People v. District Court of Colorado's Seventeenth Judicial Dist., 92SA168

• Decision Date: 13 October 1992
• Docket Number: No. 92SA168,92SA168
• Citation: 843 P.2d 6
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. The DISTRICT COURT OF COLORADO'S SEVENTEENTH JUDICIAL DISTRICT and One of its Judges, the Honorable Harlan R. Bockman, Respondents.
• Court: Colorado Supreme Court

Page 6

843 P.2d 6

The PEOPLE of the State of Colorado, Petitioner, v. The DISTRICT COURT OF COLORADO'S SEVENTEENTH JUDICIAL DISTRICT and One of its Judges, the Honorable Harlan R. Bockman, Respondents.

No. 92SA168.

Supreme Court of Colorado En Banc.

Oct. 13, 1992.

James F. Smith, Dist. Atty., Seventeenth Judicial Dist., Steven L. Bernard, Chief Trial Deputy Dist. Atty., Brighton, for petitioner.

David A. Ogilvie, P.C., David A. Ogilvie, Denver, for defendant David Eugene Bath.

Dennis S. Brinn, Denver, for defendant Jeffrey W. Giardina.

Justice VOLLACK delivered the Opinion of the Court.

At the request of the People of the State of Colorado (the People), this court issued a rule to show cause why this court should not issue a Writ of Mandamus requiring respondent district court to empanel a jury in People v. Bath, No. 91CR1660, and in People v. Giardina, No. 91CR1658. The People assert that the defendants must first obtain the People's consent before waiving their right to trial by jury pursuant to section 16-10-101, 8A C.R.S. (1992 Supp.). The People also assert that section 16-10-101 is constitutional. We conclude that the prosecution cannot compel trial by jury where an accused's constitutional right to a fair trial as guaranteed by due process of law would be violated.

I.

The defendants are each charged with two counts of sexual exploitation of a child, ¹ a class 3 felony, and with conspiracy to commit that crime, ² a class 5 felony. The defendants entered pleas of not guilty and sought to waive their rights to trial by jury pursuant to section 18-1-406(2), 8B C.R.S. (1986), and have their cases tried to the court. ³ Section 18-1-406(2) provides:

Except as to class 1 felonies, the person accused of a felony or misdemeanor may waive a trial by jury by express written instrument filed of record or by announcement in open court appearing of record.

On March 27, 1992, the district court held a motions hearing wherein the People refused to consent to the defendants' waiver and argued that their refusal mandated trial by jury pursuant to section 16-10-101, 8A C.R.S. (1992 Supp.). Section 16-10-101 provides:

The right of a person who is accused of an offense other than a noncriminal traffic infraction or offense, or other than a municipal charter or ordinance violation as provided in section 16-10-109(1), to have a trial by jury is inviolate and a matter of substantive due process of law as distinguished from one of "practice and procedure". The people shall also have the right to refuse to consent to a waiver of a trial by jury in all cases in which the accused has the right to request a trial by jury.

(Emphasis added.) The defendants argued that they had a constitutional right to trial by jury, and a substantive right to waive a jury trial. The defendants also contended that section 16-10-101 was unconstitutional.

The district court concluded that section 16-10-101, by requiring the People's consent as a prerequisite to waiver of trial by jury, was unconstitutional. The district court found that the People had no right to a jury trial; rather, the defendants "ha[d] the right to refuse a trial before a jury of [their] peers" in order to protect themselves "against the possibility of the tyranny by the populace." Thus the district court gave effect to the defendants' waiver.

The People filed a motion for reconsideration and rehearing of the March 27 ruling. On April 8, 1992, the district court ruled that People v. Davis, 794 P.2d 159 (Colo.1990), cert. denied, 498 U.S. 1018, 111 S.Ct. 662, 112 L.Ed.2d 656 (1991), by reaffirming Munsell v. People, 122 Colo. 420, 222 P.2d 615 (1950), established that "the right to a jury or to a non-jury trial in Colorado is a right that the defendant has and the defendant only." The district court concluded that this principle permits the legislature to restrict the right to waive trial by jury only in the very "limited situation" of a class 1 felony. The district court denied the People's motion for reconsideration.

The People now seek a determination that section 16-10-101 is constitutional, and an order directing the district court to empanel a jury in People v. Bath and in People v. Giardina. We are thus required to analyze the constitutionality of the prosecution consent requirement imposed by section 16-10-101 on an accused's right to waive trial by jury. In order to evaluate the constitutionality of section 16-10-101, we must identify the source of the right to waive trial by jury, and examine the scope and consequences of the restriction imposed by section 16-10-101 on that right.

