Tuesday, August 21, 2012
Confronting The Truth: Appeals Court Of Massachusetts Finds Colloquy Not Required Before Waiving Confrontation Right
A defendant can only plead guilty and waive his right to a jury if there is a colloquy between the judge and the defendant to determine the the waiver is knowing, voluntary, and intelligent. So, should a similar colloquy be required when the defendant waives his right to confrontation? According to the recent opinion of the Appeals Court of Massachusetts in Commonwealth v. Myers, 2012 WL 2877376 (Mass.App.Ct. 2012), the answer is "no."
In Myers, Larinso Myers was charged with possession with intent to distribute cocaine and possession with intent to distribute oxycodone. At trial,
the Commonwealth introduced in evidence drug analysis certificates which identified the composition and quantity of the recovered controlled substances. Although the defendant had the right to require the testimony of the analyst who signed the drug analysis certificates, defense counsel, in response to a question from the judge, orally stipulated in the presence of the defendant that he did not object to the admission of the certificates without the analyst's testimony. No colloquy between the judge and the defendant took place.
After he was convicted, Myers appealed, claiming, inter alia, "that the trial judge should have conducted a colloquy with him to ensure his personal waiver of the right to confront the analyst who prepared the drug analysis certificates admitted in evidence."
In response, the Appeals Court of Massachusetts initially noted that the Eighth Circuit was the only federal circuit in the wake of Melendez-Diaz to consider the specific question whether defense counsel may waive a defendant's right to confront the analyst before admission of a drug analysis certificate approved the practice, with that court concluding that "[w]ithout making his objection known, we presume that [the defendant] acquiesced in his counsel's stipulation." The court then found that this conclusion was consistent with all pre-Melendez-Diaz decisions of the Federal Circuit Courts of Appeals, which had held "that defense counsel may waive a defendant's right to confrontation as a matter of legitimate trial strategy so long as the defendant does not object."
The Appeals Court of Massachusetts then joined the chorus, finding that
After careful consideration of these precedents, we conclude that a defendant's waiver of the right to confront the analyst before admission in evidence of a drug analysis certificate does not require a colloquy between judge and defendant to confirm the defendant's personal waiver. So long as defense counsel's waiver occurs in the presence of the defendant, the defendant does not object, and the waiver objectively appears to further legitimate trial strategy, a judge exercising sound discretion need only conduct a colloquy with a defendant in circumstances of detectable disagreement, confusion, or uncertainty on the part of the defendant. An individual trial judge, of course, retains discretion to conduct a colloquy as a matter of personal routine.
As noted above, a defendant's right to confront the analyst in such a case falls within the list of rights related to "strategic or tactical matters, rest[ing] ultimately in counsel, with the degree of required client consultation and participation dependent on the circumstances."...Particularly with regard to the comparative benefit or detriment of the analyst's testimony before introduction in evidence of a drug analysis certificate, a defendant benefits from "the unique training and professional experience which are the province of the attorney."...That training and experience may often serve to protect the defendant from himself.