battery on a person age fourteen or older, as a lesser
2
included offense of assault and battery on a person with an
intellectual disability.1 The judge sentenced the defendant to
from ten years to ten years and one day in State prison on the
rape and subsequent offender convictions, and to a probation
term of three years on the indecent assault and battery
conviction.
In a motion for a new trial pursuant to Mass. R. Crim. P.
30 (b), as appearing in 435 Mass. 1501 (2001), the defendant
challenged the convictions on the grounds that (1) his jury
waiver was neither knowing nor intelligent because the trial
judge did not disclose that his son was employed as an assistant
district attorney in the office of the district attorney for the
Cape and Islands district, which prosecuted the indictments; and
(2) defense counsel was constitutionally ineffective in failing
to disclose the judge's relationship to the prosecutor's office
in counsel's advice on the strategic choice to waive the right
1
The indictment charged indecent assault and battery on a
"mentally retarded" person, subsequent offense, in violation of
G. L. c. 265, § 13F. On November 2, 2010, the Legislature
amended G. L. c. 265, § 13F, substituting the terms "mentally
retarded person" with "person with an intellectual disability"
and "be mentally retarded" with "have an intellectual
disability," in order to eradicate the term "mentally retarded"
from the General Laws. See Commonwealth v. St. Louis, 473 Mass.
350, 351 (2015), citing St. 2010, c. 239, §§ 71-72. Although
the amended version was not in effect when the defendant was
indicted, we nevertheless use the terms "person with an
intellectual disability" and "have an intellectual disability"
here.
3
to a trial by jury. A different judge held an evidentiary
hearing and denied the motion in a written decision. The
defendant filed a timely appeal, and we transferred the case to
this court on our own motion.
We conclude that the trial judge's failure to inform the
defendant of his familial relationship with a member of the
prosecuting attorney's office during the jury-waiver colloquy
was not error, and thus the denial of the defendant's motion for
a new trial on this ground was not an abuse of discretion. As
to the defendant's claim of ineffective assistance of counsel,
we conclude that although defense counsel's failure to inform
the defendant of the trial judge's familial relationship with a
member of the prosecuting attorney's office constituted behavior
"falling measurably below that which might be expected from an
ordinary fallible lawyer," Commonwealth v. Saferian, 366 Mass.
89, 96 (1974), counsel's failure to do so was not prejudicial.
Therefore, we affirm the denial of the defendant's motion for a
new trial.
Background. We summarize the relevant facts on the motion
for a new trial as found by the motion judge, supplemented as
necessary with uncontested facts from the motion hearing. See
Commonwealth v. Stephens, 451 Mass. 370, 372 (2008). In April,
2010, the defendant was indicted by a Dukes County grand jury on
charges of indecent assault and battery on a person with an
4
intellectual disability, subsequent offense, G. L. c. 265,
§ 13F; and rape, subsequent offense, G. L. c. 265, § 22 (b).
The alleged offenses occurred at the victim's apartment in the
early morning hours of January 30, 2010.
Prior to trial, the defendant filed a motion for a change
of venue, which the Commonwealth joined, predicated on the
concern that the defendant could not receive a fair trial from a
Dukes County jury. Specifically, the defendant contended there
would be a "serious risk" that some of the jurors would have
knowledge of the defendant's previous conviction, which had
garnered substantial news media attention and notoriety on
Martha's Vineyard, where the new indictments were set to be
tried. The judge denied the motion without prejudice, noting
that he would be willing to reconsider the order if seating a
jury became "impractical."
In light of the denial of the defendant's motion for a
change of venue, defense counsel discussed with the defendant
the possibility of waiving his right to a trial by jury.
Following consultation with his attorney, and at the defendant's
request, the judge held a jury-waiver colloquy with the
defendant on October 4, 2010. During the colloquy, the
defendant indicated that he had had sufficient time to consider
the waiver, and signed and filed a written waiver of trial by
jury. The judge accepted the waiver, concluding that it was
5
made intelligently and with knowledge of its consequences. The
jury-waived trial commenced before the judge on October 5, 2010,
and concluded on October 6, 2010.
