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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Dietrich, 381
Supreme Judicial Court of Massachusetts, Essex.
Argued
Decided
Matthew H. Feinberg,
Lila Heideman, Asst. Dist.
Atty., for the Commonwealth.
Before HENNESSEY, C. J., and KAPLAN, WILKINS, LIACOS
and ABRAMS, JJ.
ABRAMS, Justice.
The
defendant was convicted of robbery and mayhem in a jury‑waived trial in
the Superior Court in [381
The facts
of the case are related in Commonwealth v. Michel, 367
The
defendant was indicted for robbery and mayhem of Cole along with three
codefendants. On
During the
trial, Cole did not identify the defendant as one of his assailants. There was testimony, however, that the day
after the incident Cole picked three pictures out of an array of photographs;
one of the photographs was that of the defendant. (FN4)
The only testimony at trial involving the [381 Mass. 460]
defendant in Cole's assault came from Walter D. Coyne, III. Coyne was originally indicted for these
offenses, but was acquitted by the judge after he objected to the
Commonwealth's motion to enter a nolle prosequi on the charges against him during trial. Coyne's testimony at trial was consistent
with a statement he had given to the police within two weeks of the
incident. Coyne inculpated his
codefendants and exculpated himself.
On appeal
Dietrich argues that his waiver of jury trial was not knowing and intelligent
since it was based on a mistaken evaluation of the strength of the
Commonwealth's case against him because of Coyne's appearance at trial as a
prosecution witness. He further claims
reversible error in the trial judge's failure to declare a mistrial on his own
motion when Coyne began to testify for the Commonwealth. Finally, he claims that the identification
procedures involved in this case were so impermissibly suggestive that their
subsequent use at trial was a due process violation. We find no merit in any of these contentions
and affirm the judgments.
[1] Waiver
of jury trial. Since the defendant did
not challenge the validity of his jury waiver until he filed a motion for new
trial, we review the record to see whether there is a "substantial risk of
a miscarriage of justice."
Commonwealth v. Freeman, 352 Mass. 556, 563‑564, 227 N.E.2d 3, 9
(1967). See Earl v. Commonwealth, 356
Mass. 181, 184, 248 N.E.2d 498 (1969).
The right
to a jury trial is a fundamental right guaranteed to a criminal defendant in
order to preserve a fair trial. A
defendant may waive that right only if he does so knowingly and
intelligently. Schneckloth
v. Bustamonte, 412 U.S. 218, 237‑238, 93 S.Ct. 2041, 2052‑53, 36 L.Ed.2d 854 (1973). Adams v. United States ex rel.
McCann, 317 U.S. 269, 275, 63 S.Ct. 236, 240, 87 L.Ed. 268 (1942).
Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461
(1938). "(W)hether
or not there is an intelligent, competent, self‑protecting waiver of jury
trial by an accused must depend on the unique circumstances of each
case." Adams v. United States ex rel. McCann, supra 317 U.S. at 278, 63 S.Ct.
at 241.
[2] The
defendant does not claim that he misunderstood the scope and impact of this
precious constitutional right. See Ciummei v. Commonwealth, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ‑ ‑‑‑ (FNa),
392 N.E.2d 1186; [381 Mass. 461] United States v. Conforte,
457 F.Supp. 641, 660 (D.Nev.1978), aff'd 624 F.2d 869 (9th Cir. 1980); (FNb) Commonwealth v. Morin, 477 Pa. 80, 85, 383
A.2d 832 (1978). Nor does he claim that
any mental or physical incapacity affected his ability to understand the
consequences of his choice. See, e. g.,
United States v. David, 511 F.2d 355 (D.C.Cir.1975). See also Commonwealth v. Robinson, 295 Mass.
471, 473, 4 N.E.2d 300 (1936). Rather,
Dietrich claims that he waived his right to a jury trial in reliance on the
weakness of the government's case against him, and therefore his waiver was
vitiated when the government's case became stronger by reason of Coyne's
testimony. See People v. Redwine, 166 Cal.App.2d 371, 333 P.2d 188 (1958). (FN5)
Dietrich
argues that "it (was) perfectly clear to the Commonwealth prior to trial
that it (would) be necessary to 'make a deal' with one of the defendants in
order to secure convictions." If it
was perfectly clear to the Commonwealth, however, it was equally clear to the
defendant. The defendant knew that
shortly after the incident Coyne had given the police a statement inculpating
all three of his codefendants and exculpating himself. Therefore, the probability that Coyne might
strike a deal and decide to testify for the Commonwealth was an obvious
consideration in deciding whether to waive a jury.
