Com. v. Dietrich

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtBefore HENNESSEY; ABRAMS
Citation409 N.E.2d 1288,381 Mass. 458
PartiesCOMMONWEALTH v. Dennis DIETRICH.
Decision Date04 September 1980

Page 1288

409 N.E.2d 1288
381 Mass. 458
COMMONWEALTH

v.
Dennis DIETRICH.
Supreme Judicial Court of Massachusetts, Essex.
Argued May 7, 1980.
Decided Sept. 4, 1980.

Page 1289

Matthew H. Feinberg, Boston (Mary C. Leonard, Boston, with him), for defendant.

Lila Heideman, Asst. Dist. Atty., for the Commonwealth.

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

ABRAMS, Justice.

The defendant was convicted of robbery and mayhem in a jury-waived trial in the Superior Court in [381 Mass. 459] 1973. 1 A motion for a new trial was denied by the trial judge without a hearing in 1978. The defendant was allowed to file a late notice of appeal under G.L. c. 278, §§ 33A-33H, from both his convictions and the denial of his motion for a new trial, and the two appeals were consolidated.

The facts of the case are related in Commonwealth v. Michel, 367 Mass. 454, 327 N.E.2d 720 (1975), in which we affirmed the conviction of a codefendant, Larry Michel. 2 On March 19, 1972, William Cole was the victim of a brutal beating and robbery. Cole's testimony indicated that he met Michel at a bar around noon, and spent the afternoon with Michel and various other people bar-hopping. Around 5 P.M., Michel and three other men drove Cole to a deserted spot where he was robbed and beaten. Cole was found by the police later that evening and brought to a hospital.

The defendant was indicted for robbery and mayhem of Cole along with three codefendants. On January 23, 1973, at the commencement of trial, all four defendants filed written waivers of their right to trial by jury. 3 According to affidavits filed in support of the defendant's motion for a new trial, all four defense counsel recommended this strategy to their clients in the belief that the evidence was insufficient as a matter of law, and that a trial judge would be

Page 1290

more inclined to grant a motion for a directed verdict when no jury had been impanelled and sworn.

During the trial, Cole did not identify the defendant as one of his assailants. There was testimony, however, that the day after the incident Cole picked three pictures out of an array of photographs; one of the photographs was that of the defendant. 4 The only testimony at trial involving the [381 Mass. 460] defendant in Cole's assault came from Walter D. Coyne, III. Coyne was originally indicted for these offenses, but was acquitted by the judge after he objected to the Commonwealth's motion to enter a nolle prosequi on the charges against him during trial. Coyne's testimony at trial was consistent with a statement he had given to the police within two weeks of the incident. Coyne inculpated his codefendants and exculpated himself.

On appeal Dietrich argues that his waiver of jury trial was not knowing and intelligent since it was based on a mistaken evaluation of the strength of the Commonwealth's case against him because of Coyne's appearance at trial as a prosecution witness. He further claims reversible error in the trial judge's failure to declare a mistrial on his own motion when Coyne began to testify for the Commonwealth. Finally, he claims that the identification procedures involved in this case were so impermissibly suggestive that their subsequent use at trial was a due process violation. We find no merit in any of these contentions and affirm the judgments.

Waiver of jury trial. Since the defendant did not challenge the validity of his jury waiver until he filed a motion for new trial, we review the record to see whether there is a "substantial risk of a miscarriage of justice." Commonwealth v. Freeman, 352 Mass. 556, 563-564, 227 N.E.2d 3, 9 (1967). See Earl v. Commonwealth, 356 Mass. 181, 184, 248 N.E.2d 498 (1969).

The right to a jury trial is a fundamental right guaranteed to a criminal defendant in order to preserve a fair trial. A defendant may waive that right only if he does so knowingly and intelligently. Schneckloth v. Bustamonte, 412 U.S. 218, 237-238, 93 S.Ct. 2041, 2052-53, 36 L.Ed.2d 854 (1973). Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 63 S.Ct. 236, 240, 87 L.Ed. 268 (1942). Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). "(W)hether or not there is an intelligent, competent, self-protecting waiver of jury trial by an accused must depend on the unique circumstances of each case." Adams v. United States ex rel. McCann, supra 317 U.S. at 278, 63 S.Ct. at 241.

