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SJC-12302

                COMMONWEALTH   vs.   PETER J. DUART.



            Dukes.     May 4, 2017. - August 17, 2017.

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


Judge. Practice, Criminal, New trial, Disqualification of
     judge, Assistance of counsel.



     Indictments found and returned in the Superior Court
Department on April 5, 2010.

     A motion for a new trial, filed on February 18, 2015, was
heard by Charles J. Hely, J.

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


     Afton M. Templin for the defendant.
     Elizabeth A. Sweeney, Assistant District Attorney, for the
Commonwealth.


    HINES, J.   Following a jury-waived trial in the Superior

Court, the defendant, Peter Duart, was convicted of rape,

subsequent offense, G. L. c. 265, § 22 (b); and indecent assault

and battery on a person age fourteen or older, as a lesser
                                                                   2


included offense of assault and battery on a person with an

intellectual disability.1   The judge sentenced the defendant to

from ten years to ten years and one day in State prison on the

rape and subsequent offender convictions, and to a probation

term of three years on the indecent assault and battery

conviction.

     In a motion for a new trial pursuant to Mass. R. Crim. P.

30 (b), as appearing in 435 Mass. 1501 (2001), the defendant

challenged the convictions on the grounds that (1) his jury

waiver was neither knowing nor intelligent because the trial

judge did not disclose that his son was employed as an assistant

district attorney in the office of the district attorney for the

Cape and Islands district, which prosecuted the indictments; and

(2) defense counsel was constitutionally ineffective in failing

to disclose the judge's relationship to the prosecutor's office

in counsel's advice on the strategic choice to waive the right


     1
       The indictment charged indecent assault and battery on a
"mentally retarded" person, subsequent offense, in violation of
G. L. c. 265, § 13F. On November 2, 2010, the Legislature
amended G. L. c. 265, § 13F, substituting the terms "mentally
retarded person" with "person with an intellectual disability"
and "be mentally retarded" with "have an intellectual
disability," in order to eradicate the term "mentally retarded"
from the General Laws. See Commonwealth v. St. Louis, 473 Mass.
350, 351 (2015), citing St. 2010, c. 239, §§ 71-72. Although
the amended version was not in effect when the defendant was
indicted, we nevertheless use the terms "person with an
intellectual disability" and "have an intellectual disability"
here.
                                                                    3


to a trial by jury.   A different judge held an evidentiary

hearing and denied the motion in a written decision.   The

defendant filed a timely appeal, and we transferred the case to

this court on our own motion.

    We conclude that the trial judge's failure to inform the

defendant of his familial relationship with a member of the

prosecuting attorney's office during the jury-waiver colloquy

was not error, and thus the denial of the defendant's motion for

a new trial on this ground was not an abuse of discretion.    As

to the defendant's claim of ineffective assistance of counsel,

we conclude that although defense counsel's failure to inform

the defendant of the trial judge's familial relationship with a

member of the prosecuting attorney's office constituted behavior

"falling measurably below that which might be expected from an

ordinary fallible lawyer," Commonwealth v. Saferian, 366 Mass.

89, 96 (1974), counsel's failure to do so was not prejudicial.

Therefore, we affirm the denial of the defendant's motion for a

new trial.

    Background.   We summarize the relevant facts on the motion

for a new trial as found by the motion judge, supplemented as

necessary with uncontested facts from the motion hearing.     See

Commonwealth v. Stephens, 451 Mass. 370, 372 (2008).   In April,

2010, the defendant was indicted by a Dukes County grand jury on

charges of indecent assault and battery on a person with an
                                                                   4


intellectual disability, subsequent offense, G. L. c. 265,

§ 13F; and rape, subsequent offense, G. L. c. 265, § 22 (b).

The alleged offenses occurred at the victim's apartment in the

early morning hours of January 30, 2010.

    Prior to trial, the defendant filed a motion for a change

of venue, which the Commonwealth joined, predicated on the

concern that the defendant could not receive a fair trial from a

Dukes County jury.   Specifically, the defendant contended there

would be a "serious risk" that some of the jurors would have

knowledge of the defendant's previous conviction, which had

garnered substantial news media attention and notoriety on

Martha's Vineyard, where the new indictments were set to be

tried.   The judge denied the motion without prejudice, noting

that he would be willing to reconsider the order if seating a

jury became "impractical."

