COMMONWEALTH vs. EVERETT E. SCHOFIELD.

GREANEY, J. Schofield was convicted of armed robbery, G. L. c. 265, Section 17, and rape, G. L. c. 265, Section 22(a), following a trial in the Superior Court before a judge without a jury and was sentenced to a term of imprisonment at the Massachusetts Correctional Institution at Walpole. He challenges the sufficiency of the colloquy conducted by the judge concerning waiver of his right to trial by jury, claiming that it failed to meet the standards set forth in Ciummei v. Commonwealth, 378 Mass. 504 (1979). Schofield also asserts that the record fails to show a voluntary and intelligent waiver of his right to a trial by jury. A majority (hereafter "we") of the panel agrees with the first contention and concludes that a new trial is necessary.

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The evidence of the crimes was uncontradicted. Approximately 1:00 A.M. on December 10, 1980, Schofield entered a Brockton bar which was deserted except for a woman tending bar. After consuming two drinks, he raped the woman at knifepoint and took money from her clothing and from the cash register. Schofield's wallet, hidden at the scene by the victim after it fell from his coat during the rape, led to his arrest later that same morning.

Schofield claimed insanity and three psychiatrists presented expert testimony on that question. All three agreed that Schofield believed that he had been possessed by the devil or by evil spirits, that he had heard "voices" commanding him to do evil things, and that the "voices" had commanded him during the commission of the crimes. The experts differed on the issue of criminal responsibility. The Commonwealth's expert concluded that Schofield had a borderline personality disorder, somewhere "between neurosis and a psychosis," but was legally responsible. The two defense experts found him to be mentally ill at the time of the incident and not responsible for his conduct.

At the commencement of the trial, the judge conducted a colloquy, set out in the margin, [Note 1] concerning Schofield's decision to waive trial by jury. The initial question is

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whether the colloquy satisfied the requirements of Ciummei v. Commonwealth, supra.

In Ciummei, the Supreme Judicial Court held that, to be adequate to sustain a conviction, a waiver of the right to a trial by jury requires not only compliance with those provisions calling for a written waiver by the defendant, see Mass.R.Crim.P. 19(a), 378 Mass. 888 (1979); G. L. c. 218, Section 27A(g); G. L. c. 263, Section 6, but also a colloquy in which "the judge will advise the defendant of his constitutional right to a jury trial, and will satisfy himself that any waiver by the defendant is made voluntarily and intelligently." [Note 2]

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Ciummei, supra at 509. The Ciummei colloquy requirement is premised on the concepts that the right to trial by jury is fundamental to our system of justice and that the right can only be waived by a conscious and deliberate decision of the defendant himself. See Patton v. United States, 281 U.S. 276, 288-290, 312 (1930).

By way of illustration, and with an express disavowal of any "inten[t] to create a rigid pattern," the court in Ciummei noted that "where a defendant needs a compendious reminder, the judge might state that the jury consists of members of the community, that the defendant may participate in their selection, that the verdict of the jury must be unanimous, 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 that, where a jury is waived, the judge alone decides guilt or innocence in accordance with the facts and the law." Ciummei, supra at 509-510 (emphasis added). It is without question the better practice to cover in the colloquy all of the attributes of the jury trial and the important distinctions between jury and jury-waived trials which are enumerated in Ciummei. We reject, however, the notion that the failure of a colloquy exhaustively to survey the field implies failure of the colloquy itself. It is by now axiomatic that "whether or not there is an intelligent, competent, self-protecting waiver of jury trial by an accused must depend upon the unique circumstances of each case." Adams v. United States ex rel. McCann, 317 U.S. 269, 278 (1942). See Commonwealth v. Dietrich, 381 Mass. 458, 460 (1980).

This principle, however, implies the corollary, expressly acknowledged in Ciummei, that "the judge's responsibility should not be `discharged as a mere matter of rote,' but

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rather `with sound and advised discretion.'" Ciummei, supra at 510 (quoting from Patton v. United States, supra at 312). The hypostasis of the Ciummei decision is the directive that the judge, through the procedure of the colloquy, advise the defendant of the right of jury trial and "satisfy himself that [the] waiver . . . is made voluntarily and intelligently." Id. at 509. The judge need not rely on any particular formula for the required dialogue, and in determining the detail of the interrogation which is necessary in a particular case he may consider (as we cannot) the defendant's demeanor, attentiveness and apparent perception in answering questions which are put to him. The judge's determination is not likely to be disturbed simply because the colloquy involved less than an exhaustive description of the ramifications of the defendant's decision, provided (and this is the crucial point) that the dialogue is sufficient to furnish the judge with the information necessary to warrant findings that the defendant is (1) aware of the differences between jury and jury-waived trials; [Note 3] (2) that he has not been coerced or improperly influenced in his decision; and (3) that he is, at the time of the waiver, capable of rational judgment. Not to be disregarded either, is Ciummei's explicit direction that the necessary solemnization of the waiver appear through a "clear record." Ibid.