[3] The
decision whether or not to waive the right to trial by jury is primarily
"a decision regarding trial strategy." CIUMMEI V.
COMMONWEALTH, SUPRA AT ‑‑‑ N.7 , 392 N.E.2D 1196.(FNC) "In the
end, the defendant must make an over‑all estimate as to where he will
fare better, before a judge or before a jury.
If he goes to trial, he will presumably prefer to go to trial in the [381 Mass. 462] forum where he thinks his chances will be best." H. Kalven & H. Zeisel, The American Jury, 28 (1966). The defendant will not be relieved of the
consequences of his tactical decision where the circumstances which are said to
warrant relief were clearly foreseeable at the time of the waiver. See United States v. Conforte,
624 F.2d 869 (9th Cir. 1980); Wyatt v. United States, 591 F.2d 260 (4th Cir.
1979); United States v. Colacurcio, 499 F.2d 1401
(9th Cir. 1974); United States v. Sadrzadeh, 440 F.2d
389 (9th Cir. 1971).
[4] The
defendant also asserts that he relied on advice from Anthony DiFruscia, attorney for codefendant Michel, in deciding
whether to waive his right to trial by jury.
Since Michel's attorney had conflicting allegiances, see Commonwealth v.
Michel, ‑‑‑ Mass. ‑‑‑ (FNd),
409 N.E.2d 1293 (1980). Dietrich claims
his waiver was somehow thereby tainted.
The short answer is that the defendant had the benefit of independent
counsel in making his tactical decision and cannot prosper by bootstrapping
Michel's claim. We give considerable
deference to tactical determinations made with the advice of independent
counsel. See COMMONWEALTH V. MICHEL,
SUPRA AT ‑‑‑ N.9 , 409 N.E.2D 1293(FNE).
[5]
Mistrial. The defendant did not move for
a mistrial at any point in the proceedings below, nor did he ever request
permission to withdraw his waiver of a jury trial. In this court, he argues that the judge had
an obligation to declare a mistrial on his own motion. In the absence of circumstances which would
justify voiding the defendant's waiver of jury trial, we do not think the judge
had an obligation, or indeed the right, to declare a mistrial when Coyne began
to testify for the Commonwealth.
[6] The
defendant asserts that the judge's conduct in acquitting Coyne rather than
letting the Commonwealth enter a nolle prosequi amounted to an exercise of the prosecutorial
function which seriously impinged on the necessary impartiality of the trial
judge. This argument is without
merit. The defendant's argument fails to
consider fully the fact that jeopardy attaches when the defendant is put on
trial. Commonwealth v. Clemmons, 370
Mass. 288, 292, 346 N.E.2d 864 (1976), [381 Mass. 463] and cases cited.
Thereafter, the ability of the judge to declare a mistrial is limited by
considerations of jeopardy. See Jones v.
Commonwealth, ‑‑‑ Mass. ‑‑‑ (FNf), 400 N.E.2d 242 (1980). For much the same reason, the district
attorney's power to enter a nolle prosequi
is also severely curtailed after the trial has commenced. After that "the defendant acquires a
right to have that tribunal pass upon his guilt by verdict and thus secure a
bar to another prosecution for the same offence. That right of the defendant will be protected
by the court. . . . A nolle prosequi without the consent of the defendant after the
trial has commenced and before verdict has the effect of acquittal"
(emphasis added). Commonwealth v. Dascalakis, 246 Mass. 12, 18‑19, 140 N.E. 470, 473
(1923). See Commonwealth v. Hart, 149
Mass. 7, 9, 20 N.E. 310 (1889). Thus the
judge did not err in acquitting Coyne rather than letting the Commonwealth
enter the nolle prosequi.