    In light of the denial of the defendant's motion for a

change of venue, defense counsel discussed with the defendant

the possibility of waiving his right to a trial by jury.

Following consultation with his attorney, and at the defendant's

request, the judge held a jury-waiver colloquy with the

defendant on October 4, 2010.    During the colloquy, the

defendant indicated that he had had sufficient time to consider

the waiver, and signed and filed a written waiver of trial by

jury.    The judge accepted the waiver, concluding that it was
                                                                      5


made intelligently and with knowledge of its consequences.      The

jury-waived trial commenced before the judge on October 5, 2010,

and concluded on October 6, 2010.

    At the conclusion of the trial, the judge found the

defendant guilty of rape and guilty of the subsequent offender

portion of the indictment.   With respect to the charge of

indecent assault and battery on a person with an intellectual

disability, subsequent offense, the judge found the defendant

guilty of the lesser included offense of indecent assault and

battery.   The defendant appealed from his convictions, which

were affirmed by the Appeals Court in an unpublished memorandum

and order pursuant to its rule 1:28, with the exception of a

remand to the Superior Court requiring the trial judge to issue

a more definitive order regarding sex offender treatment.      See

Commonwealth v. Duart, 82 Mass. App. Ct. 1121 (2012).

Thereafter, the defendant filed a motion for a new trial, which

is the subject of this appeal.

    Before the trial judge ruled on the motion for a new trial,

the defendant filed, on August 12, 2013, a motion for recusal

and, on September 26, 2013, a motion for leave to file a

substitute motion for a new trial, arguing that he had just

learned that the trial judge's son was an assistant district

attorney in the Cape and Islands district.   The trial judge

granted the motion for leave to file a substitute motion for a
                                                                    6


new trial and, after a hearing, also granted the motion for

recusal, concluding that although he harbored no bias against

the defendant and remained convinced that the defendant received

a fair trial, he would recuse himself from consideration of the

defendant's motion to "assure that any appearance of partiality

is avoided."   Consequently, another Superior Court judge (motion

judge) was assigned to hear the defendant's motion for a new

trial.

     At the hearing on the defendant's motion for a new trial

before the motion judge, the trial judge's son, defense counsel

for the defendant, and the defendant testified.   In a written

order, the motion judge found that defense counsel had "great

faith and confidence" that the trial judge would be fair and

impartial in a jury-waived trial for the defendant, and conveyed

these sentiments to the defendant during their conversations

regarding the possibility of a jury waiver.   The motion judge

also found that defense counsel was aware that the trial judge's

son was an assistant district attorney in the Cape and Islands

district,2 which prosecuted cases in Barnstable, Dukes, and

Nantucket Counties.   Despite the trial judge's son's employment

as an assistant district attorney, defense counsel remained


     2
       The trial judge's son resigned from the office of the
district attorney for the Cape and Islands district in July,
2011, to enter private practice.
                                                                   7


confident that the trial judge would be fair and impartial in a

jury-waived trial.   The defendant denied having knowledge of the

trial judge's son's employment prior to waiving his right to a

trial by jury, but the motion judge concluded that there was

insufficient evidence to determine whether the defendant in fact

knew of the trial judge's son's employment at the time of his

jury waiver.

     During his employment in the Cape and Islands district, the

trial judge's son had no involvement with the defendant's case.

His case assignments were limited to the District Court in

Barnstable and Nantucket Counties, with the addition of some

appeals.   Because of the trial judge's assignment in Dukes

County, his son made a point to refrain from working on any

Superior Court criminal cases prosecuted in Dukes County.3

Moreover, the trial judge's son did not have any supervisory

role in the office during his employment.

