COMMONWEALTH v. LEONARDI, FEBRUARY 16, 2010 APPEALS COURT
Waiver of trial by jury, Defendant Pro se
The defendant was convicted at a jury waived trial of assault and battery. He argued on appeal that the waiver of his right to a trial by a jury was not valid because the requirements of a written waiver of counsel was not signed as required by G.L. c. 218, s 26A. The Appeals Court agreed and reversed the conviction.
Under G.L. c.218, s26A a court cannot receive a waiver of the right to a jury trial unless the defendant is represented by counsel or has filed a written waiver of counsel at the time of the waiver. Here, at the time the defendant’s jury waiver was purportedly received, the defendant was not represented by counsel but instead was proceeding pro se, assisted by standby counsel. No written waiver of counsel had been signed or filed. A standby counsel does not formally represent the defendant. Nor does standby counsel protect the defendant’s interest in the same way or to the same extent as counsel. Therefore because the defendant was not represented by counsel at the time his jury waiver was received (standby counsel being no substitute), and because he had not previously filed a written waiver of counsel, his jury waiver was ineffective for failure to satisfy the requirements of section 26A.
Waiver of trial by jury, waiver of constitutional rights
The Appeals Court also took the opportunity to comment upon the defendant’s argument that neither the jury waiver colloquy nor the counsel waiver colloquy was adequate, and that he did not effectively waive counsel because no written waiver was secured as required by SJC rule 3:10. The Court noted that the absence of a written counsel waiver does not alone require reversal provided there is sufficient other evidence in the record to demonstrate that the waiver was voluntary and intelligent. Here, the absence of the written waiver was indicative of the incomplete nature of the truncated interactions the defendant had with three different judges concerning the waiver of his constitutional rights. No judge inquired into the defendant’s disclosures of his alleged mental condition or the effect they might have on his ability to make rational decisions consistent with self-representation or with waiving a jury. Nor had any judge inquired into whether the defendant had been induced, coerced, or cajoled into waiving his rights, or whether he was intoxicated or mentally impaired. Finally, the Court cautioned judges about relying on earlier inquiries into a defendant’s state of mind concerning the waiver of constitutional rights. Ultimately, the Court noted, the trial judge should conduct the colloquies personally and obtain the necessary written waivers.