At the conclusion of the trial, the judge found the
defendant guilty of rape and guilty of the subsequent offender
portion of the indictment. With respect to the charge of
indecent assault and battery on a person with an intellectual
disability, subsequent offense, the judge found the defendant
guilty of the lesser included offense of indecent assault and
battery. The defendant appealed from his convictions, which
were affirmed by the Appeals Court in an unpublished memorandum
and order pursuant to its rule 1:28, with the exception of a
remand to the Superior Court requiring the trial judge to issue
a more definitive order regarding sex offender treatment. See
Commonwealth v. Duart, 82 Mass. App. Ct. 1121 (2012).
Thereafter, the defendant filed a motion for a new trial, which
is the subject of this appeal.
Before the trial judge ruled on the motion for a new trial,
the defendant filed, on August 12, 2013, a motion for recusal
and, on September 26, 2013, a motion for leave to file a
substitute motion for a new trial, arguing that he had just
learned that the trial judge's son was an assistant district
attorney in the Cape and Islands district. The trial judge
granted the motion for leave to file a substitute motion for a
6
new trial and, after a hearing, also granted the motion for
recusal, concluding that although he harbored no bias against
the defendant and remained convinced that the defendant received
a fair trial, he would recuse himself from consideration of the
defendant's motion to "assure that any appearance of partiality
is avoided." Consequently, another Superior Court judge (motion
judge) was assigned to hear the defendant's motion for a new
trial.
At the hearing on the defendant's motion for a new trial
before the motion judge, the trial judge's son, defense counsel
for the defendant, and the defendant testified. In a written
order, the motion judge found that defense counsel had "great
faith and confidence" that the trial judge would be fair and
impartial in a jury-waived trial for the defendant, and conveyed
these sentiments to the defendant during their conversations
regarding the possibility of a jury waiver. The motion judge
also found that defense counsel was aware that the trial judge's
son was an assistant district attorney in the Cape and Islands
district,2 which prosecuted cases in Barnstable, Dukes, and
Nantucket Counties. Despite the trial judge's son's employment
as an assistant district attorney, defense counsel remained
2
The trial judge's son resigned from the office of the
district attorney for the Cape and Islands district in July,
2011, to enter private practice.
7
confident that the trial judge would be fair and impartial in a
jury-waived trial. The defendant denied having knowledge of the
trial judge's son's employment prior to waiving his right to a
trial by jury, but the motion judge concluded that there was
insufficient evidence to determine whether the defendant in fact
knew of the trial judge's son's employment at the time of his
jury waiver.
During his employment in the Cape and Islands district, the
trial judge's son had no involvement with the defendant's case.
His case assignments were limited to the District Court in
Barnstable and Nantucket Counties, with the addition of some
appeals. Because of the trial judge's assignment in Dukes
County, his son made a point to refrain from working on any
Superior Court criminal cases prosecuted in Dukes County.3
Moreover, the trial judge's son did not have any supervisory
role in the office during his employment.
Ultimately, the motion judge denied the defendant's motion
for a new trial, concluding that the "defendant's jury waiver
and trial did not present an issue of whether the [trial]
judge's impartiality might reasonably be questioned." For this
3
During the time period of the defendant's trial, the
Superior Court in Dukes County commonly held only two one-month,
one-judge trial sessions per year. Similar to other judges, the
trial judge on occasion was assigned to a one-month Dukes County
trial session.
8
reason, the trial judge was not under any obligation to disclose
to the defendant that his son was employed as an assistant
district attorney in the same district. The motion judge also
rejected the defendant's claim of ineffective assistance of
counsel, concluding that because the trial judge's son's
employment as an assistant district attorney was limited to
counties where his father was not assigned, the issue did not
present a reasonable, objective basis for questioning the trial
judge's impartiality. Thus, defense counsel's failure to raise
the issue with the defendant did not fall outside "the range of
reasonable, competent representation." The motion judge
determined that defense counsel's performance was not
inadequate, but nonetheless went on to consider and summarily
reject the claim of prejudice, concluding that the defendant
failed to show that counsel's advice deprived him of a
substantial ground of defense.
