Eldridge v. State, 49A02-9302-CR-87

CourtCourt of Appeals of Indiana
Citation627 N.E.2d 844
Docket NumberNo. 49A02-9302-CR-87,49A02-9302-CR-87
PartiesCharles ELDRIDGE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Decision Date27 January 1994

Pequita Jay Buis, Buis Conn & Associates, Indianapolis, for appellant-defendant.

Pamela Carter, Atty. Gen., Jodi Kathryn Rowe, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

SHIELDS, Judge.

Charles Eldridge appeals his convictions of battery resulting in bodily injury, 1 a class A misdemeanor, and criminal recklessness, 2 a class A misdemeanor.

We affirm the conviction of battery; we reverse the conviction of criminal recklessness and remand for a new trial.

ISSUES

Eldridge raises two issues for our review:

1. Was Eldridge denied his right to a jury trial?

2. Did the trial court commit reversible error in excluding evidence of the victim's prior bad acts?

FACTS

On June 1, 1992, Charles Eldridge and his wife, Sherri Eldridge, were involved in a domestic disturbance. Some time during the disturbance, Sherri called the police. Officer Joe Gambrall of the Indianapolis Police Department arrived at the scene and witnessed Eldridge backing out of the apartment, pointing a gun at Sherri. Gambrall saw Eldridge load ammunition into the chamber of the gun; he then ordered Eldridge to drop the weapon. Eldridge was charged with criminal recklessness as a class D felony and battery as a class A misdemeanor. After a bench trial, Eldridge was convicted of battery as charged and of criminal recklessness as a class A misdemeanor.

DISCUSSION
I.

Eldridge claims his convictions must be reversed because he did not knowingly, voluntarily, and intelligently waive his right to a jury trial.

Both the United States Constitution and the Indiana Constitution guarantee a defendant the right to trial by jury. U.S. Const., amend. VI; Ind. Const., art. 1, Sec. 13. "A person charged with a felony has an absolute right to a jury trial unless he waives it." Hutchins v. State (1986), Ind., 493 N.E.2d 444, 445. "There is no doubt that an accused has the right to a trial by jury in a misdemeanor case. The language of the [Indiana Constitution], 'In all criminal prosecutions,' includes prosecutions for misdemeanors." Bolkovac v. State (1951), 229 Ind. 294, 299, 98 N.E.2d 250, 252 (footnote omitted) (citation omitted). Denying a defendant a jury trial is fundamental error unless there is evidence of the defendant's knowing, voluntary, and intelligent waiver of the right. See Capps v. State (1992), Ind.App., 598 N.E.2d 574, 577, trans. denied; Vukadinovich v. State (1988), Ind.App., 529 N.E.2d 837, 839; Casselman v. State (1985), Ind.App., 472 N.E.2d 1310, 1311. Also, the waiver must be elicited from the defendant personally, either orally, in open court, or in writing. Perkins v. State (1989), Ind., 541 N.E.2d 927, 928; Vukadinovich, 529 N.E.2d at 839.

A voluntary waiver occurs if the conduct constituting the waiver is the product of a free will; a knowing waiver is the product of an informed will; an intelligent waiver is the product of a will that has the capacity to understand; and a waiver is personal if it is made by the defendant. In all cases, the fact of a voluntary, knowing, and intelligent waiver of the right to a trial by jury must be reflected in the record. Vukadinovich, 529 N.E.2d at 839; Hunt v. State (1986), Ind.App., 487 N.E.2d 1330, 1333.

A.

Exercise of the right to a jury trial in misdemeanor cases is controlled by Ind.Crim. Rule 22 which states, in relevant part:

A defendant charged with a misdemeanor may demand a trial by jury by filing a written demand therefor not later than ten (10) days before his first scheduled trial date. The failure of a defendant to demand a trial by jury as required by this rule shall constitute a waiver by him of trial by jury unless the defendant has not had at least fifteen (15) days advance notice of his scheduled trial date and of the consequences of his failure to demand a trial by jury.

Thus, by the terms of C.R. 22, a defendant charged with a misdemeanor who fails to make a timely jury request waives the right if that defendant has been advised in a timely manner of both the right to a jury trial and the consequences of failing to make a timely demand. Liquori v. State (1989), Ind.App., 544 N.E.2d 199, 201; Belazi v. State (1988), Ind.App., 525 N.E.2d 351, 352.

Here, Eldridge does not claim his failure to timely request a jury trial was not voluntary. He does, however, assert that his omission was not knowing and intelligent, and, further, that it was not personal in that an on-the-record hearing advising him of his right to trial by jury and of the consequences of failing to assert that right was not held.