The defendant does not claim that he misunderstood the scope and impact of this precious constitutional right. See Ciummei v. Commonwealth, --- Mass. ---, --- - --- a, 392 N.E.2d 1186; [381 Mass. 461] United States v. Conforte, 457 F.Supp. 641, 660 (D.Nev.1978), aff'd 624 F.2d 869 (9th Cir. 1980); b Commonwealth v. Morin, 477 Pa. 80, 85, 383 A.2d 832 (1978). Nor does he claim that any mental or physical incapacity affected his ability to understand the consequences of his choice. See, e. g., United States v. David, 511 F.2d 355 (D.C.Cir.1975). See also Commonwealth v. Robinson, 295 Mass. 471, 473, 4 N.E.2d 300 (1936). Rather, Dietrich claims that he waived his right to a jury trial in reliance on the weakness of the government's case against him, and therefore his waiver was vitiated when the government's case became stronger by reason of Coyne's testimony. See People v.

Page 1291

Redwine, 166 Cal.App.2d 371, 333 P.2d 188 (1958). 5

Dietrich argues that "it (was) perfectly clear to the Commonwealth prior to trial that it (would) be necessary to 'make a deal' with one of the defendants in order to secure convictions." If it was perfectly clear to the Commonwealth, however, it was equally clear to the defendant. The defendant knew that shortly after the incident Coyne had given the police a statement inculpating all three of his codefendants and exculpating himself....

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21 practice notes
  • Com. v. Crowe
    • United States
    • Appeals Court of Massachusetts
    • April 2, 1986
    ...6 Mass.App. at 239-240, 374 N.E.2d 1228. See Commonwealth v. Jones, 375 Mass. 349, 355, 377 N.E.2d 903 (1978); Commonwealth v. Dietrich, 381 Mass. 458, 464, 409 N.E.2d 1288 What we have said with respect to the lineup identifications disposes of Pirrotta's argument that the in-court identif......
  • Commonwealth v. Lowder
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 4, 2000
    ...power to direct a verdict after the opening, one might wonder why we did not say so in any of these cases. Cf. Commonwealth v. Dietrich, 381 Mass. 458, 460, 463 (1980). This court had said decades earlier that a judge has the power to direct a verdict after an opening in a civil trial. See ......
  • Com. v. Michel
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 4, 1980
    ...(1889); Commonwealth v. Dascalakis, 246 Mass. 12, 19, Page 1296 140 N.E. 470 (1923). See also Commonwealth v. Dietrich, --- Mass. --- a, 409 N.E.2d 1288 Coyne was the next witness called. At this point, Attorney Gorham withdrew from the case at the judge's suggestion and new counsel was the......
  • Com. v. Crocker
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 12, 1981
    ...266, § 40, the consequences of his waiver of jury trial were not "clearly foreseeable." See Commonwealth v. Dietrich, --- Mass. ---, a 409 N.E.2d 1288 (1980). We think the possible sentences contained in our criminal statutes are sufficiently foreseeable whether a defendant elects to be tri......
  • Request a trial to view additional results
21 cases
  • Com. v. Crowe
    • United States
    • Appeals Court of Massachusetts
    • April 2, 1986
    ...6 Mass.App. at 239-240, 374 N.E.2d 1228. See Commonwealth v. Jones, 375 Mass. 349, 355, 377 N.E.2d 903 (1978); Commonwealth v. Dietrich, 381 Mass. 458, 464, 409 N.E.2d 1288 What we have said with respect to the lineup identifications disposes of Pirrotta's argument that the in-court identif......
  • Commonwealth v. Lowder
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 4, 2000
    ...power to direct a verdict after the opening, one might wonder why we did not say so in any of these cases. Cf. Commonwealth v. Dietrich, 381 Mass. 458, 460, 463 (1980). This court had said decades earlier that a judge has the power to direct a verdict after an opening in a civil trial. See ......
  • Com. v. Michel
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 4, 1980
    ...(1889); Commonwealth v. Dascalakis, 246 Mass. 12, 19, Page 1296 140 N.E. 470 (1923). See also Commonwealth v. Dietrich, --- Mass. --- a, 409 N.E.2d 1288 Coyne was the next witness called. At this point, Attorney Gorham withdrew from the case at the judge's suggestion and new counsel was the......
  • Com. v. Crocker
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 12, 1981
    ...266, § 40, the consequences of his waiver of jury trial were not "clearly foreseeable." See Commonwealth v. Dietrich, --- Mass. ---, a 409 N.E.2d 1288 (1980). We think the possible sentences contained in our criminal statutes are sufficiently foreseeable whether a defendant elects to be tri......
  • Request a trial to view additional results

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