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SJC-12640

                COMMONWEALTH   vs.   RICHARD BENNEFIELD.



        Middlesex.        February 4, 2019. - May 13, 2019.

   Present:     Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
                              Kafker, JJ.


      Waiver.     Practice, Criminal, Trial by jury, Waiver.



     Complaint received and sworn to in the Marlborough Division
of the District Court Department on March 18, 2014.

     The case was tried before Michael L. Fabbri, J., and a
motion for a new trial, filed on September 26, 2017, was
considered by him.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Robert B. Graham for the defendant.
     Timothy Ferriter, Assistant District Attorney, for the
Commonwealth.


    BUDD, J.     The defendant was tried before a jury in the

District Court for cruelty to animals in violation of G. L.

c. 272, § 77.    During the trial, one of the six jurors was

excused from service for reasons unrelated to the case.       After
                                                                     2


conducting a colloquy in which the judge informed the defendant

of his right to a jury of six persons, the judge found that the

defendant knowingly and voluntarily waived that right, and the

trial continued with five jurors.    The defendant was

subsequently convicted.    He unsuccessfully moved for a new

trial, arguing that his waiver was invalid because it was not in

writing pursuant to Mass. R. Crim. P. 19 (b), 378 Mass. 888

(1979) (rule 19 [b]).    We transferred the defendant's appeal to

this court on our own motion and conclude that a written waiver

is unnecessary as long as the trial judge ensures, by way of a

colloquy, that the defendant's decision to so proceed is made

knowingly and voluntarily.     We therefore affirm the denial of

the defendant's motion for a new trial.

     Facts and prior proceedings.    The defendant was tried on

one count of animal cruelty.    During the lunch break prior to

the close of evidence, a juror asked to be excused because of a

death in his family.    The trial judge granted the request,

leaving a jury of five persons.     See G. L. c. 218, § 26A.

Defense counsel then notified the judge that the defendant

wished to go forward with a five-person jury.    The judge engaged

in a colloquy with the defendant to ensure that the waiver of

the full jury was knowing and voluntary.1    However, the waiver


     1   The colloquy, in relevant part, was as follows:
                                                             3




The judge:   "Tell me your name, please."

The defendant:   "Richard Bennefield."

The judge:   "And how old are you, sir?"

The defendant:   "[Twenty]."

The judge:   "How far did you go in school?"

The defendant:   "This is -- this will be my last year of
high school."

The judge: "Any drugs, alcohol, controlled substances over
the past [twenty-four] hours?"

The defendant:   "No."

The judge:   "Any other medications?"

The defendant:   "I take pills for my anxiety."

The judge: "Does that medication interfere in any way with
your ability to speak with your lawyer or the Court -- "

The defendant:   "No, sir."

The judge: "-- to make decisions?"

The defendant:   "No, sir."

The judge:   "Or to understand what's going on in the
Court?"

The defendant:   "No."

The judge: "And you heard your lawyer say that he spoke to
you briefly about the issue with the juror. I
unfortunately had to excuse one of the jurors. You have an
absolute right to have a trial by six persons in the
district court. You have a right to have that jury decide
unanimously by six, at least six, whether you're guilty or
innocent. And you . . . can waive that right. I can't go
                                                              4



any lower than five. The law does permit a jury of five if
you agree to it. Do you understand that?"

. . .

The defendant:   "Yes, Your Honor."

The judge: "Have you had enough time to speak to [your
attorney] about the benefits of going forward with a jury
of five, or you can exercise your right to ask the Court to
declare a mistrial and impanel another jury, which could
not be today."

The defendant:   "Yes, I have."

The judge: "And it's my understanding you made a decision
to proceed with five jurors."

The defendant:   "Yes, sir."

The judge: "And do you need any more time to talk to [your
attorney] about that issue?"

The defendant:   "No."

The judge: "Are you certain you want to proceed with just
five jurors?"

The defendant:   "Yes, sir."

The judge: "And you do understand, sir, that . . . they
still have to be unanimous in their decision either for not
guilty or five for guilty? And you want to voluntarily,
willingly and knowingly give up your constitutional right
to have a jury of six people decide this case and agree to
go on with five?"

The defendant:   "Yes, Your Honor."

. . .

The judge: "Okay. . . . You said you have anxiety.   Have
you been diagnosed with anxiety?"

