COMMONWEALTH vs. WILLIAM M. OSBORNE.

CORDY, J. Following a bench trial in the Dorchester Division of the District Court Department, William M. Osborne was convicted of possession of a class B substance. He has contended on appeal that the waiver of his right to trial by jury was ineffective, and his conviction therefore invalid, because he did not sign a written waiver as required by G. L. c. 263, § 6, and Mass. R. Crim. P. 19 (a), 378 Mass. 888 (1979). The Appeals Court reversed and set aside the finding of guilt. Commonwealth v. Osborne, 62 Mass. App. Ct. 445 (2004). We granted the Commonwealth's application for further appellate review limited to the jury waiver issue. We conclude that where the Legislature has clearly indicated that a defendant can waive

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his right to a jury trial only by signing a written waiver, and our prior decisions have recognized a "bright line" rule regarding the requirements for an effective waiver, Osborne's conviction must be reversed.

1. Background. [Note 1] On January 4, 1995, a complaint was issued against Osborne charging him with possession of a class B substance with intent to distribute. His trial took place on October 21, 1998. [Note 2] The transcript of the trial, as it appears in the record, begins in the middle of an apparent colloquy between the judge and the defendant regarding the defendant's decision to waive his right to a jury trial. [Note 3] At the conclusion of the colloquy, the judge accepted the defendant's oral election to proceed without a jury, and the trial began. At the close of the trial, the judge found Osborne guilty of possession of a class B substance, a lesser included offense of the crime with which he

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was charged, and sentenced him to one year in a house of correction. [Note 4]

There is no evidence that the defendant ever saw, read, or signed a written waiver of his right to a jury trial. The court file does not contain such a waiver, and the docket sheets show no indication that a waiver was filed with the court. Nothing in the trial transcript suggests otherwise. On this basis, the defendant filed a notice of appeal on November 2, 1998. A single justice of the Appeals Court granted Osborne's motion to stay his sentence pending appeal and released him from custody on March 3, 1999.

Osborne's appeal was eventually entered in the Appeals Court on March 14, 2002. [Note 5] Subsequently, the Appeals Court reversed the conviction, concluding that the lack of a written, signed jury waiver made the defendant's bench trial invalid. See Commonwealth v. Osborne, supra at 447-448. We granted further appellate review in light of what could be viewed as an inconsistency between the Appeals Court's decision in this case and our decision in Commonwealth v. Collado, 426 Mass. 675 (1998). [Note 6]

2. Discussion. General Laws c. 263, § 6, provides that "[a]ny defendant in a criminal case other than a capital case, whether begun by indictment or upon complaint, may, if he shall so elect . . . before a jury has been impanelled to try him . . . waive his right to trial by jury by signing a written waiver thereof and filing the same with the clerk of the court." Consistent with, and in furtherance of, the statute's requirements, rule 19 (a), applicable to the District Court, makes clear that "[a] case in which the defendant has the right to be tried

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by a jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and files the waiver with the clerk . . . ."

The Commonwealth concedes that the defendant's oral waiver did not conform to the requirements of either the statute or the rule. It argues, however, that neither prescribes a remedy for violations of the requirement of a written waiver, and urges us to adopt the same "substantial risk of a miscarriage of justice" standard for reversal that we adopted in Commonwealth v. Collado, supra at 678 ("in noncapital cases, an unintentional violation of either G. L. c. 263, § 6, or rule 19 [a] will result in reversal only if the defendant can show a substantial risk of a miscarriage of justice"). The Commonwealth further argues that the conviction should be upheld in this case because the lack of a written and signed jury waiver did not create a substantial risk of a miscarriage of justice where the defendant knowingly and voluntarily waived his right. We decline to adopt this standard.

