By the Court (Meade, Hanlon & Sacks, JJ.), Clerk
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial, the defendant was convicted of violating an abuse prevention order. He was sentenced to one year of probation, and ordered to stay away from, and have no contact with, the victim. On appeal, he claims that the judge erred in denying his motion for new trial because he was coerced by his attorney into waiving his right to a jury trial, and did not voluntarily elect to go jury-waived. We affirm.
After the Commonwealth rested, the defendant filed a motion for a required finding of not guilty and the motion was allowed as to the witness intimidation charge. The defendant was subsequently found not guilty of assault and battery, as well as another count of violating an abuse prevention order.
The defendant claims that the motion judge, who was also the trial judge who conducted the jury waiver colloquy, erred in denying his motion for new trial. We disagree. We review the denial of a motion for new trial "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). When the motion judge was also the trial judge, as in this case, we extend special deference to the judge's decision. See ibid.
The defendant claims that his trial counsel coerced and pressured him into waiving his right to a jury trial in an off-the-record conversation. He asserts that his counsel's conversation with the judge concerning his refusal to forgo his right to a jury trial, his subsequent conversation with his attorney that was recorded (the transcription of which showed a "few expletives," as noted by the judge), and his seemingly quick turnaround from wanting a jury trial to going jury-waived all prove that his decision to waive his right to a jury was not voluntary.
Before trial, the judge conducted a colloquy, asking the defendant specific questions as to the willingness and voluntary nature of his decision to proceed jury-waived. See Commonwealth v. Ciummei, 378 Mass. 504, 509 (1979). The judge determined that the defendant understood what he was doing, that his counsel had informed him of what his decision entailed, and that he was proceeding voluntarily. The defendant also signed the jury-waiver form. To rebut the validity of the waiver and the sufficiency of the colloquy, the defendant bears the burden of proof. See id. at 510 n.9. The judge did not err in concluding that burden has not been met.
The judge held an evidentiary hearing to assess the defendant's motion for new trial, and explicitly found his testimony not credible. In support of his decision, the judge considered the content and tone used by defense counsel with the defendant during an off-the-record conversation that was captured on the court's recording system, the defendant's demeanor both during and after the waiver colloquy, defense counsel's affidavit, and the defendant's testimony itself, ultimately concluding that "after seeing and hearing the defendant testify at the evidentiary hearing, my sense is the defendant's claims have little to do with the voluntariness of his jury waivers, and more to do with his regret upon being found guilty." Credibility assessments are uniquely in the purview of the fact finder, see Commonwealth v. Moon, 380 Mass. 751, 756 (1980), which we will not disturb on appeal.
While the defendant focuses on a gap in the audio recording immediately before his attorney asked the judge for a waiver form, this occurrence does not provide evidence of coercion by counsel or a lack of voluntariness by the defendant. Such a conclusion would be speculative. Similarly, that he favored a jury trial during the time span of the year leading up to the day of trial does not mean he was coerced into electing a bench trial when the trial date arrived. The judge did not abuse his discretion in denying the motion for new trial.
Order denying motion for new trial affirmed.
By the Court (Meade, Hanlon & Sacks, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: June 1, 2017.