PLEA COLLOQUY SUFFICIENT THOUGH INCOMPLETE

n Commonwealth v. Garcia, the Court of Appeals affirmed the defendant’s convictions of carrying an unlicensed firearm and a related offense.  It found that the jury waiver colloquy between the judge and the defendant adequately “provided the judge with a basis for concluding that the defendant voluntarily and intelligently waived his constitutional right to a jury trial.” The entirety of the colloquy consisted of the defendant’s simple “yes” or “no” responses to the judge’s questions, indicating that the defendant understood that the judge alone (rather than a jury of six) would render the verdicts; that nobody had forced the defendant to forgo a jury trial; that he was making that decision of his own free will; and that he had had sufficient time to procure some advice on the matter from his attorney. In addition to the colloquy, the defendant signed a waiver form.   Moreover, “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.” In its decision, the Appeals Court noted that “in many respects, the judge’s colloquy was thin. He did not ask about the defendant’s level of education. He did not ask whether any promises had been made to the defendant. He did not provide any details about the procedure attendant upon a jury trial…. and he did not explain that the vote of the six jurors for guilt must be unanimous.” Nonetheless, the Appeals Court ruled that in the circumstances (i.e., “in combination with a signed form and certificate”), the colloquy was sufficient.

 

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