     Ultimately, the motion judge denied the defendant's motion

for a new trial, concluding that the "defendant's jury waiver

and trial did not present an issue of whether the [trial]

judge's impartiality might reasonably be questioned."   For this


     3
       During the time period of the defendant's trial, the
Superior Court in Dukes County commonly held only two one-month,
one-judge trial sessions per year. Similar to other judges, the
trial judge on occasion was assigned to a one-month Dukes County
trial session.
                                                                      8


reason, the trial judge was not under any obligation to disclose

to the defendant that his son was employed as an assistant

district attorney in the same district.    The motion judge also

rejected the defendant's claim of ineffective assistance of

counsel, concluding that because the trial judge's son's

employment as an assistant district attorney was limited to

counties where his father was not assigned, the issue did not

present a reasonable, objective basis for questioning the trial

judge's impartiality.   Thus, defense counsel's failure to raise

the issue with the defendant did not fall outside "the range of

reasonable, competent representation."     The motion judge

determined that defense counsel's performance was not

inadequate, but nonetheless went on to consider and summarily

reject the claim of prejudice, concluding that the defendant

failed to show that counsel's advice deprived him of a

substantial ground of defense.

    Discussion.   1.    Standard of review.     A judge may grant a

motion for a new trial pursuant to Mass. R. Crim. P. 30 (b) "if

it appears that justice may not have been done."       Commonwealth

v. Moore, 408 Mass. 117, 125 (1990).    Such motion "is addressed

to the sound discretion of the judge"     Id.   Therefore, we review

the denial of a motion for a new trial for "a significant error

of law or other abuse of discretion."     Commonwealth v. Forte,

469 Mass. 469, 488 (2014), quoting Commonwealth v. Grace, 397
                                                                    9


Mass. 303, 307 (1986).   In particular, we "accept[] the motion

judge's findings of fact, made after an evidentiary hearing, if

they are supported by the record, . . . and defer[] to the

judge's assessments of credibility" (citation omitted).

Commonwealth v. Cadet, 473 Mass. 173, 179 (2015).     The

discretion afforded to the motion judge, however, is not

"boundless and absolute."   Commonwealth v. Kolenovic, 471 Mass.

664, 672 (2015), quoting Commonwealth v. Genius, 402 Mass. 711,

714 (1988).   "Under the abuse of discretion standard, the issue

is whether the judge's decision resulted from 'a clear error of

judgment in weighing the factors relevant to the decision . . .

such that the decision falls outside the range of reasonable

alternatives.'"   Kolenovic, supra, quoting L.L. v. Commonwealth,

470 Mass. 169, 185 n.27 (2014).

    2.    Judicial disclosure.    The motion judge concluded that

the judge's son's employment with the Cape and Islands district,

without more, did not provide a basis upon which the judge's

impartiality reasonably could be questioned and, thus, did not

require disclosure to the defendant in advance of his jury

waiver.   Under the relevant canons of the Code of Judicial

Conduct and commentary then in effect, we agree.

    Among the vital rights provided by art. 29 of the

Massachusetts Declaration of Rights is the "the right of every

citizen to be tried by judges as free, impartial and independent
                                                                    10


as the lot of humanity will admit."   A defendant's right to an

impartial judge is affirmed in the Code of Judicial Conduct,

S.J.C. Rule 3:09, Canon 3 (E) (1), as appearing in 440 Mass.

1301 (2003), which provides that "[a] judge shall disqualify

himself or herself in a proceeding in which the judge's

impartiality might reasonably be questioned."     Conversely, where

such impartiality may not be reasonably questioned, the

Commentary to Canon 3 (E) (1) makes clear that "a judge may, but

is not required, to disclose on the record information that the

judge believes the parties or their lawyers might consider

relevant to the question of disqualification."4    See Commonwealth

v. Leventhal, 364 Mass. 718, 725 (1974) ("[J]udge was under no

obligation to make any disclosure to counsel unless he thought

his impartiality might reasonably be questioned").     The motion

judge correctly assessed that the trial judge was under no

obligation to disclose the relationship with his son because it

     4
       We note that while the trial judge's lack of disclosure
was appropriate under S.J.C. Rule 3:09, Canon 3 (E) (1), as
appearing in 440 Mass. 1301 (2003), which was in effect at the
time, amendments to the rules were adopted on October 8, 2015,
and became effective on January 1, 2016. Among the amendments,
the 2016 rules recommend broader judicial disclosure. In
particular, the Commentary to S.J.C. Rule 3:09, Canon 2.11 (A),
formerly S.J.C. Rule 3:09, Canon 3 (E) (1), recommends that a
judge "disclose on the record information that the judge
believes the parties or their lawyers might reasonably consider
relevant to a possible motion for disqualification, even if the
judge believes there is no basis for disqualification." We do
not address whether, in these circumstances, a judge would have
an obligation of disclosure under the 2016 rules.
                                                                    11


did not reasonably call into question his impartiality or

otherwise require disqualification or recusal in the defendant's

trial.