The difficulty in this case lies in the first finding. There is absolutely no indication in the colloquy that Schofield was likely aware of the factors, set out in Ciummei, which distinguish the two forms of trial, particularly the critical information that the defendant has a voice in selecting the jurors and that their verdict must be unanimous. This deficiency is not remedied elsewhere in the record. [Note 4] If a

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colloquy initially fails to elicit responses which indicate the requisite awareness, then the defendant "needs a compendious reminder," id. at 510, and must be informed of the relevant factors by the judge. No such reminder was furnished Schofield. We conclude that Schofield cannot be said to have "indicated a comprehension of the nature of the choice", ibid., by his answers to the questions put by the judge.

The Commonwealth argues that the defendant waived his right to a more complete Ciummei colloquy when his counsel responded in the negative upon being asked by the judge if he (counsel) desired additional questions to be asked of the defendant. The argument is unsound. The underlying rationale of Ciummei is that without the colloquy the trial judge's task of determining the validity of the jury waiver may be problematical. To allow waiver of the colloquy would deprive the court of the most effective means of testing the defendant's comprehension of his decision and safeguarding his interest in the right of jury trial, which is one of constitutional dimension. Submission to the colloquy procedure involves no counterbalancing "risk" to the defendant. We hold that it cannot be waived.

The argument that because waiver of jury trial involves a tactical decision to a defendant may be assumed to have discussed with his lawyer all possible strategic benefits of a jury trial (including the right of participation in jury selection and the unanimity requirement) presents a similar red herring. Of course, waiver of jury trial involves a tactical judgment. But to assume that, in discussing strategy, counsel will always cover all the important factors assumes too

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much. Such an assumption swallows the rule and would, for all practical purposes, render the Ciummei decision nugatory. [Note 5]

We have considered the possibility of remanding the case to ascertain whether Schofield's counsel covered the necessary information, mindful, however, that in cases involving near total abrogation of the colloquy procedure we have on prior occasions simply ordered new trials. See Commonwealth v. Thompson, 15 Mass. App. Ct. 974 (1983); [Note 6] Commonwealth v. Abreu, 15 Mass. App. Ct. 1006 (1983). As previously noted, the Ciummei court emphasized (at 509) that there must be a "clear record" of the waiver before the trial commences. In view of this admonition, and considering the difficulties inherent in retrospectively determining the validity of a waiver upon an unrecorded consultation between lawyer and client held some time ago, we think the remand approach unwise. Because the sufficient basis required by Ciummei for determining the waiver's validity is not present, we conclude that Schofield must be given a new trial on the two indictments before us. We do so unhappily because the effort to have a meaningful colloquy was assiduous and in all other respects the trial was soundly managed and fair. Having so decided, we find it unnecessary to reach the defendant's remaining argument.

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The judgments on indictment no. 74964 and indictment no. 74967 are reversed and the findings on those indictments are set aside. The defendant is to be retried on both indictments before a jury. [Note 7]

So ordered.

CUTTER, J. (dissenting). Schofield was arrested very promptly after the commission of the offenses with which he was charged. The victim of the rape gave clear and concise testimony and was not shaken on cross-examination. The evidence, as the majority opinion states, "was uncontradicted."

Schofield was represented by an attorney from the Massachusetts Defenders Committee who appears to have prepared thoroughly his case asserting lack of criminal responsibility, and to have obtained expert psychiatric witnesses of some standing. He advised the trial judge in a brief conference just before trial that he would have "just two witnesses, two psychiatrists," and a tape, and that the case was to be jury-waived. There was discussion of problems about scheduling the expert medical witnesses on each side. [Note dissent-1]

After the disclosure mentioned in n.1, defense counsel indicated that Schofield "would be prepared to waive his right to a jury trial." The trial judge indicated that he would like to have Schofield sit in the front row of the jury box during his inquiry so that the judge could "see his face." Then ensued the colloquy reproduced in n.1 of the majority opinion. I perceive nothing in Ciummei v. Commonwealth, 378 Mass. 504, 508-511 (1979), which requires a greater inquiry

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by a trial judge than was made in this case. This was not questioning of Schofield "as a mere matter of rote." See the Ciummei case at 510. The Ciummei opinion states (at 509-510) that the court did "not intend to create a rigid pattern." I view the language (at the top of 510) merely as suggestions of possible lines of inquiry "where a defendant needs a compendious reminder" of the extent of his rights. The judge saw Schofield and had opportunity to appraise his capacity to understand. I would suppose that the trial judge's inquiry was sufficient to satisfy himself that the defendant was aware of his rights, that his decision was voluntary and not coerced, and especially that he had consulted with his attorney about his action.

Here the attorney (see n.1) had already shown himself to be both perceptive and conscientious. A trial judge should be slow to second guess the trial tactics of a competent attorney. [Note dissent-2]

The majority opinion concedes that "in all other respects the trial was soundly managed and fair" but reverses and causes a new trial solely on the supposed inadequacy of the jury waiver colloquy. Not only does the colloquy seem to me wholly adequate, but the trial judge afforded Schofield's counsel opportunity to suggest further inquiry. That no suggestions were made by counsel may not amount to a waiver. It certainly indicates, however, that the trial judge, acting conscientiously, was trying to afford full opportunity for any last minute change of position. To paraphrase the much more concise dissent of Judge Dumbauld in United States v. Taborda, 635 F.2d 131, 141 (2d Cir. 1980), I would affirm simpliciter.