Discussion. 1. Standard of review. A judge may grant a
motion for a new trial pursuant to Mass. R. Crim. P. 30 (b) "if
it appears that justice may not have been done." Commonwealth
v. Moore, 408 Mass. 117, 125 (1990). Such motion "is addressed
to the sound discretion of the judge" Id. Therefore, we review
the denial of a motion for a new trial for "a significant error
of law or other abuse of discretion." Commonwealth v. Forte,
469 Mass. 469, 488 (2014), quoting Commonwealth v. Grace, 397
9
Mass. 303, 307 (1986). In particular, we "accept[] the motion
judge's findings of fact, made after an evidentiary hearing, if
they are supported by the record, . . . and defer[] to the
judge's assessments of credibility" (citation omitted).
Commonwealth v. Cadet, 473 Mass. 173, 179 (2015). The
discretion afforded to the motion judge, however, is not
"boundless and absolute." Commonwealth v. Kolenovic, 471 Mass.
664, 672 (2015), quoting Commonwealth v. Genius, 402 Mass. 711,
714 (1988). "Under the abuse of discretion standard, the issue
is whether the judge's decision resulted from 'a clear error of
judgment in weighing the factors relevant to the decision . . .
such that the decision falls outside the range of reasonable
alternatives.'" Kolenovic, supra, quoting L.L. v. Commonwealth,
470 Mass. 169, 185 n.27 (2014).
2. Judicial disclosure. The motion judge concluded that
the judge's son's employment with the Cape and Islands district,
without more, did not provide a basis upon which the judge's
impartiality reasonably could be questioned and, thus, did not
require disclosure to the defendant in advance of his jury
waiver. Under the relevant canons of the Code of Judicial
Conduct and commentary then in effect, we agree.
Among the vital rights provided by art. 29 of the
Massachusetts Declaration of Rights is the "the right of every
citizen to be tried by judges as free, impartial and independent
10
as the lot of humanity will admit." A defendant's right to an
impartial judge is affirmed in the Code of Judicial Conduct,
S.J.C. Rule 3:09, Canon 3 (E) (1), as appearing in 440 Mass.
1301 (2003), which provides that "[a] judge shall disqualify
himself or herself in a proceeding in which the judge's
impartiality might reasonably be questioned." Conversely, where
such impartiality may not be reasonably questioned, the
Commentary to Canon 3 (E) (1) makes clear that "a judge may, but
is not required, to disclose on the record information that the
judge believes the parties or their lawyers might consider
relevant to the question of disqualification."4 See Commonwealth
v. Leventhal, 364 Mass. 718, 725 (1974) ("[J]udge was under no
obligation to make any disclosure to counsel unless he thought
his impartiality might reasonably be questioned"). The motion
judge correctly assessed that the trial judge was under no
obligation to disclose the relationship with his son because it
4
We note that while the trial judge's lack of disclosure
was appropriate under S.J.C. Rule 3:09, Canon 3 (E) (1), as
appearing in 440 Mass. 1301 (2003), which was in effect at the
time, amendments to the rules were adopted on October 8, 2015,
and became effective on January 1, 2016. Among the amendments,
the 2016 rules recommend broader judicial disclosure. In
particular, the Commentary to S.J.C. Rule 3:09, Canon 2.11 (A),
formerly S.J.C. Rule 3:09, Canon 3 (E) (1), recommends that a
judge "disclose on the record information that the judge
believes the parties or their lawyers might reasonably consider
relevant to a possible motion for disqualification, even if the
judge believes there is no basis for disqualification." We do
not address whether, in these circumstances, a judge would have
an obligation of disclosure under the 2016 rules.
11
did not reasonably call into question his impartiality or
otherwise require disqualification or recusal in the defendant's
trial.
