Commonwealth v. Juan G. Hernandez.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-442

COMMONWEALTH

vs.

JUAN G. HERNANDEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury-waived trial, a District Court judge

convicted the defendant of operating a motor vehicle while under

the influence of drugs (marijuana), in violation of G. L. c. 90,

§ 24 (1) (a) (1). The defendant appeals, arguing that (1) he

did not validly waive his right to a jury trial because the

judge's jury-waiver colloquy was inadequate, and (2) the trial

judge inappropriately used observations that he made during the

defendant's jury-waiver colloquy to infer guilt. We affirm.

Background. 1 1. Facts. The Commonwealth's sole witness at

trial was a Massachusetts State police trooper. He testified

that around 3 A.M. on November 15, 2019, he saw the defendant's

vehicle on the road and saw that it did not have a front license

1We summarize the pertinent facts as the judge could have
found them, reserving certain facts for later discussion.
plate. Based on his understanding that a front plate is

required for operating on public ways, the trooper followed the

vehicle, which he determined to be traveling at thirty-five

miles per hour in a "thickly settled neighborhood" with a posted

speed limit of twenty miles per hour. The trooper activated his

blue lights and the defendant pulled over.

When the trooper approached the defendant's vehicle, he saw

smoke come out of the defendant's window and encountered an

"overpowering smell of freshly burnt marijuana." The trooper

noted that the defendant's eyes were red, bloodshot, and glassy.

When asked if he had smoked recently, the defendant admitted

that he had smoked a "'blunt' about five minutes earlier." The

defendant repeatedly stated that his "house is right over

there[.] You don't have to do this. . . . [I]t's right over

there."

The trooper then asked the defendant to exit his vehicle.

The defendant was unsteady on his feet and could not balance.

The defendant also slurred his speech. After confirming that he

had not heard the defendant speak before, the trooper testified

that he believed that the slurred speech seemed like that of

someone who has consumed alcohol.

The trooper then asked the defendant to perform field

sobriety tests. While the trooper gave the test instructions,

the defendant was swaying and had to raise his arms and move his

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feet "in order to catch himself." During the one-leg stand

test, the defendant was unsteady and could not maintain his

balance. The defendant's speech was slurred during the counting

portion of the test. The defendant could only hold his foot up

for two seconds and had to use the trunk of his car to brace

himself. The trooper had to stop the one-leg stand test for the

defendant's safety.

During the walk and turn test, the defendant stepped off

the imaginary line multiple times, swaying and using his arms

for balance, and did not turn as instructed. The trooper

believed that the defendant was under the influence of alcohol

and drugs.

The trooper transported the defendant to the police station

for booking. While proceeding to the station, there was a

strong odor of alcohol inside the cruiser. At booking, the

defendant still had red, bloodshot, and glassy eyes, and his

speech was still slurred.

2. Trial proceedings. Immediately before trial began, the

judge conducted a jury-waiver colloquy with the defendant as

follows:

Q: "I'll ask [the defendant] some questions.

"Have you talked to your lawyer about your rights to go in
front of a jury or a judge?"

A: "Yes."

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Q: "All right. And, do you understand a jury [trial]
. . . would be on a day different from today. And, in a
jury trial, they would pick six people from the community.
You bring a bunch of people and there'd be [eighteen]
potential jurors. You select six. They sit in the box.
The six decide the case. The standard of proof is proof
beyond a reasonable doubt. To convict you or acquit you,
the jurors all have to agree. If you're guilty, all six
have to agree. If you're not guilty, all six have to
agree. And, the standard of proof is proof beyond a
reasonable doubt. Same standard of proof here. The
difference is you don't get six jurors, you get one judge
to decide. Now, I know nothing about the case.

"And, so, I know what the standard of proof is. I know
what the government has to prove, but I know nothing about
the case. I don't know what their evidence is. And, I
know they got two charges. One for . . . being under the
influence of drugs . . . [a]nd, one for alcohol.

"So, your lawyer can advise you [on] the pros and cons of
going in front of a judge or a jury."

A: "Mm-hmm."

Q: "And, there are pros and cons. All right? And, that's
up to your lawyer to decide. All right. And, when you
select a jury, . . . you and your lawyer participate in a
selection of the jurors, meaning you can make challenges
for jurors for cause or not. Now, the decision, though,
whether to go . . . in front of a jury . . . or a judge
here is yours, all right? That's your choice, not your
lawyer's. So, you can listen to his advice, but you've got
to make the decision about which way you want to go. So,
have you had a chance to talk to your lawyer about some --
and think about this?"

