Commonwealth v. Duart

• Citation: 477 Mass. 630,82 N.E.3d 1002
• Decision Date: 17 August 2017
• Docket Number: SJC-12302
• Parties: COMMONWEALTH v. Peter J. DUART.
• Court: United States State Supreme Judicial Court of Massachusetts

477 Mass. 630
82 N.E.3d 1002

COMMONWEALTH
v.
Peter J. DUART.

SJC-12302

Supreme Judicial Court of Massachusetts, Dukes..

Argued May 4, 2017.
Decided August 17, 2017.

Afton M. Templin,, North Attleboro, for the defendant.

Elizabeth A. Sweeney, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.

HINES, J.

477 Mass. 630

Following a jury-waived trial in the Superior Court, the defendant, Peter Duart, was convicted of rape, subsequent offense, G.L.c. 265, § 22 (b ) ; and indecent assault and battery on a person age fourteen or older, as a lesser included offense of assault and battery on a person with an intellectual disability.¹ The judge sentenced the defendant to from ten years to ten years

477 Mass. 631

and one day in State prison on the rape and subsequent offender convictions, and to a probation term of three years on the indecent assault and battery conviction.

In a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), the defendant challenged the convictions on the grounds that (1) his jury waiver was neither knowing nor intelligent because the trial judge did not disclose that his son was employed as an assistant district attorney in the office of the district attorney for the Cape and Islands district, which prosecuted the indictments; and (2) defense counsel was constitutionally ineffective in failing to disclose the judge's relationship to the prosecutor's office in counsel's advice on the strategic choice to waive the right to a trial by jury. A different judge held an evidentiary hearing and denied the motion in a

82 N.E.3d 1006

written decision. The defendant filed a timely appeal, and we transferred the case to this court on our own motion.

We conclude that the trial judge's failure to inform the defendant of his familial relationship with a member of the prosecuting attorney's office during the jury-waiver colloquy was not error, and thus the denial of the defendant's motion for a new trial on this ground was not an abuse of discretion. As to the defendant's claim of ineffective assistance of counsel, we conclude that although defense counsel's failure to inform the defendant of the trial judge's familial relationship with a member of the prosecuting attorney's office constituted behavior "falling measurably below that which might be expected from an ordinary fallible lawyer," Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974), counsel's failure to do so was not prejudicial. Therefore, we affirm the denial of the defendant's motion for a new trial.

Background. We summarize the relevant facts on the motion for a new trial as found by the motion judge, supplemented as necessary with uncontested facts from the motion hearing. See Commonwealth v. Stephens, 451 Mass. 370, 372, 885 N.E.2d 785 (2008). In April, 2010, the defendant was indicted by a Dukes County grand jury on charges of indecent assault and battery on a person with an

477 Mass. 632

intellectual disability, subsequent offense, G.L.c. 265, § 13F ; and rape, subsequent offense, G.L.c. 265, § 22 (b ). The alleged offenses occurred at the victim's apartment in the early morning hours of January 30, 2010.

Prior to trial, the defendant filed a motion for a change of venue, which the Commonwealth joined, predicated on the concern that the defendant could not receive a fair trial from a Dukes County jury. Specifically, the defendant contended there would be a "serious risk" that some of the jurors would have knowledge of the defendant's previous conviction, which had garnered substantial news media attention and notoriety on Martha's Vineyard, where the new indictments were set to be tried. The judge denied the motion without prejudice, noting that he would be willing to reconsider the order if seating a jury became "impractical."

In light of the denial of the defendant's motion for a change of venue, defense counsel discussed with the defendant the possibility of waiving his right to a trial by jury. Following consultation with his attorney, and at the defendant's request, the judge held a jury-waiver colloquy with the defendant on October 4, 2010. During the colloquy, the defendant indicated that he had had sufficient time to consider the waiver, and signed and filed a written waiver of trial by jury. The judge accepted the waiver, concluding that it was made intelligently and with knowledge of its consequences. The jury-waived trial commenced before the judge on October 5, 2010, and concluded on October 6, 2010.

At the conclusion of the trial, the judge found the defendant guilty of rape and guilty of the subsequent offender portion of the indictment. With respect to the charge of indecent assault and battery on a person with an intellectual disability, subsequent offense, the judge found the defendant guilty of the lesser included offense of indecent assault and battery. The defendant appealed from his convictions, which were affirmed by the Appeals Court in an unpublished memorandum and order pursuant to its rule 1:28, with the exception of a remand to the Superior Court requiring the trial judge to issue a more definitive order regarding sex offender treatment. See Commonwealth v. Duart, 82 Mass.App.Ct. 1121, 978 N.E.2d 106 (2012). Thereafter, the defendant filed a

82 N.E.3d 1007

motion for a new trial, which is the subject of this appeal.

Before the trial judge ruled on the motion for a new trial, the defendant filed, on August 12, 2013, a motion for recusal and, on September 26, 2013, a motion for leave to file a substitute motion for a new trial, arguing that he had just learned that the trial

477 Mass. 633

judge's son was an assistant district attorney in the Cape and Islands district. The trial judge granted the motion for leave to file a substitute motion for a new trial and, after a hearing, also granted the motion for recusal, concluding that although he harbored no bias against the defendant and remained convinced that the defendant received a fair trial, he would recuse himself from consideration of the defendant's motion to "assure that any appearance of partiality is avoided." Consequently, another Superior Court judge (motion judge) was assigned to hear the defendant's motion for a new trial.

At the hearing on the defendant's motion for a new trial before the motion judge, the trial judge's son, defense counsel for the defendant, and the defendant testified. In a written order, the motion judge found that defense counsel had "great faith and confidence" that the trial judge would be fair and impartial in a jury-waived trial for the defendant, and conveyed these sentiments to the defendant during their conversations regarding the possibility of a jury waiver. The motion judge also found that defense counsel was aware that the trial judge's son was an assistant district attorney in the Cape and Islands district,² which prosecuted cases in Barnstable, Dukes, and Nantucket Counties. Despite the trial judge's son's employment as an assistant district attorney, defense counsel remained confident that the trial judge would be fair and impartial in a jury-waived trial. The defendant denied having knowledge of the trial judge's son's employment prior to waiving his right to a trial by jury, but the motion judge concluded that there was insufficient evidence to determine whether the defendant in fact knew of the trial judge's son's employment at the time of his jury waiver.

During his employment in the Cape and Islands district, the trial judge's son had no involvement with the defendant's case. His case assignments were limited to the District Court in Barnstable and Nantucket Counties, with the addition of some appeals. Because of the trial judge's assignment in Dukes County, his son made a point to refrain from working on any Superior Court criminal cases prosecuted in Dukes County.³ Moreover, the

477 Mass. 634

trial judge's son did not have any supervisory role in the office during his employment.

Ultimately, the motion judge denied the defendant's motion for a new trial, concluding that the "defendant's jury waiver and trial did not present an issue of whether the [trial] judge's impartiality might reasonably be questioned." For this reason, the trial judge was not under any obligation to disclose to the defendant that his son was employed as an assistant district attorney in the same district. The motion judge also rejected the defendant's claim of ineffective assistance of counsel, concluding that because the trial judge's son's employment as an assistant district

82 N.E.3d 1008

attorney was limited to counties where his father was not assigned, the issue did not present a reasonable, objective basis for questioning the trial judge's impartiality. Thus, defense counsel's failure to raise the issue with the defendant did not fall outside "the range of...