LOPEZ v. U.S.

• Decision Date: 06 November 1992
• Docket Number: No. 91-CM-610,91-CM-610
• Parties: Rosa LOPEZ, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

615 A.2d 1140

Rosa LOPEZ, Appellant, v. UNITED STATES, Appellee.

No. 91-CM-610.

District of Columbia Court of Appeals.

Argued September 15, 1992.

Decided November 6, 1992.

Appeal from the Superior Court, John H. Bayly, Jr., J.

Barry Coburn, Washington, D.C., appointed by this court, for appellant.

Peggy Kuo, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher and Roy W. McLeese, III, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before STEADMAN, SCHWELB and SULLIVAN, Associate Judges.

SCHWELB, Associate Judge:

Following a trial by the court sitting without a jury, Rosa Lopez was found guilty of assaulting her supervisor, in violation of D.C.Code § 22-504 (1989).¹ On appeal, her primary contention is that a bench trial was impermissible because she had not effectively waived her right to a jury trial. We remand for further proceedings.

I

On September 17, 1990, the date of the incident which precipitated the charges against her, Ms. Lopez was twenty-four years old. A native of Honduras, she had been living in the United States for a little over a year. According to the Pretrial Service Agency Report, she had five years of education, presumably in Honduras. Ms. Lopez was unable to speak English, and required an interpreter for all court proceedings.

At the time of the alleged assault, Ms. Lopez was engaged in janitorial work at McLean Gardens, an apartment complex in northwest Washington. The prosecution presented evidence tending to show that Ms. Lopez assaulted her supervisor, Teresa Martinez, an older, smaller, and less robust woman, by striking her with an umbrella, choking her, and throwing her into the bushes. Ms. Lopez denied using the umbrella and contended that she had acted in self-defense.

At arraignment, Ms. Lopez demanded a jury trial, and the case was placed on the jury calendar. On the day of trial, however, the following colloquy occurred:

THE COURT: Mr. Pietz [defense counsel], I see that you, your client, as well as the United States Attorney, have all signed a waiver of trial by jury; is that correct?

[DEFENSE COUNSEL]: Yes, your Honor.

THE COURT: I take it you have explained to Miss Lopez that if she waives a jury, I, as the judge, will not only determine the law but I will find the facts which otherwise would have been done by a jury?

[DEFENSE COUNSEL]: Yes, your Honor. I have explained that to her myself on prior occasions and I've done it through the aid of the official interpreter this morning.

THE COURT: Very well. And it's with that understanding that she's signed the waiver; is that correct?

[DEFENSE COUNSEL]: Yes, your Honor.

THE COURT: It's understood she had a right to have a jury panel separately —

[DEFENSE COUNSEL]: Yes. The interpreter —

THE COURT: — to decide the facts and return a verdict?

[DEFENSE COUNSEL]: Yes. The interpreter was present with me and everythingwas explained to the interpreter this morning. And I had earlier explained it to her on other occasions by myself.

THE COURT: May I speak to your — your client directly? Is that correct, Miss Lopez?

THE DEFENDANT: Yes.

THE COURT: Please be seated.

[DEFENSE COUNSEL]: Yes, thank you.

THE DEPUTY CLERK: I've made the entry, Mr. Pietz.

[DEFENSE COUNSEL]: Thank you very much.

The prosecutor, the defense attorney, Ms. Lopez and the judge all signed a waiver of jury form in the Spanish language.

Without objection, the case proceeded to trial before the court. After Ms. Lopez was convicted of the assault charge, the judge suspended imposition of sentence, placed Ms. Lopez on unsupervised probation for three months, and fined her $25.00. This appeal followed.²

II

The principal question to be decided on this appeal is whether, by signing the waiver and by saying the single word "yes," Ms. Lopez effectively waived her right to trial by a jury of her peers. Although that question appears on its face to be beguilingly simple, it requires us to construe both a District of Columbia statute and a Superior Court rule, and also to attempt to harmonize some all but irreconcilable case authority.

Section 16-705(a) of the District of Columbia Code (1989) provides in pertinent part as follows:

In a criminal case tried in the Superior Court in which, according to the Constitution of the United States, the defendant is entitled to a jury trial, the trial shall be by jury, unless the defendant in open court expressly waives trial by jury and requests trial by the court, and the court and the prosecuting officer consent thereto.

The applicable court rule provides that

[c]ases required to be tried by jury shall be so tried unless the defendant in open court orally and in writing waives a jury trial with the approval of the Court and the consent of the prosecuting officer.