We consistently have held that "[i]n general, the question
of disqualification is left to the judge's discretion."
Commonwealth v. Gogan, 389 Mass. 255, 259 (1983), and cases
cited. Thus, we may disturb a judge's decision on recusal only
if there is an abuse of discretion. See Haddad v. Gonzalez, 410
Mass. 855, 862 (1991). Here, the trial judge's son had no
involvement in the defendant's case, and in fact did not handle
any criminal cases prosecuted in the Superior Court in Dukes
County, where his father was assigned. Rather, his caseload was
limited to criminal cases in Barnstable and Nantucket Counties,
and some appellate cases. Moreover, the trial judge's son did
not serve in a supervisory capacity at the district attorney's
office such that his oversight responsibilities may have
extended to cases prosecuted in Dukes County. On these facts,
we discern no basis to hold that the judge abused his discretion
in failing to disclose his relationship to an attorney in the
district attorney's office.
Likewise, the circumstances here do not fit within one of
the enumerated instances requiring recusal under S.J.C. Rule
3:09, Canon 3 (E) (1). Although not binding on this court, we
find persuasive Opinion No. 2001-16 (Nov. 16, 2001) of the
12
Committee on Judicial Ethics (committee) -- on which the trial
judge relied in his order on the defendant's motion for judicial
recusal -- addressing an issue nearly identical to the issue
presented here. The committee explained that the "mere fact"
that the judge's son was employed in the district attorney's
office did not require recusal from criminal cases in which
other attorneys from that district attorney's office appeared.
Id. See Commentary to S.J.C. Rule 3:09, Canon 3 (E) (1) ("A
judge is not necessarily disqualified if a lawyer in a
proceeding is affiliated with a legal organization with which
the spouse or a relative of the judge is affiliated).
Our conclusion today is also consistent with numerous other
jurisdictions deciding this issue. See, e.g., Adair v. State,
474 Mich. 1027, 1029-1030 (2006) (concluding recusal policy
"that no judge can hear any case in which a party is represented
by a law firm or a prosecutor's office in which a relative of
that judge is employed, even if that relative has no personal
involvement in the case and stands to gain nothing materially by
its outcome . . . constitutes an unfair and unwise policy").
See also State v. Logan, 236 Kan. 79, 87-89 (1984); State v.
Fero, 105 N.M. 339, 342-343 (1987); State v. Harrell, 199 Wis.
2d 654, 659-660 (1996), and cases cited.
13
Accordingly, the motion judge's denial of the motion for a
new trial on this ground did not constitute an abuse of
discretion.
3. Ineffective assistance of counsel. The defendant next
argues that the trial judge erred in denying his motion for a
new trial on the ground of ineffective assistance of counsel.
The motion was predicated on defense counsel's failure to
disclose to the defendant the trial judge's familial
relationship with an assistant district attorney in the Cape and
Islands district, prior to the jury-trial waiver colloquy.
Where the defendant seeks a new trial on the basis of
ineffective assistance of counsel, he must demonstrate that
"there has been serious incompetency, inefficiency, or
inattention of counsel -- behavior of counsel falling measurably
below that which might be expected from an ordinary fallible
lawyer -- and, if that is found, then, typically, whether it has
likely deprived the defendant of an otherwise available,
substantial ground of defence." Saferian, 366 Mass. at 96.
a. Representation fell measurably below that which might
be expected from an ordinary fallible lawyer. A defendant's
right to a trial by jury "is preserved as a basic and
fundamental right in our judicial system." Commonwealth v.
Osborne, 445 Mass. 776, 780 (2006), citing art. 12 of the
Massachusetts Declaration of Rights. Ultimately, the "decision
14
regarding waiver of the jury" must be made by the defendant, not
his or her counsel, Osborne, supra at 781, and must be the
"exercise of a free and intelligent choice." Adams v. United
States ex rel. McCann, 317 U.S. 269, 275 (1942). See Ciummei v.