II. Waiver of Trial by Jury

We have not consistently defined the source of the right to waive trial by jury. See Davis, 794 P.2d 159 (reviewing case law generally). In some contexts we have recognized a common law right, and in other contexts we have recognized a statutory right. We have not squarely addressed the question of whether the Colorado Constitution affords defendants a right to waive trial by jury. We conclude that it does not.

We have never expressly recognized a constitutional right to waive trial by jury. We have discussed the nature of the right in the context of its constitutional counterpart, the right to trial by jury found in section 23 of article II of the Colorado Constitution. See Garcia v. People, 200 Colo. 413, 615 P.2d 698 (1980); Munsell v. People, 122 Colo. 420, 222 P.2d 615 (1950); People v. Cisneros, 720 P.2d 982 (Colo.App.), cert. denied, 479 U.S. 887, 107 S.Ct. 282, 93 L.Ed.2d 257 (1986). We have stated for example, that "[u]nder our constitutional provisions, we hold that a defendant may waive his right to a trial by jury, and on a plea of not guilty be tried by the court." Munsell, 122 Colo. at 430, 222 P.2d at 620.

We have subsequently recognized "that the right to a jury trial 'is a substantive right granted to all citizens of the state.' The correlative right to waive a trial by jury must similarly be substantive in nature." Garcia, 200 Colo. at 415, 615 P.2d at 699-700 (quoting Hardamon v. Municipal Court, 178 Colo. 271, 497 P.2d 1000 (1972)) (emphasis added). This language was followed in Cisneros wherein the court of appeals ruled that defendants have a substantive right to waive jury trials in all criminal cases. Cisneros, 720 P.2d at 985.

Most recently, however, we have disapproved of this line of reasoning in determining whether defendants charged with class 1 felonies may waive trial by jury. Davis, 794 P.2d at 210-11 (recognizing a common law right to waive trial by jury in class 1 felony cases). In Davis, we did not recognize a constitutional right to waiver, and concluded that Munsell did not recognize a right to waiver of trial by jury guaranteed by the Colorado Constitution. Davis, 794 P.2d at 211. ⁴ We observed that Munsell "merely stands for the proposition that there is nothing inconsistent in our constitution with the waiver of a trial by jury." Id.

We have consistently affirmed the proposition that there is no absolute constitutional right to waiver of trial by jury. People ex rel. Iuppa v. District Court, 731 P.2d 720, 722 (Colo.1987); Garcia, 200 Colo. at 415, 615 P.2d at 699; People v. Brisbin, 175 Colo. 428, 430-32, 488 P.2d 63, 65 (1971); see Cisneros, 720 P.2d at 985. The United States Supreme Court has held that there is no right to waiver of trial by jury under the United States Constitution. Singer v. United States, 380 U.S. 24, 34, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 (1964). We thus conclude that the Colorado Constitution does not afford defendants a constitutional right to waive trial by jury.

Our conclusion is consistent with our analysis in Davis wherein we noted that the defendant had a common law right to waive trial by jury in the absence of a relevant statute. Davis, 794 P.2d at 211-12. The defendant was expressly excluded from the scope of section 18-1-406(2) because the defendant was charged with a class 1 felony. Id. at 211. Thus there was no relevant statute creating a right to waive trial by jury in favor of the defendant.

The present case differs from that in Davis, however, because a relevant statute, section 18-1-406(2), applies and purports to give the defendant "an unqualified right to waive a trial by jury." See id. (interpreting this court's decision in Garcia ). Section 16-10-101, however, expressly restricts the availability of waiver under section 18-1-406(2) to those instances in which the prosecution consents. We must examine the scope and consequences of the statutory restriction in order to ascertain its constitutionality.

III. Prosecution Consent Requirement

When evaluating limitations on the right to waive trial by jury, we have recognized that the General Assembly "may only interpose reasonable restrictions on the right to waive trial by jury." Davis, 794 P.2d at 211 (citing People v. Brisbin, 175 Colo. 428, 488 P.2d 63 (1971)). In limited situations, we have recognized as reasonable a prosecution consent requirement. For example, in Davis we upheld a prosecution consent requirement where the common law was the source of the defendant's right to waive trial by jury in a class 1 felony case. We noted that there was no statute purporting to define the scope of the right to waive trial by jury in a capital case. Davis, 794 P.2d at 211.

We have upheld prosecution consent requirements in the context of trials on the issue of sanity. People ex rel. Iuppa v. District Court, 731 P.2d 720, 722 (Colo.1987) (defendant was charged with second degree murder); Brisbin, 175 Colo. at 429, 488 P.2d at 64 (defendant was charged with first degree murder). In Iuppa, the defendant contested a statutory scheme requiring both the court and the prosecution to consent to waiver of trial by jury in class 1, 2, and 3 sanity trials. Iuppa, 731 P.2d at 722. The statutory scheme did not require consent of either the court or the prosecution in class 4 and 5 sanity trials. Id. The statutory scheme did not...