Commonwealth v. Johnson
79 Mass.App.Ct. 542 (2011)
Appeals Court of Massachusetts
May 17, 2011
Distribution of controlled substance, second or subsequent offence, oral waiver, illiteracy of the defendant, signing of jury trial waiver.
Defendant was convicted in the trial court of distribution of a controlled substance, second or subsequent offense. Defendant appealed contending that her conviction as a second or subsequent offender was invalid because she never signed a written waiver of her right to a jury trial.. The Appeals Court held that defendant's illiteracy did not excuse Commonwealth's failure to obtain a written waiver of defendant's right to jury trial. Portion of decision that found the defendant guilty of a subsequent offense, pursuant to G.L. c. 94C, § 32A(b ), is reversed, the finding is set aside, and the case is remanded for resentencing.
Facts:
On September 5, 2008, an Essex county grand jury returned an indictment charging the defendant with distribution of cocaine, second or subsequent offense, in violation of G.L. c. 94C, § 32A(b). A separate indictment charging the same was issued on September 24, 2008. The two offenses were joined, and the defendant's trial began on November 30, 2009. On December 3, 2009, following a three-day jury trial, the defendant was found guilty on one count and was acquitted on the other. Immediately following the jury's verdict, a bench trial was conducted on the second and subsequent offense portion of the indictment. Before beginning, the judge engaged the defendant in an extensive jury waiver colloquy, during which the defendant explained that she could not read or write. The defendant did acknowledge, however, that she had the opportunity to discuss her decision with counsel, understood the consequences of waiving a jury, and was doing so voluntarily. Satisfied with the defendant's oral waiver, the judge proceeded with the bench trial. No written waiver was ever filed with the court. At the close of the evidence, the judge determined that the Commonwealth had proved the defendant's prior conviction beyond a reasonable doubt, and sentenced the defendant to a prison term of five to six years.
Issue 1: Was defendant’s conviction as a second or subsequent offender invalid because she never signed a written waiver of her right to a jury trial?
Under a “bright-line” rule a defendant's jury waiver is only effective when a signed written waiver is filed with the court. Commonwealth v. Osborne, 445 Mass. 776, 781, 840 N.E.2d 544 (2006). The Commonwealth suggests that the rule should not be enforced in this case, since the execution of a written waiver would have been an “empty gesture” given the defendant's inability to read or write. The Appeals Court in this case did not agree with this suggestion.
The defendant's illiteracy does not, by any means, render the exercise of signing a written waiver meaningless. As the Supreme Judicial Court observed in Osborne, “the requirement of a signed, written jury waiver is an important protection provided by the Legislature for the benefit of a criminal defendant.” Id. at 780, 840 N.E.2d 544. “The solemnity of the written waiver and the formality of the colloquy also further the purposes of ‘assuring that the ultimate decision regarding waiver of the jury be left to the defendant himself, not his counsel,’ Commonwealth v. Pavao, 423 Mass. 798, 803, 672 N.E.2d 531 (1996), and ensuring an evidentiary record that will foreclose most posttrial disputes about whether the waiver was knowingly and voluntarily made.” Commonwealth v. Osborne, supra at 781, 840 N.E.2d 544. Without having signed a written waiver, the defendant was not afforded these procedural safeguards. Accordingly, any waiver obtained was ineffective, and the defendant's conviction was invalid. See ibid.
In Massachusetts, it is well established that “signing does not necessarily mean a written signature....” Finnegan v. Lucy, 157 Mass. 439, 443, 32 N.E. 656 (1892). See Irving v. Goodimate Co., 320 Mass. 454, 459, 70 N.E.2d 414 (1946). Unless a particular statute provides otherwise, which G.L. c. 263, § 6, does not, a signing may be done “by mark, by print, by stamp, or by the hand of another.” Finnegan, supra. Thus, defendant's illiteracy did not excuse Commonwealth's failure to obtain a written waiver of defendant's right to jury trial, and thus any waiver obtained was ineffective. M.G.L.A. c. 263, § 6
Issue 2: Was defendant’s trial counsel ineffective for failing to sever the two drug charges against her?
In this case, a motion to sever the charges would certainly have been denied, since the two charges against the defendant clearly were “based on the same criminal conduct....” Commonwealth v. Pillai, 445 Mass. 175, 180, 833 N.E.2d 1160 (2005), quoting from Mass.R.Crim.P. 9(a)(1), 378 Mass. 859 (1979). Accordingly, defense counsel was not ineffective for failing to file such a motion. See Commonwealth v. Conceicao, 388 Mass. 255, 264, 446 N.E.2d 383 (1983) (“It is not ineffective assistance of counsel when trial counsel declines to file a motion with a minimal chance of success”).
For the foregoing reasons, the judgment on the defendant's underlying conviction of distribution of a class B substance is affirmed. The portion of the judgment that found the defendant guilty of a subsequent offense, pursuant to G.L. c. 94C, § 32A(b ), is reversed, the finding is set aside, and the case is remanded for resentencing.
Judgement Affirmed in Part- Reversed in Part – Prepared by SF