Despite its broad language, Commonwealth v. Collado, supra, is inapposite to the instant case. There, two codefendants were tried at the same trial. Id. at 676. One defendant (Collado) requested a jury-waived trial, and that request was granted after the jury were empanelled. Id. The codefendant, however, did not waive his right to a jury trial. After allowing Collado's request for a jury-waived trial, the judge proceeded to conduct a bench trial simultaneously with the jury trial, in violation of another provision of G. L. c. 263, § 6. [Note 7] That provision requires, inter alia, that "[i]n a criminal trial with multiple defendants, all defendants must be tried by a jury, or all by the judge, or else the judge must sever the cases." Id. at 677. The court found that the trial judge erred in permitting the joined jury and jury-waived trial to go forward, but declined to reverse the conviction because the relevant statutory provision was "procedural in nature," meant to "reduce the strain on court resources," and did not "vest any personal right in criminal defendants." Id. at

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677, 678. In sum, the court concluded that it would not "reverse a judge for his unintentional violation of a rule that was not enacted for the benefit of those in Collado's position," [Note 8] id. at 678, at least where there was no substantial risk of a miscarriage of justice.

Unlike the specific trial procedure at issue in Commonwealth v. Collado, supra, the requirement of a signed, written jury waiver is an important protection provided by the Legislature for the benefit of a criminal defendant. Cf. Gallo v. Commonwealth, 343 Mass. 397, 402 (1961) ("To avoid unnecessary controversy and to provide a procedural safeguard, [statute] required a written waiver and request of the defendant himself to be filed with the clerk" [emphasis added]). Trial by jury is preserved as a basic and fundamental right in our judicial system. Art. 12 of the Declaration of Rights of the Massachusetts Constitution ("And the legislature shall not make any law, that shall subject any person to a capital or infamous punishment . . . without trial by jury"). See, e.g., Duncan v. Louisiana, 391 U.S. 145, 154-157 (1968); Commonwealth v. Francis, 374 Mass. 750, 757, appeal dismissed, 439 U.S. 805 (1978). It is reasonable to assume that the Legislature intended to create a moment of pause and reflection on the part of a defendant that is concomitant with signing one's name to a formal declaration relinquishing that right. Moreover, the relevant provision of G. L. c. 263, § 6, ensures that this fundamental right will not be extinguished without a permanent record of a defendant's agreement, which in turn guards against the potential for falsified or accidental waiver.

We have recognized the importance of this legislative safeguard, see Gallo v. Commonwealth, supra, and have added a further safeguard requiring an oral colloquy between judge and defendant to ensure that a jury waiver is made voluntarily and knowingly. Ciummei v. Commonwealth, 378 Mass. 504, 509 (1979) ( "from the date of the issuance of a rescript upon this opinion . . . the judge will advise the defendant of his

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constitutional right to a jury trial, and will satisfy himself that any waiver . . . is made voluntarily and intelligently"). In so doing, we made clear that it was in addition to other requirements applicable to such a waiver, including the "written memorial" mandated by the statute. Id. [Note 9]

The solemnity of the written waiver and the formality of the colloquy also further the purposes of "assur[ing] that the ultimate decision regarding waiver of the jury be left to the defendant himself, not his counsel," Commonwealth v. Pavao, 423 Mass. 798, 803 (1996), and ensuring an evidentiary record that will foreclose most posttrial disputes about whether the waiver was knowingly and voluntarily made. Id. at 800-801. See Gallo v. Commonwealth, supra.

The rule we laid down in Ciummei v. Commonwealth, supra, requiring an oral colloquy in addition to a written waiver, has been termed a "bright line rule." Commonwealth v. Pavao, supra at 802 (failure to conduct colloquy at time defendant signed written jury trial waiver violates "bright line" rule in Ciummei case; convictions reversed). Commonwealth v. Wheeler, 42 Mass. App. Ct. 933, 934 (1997) ("absence . . . of a written waiver contravenes [Ciummei's] bright line rule and renders the defendant's [oral] waiver invalid"). A waiver obtained without observing both requirements is ineffective. We see no reason to change this time-honored rule. Here, there was no written waiver and the conviction is therefore invalid.

Judgment reversed.

Finding set aside.