MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was charged with operating under the influence of liquor in violation of G. L. c. 90, § 24 (1) (a) (1), negligent operation of a motor vehicle in violation of G. L. c. 90, § 24 (2) (a), marked lanes violation in violation of G. L. c. 89, § 4A, and speeding in violation of G. L. c. 90, § 17. Following a bench trial, the defendant was found guilty of negligent operation. He now appeals.
The defendants first argument is easily dispensed with. He argues that the evidence was insufficient to show that he operated his motor vehicle on a public way in a negligent manner so that the lives or safety of the public might have been endangered. He does not contest either that he operated a vehicle or that he did so on a public way. The evidence of his driving at a very high rate of speed, approximately 90 miles per hour (mph), on a portion of Route 9 with a 45 mph posted speed limit, while episodically straddling lanes, something reflected in, among other things, the police dashboard camera video that was in evidence and that we have reviewed, suffices to support his conviction. The defendant emphasizes the absence of other vehicles in the vicinity at the time operation of his vehicle in this manner could have been found to have been negligent.
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There is no requirement, however, in the statute that ones negligent operation of his motor vehicle in fact endangered any particular member of the public, but merely that the operation was undertaken in a manner that might have endangered the lives or safety of the public. See Commonwealth v. Sousa, 88 Mass. App. Ct. 47, 51 (2015) (under G. L. c. 90, § 24 (2) (a), “[t]he question is whether the defendants driving had the potential to cause danger to the public, not whether it actually did”).
The next argument by the defendant is somewhat more complex. The defendant argues that his conviction must be reversed and the case remanded for a new trial because the record does not establish that his waiver of his right to a jury trial was intelligent and voluntary.
The basis of this claim is that there is no transcript of a jury waiver colloquy in the record. Although such a colloquy is not constitutionally required before waiver of the right to a jury trial in a case in which a bench trial will be held, the Supreme Judicial Court has required a colloquy as a matter of sound judicial practice. See Commonwealth v. Pavao, 423 Mass. 798, 800-801 (1996). If there was, in fact, no colloquy, the conviction must be vacated. See id. at 802.
As the Commonwealth points out, there is, however, some evidence that a colloquy took place. A handwritten notation by the judge on the jury waiver form, which is in the record, states that it was accepted “after colloquy.” The docket states, “[w]aiver of [j]ury [t]rial allowed after colloquy․” And, after sentencing, while still on the record, the clerk asked the judge for the waiver form saying, among other things, “I just swore him in. You asked the questions, but I dont think you signed it.” Defense counsel was present, found the form in a folder, then gave it to the judge to sign.
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The Commonwealth concedes that “the record may be currently insufficient as to the defendants jury waiver․” It assumes there was a colloquy and argues, however, that the “[a]ppropriate relief is to remand for findings as to the circumstances surrounding the colloquy.” The Commonwealth states that “[i]t is the responsibility of an appellant to ensure that the record is adequate for appellate review,” and cites Mass. R. A. P. 8 (e) (1), as appearing in 481 Mass. 1611 (2019), which permits “the lower court on motion” to settle any disputes about anything material omitted from the record, and further provides that “[o]n motion of the parties or on its own motion, the appellate court or a single justice may direct that any omission be rectified.”
To begin with, to the extent the record before us is inadequate due to a gap in electronic recording, we do not think that the appellant has failed in his burden to reconstruct the record. We take it his position is that nothing material is missing from the record: it does not contain a transcription of the colloquy necessary to evaluate the voluntariness and intelligence of the defendants waiver of a jury trial, and, if we understand the defendants argument correctly, that alone requires reversal.
As the Supreme Judicial Court explained in Commonwealth v. Woody, 429 Mass. 95, 98 (1999), the appellant has an obligation to settle the record only with respect to omissions the appellant determines are material. “If the gaps or inaudible portions are not material to the appellant, the appellant may serve on the appellee a copy of the available transcription with a statement that the transcription is acceptable, whereupon the appellant shall have no further obligations under Mass. R. A. P. 8 (b) (2), as amended, 397 Mass. 1230 (1986), or rule 8 (b) (3). If the appellee determines that the transcription is inadequate and that a supplemental record is required, the burden shall be on the appellee to settle the record in accordance with the provisions of Mass. R. A. P. 8 (c) and (e).” Woody, supra at 98-99. Thus, if the Commonwealth believes or has knowledge that a colloquy took place, the burden was on the Commonwealth to reconstruct the record of that colloquy -- though in fairness, the defendant raised the issue of the colloquy for the first time on direct appeal, and the Commonwealth may not have been aware of the issue with respect to the absence of a transcript of any colloquy until the defendants brief was submitted to this court.
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More fundamentally, the proper first step in analyzing this appeal is to determine whether a colloquy was even held. That is a question of fact and, of course, as an appeals court, we are not in a position to make findings of fact. If a colloquy was not held, as we have said, the defendant is entitled to a new trial.
If one was held, “[t]the course to follow when a transcript is unavailable through no fault of the parties and no compelling reason exists as to why the reconstruction is not feasible is the holding of a hearing in the trial court to reconstruct the record.” Commonwealth v. Pudder, 41 Mass. App. Ct. 930, 932 (1996). The defendant contends that reconstruction is not feasible, but that is not something that can be determined as a matter of law in the absence of further development of the record by, for example, the testimony of counsel for one or both parties or, indeed, of the defendant himself. A new trial will be appropriate only if the reconstructed record shows that the colloquy (again, assuming one was held) was inadequate to demonstrate the knowingness and intelligence of the defendants waiver or if “the record cannot be sufficiently reconstructed, or is not adequate to present the issue.” Id.
In these circumstances, we think the prudent course is to affirm the judgment but to grant leave for the defendant to bring a motion for a new trial at which it can be determined whether a colloquy on waiver of the right to a jury trial was held; if so, whether the record can be reconstructed; and, if so, what occurred. In light of the unusual posture in which the issues are presented, the defendants appellate rights with respect to the jury trial waiver claim brought in the instant appeal will be preserved so that they may be raised anew in any appeal from an order disposing of any such motion. Likewise, the appellate rights of both parties with respect to any such order itself, too, will be preserved.
Judgment affirmed.
FOOTNOTES
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. The dashboard camera video does show several other vehicles traveling on the opposite side of Route 9 at the time of the defendants operation. To the extent it is relevant, see Commonwealth v. Ferreira, 70 Mass. App. Ct. 32, 35 (2007), we note that, although the road is divided, a vehicle traveling at 90 mph and swerving may present some risk to oncoming traffic.
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. The transcript indicated that there was a gap in the recording of approximately 18 1/212 minutes, which was described as a recess. Before the gap, the transcript showed that the judge and counsel discussed the possibility of holding the trial jury-waived because the defendant had plans to leave the country permanently the following week. After the gap, there was a notation in the transcript, “[LUIS GONZALEZ-SAMOJE, Sworn.]” Within a few moments of the resumption of the transcript, the judge stated that some pending motions were not “obviously as relevant without a jury here.” And defense counsel -- clearly aware that the case would be proceeding jury-waived -- responded simply, “Right. I would still like the witnesses [to] be sequestered.”
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. Rule 8 has been amended since the decision in Woody, but not in any way relevant to our discussion. See Mass. R. A. P. 8, as appearing in 481 Mass. at 1611.