    We consistently have held that "[i]n general, the question

of disqualification is left to the judge's discretion."

Commonwealth v. Gogan, 389 Mass. 255, 259 (1983), and cases

cited.   Thus, we may disturb a judge's decision on recusal only

if there is an abuse of discretion.     See Haddad v. Gonzalez, 410

Mass. 855, 862 (1991).   Here, the trial judge's son had no

involvement in the defendant's case, and in fact did not handle

any criminal cases prosecuted in the Superior Court in Dukes

County, where his father was assigned.     Rather, his caseload was

limited to criminal cases in Barnstable and Nantucket Counties,

and some appellate cases.     Moreover, the trial judge's son did

not serve in a supervisory capacity at the district attorney's

office such that his oversight responsibilities may have

extended to cases prosecuted in Dukes County.     On these facts,

we discern no basis to hold that the judge abused his discretion

in failing to disclose his relationship to an attorney in the

district attorney's office.

    Likewise, the circumstances here do not fit within one of

the enumerated instances requiring recusal under S.J.C. Rule

3:09, Canon 3 (E) (1).   Although not binding on this court, we

find persuasive Opinion No. 2001-16 (Nov. 16, 2001) of the
                                                                  12


Committee on Judicial Ethics (committee) -- on which the trial

judge relied in his order on the defendant's motion for judicial

recusal -- addressing an issue nearly identical to the issue

presented here.   The committee explained that the "mere fact"

that the judge's son was employed in the district attorney's

office did not require recusal from criminal cases in which

other attorneys from that district attorney's office appeared.

Id.   See Commentary to S.J.C. Rule 3:09, Canon 3 (E) (1) ("A

judge is not necessarily disqualified if a lawyer in a

proceeding is affiliated with a legal organization with which

the spouse or a relative of the judge is affiliated).

      Our conclusion today is also consistent with numerous other

jurisdictions deciding this issue.   See, e.g., Adair v. State,

474 Mich. 1027, 1029-1030 (2006) (concluding recusal policy

"that no judge can hear any case in which a party is represented

by a law firm or a prosecutor's office in which a relative of

that judge is employed, even if that relative has no personal

involvement in the case and stands to gain nothing materially by

its outcome . . . constitutes an unfair and unwise policy").

See also State v. Logan, 236 Kan. 79, 87-89 (1984); State v.

Fero, 105 N.M. 339, 342-343 (1987); State v. Harrell, 199 Wis.

2d 654, 659-660 (1996), and cases cited.
                                                                   13


    Accordingly, the motion judge's denial of the motion for a

new trial on this ground did not constitute an abuse of

discretion.

    3.   Ineffective assistance of counsel.   The defendant next

argues that the trial judge erred in denying his motion for a

new trial on the ground of ineffective assistance of counsel.

The motion was predicated on defense counsel's failure to

disclose to the defendant the trial judge's familial

relationship with an assistant district attorney in the Cape and

Islands district, prior to the jury-trial waiver colloquy.

    Where the defendant seeks a new trial on the basis of

ineffective assistance of counsel, he must demonstrate that

"there has been serious incompetency, inefficiency, or

inattention of counsel -- behavior of counsel falling measurably

below that which might be expected from an ordinary fallible

lawyer -- and, if that is found, then, typically, whether it has

likely deprived the defendant of an otherwise available,

substantial ground of defence."   Saferian, 366 Mass. at 96.

    a.   Representation fell measurably below that which might

be expected from an ordinary fallible lawyer.   A defendant's

right to a trial by jury "is preserved as a basic and

fundamental right in our judicial system."    Commonwealth v.

