Commonwealth v. Garcia ( 2015 )

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14-P-21 Appeals Court
COMMONWEALTH vs. HECTOR GARCIA.
No. 14-P-21.
Bristol. December 1, 2014. - September 11, 2015.
Present: Rubin, Milkey, & Carhart, JJ.
Practice, Criminal, Waiver of appellate rights. Constitutional
Law, Waiver of constitutional rights, Trial by jury.
Search and Seizure, Reasonable suspicion.
Complaint received and sworn to in the New Bedford Division
of the District Court Department on April 13, 2012.
A pretrial motion to suppress evidence was heard by
Christopher D. Welch, J., and the case was heard by him.
Matthew Malm for the defendant.
Owen J. Murphy, Assistant District Attorney, for the
Commonwealth.
RUBIN, J. After a bench trial, the defendant was convicted
of carrying an unlicensed firearm and of carrying a loaded
firearm in violation of G. L. c. 269, § 10(a) and (n).1 In this
1
The defendant was also found guilty of resisting arrest.
That charge was placed on file for two years.
2
appeal, the defendant asserts that he is entitled to a new trial
because his colloquy with the judge was inadequate to provide
the judge with a basis for concluding that the defendant
voluntarily and intelligently waived his right to a jury trial.
He also argues that the judge improperly denied a motion to
suppress. We address each of these in turn.
1. The colloquy. To be effective, a defendant and judge's
colloquy concerning the defendant's waiver of the constitutional
right to a jury trial must be sufficient to satisfy the judge
that the waiver is "voluntary and intelligent." Commonwealth v.
Pavao, 423 Mass. 798, 802 (1996) (Pavao). There is also a
statutory requirement of a signed written waiver. See G. L.
c. 263, § 6. Here, the statute's requirement was satisfied, as
the defendant signed a waiver form. In addition, the
defendant's trial counsel signed a certificate, pursuant to
G. L. c. 218, § 26A, affirming that he had explained the
relevant protections afforded by a jury trial to the defendant.
It is well settled that while statutorily required, such forms
are inadequate by themselves to allow a judge to determine that
a waiver of the right to a jury trial is voluntary and
intelligent; although not constitutionally required, the Supreme
Judicial Court requires a colloquy as a matter of sound judicial
administration because "[s]o long as a colloquy occurs, the sole
focus of [appellate] review is whether the colloquy has provided
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an evidentiary record upon which the trial judge could find the
waiver of a defendant was voluntary and intelligent." Pavao,
423 Mass. at 800-802.
Thirty-six years ago the Supreme Judicial Court, while not
"intend[ing] to create a rigid pattern" for such colloquies,
noted some elements that such a colloquy "might" include (1)
that the jury consists of members of the community, (2) that the
defendant may participate in their selection, (3) that the
verdict of the jury must be unanimous, (4) that they decide
guilt or innocence while the judge makes rulings of law in the
course of the trial, instructs the jury on the law, and imposes
sentence in case of guilt; and (5) that, where a jury is waived,
the judge alone decides guilt or innocence in accordance with
the facts and the law. The judge should make sure (6) that the
defendant has conferred with his counsel about the waiver, and
(7) that he has not been pressured or cajoled and is not
intoxicated or otherwise rendered incapable of rational
judgment. Ciummei v. Commonwealth, 378 Mass. 504, 509-510
(1979). The case law describes some additional questions the
defendant might be asked: his education level and language
fluency, which should assist the judge in tailoring the colloquy
appropriately, see Commonwealth v. Towers, 35 Mass. App. Ct.
557, 559 (1993) (stating that "[a]n inquiry about the
defendant's level of education seems a common and significant
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element of a colloquy"); his knowledge of the jury's size, see
Commonwealth v. Ridlon, 54 Mass. App. Ct. 146, 151 (2002) (trial
court colloquy described the size of the jury); and his
knowledge of the constitutional basis of a defendant's right to
a jury trial, see Commonwealth v. Hardy, 427 Mass. 379, 380-381
& n.3 (1998) (approving of colloquy in which court informed
defendant of his "constitutional right to have a jury trial").
Several model jury trial colloquies are available and contain
many of the above questions. See Jury Trial Manual for Criminal
Offenses Tried in District Court, Appendix II, Jury Waiver
Colloquy (1987) (including questions about defendant's age,
education level, use of alcohol or drugs; describing several
differences between jury and bench trials); Cypher, Criminal
Practice and Procedure § 31.13 (4th ed. 2014) (same). We
reiterate what we stated in 1993: "[T]alk in appellate
decisions of what is or is not minimally sufficient is not the
best guide to practice. Although judges need not follow
verbatim any 'model' colloquy, they can take inspiration from
the models." Commonwealth v. Towers, 35 Mass. App. Ct. at 560
n.4. See Commonwealth v. Onouha, 46 Mass. App. Ct. 904, 905
(1998) (stating "it would conserve the time of both the trial
courts . . . and, certainly, the appellate courts, if trial
judges, when conducting a jury waiver colloquy, kept at hand and
followed the topic outline for that procedure which appears at
5
Smith, Criminal Practice & Procedure § 1654 [2d ed. 1983], or
something along the same lines").
In this case the entire colloquy was as follows:
The court: "All right. Mr. Garcia, good morning. I
have some questions to ask you. My
understanding is that you've chosen to
have this case heard before me. Is that
correct?"
The defendant: "Yes, Your Honor."
The court: "Has anybody forced you into that?"
The defendant: "No, Your Honor."
The court: "You're making that decision of your own
free will?"
The defendant: "Yes, Your Honor."
The court: "Do you understand that a trial
consist[s] of two ways of going? One is
seven people sit there and they listen
and they make a decision; or, six of them
do. The alternat[ive] is listen to it
and I make a decision. Do you understand
that?"
