Com. v. Abreu

• Decision Date: 09 May 1984
• Citation: 391 Mass. 777,463 N.E.2d 1184
• Parties: COMMONWEALTH v. Felix ABREU.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1184

463 N.E.2d 1184

391 Mass. 777

COMMONWEALTH v. Felix ABREU.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Feb. 9, 1984.

Decided May 9, 1984.

Barry P. Wilson, Boston, for defendant.

Judy G. Zeprun, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

HENNESSEY, Chief Judge.

The defendant, Felix Abreu, was found guilty in a jury waived trial of possession of a class B controlled substance with intent to distribute, and was sentenced to serve from seven to ten years at the Massachusetts Correctional Institution at Walpole. ¹ He appealed to the Appeals Court which reversed the judgment of the Superior Court and set aside the finding of guilty. Commonwealth v. Abreu, 15 Mass.App. 1006, 448 N.E.2d 774 (1983). The Commonwealth filed an application for further appellate review and we allowed it. On appeal, the defendant claims that the colloquy conducted by the trial judge, contemporaneously with accepting his waiver of the right to trial by jury, fell short of what he says is required by our decision in Ciummei v. Commonwealth, 378 Mass. 504, 392 N.E.2d 1186 (1979). We agree that the record, including the colloquy and all relevant circumstances relating to the proceedings before the judge, does not establish a voluntary and intelligent waiver of the right to a jury trial, and that a new trial must be granted. Accordingly, we do not need to reach the defendant's second argument that he was denied effective assistance of counsel.

The issue presented by this case is much the same as that addressed by another decision issued today in Commonwealth v. Schofield, 391 Mass. 772, 463 N.E.2d 1181 (1984). We must review whether the rule we established in Ciummei has been correctly applied by the judge to the facts before him.

The entire "colloquy" conducted by the judge before accepting the defendant's waiver of his right to trial by jury here was as follows:

THE JUDGE: "Felix Abreu, do I understand that you have waived your right to trial by jury and you want to have the case heard by a single justice through the interpreter?"

THE INTERPRETER: "Yes."

We conclude this colloquy unaccompanied by any other evidence was inadequate under Ciummei.

In Ciummei v. Commonwealth, supra, we established an evidentiary prerequisite to a valid waiver of the right to trial by jury. We stated that a judge must conduct a colloquy with the defendant on the record, regarding the defendant's right to trial by jury, contemporaneously with and before accepting any waiver. The purpose of the colloquy is to include as part of the trial record evidence indicating whether the defendant's waiver of his right was sufficient to pass constitutional scrutiny. See Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970). "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." Ciummei v. Commonwealth, supra 378 Mass. at 509, 392 N.E.2d 1186. While the United States Constitution did not, and does not, require that such a colloquy be conducted on the record, ² see United States ex rel. Williams v. DeRobertis, 715 F.2d 1174, 1178 (7th Cir.1983), cert. denied, 464 U.S. 1072, 104 S.Ct. 982, 79 L.Ed.2d 219 (1984); United States v. Martin, 704 F.2d 267, 274 (6th Cir.1983); United States v. Anderson, 704 F.2d 117, 119 (3d Cir.), cert. denied, 464 U.S. 838, 104 S.Ct. 129, 78 L.Ed.2d 125 (1983), we deemed it necessary "in aid of sound judicial administration." Ciummei, supra.

In reviewing the colloquy challenged here, we note that Ciummei established no rigid pattern which must invariably be followed in conducting a colloquy before accepting a waiver of the right to trial by jury. While the colloquy before us clearly omits many of the inquiries suggested as appropriate in Ciummei, such omissions alone are not enough to make the colloquy inadequate. Whether a colloquy conducted by a trial judge before accepting a defendant's waiver of his right to trial by jury is adequate depends upon the specific facts of each case. Commonwealth v. Schofield, supra 391 Mass. at ---, 463 N.E.2d 1181. So 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.

The record here was inadequate to support a finding that the defendant's waiver was voluntary and intelligent. The sole question asked of the defendant was phrased in conclusory terms. It gave no indication of the nature of the right at issue or the consequences of the waiver. The simple reply, "Yes," to the conclusory inquiry whether a defendant voluntarily and knowingly waives the right to trial by jury gives little indication of the defendant's true state of mind. This is particularly so in the instant case where the record indicates that the defendant may understand or speak little English and, therefore, may be from a foreign nation in which jury trials as they exist in the United States are not customary. Inquiry into this and related areas should have been conducted on the record. This is not a case where we can say the defendant clearly understood "this most precious constitutional right" and, therefore, his waiver was "a decision regarding...