Commonwealth, 378 Mass. 504, 507 (1979) ("a conviction cannot
stand which follows upon a jury waiver that is not freely and
knowingly given"). To protect this fundamental right, our cases
have emphasized the importance of the jury-trial waiver
colloquy, wherein the judge must not only "advise the defendant
of his constitutional right to a jury trial," but also "satisfy
himself that any waiver by the defendant is made voluntarily and
intelligently." Id. at 509. Whether a defendant has conferred
with his counsel about the waiver is one of the considerations
relevant to the judge's determination. Id. This suggests that
communication with defense counsel is critical to the defendant
understanding the nature of the right that he is giving up and
to his "mak[ing] an over-all estimate as to where he will fare
better, before a judge or before a jury." Commonwealth v.
Dietrich, 381 Mass. 458, 461-462 (1980), quoting H. Kalven & H.
Zeisel, The American Jury 28 (1966). "[A]n intelligent waiver
does not require that the accused have the skill or knowledge of
a lawyer"; rather, "the defendant, being competent, must simply
have indicated a comprehension of the nature of the choice."
15
Ciummei, 378 Mass. at 510, quoting Maynard v. Meachum, 545 F.2d
273, 279 (1st Cir. 1976).
To ensure that the defendant understands the nature of the
choice, counsel must communicate information within his or her
knowledge that is relevant to, or bears on the defendant's
choice to waive the right to a jury trial. More specifically,
to the extent that counsel possesses information germane to the
question of judicial disqualification, regardless of whether a
genuine basis for disqualification exists, it is incumbent on
counsel to convey that information so as to allow the defendant
to raise and discuss any concerns that he or she might have. To
be clear, our holding does not create an obligation for counsel
to investigate the presiding judge, as it would unduly encumber
defense counsel and encourage unwarranted suspicion of the
judiciary. But where defense counsel already has information
about the trial judge that reasonably could bear on a right as
fundamental as the right to a jury trial, defense counsel has an
obligation to disclose the information to his or her client.
Unlike the trial judge, who, under the canons of the Code
of Judicial Conduct then in effect, was under no obligation to
disclose his familial relationship with a member of the office
of the district attorney for the Cape and Islands district,
Rules 1.2 and 1.4 of the Massachusetts Rules of Professional
Conduct require that an attorney fully advise and assist the
16
client in making decisions that ultimately must be made by the
client himself or herself, including the decision to waive a
jury trial. See Mass. R. Prof. C. 1.2, as appearing in 471
Mass. 1313 (2015); Mass. R. Prof. C. 1.4, as appearing in 471
Mass. 1319 (2015). Moreover, "[i]n determining the level of
performance required of an ordinary fallible lawyer, we look to
the 'professional standards of the legal community.'"
Commonwealth v. Lavrinenko, 473 Mass. 42, 51 (2015), quoting
Commonwealth v. Clarke, 460 Mass. 30, 45 (2011). Thus, it is
notable that the Committee for Public Counsel Services
performance standards governing the representation of indigent
individuals in criminal cases mandates that "[t]he attorney
shall explain to the client those decisions that ultimately must
be made by the client and the advantages and disadvantages
inherent in those choices." Committee for Public Counsel
Services, Assigned Counsel Manual, c. 4, at § I(C)(6) (Oct.
2011).5 See Commonwealth v. Myers, 82 Mass. App. Ct. 172, 181
n.12 (2012), citing Standard 4-5.2 of the ABA Standards for
Criminal Justice: Control and Direction of the Case (3d ed.
1993) (noting that "decisions which are to be made by the
5
https://www.publiccounsel.net/private_counsel_manual
/CURRENT_MANUAL_2012/MANUALChap4CriminalStandards.pdf
[https://perma.cc/9MBW-E7FB].
17
accused after full consultation with counsel" include whether to
waive trial by jury [emphasis added]).
