COMMONWEALTH vs. ANGEL CASTILLO. [Note 1]

SMITH, J. The practice of judges allowing criminal trials to be conducted on stipulated evidence has long been disfavored because "[i]t invites appeals of the most hair-splitting sort and cannot be justified to save court time." Commonwealth v. Babcock, 25 Mass. App. Ct. 688 , 691 (1988). Commonwealth v. McDowell, 62 Mass. App. Ct. 15 , 15 n.1 (2004).

Once again, we are called upon to consider a challenge to a judge's decision to allow the parties to proceed in a criminal matter by stipulating to the evidence. Once again, we must reverse because a judge failed to inquire of the defendant if he had agreed to the procedure and if he was aware of the various constitutional rights he was waiving. See Commonwealth v.

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Lewis, 399 Mass. 761 , 763-764 (1987) (conviction reversed where defendant waived jury, parties stipulated to evidence, and judge failed to advise defendant of constitutional rights he was waiving); Commonwealth v. Hill, 20 Mass. App. Ct. 130 , 131-133 (1985) (conviction reversed where parties stipulated to evidence and defendant was not informed of constitutional rights he was waiving); Commonwealth v. Brown, 55 Mass. App. Ct. 440 , 448-449 (2002) (conviction reversed where defendant waived jury, stipulated to evidence, and was not advised of constitutional rights she was waiving).

On March 11, 2003, the defendant, Angel Castillo, pleaded not guilty in Superior Court to four indictments charging him with (1) possession of a firearm, not being present in his residence or place of business and not having a license to carry the firearm (G. L. c. 269, § 10[a]); (2) possession of ammunition without having been issued a firearm identification card (G. L. c. 269, § 10[h]); (3) unlawful carrying of a large capacity feeding device (G. L. c. 269, § 10[m]); and (4) possession of a false motor vehicle document (G. L. c. 90, § 24B).

On May 6, 2003, the defendant filed a motion to suppress evidence. On October 16, 2003, an evidentiary hearing on the defendant's motion was held. One police officer, Michael Hanson, testified for the Commonwealth. On October 23, 2003, the motion judge issued a memorandum of decision and order denying the motion.

On November 17, 2003, the defendant waived his right to a jury trial, and as a result of an agreement between the prosecutor and defense counsel, a trial was held on stipulated evidence before a different Superior Court judge. After listening to the stipulated evidence, the trial judge found the defendant guilty on all of the indictments.

On appeal, the defendant claims that the trial judge committed error in finding him guilty on the stipulated evidence because the procedure amounted to a guilty plea and the defendant was not advised of the basic constitutional rights he was waiving, and that the motion judge committed error in denying the defendant's suppression motion.

1. The "trial." When the defendant appeared before the trial judge, the following occurred. The defendant informed the judge

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of his intent to waive his right to a jury trial. After the defendant was sworn, the judge engaged the defendant in a colloquy as to the waiver of the jury. [Note 2]

After the judge accepted the defendant's jury trial waiver, the Commonwealth moved for trial. The prosecutor informed the judge that the parties had agreed to a "fact-stipulated trial" and presented the following stipulation to the judge:

"[The] defendant did have the firearm on his person when the police placed him under arrest.

"There was ammunition in a magazine. That magazine was capable of holding eleven rounds of ammunition, and then at the time that he was placed under arrest, the defendant gave multiple names: Felix Rosario, Angel Castillo, Domingo Luciano, Domingo Luciano Castillo.

"He actually had credit cards and a Massachusetts Registry document, a Massachusetts license in the name of Felix Rosario. The defendant admitted that he was not Felix Rosario, that there was in fact a Felix Rosario, however it was not him, and that he had allegedly agreed to purchase a license for the amount of $1500 from someone at the Registry in order to procure a Massachusetts license.

"I think that's about as far as the stipulation goes."

The judge then inquired, "Well, was he at his home or residence?" The prosecutor responded, in part, "He was on the street, actually." The judge inquired of defense counsel, who responded as follows:

"Well, Judge, those facts are not in dispute. Just it is the defendant's intent in stipulating to these facts that the defendant may pursue his appeal on the motion to suppress which was denied by the [motion judge]. It is the defendant's intent after this proceeding to pursue that appeal. The facts with respect to the defendant's culpability as the offense is charged is not in dispute."

The clerk then announced that the defendant had been found guilty on all four counts.

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Discussion. We reject the defendant's appellate claim that the trial was tantamount to a guilty plea. Rather, the record demonstrates that the defendant's trial counsel requested a "trial" on stipulated evidence because he wished to preserve the defendant's appeal from the denial of his suppression motion. [Note 3]

A trial based on stipulated evidence is not "a trial constitutionally capable of supporting a conviction," Commonwealth v. Brady, 59 Mass. App. Ct. 784 , 788 (2003), unless it appears on the record that there is an inquiry whether the defendant understands the significance of such a trial as opposed to a customary trial, see Commonwealth v. Stevens, 379 Mass. 772 , 776 (1980); that the defendant is informed of the rights the defendant has surrendered, including the right to confrontation, the right to cross-examine witnesses, and the right to testify, among others; and that the defendant freely, knowingly and voluntarily waives those rights. Commonwealth v. Babcock, 25 Mass. App. Ct. at 691-692. Commonwealth v. Brady, 59 Mass. App. Ct. at 787-788. [Note 4]

There is nothing in this record that demonstrates that the defendant was aware of the significance of a trial based on stipulated evidence or that he was aware of any constitutional rights he was waiving.

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Therefore, the judgments are reversed, the findings are set aside, and the matter is remanded to the Superior Court for further proceedings consistent with this opinion. [Note 5]

So ordered.