Day v. US

• Decision Date: 19 September 1996
• Docket Number: No. 95-CM-675.,95-CM-675.
• Citation: 682 A.2d 1125
• Parties: Curtis L. DAY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

682 A.2d 1125

Curtis L. DAY, Appellant, v. UNITED STATES, Appellee.

No. 95-CM-675.

District of Columbia Court of Appeals.

Argued April 15, 1996.

Decided September 19, 1996.

Andrew Philip McGuire, appointed by the court, for appellant.

Anna Matheson, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, John R. Fisher and Thomas C. Black, Assistant United States Attorneys, were on the brief, for appellee.

Before STEADMAN and RUIZ, Associate Judges and MACK, Senior Judge.

RUIZ, Associate Judge.

Appellant, Curtis Day, was convicted of simple assault in violation of D.C.Code § 22-504 (1996) in a bench trial before the Judge John H. Bayly, Jr. Day was sentenced to four months confinement, execution of sentence suspended as to all but two months in jail, followed by one year of supervised probation and ten dollars in court costs. Day appeals on grounds that he was denied his constitutional right to be tried by a jury. He argues that since assault was a crime which was jury-triable under the common law, the Constitution protects his right to a jury in an assault trial. He further argues that for a crime with a common-law antecedent the maximum sentence allowable on a conviction does not determine whether or not a defendant has a right to a jury trial. We disagree with Day and affirm the conviction.

On September 27, 1994, Day received a visit from his twenty-three year old daughter. The two visited for a while in the living room until Day went into his bedroom and called her in. They conversed until Day began to smoke crack cocaine. This upset his daughter so that she left the room. She subsequently attempted to leave the apartment. Day testified that he hugged his daughter and calmed her down before she left; she testified that Day approached her from behind, grabbing her breast. Day's daughter said that her father held the door closed with his foot for about two minutes while he rubbed her breast and her crotch and said "your mind is telling you yes, but your body is saying no." She pushed her father away and left. As she got into her car, Day told her that the next time she came over alone she ought to think about what he was doing. When Day's daughter got home, she discussed the events with her grandmother and called the police.

Day was arrested and charged with simple assault in violation of D.C.Code § 22-504 (1996). Under the Misdemeanor Streamlining section of the Omnibus Criminal Justice Reform Act of 1994,¹ the penalty for a violation of D.C.Code § 22-504, simple assault, was reduced from twelve months incarceration and $500 fine to 180 days incarceration and $1,000 fine.

Before the trial began, the judge heard Day's arguments that he had a right to be tried by a jury. The judge denied Day's motion for a jury trial, and, after a bench trial, found Day guilty of simple assault. Day appeals on the grounds that the court's refusal of a jury trial violated his rights under Article III, § 2, and the Sixth Amendment of the United States Constitution.²

Day's demand for a jury is reviewed de novo. "Determinations of fact-free principles of law are designated questions of law and require an independent appraisal of the record on appeal without deference to the trial court's findings." Bingham v. Goldberg, Marchesano, Kohlman, Inc., 637 A.2d 81, 89 (D.C.1994); Davis v. United States, 564 A.2d 31, 35 (D.C.1989) (en banc).

Day's argument that he has a constitutional right to a jury trial centers upon whether assault is a "serious" or a "petty" crime. This determination has been made central to a defendant's entitlement to a jury trial because although the literal language of Article III, § 2 of the U.S. Constitution guarantees a right to a trial by jury for "all Crimes, except in Cases of Impeachment," and the Sixth Amendment likewise grants a jury trial "in all criminal prosecutions," the Supreme Court has held that defendants in trials for "petty" crimes can be tried summarily. As the Court pointed out in District of Columbia v. Clawans, 300 U.S. 617, 624, 57 S.Ct. 660, 81 L.Ed. 843 (1937), "at the time of the adoption of the Constitution there were numerous offenses, commonly described as `petty,' which were tried summarily without a jury, by justices of the peace in England, and by police magistrates or corresponding judicial officers in the Colonies, and punished by commitment to jail, a workhouse, or house of correction."

In Duncan v. Louisiana, 391 U.S. 145, 158, 88 S.Ct. 1444, 1452, 20 L.Ed.2d 491 (1968), the Court said: "we hold no constitutional doubts about the practices, common in both federal and state courts, of accepting waivers of jury trial and prosecuting petty crimes without extending a right to jury trial." In Frank v. United States, 395 U.S. 147, 148, 89 S.Ct. 1503, 1504-05, 23 L.Ed.2d 162 (1969), the Court affirmed the notion that there are criminal charges which do not warrant a jury trial. In short, the Court has recognized that while courts must provide for jury trials for all "serious" crimes, "there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision." Duncan, supra, 391 U.S. at 159, 88 S.Ct. at 1453.

