Cunningham v. State, 1-1181A335

Docket NºNo. 1-1181A335
Citation433 N.E.2d 405
Case DateApril 13, 1982
CourtCourt of Appeals of Indiana

Page 405

433 N.E.2d 405
Robert G. CUNNINGHAM, Defendant-Appellant,
STATE of Indiana, Plaintiff-Appellee.
No. 1-1181A335.
Court of Appeals of Indiana, First District.
April 13, 1982.

James E. Davis, Davis & Davis, Greenfield, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

NEAL, Judge.


Defendant-appellant Robert G. Cunningham (Cunningham) was convicted of operating a motor vehicle while intoxicated, a Class D Felony, after a bench trial in the Hancock County Court. He had been previously convicted of the same offense and appeals from a sentence of two years.

We reverse.


Cunningham contends that he was denied the right to a trial by jury without having made an effective waiver. The portions of the record relevant to the issue of jury waiver are summarized below. At arraignment on February 9, 1981, while accompanied by his attorney, Cunningham entered his plea of not guilty, and the court set the case for trial by jury on March 26, 1981. After a continuance the court again set the case for trial by jury on May 7, 1981. On May 7, 1981, the court called the case for trial, and thereupon the record proceeded as follows:

"BY THE COURT: State vs. Robert G. Cunningham Nos. CCF-81-5 and CCR-81-495 and 494. Are you Robert G. Cunningham?


BY THE COURT: Let the record reflect the defendant appears in person and by his counsel Mr. Stephenson. State appears by Larry Gossett, Prosecuting Attorney. These matters were set for trial by jury this morning, however, this morning I was advised by the counsel, that they waive jury trial. Is that correct?

BY COUNSEL FOR DEFENDANT: Yes sir, that is correct.

BY THE COURT: So for that reason, there is not a jury here."

Thereafter the trial proceeded without any objection on the part of Cunningham or

Page 406

his attorney. The matter of a jury does not appear in the record again until the motion to correct errors.

Cunningham raises three issues for review on this appeal as follows: (1) Incompetency of trial counsel, (2) denial of the right to trial by jury without an effective waiver, and (3) insufficiency of the evidence of prior conviction. Because of our decision on issue number 2, we find it unnecessary to address the other two issues.


In Indiana, the modern history of the question of the sufficiency of a waiver of trial by jury may be said to commence with Bramlett v. State, (1949) 227 Ind. 662, 87 N.E.2d 880. There the record did not disclose that the defendant waived a trial by jury, but did disclose that the defendant was represented by counsel when his case was called for trial. Neither he nor his counsel demanded a jury but proceeded to trial before the court. The defendant made no claim that he was not represented by competent counsel. The Indiana Supreme Court held that under those circumstances the defendant was deemed to have waived his right to a trial by jury.

Bramlett was followed by Kindle v. State, (1974) 161 Ind.App. 14, 313 N.E.2d 721, transfer denied. In Kindle, at arraignment, the court asked defendant if he wanted a trial by the court or by a jury. Defendant's counsel responded by stating that a court trial was desired. The court accepted the waiver of the jury trial without further interrogation of the defendant as to his understanding of his right to trial by jury and the consequences of the waiver. The Court of Appeals in upholding the conviction, stated:

"While this is not the most desirable procedure, it is our opinion that where defendant and his counsel are present in open court at the time trial by jury is waived, failure of the trial court to personally interrogate the defendant as to such waiver does not in and of itself vitiate the waiver."

161 Ind.App. at 21, 313 N.E.2d 721. However the Kindle court strongly criticized that procedure and urged a different one.

"The preferred procedure for accepting waiver of right to trial by jury, as recommended by the American Bar Association Project on Standards for Criminal Justice (Trial by Jury, Part I, Section 1.2(b)), is that:

'(b) The court should not accept a waiver unless the defendant, after being advised by the court of his right to trial by jury, personally waives...

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7 cases
  • Horton v. State, 79S02–1510–CR–628.
    • United States
    • Indiana Supreme Court of Indiana
    • April 21, 2016
    ...; Marcum v. State, 509 N.E.2d 895, 896 (Ind.Ct.App.1987) ; Wilson v. State, 453 N.E.2d 340, 341 (Ind.Ct.App.1983) ; Cunningham v. State, 433 N.E.2d 405, 407 (Ind.Ct.App.1982).3 See Jamieson v. Ind. Nat. Gas & Oil Co., 128 Ind. 555, 28 N.E. 76, 79 (1891) (“Surely, no court would require evid......
  • Pier v. State, 3-682A130
    • United States
    • Indiana Court of Appeals of Indiana
    • March 22, 1983 effective waiver was made can be reviewed even though no objection was made at trial. See Cunningham v. State (1982), Ind.App., 433 N.E.2d 405 (trans. denied ). Cf. Ford v. State (1967), 248 Ind. 438, 229 N.E.2d 634 (When trial court induced defendant to waive right to jury trial, error ......
  • Johnson v. State, 582
    • United States
    • Indiana Supreme Court of Indiana
    • November 17, 1983
    ...57. Appellant now relies on Good v. State, (1977) 267 Ind. 29, 366 N.E.2d 1169, reh. denied, and Cunningham v. State, (1982) Ind.App., 433 N.E.2d 405, to support her argument that her waiver of a jury trial was improperly accepted. Appellant's reliance is misplaced, however, since our rever......
  • Smith v. State, 2-183-A-1
    • United States
    • Indiana Court of Appeals of Indiana
    • June 30, 1983 counsel in defendant's presence could satisfy the Good requirement of personal assent (cf. Cunningham v. State, (1982) Ind.App., 433 N.E.2d 405) because, despite the on-the-record waiver, uncontradicted evidence discloses that Smith's right to jury trial was not knowingly, voluntarily, o......
  • Request a trial to view additional results

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