The defendant:   "Yes."
                                                                   5


was not in writing, and the Commonwealth never stated a position

regarding the waiver.

    The defendant filed a notice of appeal, and then submitted

an unopposed motion for a new trial.    The defendant's motion was

denied without a hearing.    The defendant appealed from the

denial of that motion, and the two appeals were consolidated.

We transferred the case sua sponte for review.




    . . .

    The judge:   "Anything else other than anxiety?"

    The defendant: "I have depression, bipolar, . . .
    posttraumatic stress."

    The judge: "Do any of those diagnoses interfere with your
    ability to -- again, to understand what's going on in
    court, communicate with your lawyer in the court and make
    decisions?"

    The defendant:      "No, sir."

    The judge:   "You've decided you want . . . to proceed with
    five?"

    The defendant:      "Yes."

    The judge: "Okay. And [defense counsel], you had enough
    to time to speak to your client about going one way or
    another?"

    Defense counsel:     "Yes."

    The judge: "Based on the colloquy that I've had with the
    defendant and the conversation with counsel, I find that
    you voluntarily, willingly and knowingly beyond a
    reasonable doubt has waived his right [sic] to a trial by
    six, and we'll proceed with five."
                                                                   6


    Discussion.    1.   Waiver of right to full jury.   General

Laws c. 234A, § 68, governs, among other things, the empanelment

of jurors.   It states in pertinent part:

    "Nothing in this section shall prevent the court from
    rendering a valid judgment based upon a verdict rendered by
    fewer jurors than required under this section where all
    parties have by stipulation agreed to this procedure.
    Nothing in this section shall prevent the court from
    entering a valid judgment based upon a verdict rendered by
    fewer or more jurors than required under this section or
    based upon procedures other than that specified in this
    section where all parties have by stipulation agreed to
    such a number of jurors or to such procedures."

Rule 19 (b), which is the procedural rule that addresses

proceeding with less than a full complement of jurors, states in

part:

    "If after jeopardy attaches there is at any time during the
    progress of a trial less than a full jury remaining, a
    defendant may waive his right to be tried by a full jury
    and request trial by the remaining jurors by signing a
    written waiver which shall be filed with the court."

    The Commonwealth contends that notwithstanding rule 19 (b),

because a written waiver is not statutorily required in order to

proceed with fewer than the specified number of jurors, as long

as the defendant waives this right knowingly and willingly, an

oral waiver is valid.   The defendant argues that his conviction

should be reversed because the existing statute and rule should

be read together to require both a stipulation by the parties

pursuant to G. L. c. 234A, § 68, and a written waiver pursuant

to rule 19 (b).   We agree with the Commonwealth.
                                                                     7


    A review of the procedure to waive the right to a trial by

jury is instructive.   General Laws c. 263, § 6, provides:    "Any

defendant in a criminal case other than a capital case, whether

begun by indictment or upon complaint, may, if he shall so

elect, . . . before a jury has been impanelled to try him . . .

, waive his right to trial by jury by signing a written waiver

thereof and filing the same with the clerk of the court."     See

G. L. c. 218, § 26A ("Trial of criminal offenses in the Boston

municipal court department and in the district court department

shall be by a jury of six persons, unless the defendant files a

written waiver and consent to be tried by the court without a

jury").   The procedural rule corresponding to this statutory

requirement, Mass. R. Crim. P. 19 (a), similarly calls for the

waiver of the right to a jury trial to be in writing:     "A case

in which the defendant has the right to be tried by a jury shall

be so tried unless the defendant waives a jury trial in writing

with the approval of the court and files the waiver with the

clerk . . . ."

    We have recognized the requirement of a written jury waiver

as a "legislative safeguard" designed "to create a moment of

pause and reflection on the part of a defendant that is

concomitant with signing one's name to a formal declaration

relinquishing that right."   Commonwealth v. Osborne, 445 Mass

776, 780 (2006).   Thus, the lack of a written waiver of a
                                                                    8


criminal defendant's right to a jury trial had been held to

render the conviction of that defendant invalid.    Id. at 781.

See Commonwealth v. Wheeler, 42 Mass. App. Ct. 933, 934-935

(1997).

