Commonwealth v. Abreu

448 N.E.2d 774, 15 Mass. App. Ct. 1006, 1983 Mass. App. LEXIS 1321

Opinion

The defendant appeals from the judgment on indictment no. 016591. The only issues raised are (1) the failure of the judge to hold a colloquy as required by Ciummei v. Commonwealth, 378 Mass. 504, 509-511 (1979) (see Commonwealth v. Gonzalez, 388 Mass. 865, 869 n.8 [1983]) and (2) ineffective assistance of counsel. The latter issue is without merit. As to the first issue: upon receiving the defendant’s signed waiver of his right to a jury trial, the only question the judge asked him was, “Do I understand that you have waived your right to a trial by jury and you want to have the case heard by a single justice?” That question was barely an approach to the colloquy mandated by Ciummei at 509-510. The statement of counsel, made at the time of sentencing, that he knew his client “didn’t want to go with a jury” is of no assistance to the Commonwealth as it is only a statement of counsel, not of the defendant, as required by Ciummei. The trial in this case took place nine months after the rescript issued in Ciummei, more than ample time for the judge and the prosecutor to be aware of the simple (and by no means novel) procedure mandated in that case. See Commonwealth v. Thompson, ante 974 (1983).

Barry P. Wilson for the defendant. Judy G. Zeprun, Assistant District Attorney, for the Commonwealth.

Judgment reversed.

Finding set aside.