Com. v. Pavao

• Decision Date: 29 February 1996
• Docket Number: No. 94-P-1703,94-P-1703
• Citation: 658 N.E.2d 175,39 Mass.App.Ct. 490
• Parties: COMMONWEALTH v. Antonio PAVAO.
• Court: Appeals Court of Massachusetts

Page 175

658 N.E.2d 175

39 Mass.App.Ct. 490

COMMONWEALTH v. Antonio PAVAO.

No. 94-P-1703.

Appeals Court of Massachusetts Bristol.

Argued April 11, 1995.

Decided Dec. 6, 1995.

Further Appellate Review Granted Feb. 29, 1996.

John F. Palmer, Boston, for defendant.

Mary O'Neill, Special Assistant District Attorney, for Commonwealth.

Before PERRETTA, PORADA and LAURENCE, JJ.

LAURENCE, Justice.

The defendant, Antonio Pavao, was indicted in Bristol County in October, 1992, and February, 1993, on three counts of rape, four counts of disseminating matter harmful to minors, and five counts of indecent assault and battery on a child under fourteen. The victims of the crimes charged were five girls, nine and ten years old. As trial was about to begin on November 1, 1993, Pavao's trial counsel who is not his appellate counsel) filed a written jury waiver, pursuant to G.L. c. 263, § 6, and Mass.R.Crim.P. 19(a), 378 Mass. 888 (1979). The preprinted waiver form was signed by Pavao. Above his signature, the form said simply, "Under the provisions of General Laws Chapter 263, Section 6, I hereby waive my right to trial by jury." ¹

Despite the holding in Ciummei v. Commonwealth, 378 Mass. 504, 509-511, 392 N.E.2d 1186 (1979), that a trial judge should hold a colloquy to determine whether a proposed waiver of a criminal defendant's constitutional right to trial by jury was being made voluntarily and intelligently, the trial judge here simply received the form handed up to him by Pavao's counsel and accepted counsel's assurance that Pavao had in fact executed it. The prosecutor, not familiar with the Ciummei case, did not remind the judge of the colloquy requirement. Defense counsel was aware that the judge and the prosecutor were overlooking the colloquy. Not only did he fail to call it to the judge's attention, but he deliberately said nothing in the calculated expectation that a ground for automatic reversal had been created should Pavao be convicted.

During the three-day bench trial that followed, Pavao's strategy was to avoid conviction on the rape charges. He himself did not testify. In closing argument, Pavao's counsel admitted Pavao's guilt as to indecent assault and battery but attacked the Commonwealth's rape case as deficient. The judge found Pavao guilty, on November 3, 1993, of the five counts of indecent assault and battery but acquitted him of all other charges. Sentencing was scheduled for several weeks thereafter. On November 4, 1993, the Fall River police detective who had investigated Pavao's crimes informed the prosecutor of a conversation he had just had with Pavao's counsel. Counsel had candidly told the detective that he had known at the time of the jury waiver that the judge and the prosecutor were creating reversible error by omitting the colloquy but had asserted that it was the prosecutor's, not defense counsel's, responsibility to remind the judge of such an omission. Defense counsel confirmed these facts a few days later in a letter to the prosecutor.

A hearing on the matter was held at the prosecutor's behest three weeks later, just prior to the scheduled sentencing. Pavao was not, apparently, present at the hearing. The prosecutor urged the judge either to have a posttrial colloquy or to make a finding, based upon the signed waiver and the judge's observations of Pavao during trial, that Pavao's jury waiver had been made voluntarily and intelligently. Defense counsel again conceded that the evidence supported the findings of Pavao's guilt on the indecent assault and battery charges. He further emphatically assured the court that he had in fact carefully and fully advised Pavao regarding his right to a jury trial and the consequences of giving it up. He nonetheless insisted that a posttrial colloquy was inappropriate and, alluding vaguely to "double jeopardy," contended there was no way to cure the error that had been committed by omission of the colloquy. He stated that defense counsel had no obligation to alert the court to the assertedly fatal absence of a colloquy.

The judge confessed that he "was surprised ... to learn this was an area where colloquy was required." He took note, however, of the facts that Pavao had executed the proper written jury waiver, had been well represented by experienced counsel, and had consulted with his attorney during the trial. Recalling counsel's trial concession of Pavao's guilt as to the indecent assault and battery counts and the ease with which he had reached a decision thereon, the judge expressed doubt that Pavao would enjoy any different outcome at a trial before a jury. He also observed that, in view of counsel's able representation of Pavao, "it seems incredible to suggest that his waiver was not knowing and voluntary, which, of course, is the purpose of the colloquy"; defense counsel immediately responded, "I'm not suggesting it wasn't knowingly done." ² The judge left it that the hearing was a matter of record and saw no need to make further findings or to take any action in the absence of a motion for a new trial. He subsequently sentenced Pavao to concurrent prison terms of from six to ten years, two years to be served and the balance suspended for a probation term of five years. This appeal followed.

