Nunez v. State, 53A04–1407–CR–346.

• Decision Date: 21 September 2015
• Docket Number: No. 53A04–1407–CR–346.,53A04–1407–CR–346.
• Citation: 43 N.E.3d 680
• Parties: Carlos I. NUNEZ, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

43 N.E.3d 680

Carlos I. NUNEZ, Appellant–Defendant
v.
STATE of Indiana, Appellee–Plaintiff.

No. 53A04–1407–CR–346.

Court of Appeals of Indiana.

Sept. 21, 2015.

43 N.E.3d 681

Noah T. Williams, Monroe County Public Defender Agency, Bloomington, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

Opinion

SHEPARD, Senior Judge.

1] By both law and practice, American courts have long been especially concerned that criminal defendants not give up various rights by virtue of being misled or uninformed or threatened. Here, the question is whether a conviction must be set aside because the defendant who was asking to waive trial by jury did not tell the trial judge that his request was voluntary.

Facts and Procedural History

[2] In December 2012, the State charged appellant Carlos I. Nunez with rape as a class B felony. Ind.Code § 35–42–4–1 (1998). Nunez subsequently filed a verified waiver of jury trial, and the trial court accepted the waiver after a hearing in which Nunez participated. Following a bench trial, the court found Nunez guilty as charged and sentenced him to ten years.

Issue

[3] Nunez presents the issue on appeal this way: whether the trial court wrongly accepted his waiver because it was not voluntary and intelligent.

Discussion and Decision

I. Were There Omissions in Spanish Waiver Form?

[4] In seeking to waive jury, Nunez signed two waiver forms—one in English and one in Spanish. Nunez's appeal rests on a claim that the Spanish version was incomplete.

[5] The English version informed Nunez that (1) he had a right to a jury trial, (2) the jury would consist of six or twelve members, (3) the jury would listen to the evidence, the arguments, and the instructions, and the verdict would have to be unanimous, (4) if the waiver was accepted, the court would make a determination as to his guilt without the use of a jury, and

[43 N.E.3d 682

(5) his guilt would be determined beyond a reasonable doubt by the judge alone. The form also declared that (6) no one made any promises of special treatment or leniency, or made threats to coerce him to waive his right to a jury trial, (7) the waiver was made freely, knowingly, understandingly, and voluntarily, and (8) he was affirming, under the penalties for perjury, that the representations in the waiver were true. Nunez and his counsel both signed the waiver. They each signed the Spanish version as well.

6] Subsequently, in open court with an interpreter present, the court questioned Nunez about the waiver. In the course of this discussion, Judge Kellams asked Nunez if he had signed the waivers and if he understood that he was giving up the right to a jury trial. Nunez, through the interpreter, responded in the affirmative. The court also asked if Nunez had any questions about the fact that the trial would be conducted by the judge and the judge would make the determination about guilt. Nunez said he did not. The court determined the waiver was adequate.

[7] The Spanish version of the written waiver appears to mirror the English version, and Nunez apparently accepts that it covers the various explanations about jury trials and bench trials. But Nunez says the Spanish waiver lacks two provisions that are present in the English version: (1) a declaration that no promises or threats coerced him to waive his right to a jury trial, and (2) a declaration that the waiver was being made knowingly, understandingly, and voluntarily.

[8] Assuring justice under circumstances where some language barrier exists that might affect the interests of a participant with limited English proficiency is a matter of commitment and substantial effort for Indiana's judiciary. As Justice Rucker wrote recently, “For the last decade the State of Indiana has endeavored to create a more comprehensive and centralized interpreter program that ensures competent interpreter services in order to improve the quality of language access for LEP [Limited English Proficiency] litigants.” Ponce v. State, 9 N.E.3d 1265, 1269 (Ind.2014).¹ Speaking for a unanimous court, he emphasized the need for careful attention to language issues “lest we run the risk of diminishing our system of justice by infringing upon the defendant's rights of due process.” Id.

[9] Proceedings in the trial court pursuant to a writ in aid of appellate jurisdiction have produced debates about where the Spanish form came from and the like, but no dispute about whether the Spanish

[43 N.E.3d 683

version signed by Nunez omitted the material he has identified. We take it to be so.

II. Examining Waivers of Jury

[10] The right to trial by jury, guaranteed by both the state and federal constitutions, is a bedrock of our criminal justice system. Although this right may be waived, Indiana stipulates that waiver may occur only when the defendant personally waives and only when the record reflects that action in writing or in open court. Kellems v. State, 849 N.E.2d 1110 (Ind.2006). These requirements ensure that the waiver is knowing, intelligent, and voluntary, with sufficient awareness of the surrounding circumstances and the consequences. Id.

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