The defendant: "Yes, Your Honor."
The court: "And have you had enough time to get some
advice from your attorney and make a
decision that you think is best?"
The defendant: "Yes, Your Honor."
The court: "All right. I find it's going to be
voluntary."
Our case law makes it clear that no particular form of
words is required for an adequate jury trial waiver colloquy.
Likewise, there are cases holding that the omission of one or
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another inquiry will not necessarily render a colloquy
insufficient. Thus, for example, this court has affirmed a
conviction despite a colloquy in which "the judge failed to
inform the defendant that a jury trial was a constitutional
right or that the jury's verdict had to be unanimous," and where
there was no description of the function of a judge at a bench
trial as compared with a jury trial. Ridlon, 54 Mass. App. Ct.
at 148. "The colloquy . . . is only evidence of whether a
defendant's waiver of the right to trial by jury was voluntary
and intelligent. It is not an independent constitutionally
required prerequisite to a valid waiver of the right to a jury
trial." Commonwealth v. Schofield, 391 Mass. 772, 775 (1984).
But the colloquy must provide evidence sufficient for an
appellate court to conclude the judge had adequate information
properly to satisfy himself that any waiver by the defendant was
made voluntarily and intelligently. Id. at 775-776.
In many respects, the judge's colloquy was thin. The judge
did not ask about the defendant's level of education. He did
not ask whether any promises had been made to the defendant. He
did not provide any details about the procedure attendant upon a
jury trial. Even the judge's explanation about how many jurors
would sit and vote was ambiguous as to whether six jurors sit,
or six jurors decide, and it did not explain that the vote of
those six jurors for guilt must be unanimous.
7
Nonetheless, in a case this court heard shortly after the
requirement of G. L. c. 218, § 26A, was enacted concerning
signed jury waiver forms and certificates, we found that in
combination with a signed form and certificate, as are present
here, the following colloquy was sufficient:
Judge: "Now, you have a right to have a trial by a
jury on these charges, do you understand that
. . . ?"
Defendant: "Yes."
Judge: "In a jury trial, you have a right to
participate with your lawyer in choosing the
jurors that would sit on your cases and decide
your guilt or innocence on the charges, do you
understand that?"
Defense counsel: "You have to respond, Hector."
Defendant: "Yes, Sir."
Judge: "All right. And you want to waive that right
and have these matters heard by a single
judge, in this case myself?"
Defendant: "Yes, Sir."
Judge: "Okay. You understand that once you do that,
you've given up your right to a jury trial?"
Defendant: "Yes."
Commonwealth v. Hernandez, 42 Mass. App. Ct. 780, 783-784, 785
(1997).
Because the colloquy in this case was similar to that one,
the motion judge did not err, and, in the absence of further
guidance from the Supreme Judicial Court concerning what must be
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contained in a jury-waiver colloquy, the colloquy does not
provide the defendant grounds for reversal.
2. The motion to suppress. The defendant also argues that
his motion to suppress should have been allowed. We disagree.
The motion judge found that the defendant was seen by two police
officers walking in a high crime area holding his waistband with
his right hand in a way that, based on one officer's training
and experience, the officer believed suggested possession of a
firearm in his waistband.2 The defendant repeatedly looked over
his shoulder and when approached by police turned his body at
least slightly so that the side on which he might have been
holding a gun was away from the police officers -– something
that the officers testified, based on their training and
experience, was a movement (called "blading") that may imply an
individual is hiding a weapon held on that side of the body from
them. When they asked him to talk, he fled. The parties agree
that the defendant was stopped subsequent to his flight.
While our courts have held that flight from the police
alone is insufficient to support a conclusion of reasonable
suspicion of criminal activity based on articulable facts, see
Commonwealth v. Wren, 391 Mass. 705, 708 n.2 (1984) (Wren), it
2
According to the motion judge's findings, the defendant
"was keeping his right arm stiff . . . with his hand in front of
his belt buckle. The arm was clenched next to his body and the
hand was holding the area in the belt buckle whil[e] the other
arm flowed freely."
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remains a fact that such action, though not unlawful, may well
be suspicious. Cf. Commonwealth v. Carrion, 407 Mass. 263, 277
(1990) ("Flight is perhaps the classic evidence of consciousness
of guilt"). Where there is other suspicious behavior, flight
from the police may be included in the reasonable suspicion
calculus. Wren, 391 Mass. at 708 n.2. While the defendant
would rely on Commonwealth v. Quezada, 67 Mass. App. Ct. 693,
696-697 (2006), S.C., 450 Mass. 1030 (2008) (Quezada), in that
case the facts that accompanied the defendant's flight were
themselves inadequately suspicious to add anything to the mix.
Specifically, the defendant was walking with someone "known to
have recently been released from prison" and the Commonwealth
asserted the defendant's "manner and demeanor suggested that he
was possibly under the influence of narcotics which, in turn,
supported an inference that the defendant may have possessed
other, not yet ingested narcotics," Quezada, 67 Mass. App. Ct.
at 696, the latter of which claims this court dismissed as
"nothing more than speculation." Id. at 697. Aside from the
fact that defendant was in a high crime area (a factor, this
court noted, that "must be treated with some caution"), id. at
697, in Quezada the police thus essentially had flight alone on
which to base their claim of reasonable suspicion. Here, by
contrast, the suspicious way the defendant held his waistband,
the location in which he was walking, and his turning away from
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the police when they approached him were sufficiently suspicious
that, when combined with his flight, they provided the police
with the reasonable suspicion based on articulable facts that a
crime was afoot necessary to allow the stop of the defendant.
Compare Commonwealth v. DePeiza, 449 Mass. 367, 371, 373-374
(2007). Consequently, there was no error in the judge's denial
of the motion to suppress.
Judgments affirmed.