Com. v. Connor

• Decision Date: 07 October 1982
• Citation: 440 N.E.2d 1181,14 Mass.App.Ct. 488
• Parties: COMMONWEALTH v. Eugene R. CONNOR et al. 1
• Court: Appeals Court of Massachusetts

Page 1181

440 N.E.2d 1181

14 Mass.App.Ct. 488

COMMONWEALTH v. Eugene R. CONNOR et al. ¹

Appeals Court of Massachusetts,

Middlesex.

Argued Sept. 14, 1982.

Decided Oct. 7, 1982.

Andrew Good, Boston (John J. Barter, Boston, with him), for defendants.

Carmel A. J. Motherway, Asst. Dist. Atty., for the Commonwealth.

Before GREANEY, PERRETTA and KASS, JJ.

KASS, Justice.

We are asked to consider whether acceptance of a written withdrawal of an appeal to a jury of six session in a District Court must be accompanied by a colloquy between the judge and the defendant to ascertain if, in withdrawing his appeal, the defendant acted voluntarily and with understanding. We conclude that such a colloquy is required.

On December 21, 1979, Connor Construction Company, Inc. (the company), of which the defendant Eugene R. Connor was president, held Christmas revels during which the peaceful sentiments of the season apparently became submerged. Before the party was over, Eugene Connor, his son, his brother and four employees of the company were arrested on charges of being disorderly persons and of assault and battery upon a police officer. At their arraignment in the District Court of Lowell on December 24, 1979, all seven men were represented by the company's corporate counsel, who advised that they enter pleas of not guilty, waive their rights to an initial jury trial, and admit to sufficient facts to be found guilty of the offenses charged. They did so.

Each defendant was found guilty, and the judge imposed fines aggregating $550 per defendant. The defendants promptly appealed to a jury of six session, conformably with G.L. c. 278, § 18, as appearing in St.1978, c. 478, § 302.

On the advice of the company's corporate counsel, the defendants retained a lawyer who specialized in criminal cases, Thomas Shapiro, whose office is in Boston. Eugene Connor thought local counsel would be helpful and brought into the picture a lawyer from Tewksbury, Kevin Sullivan, who, as the appellants' brief put it, "was familiar with the Lowell Court." Mr. Sullivan was to file an appearance in the cases and to address the court on behalf of the defendants, while Mr. Shapiro played a monitoring and advisory role. It was Mr. Sullivan's object to vacate the finding of guilty, to have the cases continued for one year without a finding, and to have the fines reclassified as court costs.

Defendants were next scheduled to appear in court on January 16, 1980. Before the lunch recess on that day Mr. Sullivan thought he had reached agreement with the prosecution that it would recommend the terms he desired and so reported to Mr. Shapiro, who relayed the good news to the defendants. After arranging for the preparation of written withdrawals of the appeals with the clerk, Mr. Shapiro went serenely to lunch with the defendants.

Upon their return to court shortly before 2:00 P.M., the defendants learned from Mr. Sullivan that the understanding had become unglued: the police prosecutor would not join in the desired recommendation. Mr. Sullivan urged the defendants to withdraw their appeals despite the change in circumstances. Necessarily hasty consultation with Mr. Shapiro ensued but this was interrupted by a summons into the courtroom. There, in open court, before the same judge who had presided at the initial proceeding, the defendants each signed withdrawals of their appeals to the jury of six session. ² Once that formality was completed, Mr. Sullivan made a plea for a disposition which would avoid a record, an action which, as will appear below, was not within the power of the judge. Mr. Sullivan was unsuccessful, and the judge announced at once that the sentences he had originally imposed remained in force. The judge did not address the defendants except to ask about the length of time they would need to pay their fines.

On January 21, 1980, Eugene and Michael Connor each filed a motion to vacate the judgments and to reinstate the appeals on the ground that "Defendant signed a written withdrawal of appeal without knowingly, voluntarily, and deliberately waiving his right to a jury trial in these matters." After a hearing at which Eugene Connor, Michael Connor and Mr. Shapiro testified, the judge denied the motion from the bench. He did so without findings of fact, but indicated by comments that he took into account the defendants' initial admission to sufficient facts and that, in consequence, the defendants' argument was about disposition, rather than guilt. The judge also observed that three lawyers had advised the defendants at various stages and deduced, therefore, that they had not gone through the process uncounselled. From the denial of their motion, the defendants have appealed.

When the defendants came before him in the jury of six session, the District Court judge did not have the benefit of the opinion in Commonwealth v. Duquette, 386 Mass. 834, 438 N.E.2d 334 (1982). There the court observed that the device of admitting to sufficient facts is primarily used to expedite a de novo jury trial at the second tier of District Court proceedings. Id. at 838, 438 N.E.2d 334. See also Smith, Criminal Practice and Procedure § 759 (Supp.1979). To admit to sufficient facts at the first tier is not inconsistent with a plea of not guilty; the prosecution must still prove guilt beyond a reasonable doubt, but a minimal amount of evidence is adequate and hearsay is admissible. See Standards for Trials and Probable Cause Hearings of the District Court Department § 2:01 and commentary thereto (1981). See also Mass.R.Crim.P. 12(a)(3), 378 Mass. 866 (1979),...