Osborne, 445 Mass. 776, 780 (2006), citing art. 12 of the

Massachusetts Declaration of Rights.   Ultimately, the "decision
                                                                      14


regarding waiver of the jury" must be made by the defendant, not

his or her counsel, Osborne, supra at 781, and must be the

"exercise of a free and intelligent choice."      Adams v. United

States ex rel. McCann, 317 U.S. 269, 275 (1942).      See 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").   To protect this fundamental right, our cases

have emphasized the importance of the jury-trial waiver

colloquy, wherein the judge must not only "advise the defendant

of his constitutional right to a jury trial," but also "satisfy

himself that any waiver by the defendant is made voluntarily and

intelligently."   Id. at 509.   Whether a defendant has conferred

with his counsel about the waiver is one of the considerations

relevant to the judge's determination.    Id.    This suggests that

communication with defense counsel is critical to the defendant

understanding the nature of the right that he is giving up and

to his "mak[ing] an over-all estimate as to where he will fare

better, before a judge or before a jury."       Commonwealth v.

Dietrich, 381 Mass. 458, 461-462 (1980), quoting H. Kalven & H.

Zeisel, The American Jury 28 (1966).     "[A]n intelligent waiver

does not require that the accused have the skill or knowledge of

a lawyer"; rather, "the defendant, being competent, must simply

have indicated a comprehension of the nature of the choice."
                                                                  15


Ciummei, 378 Mass. at 510, quoting Maynard v. Meachum, 545 F.2d

273, 279 (1st Cir. 1976).

    To ensure that the defendant understands the nature of the

choice, counsel must communicate information within his or her

knowledge that is relevant to, or bears on the defendant's

choice to waive the right to a jury trial.   More specifically,

to the extent that counsel possesses information germane to the

question of judicial disqualification, regardless of whether a

genuine basis for disqualification exists, it is incumbent on

counsel to convey that information so as to allow the defendant

to raise and discuss any concerns that he or she might have.     To

be clear, our holding does not create an obligation for counsel

to investigate the presiding judge, as it would unduly encumber

defense counsel and encourage unwarranted suspicion of the

judiciary.   But where defense counsel already has information

about the trial judge that reasonably could bear on a right as

fundamental as the right to a jury trial, defense counsel has an

obligation to disclose the information to his or her client.

    Unlike the trial judge, who, under the canons of the Code

of Judicial Conduct then in effect, was under no obligation to

disclose his familial relationship with a member of the office

of the district attorney for the Cape and Islands district,

Rules 1.2 and 1.4 of the Massachusetts Rules of Professional

Conduct require that an attorney fully advise and assist the
                                                                  16


client in making decisions that ultimately must be made by the

client himself or herself, including the decision to waive a

jury trial.   See Mass. R. Prof. C. 1.2, as appearing in 471

Mass. 1313 (2015); Mass. R. Prof. C. 1.4, as appearing in 471

Mass. 1319 (2015).    Moreover, "[i]n determining the level of

performance required of an ordinary fallible lawyer, we look to

the 'professional standards of the legal community.'"

Commonwealth v. Lavrinenko, 473 Mass. 42, 51 (2015), quoting

Commonwealth v. Clarke, 460 Mass. 30, 45 (2011).    Thus, it is

notable that the Committee for Public Counsel Services

performance standards governing the representation of indigent

individuals in criminal cases mandates that "[t]he attorney

shall explain to the client those decisions that ultimately must

be made by the client and the advantages and disadvantages

inherent in those choices."    Committee for Public Counsel

Services, Assigned Counsel Manual, c. 4, at § I(C)(6) (Oct.

2011).5   See Commonwealth v. Myers, 82 Mass. App. Ct. 172, 181

n.12 (2012), citing Standard 4-5.2 of the ABA Standards for

Criminal Justice:    Control and Direction of the Case (3d ed.

1993) (noting that "decisions which are to be made by the




     5
       https://www.publiccounsel.net/private_counsel_manual
/CURRENT_MANUAL_2012/MANUALChap4CriminalStandards.pdf
[https://perma.cc/9MBW-E7FB].
                                                                     17


accused after full consultation with counsel" include whether to

waive trial by jury [emphasis added]).

