Eliachar v. United States
| Citation | 229 A.2d 451 |
| Decision Date | 10 May 1967 |
| Docket Number | No. 4155.,4155. |
| Parties | Jules R. ELIACHAR, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Melvin Hirshman, Washington, D.C., for appellant.
Geoffrey M. Alprin, Asst. U. S. Atty., with whom David G. Bress, U. S. Atty., Frank Q. Nebeker and Donald E. Santarelli, Asst. U. S. Attys., were on the brief, for appellee.
Before HOOD, Chief Judge, CAYTON (Chief Judge, Retired), and QUINN (Associate Judge, Retired).
Appellant was convicted of petit larceny, D.C.Code 1961, § 22-2202. He had initially requested a trial by jury but while he was present in court, his attorney waived the right and later proceeded to trial by the court. After a finding of guilt, appellant filed a pro se motion for a new trial on the ground that he had not waived the right to jury trial.
At a hearing on the motion, appellant who was then represented by newly-retained counsel, testified that he knew his jury demand had been waived but that he was intimidated by his own lawyer, too frightened to protest and unable to communicate with his attorney (whom he had known for many years). The judge found that appellant "was outspoken, vociferously assertive, lengthy and adamant in his testimony" at that hearing, just as he had been at trial; also that "under those circumstances it was incredible that he was too fearful to make at least some objection," especially since appellant "admitted he had had an unfettered freedom to testify generally and at length both at the trial and at the hearing."
There is no doubt that the right to jury trial may be waived. Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 63 S.Ct. 236, 87 L.Ed. 268 (1942). The sole question then is whether or not it is mandatory that an accused personally indicate his acquiescence in the waiver. In Hensley v. United States, D.C.Mun.App., 155 A.2d 77, 79 (1959), we said: "No decision in this jurisdiction has ever held that such waiver must be made and announced by defendant personally or that a waiver made and announced by counsel in open court in the presence of the accused is ineffectual * * *." In affirming, the United States Court of Appeals indicated that there had been a relinquishment of the right by failing to object and proceeding to trial, that the attorney was effectively the defendant's agent and that inaction will hot allow one "to take his chances * * * [and] complain after receiving an unfavorable finding." 108...
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...v. United States, 251 A.2d 636 (D.C.App.1969); State ex rel. Derber v. Skaff, 22 Wis.2d 269, 125 N.W.2d 561 (1964); Eliachar v. United States, 229 A.2d 451 (D.C.App.1967); Hensley v. United States, supra. In California, as defendant argues, the courts have held that an accused must personal......
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...of action at that time would be construed as an express waiver of the right to a jury trial. Similar holdings appear in Eliachar v. United States (D.C.App.), 229 A.2d 451, and State ex rel. Derber v. Skaff, 22 Wis.2d 269, 125 N.W.2d 561, to the effect that the presence and silent acquiescen......
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