46 Mass. App. Ct. 904 | Mass. App. Ct. | 1998
On appeal, the defendant’s main point is that the trial judge failed to conduct an adequate colloquy to determine whether the waiver of jury trial that the defendant had tendered was voluntary and intelligent. The point is governed, adversely to the defendant, by Commonwealth v. Hernandez, 42 Mass. App. Ct. 780, 783-785 (1997). As in Hernandez, the colloquy here was sparse, but adequate to probe that the defendant was acting with understanding and on his own volition. See Commonwealth v. Hardy, 427 Mass. 379, 381-384 (1998); Commonwealth v. Schofield, 391 Mass. 772, 774-776 (1984). Contrast Commonwealth v. Abreu, 391 Mass. 777, 778 (1984). Before the colloquy, the defendant had signed a printed waiver of the right to be tried by a jury, see G. L. c. 263, § 6, and his counsel had endorsed that document with a
Although we have determined that the judge’s colloquy with the defendant in this case was sufficient to the task, we take the occasion to say that it would conserve the time of both the trial courts (where the record must be assembled and transmitted or which may receive a motion for a new trial) and, certainly, the appellate courts, if trial judges, when conducting a jury waiver colloquy, kept at hand and followed the topic outline for that procedure which appears at Smith, Criminal Practice and Procedure § 1654 (2d ed. 1983), or something along the same lines.
The secondary point in the defendant’s brief is that the “fresh complaint” was, in fact, stale. While a complaint of sexual assault to a school counselor fourteen months after the event raises a question of freshness, in this case what the counselor testified to was cumulative and “so lacking in color or detail that it added next to nothing to the government’s case.” Commonwealth v. Souther, 31 Mass. App. Ct. 219, 222 (1991). What the counselor had to say was particularly harmless in the context of a bench trial. There was no reversible error.
Judgment affirmed.