Posts tagged "1114015"

Commonwealth v. Garcia (Lawyers Weekly No. 11-140-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030;   14-P-21                                         Appeals Court   COMMONWEALTH  vs.  HECTOR GARCIA. No. 14-P-21. Bristol.     December 1, 2014. – September 11, 2015.   Present:  Rubin, Milkey, & Carhart, JJ.     Practice, Criminal, Waiver of appellate rights.  Constitutional Law, Waiver of constitutional rights, Trial by jury.  Search and Seizure, Reasonable suspicion.       Complaint received and sworn to in the New Bedford Division of the District Court Department on April 13, 2012.   A pretrial motion to suppress evidence was heard by Christopher D. Welch, J., and the case was heard by him.     Matthew Malm for the defendant. Owen J. Murphy, Assistant District Attorney, for the Commonwealth.     RUBIN, J.  After a bench trial, the defendant was convicted of carrying an unlicensed firearm and of carrying a loaded firearm in violation of G. L. c. 269, § 10(a) and (n).[1]  In this appeal, the defendant asserts that he is entitled to a new trial because his colloquy with the judge was inadequate to provide the judge with a basis for concluding that the defendant voluntarily and intelligently waived his right to a jury trial.  He also argues that the judge improperly denied a motion to suppress.  We address each of these in turn. 1.  The colloquy.  To be effective, a defendant and judge’s colloquy concerning the defendant’s waiver of the constitutional right to a jury trial must be sufficient to satisfy the judge that the waiver is “voluntary and intelligent.”  Commonwealth v. Pavao, 423 Mass. 798, 802 (1996) (Pavao).  There is also a statutory requirement of a signed written waiver.  See G. L. c. 263, § 6.  Here, the statute’s requirement was satisfied, as the defendant signed a waiver form.  In addition, the defendant’s trial counsel signed a certificate, pursuant to G. L. c. 218, § 26A, affirming that he had explained the relevant protections afforded by a jury trial to the defendant.  It is well settled that while statutorily required, such forms are inadequate by themselves to allow a judge to determine that a waiver of the right to a jury trial is voluntary and intelligent; although not constitutionally required, the Supreme Judicial Court requires a colloquy as a matter of sound judicial administration because “[s]o long as a colloquy occurs, the sole focus of [appellate] review is whether the colloquy has provided an evidentiary record upon which the trial judge could find the waiver of a […]


Posted by Massachusetts Legal Resources - September 12, 2015 at 5:25 am

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