COMMONWEALTH vs. ROBERT C. DRESSER.

KANTROWITZ, J. The defendant claims that the absence of a written jury waiver requires us to vacate the order committing him indefinitely to the Massachusetts Treatment Center as a sexually dangerous person. Because the record discloses that the defendant had notice and was aware that he was electing to proceed without a jury, and his other arguments are without merit, we decline to disturb the judgment. We agree with the defendant, however, that the better practice in such situations is for the judge to engage in a colloquy with the defendant, and for the defendant to execute a written jury waiver.

Background. On February 14, 1992, the defendant, Robert C. Dresser, pleaded guilty to two counts of forcible rape of a child, two counts of indecent assault and battery on a child, and one

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count of rape of a child. [Note 1] While incarcerated on those charges, he was indicted on additional offenses. In November of 1994, he pleaded guilty to five counts of rape of a child, and two counts of indecent assault and battery on a child. [Note 2] In the months preceding his intended release date in 2004, the Commonwealth filed a petition for his commitment as a sexually dangerous person. A jury-waived trial was held in October of 2005, and an order of commitment issued.

On appeal, the defendant claims that (1) his right to a jury trial under G. L. c. 123A, § 14(a), was not affirmatively waived; (2) information concerning uncharged sexual assaults and a dismissed charge of abuse of a child under sixteen years of age were erroneously admitted; and (3) there was insufficient evidence to support the finding that the defendant was likely to engage in sexual offenses if not confined to a secure facility. We affirm.

The trial. On September 6, 2005, a status conference took place during which a trial date of October 31, 2005, was set. At the conference, the defendant's counsel, when asked about the length of the trial, responded, "Assuming we try it with a jury, I'd suggest three days, perhaps three and a half." Apparently, a decision was made to forgo a jury trial as evidenced by (1) trial notices, sent on September 22, 2005, indicating a date for a

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"trial without jury;" and (2) a writ of habeas corpus, indicating the "jury-waived" trial date, faxed on October 25 to the treatment center, where the defendant was being held. At the outset of the trial, defense counsel stated that the defendant was present and "prepared to be tried jury waived." There is no record of the trial judge conducting a colloquy with the defendant concerning his waiver of a jury trial, nor was a written waiver filed. [Note 3] The trial commenced without objection by the defendant.

Four experts testified in the following order: Dr. Niklos Tomich and Dr. William Hazelett for the Commonwealth, and Dr. Leonard Bard and Dr. Joseph Plaud for the defendant. Not surprisingly, the expert witnesses for the Commonwealth testified that the defendant was a sexually dangerous person who was likely to reoffend if not committed. Conversely, the experts for the defendant testified that the defendant was not sexually dangerous, or, at most, presented a moderate to low risk of sexual dangerousness and likelihood of reoffending.

During a clinical interview with Dr. Tomich on February 8, 2005, the defendant indicated that there was a "good chance" that he would offend again if he started drinking and taking drugs, and that he sometimes experienced sexual arousal in response to young females on television. Further, the reports of Dr. Hazelett and Dr. Tomich, which were admitted into evidence, referenced numerous uncharged assaults. [Note 4] Both of Dresser's experts, Dr. Bard and Dr. Plaud, testified on cross-examination regarding some of the uncharged conduct. [Note 5] Doctor Bard stated in his report that when confronted with allegations of both charged and uncharged offenses, the defendant did not deny

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having engaged in the acts. [Note 6] The prosecutor also referred to the uncharged assaults in her closing argument. [Note 7] No objection to any of this evidence was lodged.

Jury waiver. The defendant claims that a colloquy and a written waiver are required in order to waive a jury. In support, he cites G. L. c. 123A, § 14(a), added by St. 1999, c. 74, § 8, which provides, in pertinent part, that a trial "shall be by jury unless affirmatively waived by the person named in the petition."

Sexually dangerous person trials are civil, not criminal, in nature, and the right to a jury trial in such a case is statutorily created, rather than required by either Federal or State Constitution. [Note 8] See Sheridan, petitioner, 422 Mass. 776 , 777-780 (1996). "Typically, where a right is conferred by statute and is not a fundamental constitutional right, we apply traditional indicia of waiver of rights. . . . Traditional indicia include waiver by inaction, by express agreement, by untimely motion, and by failure to object." Commonwealth v. Davidson, 27 Mass. App. Ct. 846 , 848 (1989) (citations and quotation marks omitted).

Here, counsel, presumably after conferring with his client,

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indicated on two separate occasions that the trial would be jury-waived. [Note 9] Under the circumstances, no more was needed. [Note 10]

Having so ruled, however, we recognize that the better practice in such situations is to engage the defendant in a colloquy and to execute a written waiver. Certain rights ordinarily afforded criminal defendants have been extended to those civilly charged with being sexually dangerous persons, e.g., the right to counsel, the right to have counsel appointed if the defendant is indigent, the right to call expert witnesses (and, if indigent, the right to have the Commonwealth pay for them), the right to have process issue to secure the attendance of witnesses, the right to a unanimous jury verdict, the requirement that the case be proven beyond a reasonable doubt. See G. L. c. 123A, § 14(b) & (d).

"While commitment proceedings under c. 123A are civil proceedings, the potential deprivation of liberty to those persons subjected to these proceedings 'mandates that due process protections apply.' " Commonwealth v. Bruno, 432 Mass. 489 , 502 (2000) (citation omitted). See Commonwealth v. Ferreira, 67 Mass. App. Ct. 109 , 115 (2006). "In determining what process is due . . . this court 'must balance the interests of the individual affected, the risk of erroneous deprivation of those interests and the government's interest in the efficient and economic administration of its affairs.' " Sheridan, petitioner, 422 Mass. at 778, quoting from Commonwealth v. Barboza, 387 Mass. 105 , 112, cert. denied, 459 U.S. 1020 (1982). The minimal burden upon the Commonwealth in ensuring a colloquy and written waiver is outweighed by the interests of the defendant, whose liberty is at risk. The better practice in commitment proceedings under c. 123A, thus, is to require, as in criminal cases, a colloquy and written waiver. See Commonwealth v. Burgess, 450 Mass. 366 , 374 (2008) ("[E]ven though the [sexually dangerous person]

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hearing is civil in nature, the Legislature has provided that it proceed much the same as a criminal trial, and that it include many rights to which a criminal defendant is constitutionally entitled" [citation omitted]). [Note 11]

Judgment affirmed.