Commonwealth v. Lebon

Brown, J.

(dissenting). The question presented is whether the judge made certain comments to the defendant in order to compel the defendant to forgo his constitutional right to a jury trial and instead choose a bench trial. Convicted at a jury-waived trial, the defendant now claims that the judge elevated the consequences of an unfavorable verdict if he had decided to exercise his option to be tried to a jury, thereby impermissibly placing a considerable damper on his right to a jury trial.1

*709Although such action by a judge as occurred here is not viewed with favor, under settled principles, reversible error is not automatic. See, e.g., Commonwealth v. Ford, 35 Mass. App. Ct. 752, 757-758 (1994) (no reasonable likelihood of vindictiveness). Even if the judge, by making the comments, was attempting to induce the defendant to choose a bench trial instead of a trial to a jury, I do not think those comments alone are sufficient to demonstrate actual coercion or even raise a presumption of coercion. See Commonwealth v. Ravenell, 415 Mass. 191, 195 (1993).

Despite judicial abhorrence of such a practice, for an appellate court to disturb a conviction, there must be objective evidence to support a claim of coercion. See Commonwealth v. Damiano, 14 Mass. App. Ct. 615, 619 n.8, 623 n.14 (1982) (coercion defined as “the use of a threat to induce action”).

“Error enters the picture if a defendant is punished for exercising his right to trial and the verdict of a jury.” Commonwealth v. Johnson, 27 Mass. App. Ct. 746, 750 (1989), habeas corpus denied sub nom. Johnson v. Vose, 927 F.2d 10 (1st Cir. 1991). See also Commonwealth v. Damiano, 14 Mass. App. Ct. at 622-623 & n.14, and cases cited. No such showing has been made here. See Commonwealth v. Ravenell, 415 Mass. at 193-195. The defendant was neither threatened nor punished. What occurred here was that the judge merely made a suggestion of leniency. The defendant received a fair trial, albeit jury-waived, and the judge imposed a proper sentence, which, as he had previously intimated, did not entail “a period of committed incarceration.” As we have said in other circumstances, “a deal is a deal.”

Prior to a jury session in the District Court, the judge indicated, in an unrecorded lobby conference, that he would sentence the defendant to “a *709period of incarceration” if the jury returned a guilty verdict. The defense counsel, then asked “what would happen if the defendant went jury-waived.” The judge responded that he would not impose “a period of committed incarceration.”