Supreme Judicial Court of Massachusetts, Middlesex
Heard: February 4, 2019.
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.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
B. Graham for the defendant.
Timothy Ferriter, Assistant District Attorney, for the
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
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 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.
and prior proceedings.
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. However, the waiver was not in writing,
and the Commonwealth never stated a position regarding 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.
Waiver of right to full jury.
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."
(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."
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.
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 . . . ."
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
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) .
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, § 2 6A, and
was required to be in writing. 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 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.
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 (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").
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. See Commonwealthv.Pamplona, 58 Mass.App.Ct. 239, 242-243 (2003)
("truncated" colloquy without written waiver
sufficient for ...