378 Mass. 516 | Mass. | 1979
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
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.
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, §§ 26A, 27A; c. 278, § 18.
Master's report confirmed.
Judgments of conviction affirmed.
In response to the Ludwig footnote, the District Court procedure was revised by a bulletin, No. 8-76, August 2, 1976, issued by authority of the Chief Justice of the District Courts: ”[I]t would appear prudent that when a defendant is notified, following his conviction, that he has a right to appeal, he should be specifically advised that by appealing he may secure a new trial before a jury.”
The petitioner has appeared as protagonist in a number of litigations seeking to test aspects of the two-tier system, e.g., Costarelli v. Massachusetts, 421 U.S. 193 (1975); Costarelli v. Panora, 431 U.S. 934 (1977), aff'd 423 F. Supp. 1309 (D. Mass. 1976) (three-judge court).
For details of the procedure, see G. L. c. 218, § 26A; Mass. R. Crim. P. 19 (a), post 888 (effective July 1, 1979); memorandum from Chief Justice of District Courts to Personnel of District Court Department, December 27, 1978.