Super.Ct.Crim.R. 23(a) (emphasis added). Our Rule 23(a) differs from its federal counterpart, which does not include the words "orally and," (but is otherwise identical). Fed.R.Crim.P. 23(a). This distinction between the two rules suggests that the drafters of the Superior Court rule considered the requirement of an oral waiver to be a meaningful one.

From the perspective of the defendant, the case law in this jurisdiction has had its ebbs and flows. A useful starting point in our discussion is Hensley v. United States, 108 U.S.App.D.C. 242, 281 F.2d 605 (1960), aff'g 155 A.2d 77 (D.C. 1959). In that case, after a jury had been selected, Hensley's counsel approached the bench and requested a bench trial. In Hensley's presence, the judge released the jury. Hensley was convicted, and argued on appeal that he had not expressly waived his right to a jury trial, as required by the predecessor of § 16-705(a). The Municipal Court of Appeals affirmed, and the United States Court of Appeals did likewise. After construing the statutory reference to "an accused" as including defense counsel for purposes of waiver of the right to jury trial, the federal appellate court remarked that Hensley "was apparently content to take his chances [on a non-jury trial], and he cannot now be heard to complain after receiving an unfavorable finding." 108 U.S.App.D.C. at 245, 281 F.2d at 608.³

The Hensley approach remained in effect for some time. In Eliachar v. United States, 229 A.2d 451, 452 (D.C. 1967), this court reiterated, on the authority of Hensley, that where defense counsel had asked for a bench trial, it was not mandatory thatthe accused personally indicate his acquiescence in the waiver. The same result was reached in Thompkins v. United States, 251 A.2d 636, 639-40 (D.C. 1969) (citing Eliachar). The following year, however, in [Frederick] Jackson v. United States, 262 A.2d 106 (D.C. 1970), the court embarked in a new direction, and initiated the line of case authority upon which Ms. Lopez now relies.

In [Frederick] Jackson, the transcript of proceedings available to the appellate court contained nothing at all to indicate that Jackson had waived his right to a jury trial. Stamped notations reading "Jury Trial Demand Withdrawn" on the back of both charge sheets constituted the only evidence on which a finding of waiver could be based. This court remanded the case for a hearing to determine whether Jackson had "knowingly and voluntarily waived his right to a jury trial in open court." Id. at 108. In doing so, the court, citing (among other authorities) Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), imposed new obligations on the trial court:

An on-the-record inquiry of a defendant himself by the trial judge in open court would more readily facilitate the trial judge's determination, and the determination in any post-conviction proceedings, that the waiver was in fact voluntary. Also, such a procedure more fully complies with the statutory directive that the "accused in open court expressly [waive]" his right to jury trial and request trial by the court.

Id. at 109. Quoting Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 263, 74 L.Ed. 854 (1930), the court warned that the duty of the trial court "is not to be discharged as a mere matter of rote,⁴ but with sound and advised discretion." Id. n. 6. Declining to ordain a particular script, the court concluded as follows:

We do hold that henceforth, in trials commenced after the issuance of this opinion, there should be in the record a statement in open court by the defendant himself in order to provide a basis for subsequently determining, if necessary, that he knowingly and voluntarily waived his constitutional right to trial by jury. We will expect the prosecutor to assist the trial court in complying with our ruling.

Id. (footnotes omitted).⁵

On the same day that [Frederick] Jackson was decided, the court also issued its opinion in Banks v. United States, 262 A.2d 110 (D.C. 1970) (per curiam). Banks, who was charged with false pretenses, had initially wished to plead guilty. The judge advised him that, by doing so, he would waive his right to trial by the court or by jury. The plea proceedings broke down, and defense counsel asked for "another jury date." Id. at 111. Banks was subsequently convicted at a bench trial. The appellate record, as in [Frederick] Jackson, contained an entry on the back of the information reading "Jury Trial Demand Withdrawn." Although there was no evidence of an oral waiver in open court, this court affirmed Banks' conviction upon the ground that "the discussion in open court at the first hearing about a jury trial for appellant and the official court entry on the information itself cured the absence from the transcript of any waiver." Id.

Less than a year after [Frederick] Jackson and Banks had sent out messages more readily reconcilable in result than in spirit, our court revisited the issue in Gregory v. United States, 271 A.2d 791 (D.C. 1970) (per curiam). In that case, defense counsel informed the judge that Gregory insisted on having a nonjury trial. Gregory confirmed his cou...