Ciummei v. Com.

• Citation: 378 Mass. 504,392 N.E.2d 1186
• Parties: Keith D. CIUMMEI v. COMMONWEALTH.
• Decision Date: 25 July 1979
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1186

392 N.E.2d 1186

378 Mass. 504

Keith D. CIUMMEI v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 3, 1979.

Decided July 25, 1979.

John B. Miller, Cambridge (Robert W. Hagopian, Cambridge, with him), for petitioner.

Daniel F. Toomey, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, LIACOS and ABRAMS, JJ.

KAPLAN, Justice.

Keith D. Ciummei, the petitioner in this writ of error proceeding, was charged by complaint dated October 30, 1975, with armed robbery of a Worcester pharmacy on October 29 (G.L. c. 265, § 17). ¹ On December 11, 1975, he was brought to trial in Superior Court, Worcester County. He was represented by counsel. At the threshold, he waived in writing his right to a jury. On the evidence, he was found by the judge guilty of the "included" offense of unarmed robbery (G.L. c. 265, § 19), and sentenced to a term of five to ten years at the Massachusetts Correctional Institution at Walpole, to be served at M.C.I. Bridgewater. Appeal was claimed but not pursued. An application to the Appellate Division for sentence review was filed but withdrawn.

On November 17, 1977, the petitioner filed the present petition for writ of error in the Supreme Judicial Court for Suffolk County, alleging that the conviction must be vacated because (1) it did not appear on the face of the trial record that the petitioner had acted voluntarily and intelligently in waiving his jury right; and (2) if evidence outside that record could be received, it would show that his waiver was in fact not voluntary or intelligent. As the trial had not been made subject to G.L. c. 278, §§ 33A-33G, the writ issued as of course (see G.L. c. 250, § 11), and the matter was referred to a special master. The master held a hearing in which evidence was offered by both the petitioner and the Commonwealth. In his report, the master, proceeding on the view that the law permitted the receipt not only of the trial record but of evidence aliunde, went on to find on the basis of detailed analysis of all the evidence received that the petitioner's jury waiver was voluntary and intelligent. He recommended affirmance of the conviction. ² A single justice of this court confirmed the report; the parties moved respectively for judgment in their favor; and the matter was then reserved and reported for decision by the full bench. ³ Although the two points raised by the petitioner could have been but were not raised at trial, we choose to consider them. See Commonwealth v. Hill, --- Mass. ---, --- ^A, 375 N.E.2d 1168 (1978); Commonwealth v. Freeman, 352 Mass. 556, 563-564, 227 N.E.2d 3 (1967). We conclude that the conviction should be affirmed.

1. The question of confinement to the trial record. Here we recite the bare facts of the trial, leaving to the next point an ampler account, including certain background facts. At the commencement of trial on December 11, 1975, the waiver form signed by the defendant and witnessed by his counsel was placed on file. Dr. Elliot R. Reiner, a staff psychiatrist of the Worcester State Hospital, had examined the petitioner pursuant to G.L. c. 123, § 15(A ), and § 18(A ), and his two reports, dated November 25, 1975, had declared the petitioner competent to stand trial. About a month earlier, a report reaching the same conclusion had been rendered by Dr. David J. Myerson of the Worcester State Hospital to the Third District Court of Southern Worcester in connection with a separate charge against the petitioner.

The proof on the part of the Commonwealth indicated that the petitioner entered Turple's Pharmacy on the afternoon of October 29, 1975, and, after browsing, handed an employee a note reading, "Get me the money" and pointed a gun at her. She surrendered $79 to him in a prescription bag. Shortly afterwards he was arrested in the neighborhood and identified by the employee. The gun, note, and bag with $79 were on his person. The weapon was a starter pistol, incapable of discharging a bullet. Taking the stand in his own defense, the petitioner said he did not have the pistol in his possession until after the time of the alleged robbery. As noted, the judge was content to convict the defendant of unarmed robbery.

It was the petitioner's contention that upon such a record the conviction must be vacated as a matter of constitutional due process. The case of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), was interpreted by this court in Commonwealth v. Foster, 368 Mass. 100, 102-103, 330 N.E.2d 155 (1975), as laying it down for State courts that the conditions of an effective guilty plea that the defendant acted voluntarily and with understanding must appear from the very transaction in court at the time, ordinarily through a colloquy between the judge and the defendant; without such a demonstration the plea is defective and the conviction may be successfully attacked even though adequate proof of the requisite conditions is otherwise available. ⁴ Boykin is reflected in Mass.R.Crim.P. 12 (effective July 1, 1979). See the analogous Fed.R.Crim.P. 11; McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Cf. United States v. Timmreck, --- U.S. ----, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979). ⁵

In respect to waiver of trial by jury, there has been a requirement that the defendant sign an appropriate form (see G.L. c. 263, § 6; Mass.R.Crim.P. 19(A ) (effective July 1, 1979)); a colloquy has not in terms been required. ⁶ The petitioner states, correctly, that a conviction cannot stand which follows upon a jury waiver that is not freely and knowingly given. See Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 63 S.Ct. 236, 87 L.Ed. 268 (1942); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Then, reasoning from the Boykin case, the petitioner contends that, like a guilty plea, a waiver of jury must be supported constitutionally by a contemporaneous colloquy in court.

