Appeals Court (April 10, 2008)

During the subsequent offense portion of a bifurcated trial, a defendant must sign a written waiver and a judge must conduct a colloquy in order to waive his right to a jury trial.

The defendant in this case was charged with a third offense operating under the influence (OUI). While the jury was deliberating, defense counsel notified the judge that if the jury came back with a guilty finding on the underlying OUI, the defendant would waive a trial by jury on the third offense portion of the charge. After a jury waived trial, the defendant was found guilty of a third offense OUI.

The defendant appealed arguing that his conviction should be overturned because the judge failed to engage in a jury waiver colloquy and failed to obtain a signed jury waiver form from the defendant prior to conducting the subsequent offense, jury-waived portion of the case. The court agreed applying the bright-line rule established in Ciummei v. Commonwealth, 378 Mass. 504, 507-509 (1979) to subsequent offense portions of a complaint - to effectively waive his right to a jury trial, a defendant must sign a written waiver form, and the trial judge must conduct a colloquy to assure himself that the defendant's waiver was voluntary, knowing, and intelligent.

Note: This case also contains a good discussion on proving prior convictions and what biographical information is necessary to prove identification of a defendant.