     The defendant reasons that we similarly should enforce

strictly the procedural rule requiring a written waiver of the

right to a full complement of jurors.    We disagree based on the

legislative history of the statute and principles of statutory

construction.    Prior to the adoption of the rules of criminal

procedure, waiver of the right to be tried by a full jury was

governed by former G. L. c. 234, § 26A, and was required to be

in writing.2    The rule was intended to reflect existing practice,

as provided in the statute.    See Reporter's Notes to Rule 19,

Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at

1701 (LexisNexis 2018) (rule 19 in accord with G. L. c. 234, §

26A).    However, in 1979, the Legislature repealed this statute




     2 Prior to its repeal in 1979, G. L. c. 234, § 26A, stated
in pertinent part: "Any defendant in the superior court in a
criminal case, including a capital case, after a jury has been
impanelled may, in case one or more jurymen shall die or become
otherwise unable to serve, so that there are less than twelve
jurors remaining, waive his right to be tried by a full jury of
twelve and request trial by the remaining members of the jury
thus impanelled by signing a written waiver and request and
filing the same with the clerk of the court, whereupon the trial
shall continue accordingly, and in every such case the court
shall have jurisdiction of such case with the remaining members
of the jury and may render judgment thereon." See Gallo v.
Commonwealth, 343 Mass. 397, 399 (1961).
                                                                    9


and amended G. L. c. 263, § 6, to require waiver of a jury trial

altogether to be in writing.   See St. 1979, c. 344, §§ 9, 19.

Three years later, the Legislature enacted G. L. c. 234A, § 68,

which now addresses waiver of a full complement of jurors and

requires only that "all parties have by stipulation agreed to

this procedure."   See St. 1982, c. 298, § 1.

    Here, the Legislature reasonably could have recognized that

there is a difference between choosing between a jury trial and

a bench trial, where a defendant must decide whether to be tried

by members of the community or by a single judge, and choosing

between a trial by a full complement of jurors and a trial by

somewhat less than a full jury.   Cf. Commonwealth v. Hubbard,

457 Mass. 24, 28 (2010) (in enacting G. L. c. 263, § 6, "[t]he

Legislature reasonably could have decided that a written jury

trial waiver is paramount in circumstances where . . . a judge,

instead of a jury, is to determine a defendant's guilt").

Moreover, "[w]here the Legislature has deleted . . . language,

apparently purposefully, the current version of the statute

cannot be interpreted to include the rejected requirement.

Reading in language that the Legislature chose to remove . . .

violates basic principles of statutory construction and

impermissibly interferes with the legislative function."     AIDS

Support Group of Cape Cod, Inc. v. Barnstable, 477 Mass. 296,

303 (2017), quoting Commonwealth v. Porges, 460 Mass. 525, 530
                                                                   10


(2011).   See Plumb v. Casey, 469 Mass. 593, 598 (2014), quoting

Ropes & Gray LLP v. Jalbert, 454 Mass. 407, 412-413 (2009)

("When amending a statute or enacting a new one, the Legislature

is presumed to be aware of prior statutory language").

     Thus, we conclude that a waiver of the right to be tried by

a full complement of jurors need not be in writing,

notwithstanding rule 19 (b), where the rule no longer reflects

the statutory language.3    See Commonwealth v. Pamplona, 58 Mass.

App. Ct. 239, 242-243 (2003) ("truncated" colloquy without

written waiver sufficient for defendant to knowingly and

voluntarily waive right to counsel at criminal trial).

     Importantly, although we conclude that a written waiver of

this right is not required, the waiver nonetheless must be

knowing and voluntary.     See, e.g., Ciummei v. Commonwealth, 378

Mass. 504, 507 (1979) ("a conviction cannot stand which follows

upon a jury waiver that is not freely and knowingly given").


     3 The defendant's reliance on Commonwealth v. Dery, 452
Mass. 823 (2008), is misplaced. There, we stated that the
written waiver requirement of the procedural rules in connection
with being tried by fewer than the specified number of jurors
served a similar purpose as the written waiver required to
proceed with a jury-waived trial, noting that the written waiver
requirement for the latter is an important safeguard for
defendants. See id. at 825. However, we did so in the context
of rejecting the Commonwealth's attempt to invoke Mass. R. Crim.
P. 19 (b) to invalidate a trial in which the defendant was
acquitted by fewer than six jurors without having executed a
written waiver. See id. at 824-825. We did not confront then
the issue before us today.
                                                                  11