The question has arisen in Federal courts, where Fed.R.Crim.P. 23(a) looks to a written jury waiver but does not require a colloquy, and the like question has arisen in State courts. The general view appears to be that there is not such a constitutional requirement, and that, when the validity of a jury waiver is attacked, the necessary proof may be made through facts or occurrences outside the proceeding in which the waiver was formally made and accepted. See Estrada v. United States, 457 F.2d 255, 257 (7th Cir.), cert. denied, 409 U.S. 858, 93 S.Ct. 143, 34 L.Ed.2d 104 (1972); United States v. Mitchell, 427 F.2d 1280, 1282 (3d Cir. 1970); United States v. Straite, 138 U.S.App.D.C. 163, 164, 425 F.2d 594, 595 (1970); United States v. Hunt, 413 F.2d 983, 984 (4th Cir. 1969); State v. Jelks, 105 Ariz 175, 178, 461 P.2d 473 (1969) (with a dissent); Quartz v. State, 258 So.2d 283, 284 (Fla.Dist.Ct.App.1972); State v. Olivera, 53 Haw. 551, 554, 497 P.2d 1360 (1972) (with a dissent); Kindle v. State, 161 Ind.App. 14, 21-22, 313 N.E.2d 721 (1974). But see Walker v. State, 578 P.2d 1388, 1390 (Alaska 1978); Short v. Commonwealth, 519 S.W.2d 828, 833 (Ky.1975). Waiver of a jury, although certainly an important election, still leaves in place another form of fact finding; it has not as much weight or consequence as a guilty plea, which is tantamount to a conviction and involves implicitly (as the Boykin case reminds us, 395 U.S. at 243, 89 S.Ct. 1709) the waiver of three constitutional rights to confront adverse witnesses, to be free of compulsion to testify against oneself, and to be tried by jury (where a jury is demandable). ⁷

To be sure, there is no precise way to compare the value of one right with another. Still it is not unreasonable for courts to refrain, in the case of the jury right, from constitutionalizing a particular means of demonstrating the legality of the waiver. We too decline to take the step.

The courts, listed above, which have refused that step nevertheless have stressed the desirability of solemnizing the jury waiver, and providing a clear record of it, by means of a conversation between judge and defendant when the waiver is made; this should be in addition to the written memorial. See also State v. Irving, 216 Kan. 588, 590, 533 P.2d 1225 (1975); State v. Boilard, 359 A.2d 65, 68 n. 4 (Me.1976). And experience indicates that the practice ought to be prescribed rather than left to choice: so a Federal Court of Appeals recently concluded in laying down a supervisory instruction for the circuit. United States v. Scott, 583 F.2d 362, 363-364 (7th Cir. 1978). For jurisdictions which have acted by statute or rule, see Jackson v. United States, 262 A.2d 106, 108-109 (D.C.App.1970), and D.C.Code § 16-705(a) (1973); ⁸ Commonwealth v. Morin, 477 Pa. 80, 84-88, 383 A.2d 832 (1978), and Pa.R.Crim.P. 1101 (1979); Biddle v. State, 40 Md.App. 399, 400-403, 392 A.2d 100, 101-103 (1978), and Md. Rules of Procedure 735(d), Md.Code Ann. (Michie 1977). See also ABA Standards Relating to Trial by Jury § 1.2(b) (Approved Draft 1968). We agree that the matter should be made firm, and therefore declare, in aid of sound judicial administration, that from the date of the issuance of a rescript upon this opinion, twenty-eight days hence, the colloquy shall be held in any instance of a waiver of the right to trial by jury. This shall be in addition to other requirements now applicable to such waiver. Any appropriate rule changes will be promulgated in due course.

In the exchange, the judge will advise the defendant of his constitutional right to a jury trial, and will satisfy himself that any waiver by the defendant is made voluntarily and intelligently. We do not intend to create a rigid pattern but note that, where a defendant needs a compendious reminder, the judge might state that the jury consists of members of the community, that the defendant may participate in their selection, that the verdict of...