A: "Yes."

Q: "All right. And, what is your decision? Judge or
jury?"

A: "Judge."

Q: "Okay. So, if you want to sign the waiver, I'll accept
that. You're not under the influence of anything today?"

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A: "No, sir."

Q: "You're not mentally ill today?"

A: "No, sir[.]"

The defendant did not object to the judge's colloquy.

The defendant then signed the required jury waiver under

G. L. c. 263, § 6, after discussion with trial counsel. In

addition, the defendant's trial counsel signed a certificate, as

required by G. L. c. 218, § 26A, affirming that he had explained

the relevant protections afforded by a jury trial to the

defendant. The jury waiver form included the judge's

certification that he found that the defendant's waiver of his

right to a jury trial was knowing, intelligent, and voluntary,

and was accepted.

After the trial, the judge found the defendant guilty of

operating a motor vehicle while under the influence of

marijuana. 2

Discussion. 1. Waiver of jury trial. On appeal, the

defendant first argues that the jury-waiver colloquy was

inadequate because the judge did not specifically ask him "if

2 The judge also found the defendant not guilty of operating
a motor vehicle while under the influence of intoxicating
liquor, second offense, and not responsible for speeding. The
judge sentenced the defendant to two years' probation, a
fourteen-day inpatient program, and a two-year loss of license.

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his waiver was voluntary or if he was pressured or cajoled into

a jury waived trial." We discern no error.

A judge must engage in a colloquy before accepting a

criminal defendant's waiver of his right to a jury trial. See

Ciummei v. Commonwealth, 378 Mass. 504, 506-507 (1979).

However, "no particular form of words is required for an

adequate jury trial waiver colloquy." Commonwealth v. Garcia,

88 Mass. App. Ct. 307, 310 (2015). See Commonwealth v. Hardy,

427 Mass. 379, 382 (1998), quoting Commonwealth v. Abreu, 391

Mass. 777, 779 (1984) ("We have said that 'no rigid pattern

. . . must invariably be followed in conducting a colloquy

before accepting a waiver of the right to trial by jury'").

Generally, the colloquy should include (1) whether the defendant

has conferred with his counsel about the jury waiver and is

aware of the differences between jury and jury-waived trials,

(2) whether the defendant has been pressured or cajoled in his

decision, and (3) whether the defendant is intoxicated or

otherwise "rendered incapable of rational judgment." Ciummei,

supra at 509-510.

The colloquy may also contain statements regarding details

of the jury trial right, to wit: that the jury consists of

members of the community; the defendant can participate in the

jury's selection; the jury's verdict must be unanimous; the jury

decides innocence or guilt while the judge makes rulings of law

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in the course of the trial, instructs the jury on the law, and

imposes sentence in case of guilt; and where a jury is waived,

the judge alone decides guilt or innocence in accordance with

the facts and the law. Ciummei, 378 Mass. at 510. Accord

Hardy, 427 Mass. at 382-383. Along with the colloquy, there is

also a statutory requirement of a signed written waiver. See

G. L. c. 263, § 6; Mass. R. Crim. P. 19 (a), as appearing in 486

Mass. 1501 (2020). See also Abreu, 391 Mass. at 778 (colloquy

must be conducted "contemporaneously with and before accepting

any waiver").

"So long as a colloquy occurs, the sole focus of

[appellate] review is whether the colloquy provided an

evidentiary record on which the judge could find the waiver was

voluntary and intelligent." Commonwealth v. Hendricks, 452

Mass. 97, 107-108 (2008). Accord Commonwealth v. Ridlon, 54

Mass. App. Ct. 146, 147 (2002) ("We review to determine whether

the colloquy, together with the defendant's signature on the

waiver form and defense counsel's certification that he informed

the defendant of his rights, provided a sufficient basis for the

judge to accept the defendant's waiver of a trial by jury"

[citation omitted]). As the defendant did not object to the

jury-waiver colloquy at trial, we review for a substantial risk

of a miscarriage of justice. See id. at 147-150.

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Here, the colloquy (and the jury waiver form) provided an

adequate basis for the judge to accept the defendant's jury

waiver as knowing, intelligent, and voluntary. The judge

informed the defendant of his right to a jury trial and

described the defendant's right to participate in the jury

selection process, including that the jury would consist of

"people from the community . . . [who] decide the case." See

Ciummei, 378 Mass. at 509-510. The judge further advised the

defendant that if he chose to waive his right to a jury trial

and proceed with a bench trial, the judge was the one who would

determine the defendant's guilt or innocence. The judge also

informed the defendant about the standard of proof and that it

was the same in both a jury trial and a jury-waived trial.

