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14-P-21                                                   Appeals Court

                    COMMONWEALTH   vs.   HECTOR GARCIA.


                              No. 14-P-21.

         Bristol.      December 1, 2014. - September 11, 2015.

               Present:    Rubin, Milkey, & Carhart, JJ.


Practice, Criminal, Waiver of appellate rights. Constitutional
     Law, Waiver of constitutional rights, Trial by jury.
     Search and Seizure, Reasonable suspicion.



     Complaint received and sworn to in the New Bedford Division
of the District Court Department on April 13, 2012.

     A pretrial motion to suppress evidence was heard by
Christopher D. Welch, J., and the case was heard by him.


     Matthew Malm for the defendant.
     Owen J. Murphy, Assistant District Attorney, for the
Commonwealth.


     RUBIN, J.      After a bench trial, the defendant was convicted

of carrying an unlicensed firearm and of carrying a loaded

firearm in violation of G. L. c. 269, § 10(a) and (n).1         In this


     1
       The defendant was also found guilty of resisting arrest.
That charge was placed on file for two years.
                                                                    2


appeal, the defendant asserts that he is entitled to a new trial

because his colloquy with the judge was inadequate to provide

the judge with a basis for concluding that the defendant

voluntarily and intelligently waived his right to a jury trial.

He also argues that the judge improperly denied a motion to

suppress.   We address each of these in turn.

    1.   The colloquy.   To be effective, a defendant and judge's

colloquy concerning the defendant's waiver of the constitutional

right to a jury trial must be sufficient to satisfy the judge

that the waiver is "voluntary and intelligent."     Commonwealth v.

Pavao, 423 Mass. 798, 802 (1996) (Pavao).   There is also a

statutory requirement of a signed written waiver.    See G. L.

c. 263, § 6.   Here, the statute's requirement was satisfied, as

the defendant signed a waiver form.   In addition, 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.

It is well settled that while statutorily required, such forms

are inadequate by themselves to allow a judge to determine that

a waiver of the right to a jury trial is voluntary and

intelligent; although not constitutionally required, the Supreme

Judicial Court requires a colloquy as a matter of sound judicial

administration because "[s]o long as a colloquy occurs, the sole

focus of [appellate] review is whether the colloquy has provided
                                                                   3


an evidentiary record upon which the trial judge could find the

waiver of a defendant was voluntary and intelligent."     Pavao,

423 Mass. at 800-802.

    Thirty-six years ago the Supreme Judicial Court, while not

"intend[ing] to create a rigid pattern" for such colloquies,

noted some elements that such a colloquy "might" include (1)

that the jury consists of members of the community, (2) that the

defendant may participate in their selection, (3) that the

verdict of the jury must be unanimous, (4) 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 (5) 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 (6) that the

defendant has conferred with his counsel about the waiver, and

(7) that he has not been pressured or cajoled and is not

intoxicated or otherwise rendered incapable of rational

judgment.   Ciummei v. Commonwealth, 378 Mass. 504, 509-510

(1979).   The case law describes some additional questions the

defendant might be asked:   his education level and language

fluency, which should assist the judge in tailoring the colloquy

appropriately, see Commonwealth v. Towers, 35 Mass. App. Ct.

557, 559 (1993) (stating that "[a]n inquiry about the

defendant's level of education seems a common and significant
                                                                    4


element of a colloquy"); his knowledge of the jury's size, see

Commonwealth v. Ridlon, 54 Mass. App. Ct. 146, 151 (2002) (trial

court colloquy described the size of the jury); and his

knowledge of the constitutional basis of a defendant's right to

a jury trial, see Commonwealth v. Hardy, 427 Mass. 379, 380-381

& n.3 (1998) (approving of colloquy in which court informed

defendant of his "constitutional right to have a jury trial").

Several model jury trial colloquies are available and contain

many of the above questions.   See Jury Trial Manual for Criminal

Offenses Tried in District Court, Appendix II, Jury Waiver

Colloquy (1987) (including questions about defendant's age,

education level, use of alcohol or drugs; describing several

differences between jury and bench trials); Cypher, Criminal

Practice and Procedure § 31.13 (4th ed. 2014) (same).      We

reiterate what we stated in 1993:   "[T]alk in appellate

decisions of what is or is not minimally sufficient is not the

best guide to practice.   Although judges need not follow

verbatim any 'model' colloquy, they can take inspiration from

the models."   Commonwealth v. Towers, 35 Mass. App. Ct. at 560

n.4.   See Commonwealth v. Onouha, 46 Mass. App. Ct. 904, 905

(1998) (stating "it would conserve the time of both the trial

courts . . . and, certainly, the appellate courts, if trial

judges, when conducting a jury waiver colloquy, kept at hand and

followed the topic outline for that procedure which appears at
                                                                5


Smith, Criminal Practice & Procedure § 1654 [2d ed. 1983], or

something along the same lines").

    In this case the entire colloquy was as follows:

    The court:      "All right. Mr. Garcia, good morning. I
                    have some questions to ask you. My
                    understanding is that you've chosen to
                    have this case heard before me. Is that
                    correct?"

    The defendant: "Yes, Your Honor."

    The court:      "Has anybody forced you into that?"

    The defendant: "No, Your Honor."

    The court:      "You're making that decision of your own
                    free will?"

    The defendant: "Yes, Your Honor."

    The court:      "Do you understand that a trial
                    consist[s] of two ways of going? One is
                    seven people sit there and they listen
                    and they make a decision; or, six of them
                    do. The alternat[ive] is listen to it
                    and I make a decision. Do you understand
                    that?"

    The defendant: "Yes, Your Honor."

    The court:      "And have you had enough time to get some
                    advice from your attorney and make a
                    decision that you think is best?"

