People v. Evans, No. 78-1066

• Docket Nº: No. 78-1066
• Citation: 44 Colo.App. 288, 612 P.2d 1153
• Case Date: May 15, 1980
• Court: Court of Appeals of Colorado

Page 1153

612 P.2d 1153 44 Colo.App. 288 The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Charles Aaron EVANS, Defendant-Appellant. No. 78-1066. Colorado Court of Appeals, Div. II. May 15, 1980.

[44 Colo.App. 289]

Page 1154

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Asst. Atty. Gen., Richard N. Stuckey, Designated Counsel, Denver, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Denver, Warren T. Marshall, Sp. Deputy Public Defender, Canon City, for defendant-appellant.

STERNBERG, Judge.

The defendant, Charles Aaron Evans, appeals his conviction of theft from a person and theft of property having a value of more than $200 but less than $1000. He asserts that the conviction must be reversed because (1) the court improperly denied his request for a jury trial, (2) the evidence of value of the property was insufficient to establish the crime, and (3) the evidence did not prove theft from the person. We agree with his first contention and therefore reverse and remand for a new trial.

Defendant's conviction stems from the theft of a purse. On August 2, 1978, the victim was pushing a shopping cart home from a grocery store to her house. An automobile stopped and a woman got out and grabbed the victim's purse from the shopping cart. The woman returned to the car, which the victim testified was driven by a man, and the car drove off. The victim ascertained the license number of the vehicle and reported it to the police. A short time later, defendant, allegedly the male driver, was apprehended. The victim's purse and some of its contents were recovered from the automobile defendant was driving.

I.

On September 12, 1978, defense counsel, in open court, waived defendant's right to a jury trial and requested the case be heard

Page 1155

by the court. Defendant was not questioned about his intention and understanding and did not personally waive his right to a jury trial at that time. Trial was set for the following day. Prior to commencement of trial, defendant, through [44 Colo.App. 290] the same counsel, requested a jury trial, asserting that he did not understand that he had waived that right the previous day. The court, relying on what it concluded was a valid waiver, and the People's refusal to consent to a withdrawal of that waiver, denied defendant's request. Defendant appeals that decision.

The fundamental right to trial by a jury in criminal cases is a paramount constitutional right guaranteed by the United States Const., Amend. VI and the Colo.Const., Art. II, Sec. 23. Moreover, § 16-10-101, C.R.S.1973 (1978 Rep. Vol. 8), states that "the right of a person who is accused of an offense to have a trial by jury is inviolate, and a matter of substantive due process of law . . . ."

A defendant in a criminal case may waive his right to a jury trial. See Crim.P. 23(a)(5). However, that waiver must be understandingly, voluntarily, and deliberately made, People v. Fowler, 183 Colo. 300, 516 P.2d 428 (1973); and, a determination of waiver must be a matter of certainty and not implication. Rice v. People, 193 Colo. 270, 271, 565 P.2d 940, 941 (1977). Further, as stated in Rice, "the plain meaning of Crim.P. 23(a)(5) requires that a defendant personally waive his right to a jury trial and that a statement by his counsel does not operate as a waiver."

Here, the People concede that prior to the time defendant requested a jury trial he had not personally expressed a waiver of his right...