The judge confirmed that the defendant was given the time

he needed to confer with his attorney. The judge also could

rely on the certification of the defendant's trial counsel that

he had explained the rights the defendant would forego by

waiving a jury trial. Furthermore, the defendant confirmed his

understanding that the decision to waive a jury trial was his

alone. Indeed, at the end of the colloquy, the defendant

decided unequivocally to go forward with a bench trial.

Finally, the judge was able to consider the defendant's

demeanor and his responses to the judge's questions. See Hardy,

427 Mass. at 382-384 (judge's discussion of jury and bench

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trials, waiver, and defendant's demeanor and responses

sufficient evidence for judge's conclusion that waiver was

"voluntary and intelligent"). The judge also determined that

the defendant was not under the influence of drugs or alcohol,

and the defendant denied any mental health concerns.

The defendant nevertheless contends that the jury-waiver

colloquy was deficient because "[t]he judge did not ask the

defendant if his decision was voluntary, or if he was promised

anything in return for his decision." As noted above, however,

there are no specific requirements for such an inquiry. See

Ciummei, 378 Mass. at 509-510; Abreu, 391 Mass. at 779.

Moreover, while the judge did not specifically ask the defendant

if his decision was voluntary or if he was promised anything in

return for the jury waiver, the defendant did confirm his

understanding that the decision to waive was his alone. The

judge's colloquy was sufficient to establish that the defendant

"was acting with understanding and on his own volition" in

waiving his right to a jury trial. Commonwealth v. Onouha, 46

Mass. App. Ct. 904, 904 (1998). See Commonwealth v. Hernandez,

42 Mass. App. Ct. 780, 783-785 (1997). See also Garcia, 88

Mass. App. Ct. at 308-311 (jury waiver sufficient even though

judge did not ask about defendant's education, did not ask

whether any promises were made to defendant, did not provide

9
details of procedure of jury trial, and did not explain

requirement of unanimity). 3

2. Pretrial observations by the judge. The defendant also

argues that in determining the defendant's guilt, the judge

improperly relied on the judge's own observation that the

defendant did not slur his words during the pretrial jury waiver

colloquy. No reversible error occurred.

After the judge announced that he was finding the defendant

guilty, he went on to further discuss the facts of the case.

During that discussion the judge stated: "I'm satisfied [the

defendant] was impaired. . . . [I]t's clear to me that one of

the causes was the marijuana of his inability to perform and the

slurring. I mean, I did a colloquy with him today. There was

no slurring. I had no problem understanding him, you know. So,

you know, there was this slurring." The defendant did not

object to the comment.

On the record before us, it is unclear whether the judge's

comment was made in connection with his finding of guilt, or

whether it was made in connection with sentencing. Assuming

3 We decline the defendant's invitation to mandate a
specific jury trial waiver colloquy. See Commonwealth v.
Schofield, 391 Mass. 772, 775 (1984) (Supreme Judicial Court
"intended only to suggest some areas of inquiry that a judge
might find useful in determining whether a defendant's waiver
[is] voluntary and intelligent"); Garcia, 88 Mass. App. Ct. at
311 (noting Supreme Judicial Court has not provided requirements
of what must be contained in jury-waiver colloquy).

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that the comment was made in determining the defendant's guilt,

such would be error, but in any event it did not result in a

substantial risk of a miscarriage of justice. 4

The evidence that the defendant was impaired was very

strong, and the slurring of his words was at most a modest

factor. The trooper testified that smoke came out of the

defendant's window along with an "overpowering smell of freshly

burnt marijuana." The defendant admitted that he smoked

marijuana about five minutes before being stopped by the

trooper. The defendant had red, bloodshot, and glassy eyes, and

he was obviously unsteady on his feet. He performed poorly on

the field sobriety tests. There was thus very strong evidence

that the defendant was impaired by marijuana, independently of

4 The defendant states that the comment was made "[d]uring
sentencing." If the judge considered the observation in
determining the defendant's sentence, there would be no error,
as judges may consider a broad range of information during the
sentencing phase. See Commonwealth v. Bianco, 390 Mass. 254,
259 (1983).

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the observation that he was slurring his words.

Judgment affirmed.

By the Court (Green, C.J.,
Englander & Brennan, JJ. 5),

Assistant Clerk

Entered: May 24, 2024.

5 The panelists are listed in order of seniority.

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