The record reflects that Eldridge did not make a timely request for a jury trial. Therefore, the record is sufficient in this aspect as far as the misdemeanor charge is concerned.

Eldridge argues that the record is inadequate to establish a valid waiver because it fails to reflect that the trial court held an on-the-record hearing advising him of his right to trial by jury and of the consequences of waiving this right. Our supreme court rejected Eldridge's argument in Hutchins v. State (1986), Ind., 493 N.E.2d 444, with the observation that "[o]ne charged with a misdemeanor has no right to a jury trial pursuant to Criminal Rule 22 unless he makes a written demand for it. The rule makes no mention of an on-the-record hearing. Thus, a misdemeanant can waive a jury trial by failing to request it." Id. at 445. Although Eldridge finds some support for his argument in Spears v. State (1993), Ind.App., 621 N.E.2d 366, Spears involved waiver of the right to counsel and a defendant's request to proceed pro se. In such circumstances, this court stated that the trial court must conduct a hearing to determine a defendant's competency to represent herself. See id. at 368. An analogous determination is not required here and we see no reason to deviate from the supreme court's holding in Hutchins.

Thus, our inquiry is whether the record reflects that Eldridge was fully advised; it does. On the day of Eldridge's initial hearing he was advised of his right to a trial by jury and of the consequences of his failure to assert that right, as provided by C.R. 22. This advice occurred in the form of a document entitled "Initial Hearing Rights" which Eldridge executed and which specifically stated that he had the right to a trial by jury and that he would waive that right if he did not request a jury trial at least ten days prior to the date scheduled for trial. A record which contains the necessary advice in writing is sufficient to establish that the waiver is knowing. Belazi, 525 N.E.2d at 352. Therefore, the record reflects that Eldridge was fully advised and, therefore, that his waiver was knowing as far as the misdemeanor charge is concerned.

The record also reflects a basis for the trial court's determination that Eldridge's waiver was intelligent. At his initial hearing, Eldridge was instructed by the trial court to read a no-contact order which had been requested by the State. After giving Eldridge time to review the order, the trial court asked him if he "read and under[stood]" it. Record at 5. Eldridge responded affirmatively. Based upon this colloquy, the trial court reasonably concluded that Eldridge was capable of reading and understanding the "Initial Hearing Rights" form.

The final inquiry is whether the record reflects that Eldridge's waiver was personal. In a misdemeanor charge, waiver may occur from an act of omission, that is, from the failure timely to request a trial by jury. In that situation, the record will never reflect an explicit personal waiver. Rather, the personal nature of the waiver is inferred from the defendant's failure to assert the right coupled with the evidentiary basis for the determination that the waiver is voluntary, knowing, and intelligent. That is the situation here; Eldridge failed to request a trial by jury in a timely manner. Also, the record supports the determination that the waiver was voluntary, knowing, and intelligent; Eldridge was fully advised of his right to a trial by jury and of the consequences of his failure to exercise that right and the record establishes his ability to read and understand the right and consequences. Therefore, the trial court properly presumed that Eldridge personally waived his right to trial by jury. 3

In conclusion, a record in a misdemeanor charge is sufficient to establish a defendant's personal, voluntary, knowing, and intelligent waiver of the right to trial by jury if: 1) it does not contain a request for a trial by jury; 2) it evidences that the defendant was fully advised of the right to a trial by jury and of the consequences for failing to timely request the right; and 3) it reflects that the defendant was able to understand the advice. Here, the record reflects that the trial court properly determined that Eldridge knowingly, intelligently, voluntarily, and personally waived his right to a jury trial as it relates to the battery charge. See Belazi, 525 N.E.2d at 352.

B.

In contrast, a person charged with a felony need not request a jury trial to preserve the right; a putative felon "has an automatic right to a jury trial unless he expressly waives it." Hutchins, 493 N.E.2d at 445. Therefore, the conduct constituting the waiver is that of action, not omission. However, as in a misdemeanor case, waiver of the right to a jury trial in a felony case must be voluntary, knowing, intelligent, and personal. Wilson v. State (1983), Ind.App., 453 N.E.2d 340, 341 (citing Good v. State (1977), 267 Ind. 29, 32, 366 N.E.2d 1169, 1171).

The record in this cause fails to establish the elements of an intelligent, knowing, and personal waiver of the right to a jury trial on the criminal recklessness charge. As previously stated, the right to a jury trial on a felony charge is...

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