Good v. State
Decision Date | 14 September 1977 |
Docket Number | No. 271S36,271S36 |
Citation | 267 Ind. 29,366 N.E.2d 1169 |
Parties | William K. GOOD, Appellant, v. STATE of Indiana, Appellee. |
Court | Indiana Supreme Court |
Frank E. Spencer, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Kenneth R. Stamm, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant Good was convicted of theft of property of a value of over one hundred dollars, on November 10, 1970, in Greene Circuit Court, and sentenced to not less than one nor more than ten years. * The most important issue presented is whether appellant waived his right to a jury trial. We find that he did not, and accordingly reverse this conviction.
The relevant entries in the record, with respect to the question presented, are as follows:
(1) On September 14, 1970, appellant appeared in court with his attorney. He waived arraignment and pleaded not guilty. The cause was set for trial on October 15, 1970.
(2) On October 14, 1970, appellant appeared by his attorney and requested a continuance. The motion was granted, and the cause was then set for October 21, 1970.
(3) On October 21, 1970, by agreement of the parties, the cause was reset for trial at 9:30 a. m., November 10, 1970.
(4) On November 10, 1970, appellant, the prosecuting attorney, and the judge were present at the appointed time for trial to begin. Appellant's attorney, however, was not present, and did not appear until 10:30 a. m. When he arrived, appellant's attorney counselled briefly with appellant in open court. Appellant's attorney then told the judge that his client wished to have a jury trial, and that appellant's understanding was that he would get one. The judge stated that there was no indication in the record that appellant had requested a jury, and that it was the court's understanding that appellant was to have a trial by the court only. The judge thereupon denied the motion for a jury trial, tried the case before the court and found appellant guilty on the evidence.
In summary, the only mention of a jury in this entire record was on the morning of November 10, 1970, when the trial was about to begin and appellant's attorney indicated in open court that his client was demanding a jury trial. After appellant's conviction, however, conflicting affidavits were filed by the trial judge, the prosecutor, appellant Good, and appellant's trial attorney. These affidavits allege further occurrences on the above-mentioned dates, not reflected in the record.
The trial judge and the prosecuting attorney filed an affidavit together. They state that on October 21, appellant's attorney Clifford DeWitt orally stated to both of them that the case would be submitted to the court for trial without intervention of the jury. They further state that no written request for a jury was ever made by anyone, and that the only oral request ever made was on November 10.
Appellant Good states in his affidavit that on the September 14 and October 14 dates, he sat in a darkened courtroom in the custody of the sheriff and never saw the judge. He further states that his lawyer told him that he had a right to trial by jury, and that if he wanted one he would have to ask for it. Appellant states that the first time he had an opportunity to make such a demand was on November 10, when he saw the judge and did ask for a jury.
Clifford DeWitt, appellant's trial attorney, states in his affidavit that at no time did he indicate to the trial judge or the prosecutor that appellant waived a jury trial, and that appellant never requested that such a waiver be made.
We do not need to resolve the apparent conflicts in the affidavits to settle the waiver issue. Neither the record nor any of the affidavits reflects a waiver by appellant himself of his right to trial by jury, and the court accordingly...
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Horton v. State
...precedent has repeatedly affirmed the personal waiver requirement,2 51 N.E.3d 1159 beginning with this Court's decision in Good v. State, 267 Ind. 29, 366 N.E.2d 1169 (1977). There, the defendant claimed improper jury trial waiver where he never personally communicated assent to a bench tri......
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...defendant waived in writing his jury trial right. Rodgers v. State, (1981) Ind., 415 N.E.2d 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 jur......
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