    The defendant: "Yes, Your Honor."

    The court:      "All right.   I find it's going to be
                    voluntary."

    Our case law makes it clear that no particular form of

words is required for an adequate jury trial waiver colloquy.

Likewise, there are cases holding that the omission of one or
                                                                    6


another inquiry will not necessarily render a colloquy

insufficient.   Thus, for example, this court has affirmed a

conviction despite a colloquy in which "the judge failed to

inform the defendant that a jury trial was a constitutional

right or that the jury's verdict had to be unanimous," and where

there was no description of the function of a judge at a bench

trial as compared with a jury trial.    Ridlon, 54 Mass. App. Ct.

at 148.   "The colloquy . . . is only evidence of whether a

defendant's waiver of the right to trial by jury was voluntary

and intelligent.   It is not an independent constitutionally

required prerequisite to a valid waiver of the right to a jury

trial."   Commonwealth v. Schofield, 391 Mass. 772, 775 (1984).

But the colloquy must provide evidence sufficient for an

appellate court to conclude the judge had adequate information

properly to satisfy himself that any waiver by the defendant was

made voluntarily and intelligently.    Id. at 775-776.

    In many respects, the judge's colloquy was thin.     The judge

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.   Even the judge's explanation about how many jurors

would sit and vote was ambiguous as to whether six jurors sit,

or six jurors decide, and it did not explain that the vote of

those six jurors for guilt must be unanimous.
                                                                   7


    Nonetheless, in a case this court heard shortly after the

requirement of G. L. c. 218, § 26A, was enacted concerning

signed jury waiver forms and certificates, we found that in

combination with a signed form and certificate, as are present

here, the following colloquy was sufficient:

    Judge:    "Now, you have a right to have a trial by a
              jury on these charges, do you understand that
              . . . ?"

    Defendant:      "Yes."

    Judge:    "In a jury trial, you have a right to
              participate with your lawyer in choosing the
              jurors that would sit on your cases and decide
              your guilt or innocence on the charges, do you
              understand that?"

    Defense counsel:     "You have to respond, Hector."

    Defendant:   "Yes, Sir."

    Judge:    "All right. And you want to waive that right
              and have these matters heard by a single
              judge, in this case myself?"

    Defendant:      "Yes, Sir."

    Judge: "Okay. You understand that once you do that,
    you've given up your right to a jury trial?"

    Defendant:      "Yes."

Commonwealth v. Hernandez, 42 Mass. App. Ct. 780, 783-784, 785

(1997).

    Because the colloquy in this case was similar to that one,

the motion judge did not err, and, in the absence of further

guidance from the Supreme Judicial Court concerning what must be
                                                                     8


contained in a jury-waiver colloquy, the colloquy does not

provide the defendant grounds for reversal.

     2.   The motion to suppress.   The defendant also argues that

his motion to suppress should have been allowed.     We disagree.

The motion judge found that the defendant was seen by two police

officers walking in a high crime area holding his waistband with

his right hand in a way that, based on one officer's training

and experience, the officer believed suggested possession of a

firearm in his waistband.2   The defendant repeatedly looked over

his shoulder and when approached by police turned his body at

least slightly so that the side on which he might have been

holding a gun was away from the police officers -– something

that the officers testified, based on their training and

experience, was a movement (called "blading") that may imply an

individual is hiding a weapon held on that side of the body from

them.    When they asked him to talk, he fled.   The parties agree

that the defendant was stopped subsequent to his flight.

     While our courts have held that flight from the police

alone is insufficient to support a conclusion of reasonable

suspicion of criminal activity based on articulable facts, see

Commonwealth v. Wren, 391 Mass. 705, 708 n.2 (1984) (Wren), it

     2
       According to the motion judge's findings, the defendant
"was keeping his right arm stiff . . . with his hand in front of
his belt buckle. The arm was clenched next to his body and the
hand was holding the area in the belt buckle whil[e] the other
arm flowed freely."
                                                                   9


remains a fact that such action, though not unlawful, may well

be suspicious.   Cf. Commonwealth v. Carrion, 407 Mass. 263, 277

(1990) ("Flight is perhaps the classic evidence of consciousness

of guilt").   Where there is other suspicious behavior, flight

from the police may be included in the reasonable suspicion

calculus.   Wren, 391 Mass. at 708 n.2.   While the defendant

would rely on Commonwealth v. Quezada, 67 Mass. App. Ct. 693,

696-697 (2006), S.C., 450 Mass. 1030 (2008) (Quezada), in that

case the facts that accompanied the defendant's flight were

themselves inadequately suspicious to add anything to the mix.

Specifically, the defendant was walking with someone "known to

have recently been released from prison" and the Commonwealth

asserted the defendant's "manner and demeanor suggested that he

was possibly under the influence of narcotics which, in turn,

supported an inference that the defendant may have possessed

other, not yet ingested narcotics," Quezada, 67 Mass. App. Ct.

at 696, the latter of which claims this court dismissed as

"nothing more than speculation."   Id. at 697.   Aside from the

fact that defendant was in a high crime area (a factor, this

court noted, that "must be treated with some caution"), id. at

697, in Quezada the police thus essentially had flight alone on

which to base their claim of reasonable suspicion.    Here, by

contrast, the suspicious way the defendant held his waistband,

the location in which he was walking, and his turning away from
                                                                   10


the police when they approached him were sufficiently suspicious

that, when combined with his flight, they provided the police

with the reasonable suspicion based on articulable facts that a

crime was afoot necessary to allow the stop of the defendant.

Compare Commonwealth v. DePeiza, 449 Mass. 367, 371, 373-374

(2007).   Consequently, there was no error in the judge's denial

of the motion to suppress.

                                    Judgments affirmed.
