STEVEN COSTARELLI, petitioner.

KAPLAN, J. On January 21, 1974, the petitioner Costarelli was found guilty by a judge of the First District Court of Eastern Middlesex of the offenses of operating a

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motor vehicle without owner's authority after revocation of his license to drive (G. L. c. 266, Section 28), and possession of a controlled substance (Nembutal) (G. L. c. 94C, Section 34). He was then informed by the clerk in routine fashion of his right to appeal. The clerk did not say that on appeal the petitioner would be entitled to a jury on a de novo trial. The petitioner did not appeal.

Three years later, on February 25, 1977, the petitioner filed the present petition for habeas corpus in the Supreme Judicial Court for Suffolk County, alleging that the convictions were void because "nowhere upon the face of the record (written or oral) does it appear that petitioner waived his right to a trial by jury." The matter was referred to a special master who, after hearing, submitted a report recommending that the convictions be affirmed. A single justice of this court reserved and reported the case in that posture to the full court, where it was bracketed for argument with Ciummei v. Commonwealth, ante 504 (1979). We confirm the master's report and affirm the convictions.

Under the system prevailing at the time of the convictions in the present case, a defendant such as this petitioner in District Court was tried by a judge without a jury, but if convicted he could appeal to the Superior Court where he would be tried anew by jury unless he waived the jury in writing. The Supreme Court of the United States in Ludwig v. Massachusetts, 427 U.S. 618, held in 1976 (two years after the present convictions) that the two-tier system did not burden the jury right unreasonably, but in the course of the Court's opinion a question was raised whether "failure to take an appeal would constitute a knowing and intelligent waiver of the right to trial by jury." Id. at 622 n.1. [Note 1]

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The master expressed his view that waiver need not be shown on the face of the record, but could be shown by extrinsic evidence; in this he anticipated our reasoning in the Ciummei case, supra at 505. The master went on to receive and assess such evidence. It appeared that the petitioner had rather extensive personal experience as a defendant in former prosecutions in the District Courts, and the inference was plain that he well knew that a jury would be available to him if he chose to go by appeal to the second tier; he had in fact been so tried by jury on another occasion. [Note 2] He chose to forgo the opportunity. It should be added that he was represented by counsel in the instant case in the District Court. There was no problem here of the petitioner's competency; he had normal intelligence. On the whole record, the master concluded that the petitioner had made "a conscious decision not to avail himself of a de novo trial by jury," and that the Commonwealth had sustained its burden of showing a "deliberate and conscious" waiver. Accepting the master's subsidiary findings, we reach the same conclusion.

The two-tier system has been altered by major reorganization legislation effective January 1, 1979 (St. 1978, c. 478). A defendant in the petitioner's situation in the District Court can now be tried by a jury of six; alternatively, waiving the jury, he may elect to be tried initially by a judge, and if convicted, claim an appeal to a jury of six session of the District Court. See G. L. c. 218, Sections 26A, 27A; c. 278, Section 18. [Note 3] From the date of the issuance of a rescript upon this opinion, twenty-eight days hence, the

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requirements regarding a colloquy when a jury is waived, as set forth in Ciummei, will apply in District Courts as elsewhere. Any appropriate rule changes will be promulgated in due course.

Master's report confirmed.

Judgments of conviction affirmed.