Around New England

No Dice for Defendant Who Waived Six-Member Jury Before Five-Member Version Convicted Him

May 14, 2019

A man charged with animal cruelty who OK’d a five-member jury when one of the jurors left can’t take it back now that he was found guilty, the Massachusetts Supreme Judicial Court ruled.

Under the state constitution, Richard Bennefield had a right to a trial by jury when a charge against him of mistreating a dog went to trial in Marlborough District Court in September 2015. In district court, defendants have a right to have six jurors on the jury, according to a state statute.

But when the judge excused one of the six jurors because his mother had just died, Bennefield’s lawyer recommended proceeding with the case with only five jurors, which state law allows if the defendant agrees to it.

The judge held a colloquy, or conversation, with Bennefield to determine that he understood what he was doing and was not under duress. A transcript of the conversation became part of the record of the trial.

The jury subsequently found Bennefield guilty. He appealed, arguing in part that his waiver of a six-member jury wasn’t binding because it wasn’t in writing.

The Supreme Judicial Court disagreed, saying a conversation between the judge and the defendant is actually more important than a written document.

“A colloquy, which allows the judge to personally evaluate the defendant’s state of mind and explain the nature of the jury trial right and the waiver, is in many ways more important than a written waiver — that is, although a colloquy can be sufficient without a written waiver, a written waiver can never be sufficient without a colloquy. … To the extent that there are concerns about documenting the waiver, we conclude that a colloquy on the record will be sufficient,” the state’s highest court ruled.

As for Bennefield’s case, the court found that there is nothing in the record to suggest he didn’t understand the risk he was taking by approving a five-juror outcome. The court found the waiver valid.

“Here, when the juror was excused, it was defense counsel who indicated the desire to continue the trial with the five remaining jurors. A thorough colloquy was conducted on the record, in which the judge inquired as to the defendant’s education and medical history, the extent of the consultation with his attorney, and his understanding of the ‘absolute’ and ‘constitutional’ right being waived. … There is no claim that the defendant did not understand the difference between being tried by five rather than six jurors, or that he did not have an adequate opportunity to consult with counsel. After the colloquy, the judge found that the defendant’s decision to go forward was made knowingly and voluntarily ‘beyond a reasonable doubt.’ The defendant does not dispute this finding,” the court said in the decision, written by Justice Kimberly Budd.

After the conviction in September 2015, a judge sentenced Bennefield to 18 months probation and 50 hours of community service, and ordered him to attend a program sponsored by the Massachusetts Society for the Prevention of Cruelty to Animals and engage in psychotherapy.

The case is called Commonwealth vs. Richard Bennefield. It was decided Monday, May 13.

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