Accordingly, the trial judge must engage in a colloquy with the

defendant to ensure that the waiver is, in fact, knowing and

voluntary.   The Ciummei case set forth the principles that a

colloquy concerning waiver of a jury trial should cover.4    Id. at

509-510.   The same principle applies to cases where, as here,

the defendant was waiving the right to a trial by the full

complement of a jury.5

     A colloquy, which allows the judge to personally evaluate

the defendant's state of mind and explain the nature of the jury

trial right and the waiver, is in many ways more important than


     4 "In the exchange, the judge will advise the defendant of
his constitutional right to a jury trial, and will satisfy
himself that any waiver by the defendant is made voluntarily and
intelligently. We do not intend to create a rigid pattern but
note that, where a defendant needs a compendious reminder, the
judge might state that the jury consists of members of the
community, that the defendant may participate in their
selection, that the verdict of the jury must be unanimous, that
they decide guilt or innocence while the judge makes rulings of
law in the course of the trial, instructs the jury on the law,
and imposes sentence in case of guilt; and that, where a jury is
waived, the judge alone decides guilt or innocence in accordance
with the facts and the law. The judge should make sure that the
defendant has conferred with his counsel about the waiver, and
that he has not been pressured or cajoled and is not intoxicated
or otherwise rendered incapable of rational judgment." Ciummei
v. Commonwealth, 478 Mass. 504, 509-510 (1979).

     5 During the colloquy, the trial judge stated that he would
not proceed with fewer than five jurors. We agree generally
with the proposition that courts disfavor trials by smaller
juries, see generally Ballew v. Georgia, 435 U.S. 223, 239-244
(1978) (opinion of Blackmun, J.); however, we are not aware of
any applicable authority that prevents a defendant from
consenting to trial by fewer than five jurors after jeopardy
attaches.
                                                                   12


a written waiver -- that is, although a colloquy can be

sufficient without a written waiver, a written waiver can never

be sufficient without a colloquy.   Cf. Commonwealth v. Pavao,

423 Mass. 798, 802 (1996) (colloquy requirement in Ciummei case

is "bright line rule").   To the extent that there are concerns

about documenting the waiver, we conclude that a colloquy on the

record will be sufficient.

    2.    Validity of defendant's waiver.   Here, when the juror

was excused, it was defense counsel who indicated the desire to

continue the trial with the five remaining jurors.    A thorough

colloquy was conducted on the record, in which the judge

inquired as to the defendant's education and medical history,

the extent of the consultation with his attorney, and his

understanding of the "absolute" and "constitutional" right being

waived.   See note 1, supra.   There is no claim that the

defendant did not understand the difference between being tried

by five rather than six jurors, or that he did not have an

adequate opportunity to consult with counsel.   After the

colloquy, the judge found that the defendant's decision to go

forward was made knowingly and voluntarily "beyond a reasonable

doubt."   The defendant does not dispute this finding.6


    6  The defendant contends that the trial was fatally flawed
because there is no indication that the parties "by stipulation
agreed" to go forward with fewer than the specified number of
                                                                  13


     Conclusion.   For the foregoing reasons, we conclude that

the defendant's waiver of his right to a six-person jury was

valid.   The denial of his motion for a new trial is therefore

affirmed.7

                                    So ordered.




jurors. See G. L. c. 234A, § 68. This argument is unavailing.
A stipulation is an "agreement made by the attorneys engaged on
opposite sides of a cause (especially if in writing), regulating
any matter incidental to the proceedings or trial, which falls
within their jurisdiction." Black's Law Dictionary 1415 (6th
ed. 1990). There is no factual dispute as to the parties'
agreement to proceed with five jurors. However, the defendant
argues that G. L. c. 234A, § 68, must be read to require more
than a mere agreement, such as a writing or an oral accord on
the record. Although a stipulation may be in writing, it is
clear from the above definition that it need not be. Further,
the fact that the trial went forward without objection
demonstrates on the record the parties' apparent agreement to do
so. Further, we decline to "read into the statute a provision
which the Legislature did not see fit to put there." Chin v.
Merriot, 470 Mass. 527, 537 (2015), quoting Commissioner of
Correction v. Superior Court Dep't of the Trial Court for the
County of Worcester, 446 Mass. 123, 126 (2006).

     7 We ask this court's standing advisory committee on the
rules of criminal procedure to propose an amendment to Mass. R.
Crim. P. 19 (b) consistent with this opinion.