Here, defense counsel knew of the trial judge's son's
employment in the office of the district attorney for the Cape
and Islands district. The defendant denied that he was aware
that the trial judge's son was employed as an assistant district
attorney in that office. The motion judge found the evidence
insufficient to determine whether the defendant knew of the
judge's son's employment at the time of the jury waiver. Even
though defense counsel's knowledge of the trial judge's son's
employment as an assistant district attorney did not affect
counsel's own confidence that the trial judge would be a fair
and impartial fact finder, the decision whether the defendant's
"interests [were] safer in the keeping of the judge than of the
jury," Adams, 317 U.S. at 278, was for the defendant, and the
defendant alone, to make based on his informed and competent
judgment. Accordingly, we conclude that defense counsel's
failure to inform the defendant of the trial judge's son's
employment as an assistant district attorney in the office of
the district attorney for the Cape and Islands district
constituted "behavior of counsel falling measurably below that
which might be expected from an ordinary fallible lawyer."
Saferian, 366 Mass. at 96.
18
b. Prejudice. We next determine whether defense counsel's
performance inadequacy caused the defendant to suffer prejudice.
See Saferian, 366 Mass. at 96. To make this determination, we
draw on our cases addressing claims of ineffective assistance in
the context of immigration consequences of a guilty plea. To
satisfy the "prejudice" requirement in cases such as this, "the
defendant has the burden of establishing that 'there is a
reasonable probability that, but for counsel's errors,'" he
would not have waived his right to being tried by a jury. See
Lavrinenko, 473 Mass. at 55, quoting Clarke, 460 Mass. at 47.
"At a minimum, this means that the defendant must aver that to
be the case." Lavrinenko, supra, quoting Clarke, supra. The
defendant also "bears the substantial burden" of "convinc[ing]
the court" that a decision to exercise his right to a jury trial
"would have been rational under the circumstances." Lavrinenko,
supra at 55-56, quoting Clarke, supra. Finally, based on the
motion judge's evaluation of the facts, including the
credibility of the defendant and other witness, "[t]he judge
must determine . . . whether there is a reasonable probability
that a reasonable person in the circumstances of the defendant
would have chosen [a jury trial] had he or she received
constitutionally effective advice from his or her criminal
defense attorney." Lavrinenko, supra at 55.
19
Here, the defendant averred in an affidavit accompanying
the motion for a new trial that had he known of the relationship
between the trial judge and an assistant district attorney in
the prosecuting district attorney's office, he would not have
opted for a jury-waived trial and, instead, "would have made
different strategic decisions." During his testimony at the
hearing on the motion for a new trial, the defendant reiterated
this point.
Weighing against the defendant's assertion that he would
have chosen a jury trial had he been effectively advised,
however, is the defendant's concern prior to trial that he would
not receive a fair trial from a Dukes County jury. This concern
was concrete enough to cause the defendant to file a motion for
a change of venue, which the Commonwealth joined, and was well
founded considering that the defendant's previous 2004 rape
conviction on Martha's Vineyard had a level of notoriety and
that the defendant -- an elected member of the planning board
and the finance and advisory committee of Martha's Vineyard, a
former football coach, and former manager of the largest grocery
store on the island -- was well known on the island.
Additionally, the 2004 rape conviction was for the same charge
of indecent assault and battery on a person with an intellectual
disability and in the same county, and the defendant was a
registered sex offender in the town of Tisbury at the time of
20
his arrest for this offense. Furthermore, determining whether a
potential juror knew about and would be biased by the
defendant's 2004 rape conviction might have been difficult to
determine during voir dire of the potential jurors. As the
motion judge correctly pointed out, voir dire of the jury would
not necessarily prompt the juror's memories of the defendant's
2004 rape case. Given these facts, we are not convinced that
there is a "reasonable probability" that "a reasonable person in
the circumstances of the defendant would have chosen [a jury
trial] had he . . . received constitutionally effective advice"
from his counsel. Lavrinenko, 473 Mass. at 55. Accordingly, we
conclude that the defendant did not suffer prejudice from
defense counsel's inadequate performance.
Conclusion. For the foregoing reasons, the order denying
the defendant's motion for a new trial is affirmed.
So ordered.