The Supreme Court having ruled that the category of petty crimes is outside of the constitutional requirement of a trial by jury, we must determine whether the crime of simple assault is "petty" or "serious" for this constitutional purpose. The Court gave guidance to help with this determination in Blanton v. North Las Vegas, 489 U.S. 538, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989), ruling unanimously that the most relevant criterion for judging "the seriousness with which society regards the offense" is "the severity of the maximum authorized penalty." Id. at 541, 109 S.Ct. at 1292 (quoting Frank v. United States, 395 U.S. 147, 148, 89 S.Ct. 1503, 1504-05, 23 L.Ed.2d 162 (1969) and Baldwin v. New York, 399 U.S. 66, 68, 90 S.Ct. 1886, 1887-88, 26 L.Ed.2d 437 (1970) (plurality opinion)). The Court looks to "statutory penalties," and primarily "the maximum authorized period of incarceration," because "incarceration is an `intrinsically different' form of punishment." Blanton, supra, 489 U.S. at 542, 109 S.Ct. at 1292 (citing Muniz v. Hoffman, 422 U.S. 454, 477, 95 S.Ct. 2178, 2190-91, 45 L.Ed.2d 319 (1975)). The Court established a presumption that crimes punishable by a statutory penalty of six months or less are petty and are not constitutionally required to be tried by a jury. Id. at 542-43, 109 S.Ct. at 1292-93. The Court in Blanton recognized that a legislature might "pack an offense it deems `serious' with onerous penalties that nonetheless `do not puncture the 6-month incarceration line.'" Id.

Day makes two arguments that he has a right to a jury trial. The first argument is that under the common law, assault was triable by a jury, and the Constitution protects that common law right notwithstanding legislation designed to strip the right to a jury trial from the offense of simple assault by reducing the maximum penalty to less than six months incarceration.³ The second argument that Day makes is that even if the legislature could affect the right to trial by jury, he is nonetheless entitled to a jury trial because the severity of the maximum authorized penalty is not solely determinative of the seriousness of a crime which was jury triable at common law, but instead, in such cases, the statute must expressly eliminate the common law right to jury trial. Both arguments attempt to persuade this court that Blanton's focus on a six-month penalty threshold does not apply in this case.⁴ Holding that Blanton does indeed apply, we reject both arguments.

Day's first argument is that the Blanton ruling does not apply in this case because Article III, § 2 and the Sixth Amendment of the Constitution were not intended to diminish, but rather to protect, the common law right to a jury, and under the common law, assault was jury triable. Therefore, according to Day's argument, the United States Constitution continues to protect Day's right to a jury in a trial for assault. This argument depends upon the assumption that if a crime was jury triable at common law that right may not be modified or extinguished by a legislative act. Day's interpretation of the Constitution, however, has been abandoned by Supreme Court jurisprudence. In its most recent pronouncement on the constitutional right to jury trial, the Court explains its development of the proper analysis to determine whether an offense is "serious" and, therefore, constitutionally entitled to a jury trial:

To determine whether an offense is properly characterized as "petty," courts at one time looked to the nature of the offense and whether it was triable by a jury at common law. Such determinations became difficult, because many statutory offenses lack common-law antecedents. Blanton v. North Las Vegas, 489 U.S. 538, 541, and n. 5, 109 S.Ct. 1289, 1292, and n. 5, 103 L.Ed.2d 550 (1989). Therefore, most recently, we have instead sought "objective indications of the seriousness with which society regards the offense." Frank v. United States, 395 U.S. 147, 148, 89 S.Ct. 1503, 1505, 23 L.Ed.2d 162 (1969); accord, District of Columbia v. Clawans, 300 U.S. 617, 628, 57 S.Ct. 660, 663-64, 81 L.Ed. 843 (1937). Now, to determine whether an offense is petty, we consider the maximum penalty attached to the offense. This criterion is considered the most relevant with which to assess the character of an offense, because it reveals the legislature's judgment about the offense's severity. "The judiciary should not substitute its judgment as to seriousness for that of a legislature, which is far better equipped to perform the task...." Blanton, 489 U.S. at 541, 109 S.Ct. at 1292 (internal quotation marks omitted). In evaluating the seriousness of the offense, we place primary emphasis on the maximum prison term authorized. While penalties such as probation or a

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