Finally,
as to the questions asked by the judge, "(i)t
would add little to our jurisprudence to discuss in detail the defendant's
attacks on the judge's questioning of witnesses," Commonwealth v. Hanscomb, 367 Mass. 726, 730, 328 N.E.2d 880, 884 (1975),
because neither the number nor the nature of his questions reflects bias or an
overzealous attitude. See Commonwealth
v. Campbell, 371 Mass. 40, 45, 353 N.E.2d 740 (1976).
Identification. Evidence of Cole's out‑of‑court
identification of the defendant's photograph was admitted over his objection
and exception at trial. See note 4,
supra. The defendant now argues that the
photographic identification procedure employed by the Commonwealth "was so
impermissibly suggestive as to give rise to a very substantial likelihood of
irreparable misidentification."
Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct.
967, 971, 19 L.Ed.2d 1247 (1968).
[7] The
defendant's objections focus on the size of the array, whether Cole was
physically and mentally competent to make an identification, and whether the
officer's comments were overly suggestive.
In evaluating whether a given identification procedure is unnecessarily
suggestive, we consider "the totality of the circumstances surrounding
it." Commonwealth v. Botelho, 369 Mass. 860, 867, 343 N.E.2d 876 (1976), quoting
from Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967).
[381 Mass. 464] [8] [9] [10] An array of ten photographs is not as a matter of
constitutional law too small. Further,
the fact that three of the ten photographs were those of the three defendants
(Michel and the two Dietrichs) does not, without
more, render the array an unfair sample.
See Commonwealth v. Cincotta, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
(FNg), 398 N.E.2d 478 (1979); Commonwealth v. Jones, ‑‑‑
Mass.App. ‑‑‑, ‑‑‑
(FNh), 399 N.E.2d 1087 (1980). As to the objection that Cole was in no
condition to make a photographic identification and that an officer made
remarks which were unduly suggestive, there was contradictory evidence at trial
as to Cole's condition and as to the police officer's remarks, if any. Resolution of conflicting testimony is for
the factfinder.
Thus "(a)ny weaknesses in the
photographic identification process, such as may have been disclosed during the
(trial), did not rise to constitutional level and therefore were properly left
for consideration by the (fact‑finder) relevant to the weight of the
identifications." Commonwealth v.
Jones, 375 Mass. 342, ‑‑‑ (FNi),
377 N.E.2d 903, 906 (1978).
Judgments
affirmed.
FN1. The
defendant was sentenced to fifteen to fifty years at the Massachusetts Correctional
Institution at Walpole on the robbery conviction, with a concurrent term of
fifteen to twenty years for mayhem.
FN2. See also Commonwealth v. Michel, ‑‑‑
Mass. ‑‑‑ (Mass.Adv.Sh. (1980) ‑‑‑‑), 409
N.E.2d 1293.
FN3. See G.L. c.
263, s 6; Mass.R.Crim.P. 19(a), ‑‑‑
Mass. ‑‑‑ (1979).
FN4. It was unclear whether Cole identified
photographs of the Dietrich brothers and Michel as his assailants or simply as
his companions on the day of the beating.
The Commonwealth acknowledges that this testimony is ambiguous.
FNa. Mass.Adv.Sh. (1979) 1838, 1844‑1845.
FNb. Nos. 77‑3956, 78‑3310 (9th Cir. April 29, 1980).
FN5. In People v. Redwine,
166 Cal.App.2d 371, 333 P.2d 188 (1958), the defendant in an assault case
waived his right to a jury trial subject to his right further to cross‑examine
the two complaining witnesses. When one
of the witnesses became unavailable at trial, it was held error for the trial
judge to deny the defendant's motion to be relieved of his waiver of jury
trial. In Redwine,
however, the limitation on the waiver of jury clearly was set forth and the
expected testimony which was unavailable was favorable to the defense. The confrontation rights may have been
abridged by the failure of the witness to appear at trial.
FNc. Mass.Adv.Sh. (1979) at 1843 n.7.
FNd. Mass.Adv.Sh. (1980) ‑‑‑‑.
FNe. Mass.Adv.Sh. (1980)
at ‑‑‑‑ n.9.
FNf. Mass.Adv.Sh. (1980)
221.
FNg. Mass.Adv.Sh. (1979)
2671, 2673‑2674.
FNh. Mass.App.Ct.Adv.Sh.
(1980) 123, 129.
FNi. Mass.Adv.Sh. (1978)
1467, 1474.