Commonwealth v. Duart (Lawyers Weekly No. 10-132-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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; SJCReporter@sjc.state.ma.us SJC-12302 COMMONWEALTH vs. PETER J. DUART. Dukes. May 4, 2017. – August 17, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ. Judge. Practice, Criminal, New trial, Disqualification of judge, Assistance of counsel. Indictments found and returned in the Superior Court Department on April 5, 2010. A motion for a new trial, filed on February 18, 2015, was heard by Charles J. Hely, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Afton M. Templin for the defendant. Elizabeth A. Sweeney, Assistant District Attorney, for the Commonwealth. HINES, J. 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 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 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 […]