    Here, defense counsel knew of the trial judge's son's

employment in the office of the district attorney for the Cape

and Islands district.   The defendant denied that he was aware

that the trial judge's son was employed as an assistant district

attorney in that office.     The motion judge found the evidence

insufficient to determine whether the defendant knew of the

judge's son's employment at the time of the jury waiver.      Even

though defense counsel's knowledge of the trial judge's son's

employment as an assistant district attorney did not affect

counsel's own confidence that the trial judge would be a fair

and impartial fact finder, the decision whether the defendant's

"interests [were] safer in the keeping of the judge than of the

jury," Adams, 317 U.S. at 278, was for the defendant, and the

defendant alone, to make based on his informed and competent

judgment.   Accordingly, we conclude that defense counsel's

failure to inform the defendant of the trial judge's son's

employment as an assistant district attorney in the office of

the district attorney for the Cape and Islands district

constituted "behavior of counsel falling measurably below that

which might be expected from an ordinary fallible lawyer."

Saferian, 366 Mass. at 96.
                                                                   18


    b.   Prejudice.   We next determine whether defense counsel's

performance inadequacy caused the defendant to suffer prejudice.

See Saferian, 366 Mass. at 96.   To make this determination, we

draw on our cases addressing claims of ineffective assistance in

the context of immigration consequences of a guilty plea.     To

satisfy the "prejudice" requirement in cases such as this, "the

defendant has the burden of establishing that 'there is a

reasonable probability that, but for counsel's errors,'" he

would not have waived his right to being tried by a jury.    See

Lavrinenko, 473 Mass. at 55, quoting Clarke, 460 Mass. at 47.

"At a minimum, this means that the defendant must aver that to

be the case."   Lavrinenko, supra, quoting Clarke, supra.    The

defendant also "bears the substantial burden" of "convinc[ing]

the court" that a decision to exercise his right to a jury trial

"would have been rational under the circumstances."     Lavrinenko,

supra at 55-56, quoting Clarke, supra.    Finally, based on the

motion judge's evaluation of the facts, including the

credibility of the defendant and other witness, "[t]he judge

must determine . . . whether there is a reasonable probability

that a reasonable person in the circumstances of the defendant

would have chosen [a jury trial] had he or she received

constitutionally effective advice from his or her criminal

defense attorney."    Lavrinenko, supra at 55.
                                                                  19


    Here, the defendant averred in an affidavit accompanying

the motion for a new trial that had he known of the relationship

between the trial judge and an assistant district attorney in

the prosecuting district attorney's office, he would not have

opted for a jury-waived trial and, instead, "would have made

different strategic decisions."   During his testimony at the

hearing on the motion for a new trial, the defendant reiterated

this point.

    Weighing against the defendant's assertion that he would

have chosen a jury trial had he been effectively advised,

however, is the defendant's concern prior to trial that he would

not receive a fair trial from a Dukes County jury.   This concern

was concrete enough to cause the defendant to file a motion for

a change of venue, which the Commonwealth joined, and was well

founded considering that the defendant's previous 2004 rape

conviction on Martha's Vineyard had a level of notoriety and

that the defendant -- an elected member of the planning board

and the finance and advisory committee of Martha's Vineyard, a

former football coach, and former manager of the largest grocery

store on the island -- was well known on the island.

Additionally, the 2004 rape conviction was for the same charge

of indecent assault and battery on a person with an intellectual

disability and in the same county, and the defendant was a

registered sex offender in the town of Tisbury at the time of
                                                                   20


his arrest for this offense.   Furthermore, determining whether a

potential juror knew about and would be biased by the

defendant's 2004 rape conviction might have been difficult to

determine during voir dire of the potential jurors.   As the

motion judge correctly pointed out, voir dire of the jury would

not necessarily prompt the juror's memories of the defendant's

2004 rape case.   Given these facts, we are not convinced that

there is a "reasonable probability" that "a reasonable person in

the circumstances of the defendant would have chosen [a jury

trial] had he . . . received constitutionally effective advice"

from his counsel.   Lavrinenko, 473 Mass. at 55.   Accordingly, we

conclude that the defendant did not suffer prejudice from

defense counsel's inadequate performance.

    Conclusion.     For the foregoing reasons, the order denying

the defendant's motion for a new trial is affirmed.

                                    So ordered.