Pavao presses a single point: under Ciummei and its progeny, the judge's failure to hold any jury-waiver colloquy requires automatic reversal, in every case, regardless of prejudice or any other factor. While acknowledging the importance of the colloquy requirement and the judge's clear error here in not implementing it at the time of the jury trial waiver, we conclude that, in the unique circumstances of this case, no reversible error occurred.

Ciummei, 378 Mass. at 509, 392 N.E.2d 1186, held that a "colloquy shall be held in any instance of a waiver of the right to trial by jury." The court stressed, however, that such a colloquy was not itself a constitutional requirement. Id. at 507-508, 511, 392 N.E.2d 1186. The court expressly refused to "constitutionaliz[e] a particular means of demonstrating the legality of the waiver." Id. at 508, 392 N.E.2d 1186. Rather, the colloquy was prescribed as a prudential supervisory practice "in [the] aid of sound judicial administration." Id. at 509, 392 N.E.2d 1186. Without a colloquy "the trial judge's task of determining the validity of the jury waiver may be problematical." Commonwealth v. Schofield, 16 Mass.App.Ct. 199, 204, 450 N.E.2d 645 (1983), S.C., 391 Mass. 772, 463 N.E.2d 1181 (1984). A colloquy was deemed the best "practice" for insuring clear evidence of the critical facts to be established prior to judicial acceptance of a jury trial waiver: the voluntary and intelligent nature of the defendant's waiver of that constitutional right. Ciummei v. Commonwealth, 378 Mass. at 509-510, 392 N.E.2d 1186. Commonwealth v. Schofield, 391 Mass. at 775, 463 N.E.2d 1181.

Opinions subsequent to Ciummei have recognized that there is no fixed script for such a colloquy. See Commonwealth v. Schofield, 391 Mass. at 774-776, 463 N.E.2d 1181; Commonwealth v. Abreu, 391 Mass. 777, 779-780, 463 N.E.2d 1184 (1984); Commonwealth v. Towers, 35 Mass.App.Ct. 557, 559-560, 623 N.E.2d 489 (1993). In every decided case, there has occurred something deemed a colloquy. The focus of the application of the Ciummei principle has been to determine whether the particular colloquial effort constituted "a minimally adequate colloquy," Commonwealth v. Towers, 35 Mass.App.Ct. at 559, 623 N.E.2d 489, so as to enable the judge to determine that the defendant was capable of rational judgment; that he was generally aware of the differences between jury and jury-waived trials; and that he was not acting under any improper influence in making the waiver decision. Commonwealth v. Schofield, 391 Mass. at 774, 463 N.E.2d 1181.

There have been several intimations that the total absence of a colloquy may compel reversal. See id. at 775, 463 N.E.2d 1181; Commonwealth v. Abreu, 391 Mass. at 779, 463 N.E.2d 1184; Commonwealth v. Smith, 403 Mass. 489, 493, 531 N.E.2d 556 (1988); Commonwealth v. Thetonia, 27 Mass.App.Ct. 783, 783, 543 N.E.2d 700 (1989); Commonwealth v. Towers, 35 Mass.App.Ct. at 558 n. 2, 560, 623 N.E.2d 489. These have been dicta, however, and no decided case has focused on the factual situation presented here, the effective lack of a jury-waiver colloquy, or has directly held that the omission of such a colloquy necessitates reversal regardless of the circumstances. ³ The Commonwealth argues that the judge's concededly erroneous omission of the colloquy should not be fatal per se. It contends that the oversight is subject to a "harmless error" analysis, and that, on the special facts of this case, Pavao's jury waiver was properly accepted as being voluntary and intelligent.

We adopt the Commonwealth's position. This court has recognized the relevance of the harmless error principle in the jury waiver context. See Commonwealth v. Schofield, 16 Mass.App.Ct. at 203 n. 4, 450 N.E.2d 645, S.C., 391 Mass. at 773-774, 463 N.E.2d 1181. Compare G.L. c. 231, § 119, as appearing in St.1973, c. 1114, § 202 (appellate court is not to disturb a judgment on account of "anything ... omitted by the trial court ... [that has not] injuriously affected the substantial rights of the parties"), which we have applied in criminal cases. See Commonwealth v. DiRoma, 5 Mass.App.Ct. 853, 854, 364 N.E.2d 1280 (1977). A similar conclusion has been reached at the Federal level under Fed.R.Crim.P. 52(a). See United States v. Rodriguez, 888 F.2d 519, 527-528 (7th Cir.1989). See also United States v. Hasting, 461 U.S. 499, 506, 103 S.Ct. 1974, 1979, 76 L.Ed.2d 96 (1983); Bank of Nova Scotia v. United States, 487 U.S. 250, 254-256, 108 S.Ct. 2369, 2373-2374, 101 L.Ed.2d 228 (1988). ⁴

Accordingly, we hold that failure to conduct a jury-waiver colloquy--a nonconstitutional defect--may be examined under the standard of prejudicial error: Did the...