Robbins v. State, 5522

• Decision Date: 28 October 1981
• Docket Number: No. 5522,5522
• Citation: 635 P.2d 781
• Parties: Harry E. ROBBINS, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 781

635 P.2d 781

Harry E. ROBBINS, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).

No. 5522.

Supreme Court of Wyoming.

Oct. 28, 1981.

Michael H. Schilling, Appellate Counsel, Wyoming Public Defender Program, Laramie, for appellant.

Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., Allen C. Johnson, Senior Asst. Atty. Gen., and Denise Homce, Legal Intern (argued), for appellee.

Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

RAPER, Justice.

Appellant was tried before the district court without a jury. He was found guilty of burglary of an automobile in violation of § 6-7-201(a)(iii), W.S.1977 and burglary of a building or dwelling in violation of § 6-7-201(a)(i), W.S.1977. He was sentenced to two concurrent terms of four to ten years for each count, with credit for jail time. The only issue presented by appellant on appeal is:

"Whether Appellant's waiver of trial by jury does comply with W.R.Cr.P. 24, and whether the record does reflect that the Appellant knowingly, voluntarily, and with full knowledge of the consequences waived his constitutional right to a trial by jury."

We will affirm.

The facts of the crimes are immaterial to disposition. At the commencement of the trial, the following exchange took place between the trial judge and appellant:

"THE COURT: This is the State of Wyoming versus Harry E. Robbins. Counsel indicated to the Court that after the hearing which we had on the suppression of evidence that Mr. Robbins would waive a jury trial and have the matter tried before the Court; is that correct, Mr. Robbins?

"THE DEFENDANT: Yes.

"THE COURT: Do you understand that you are entitled to a jury trial if you so desire?

"THE DEFENDANT: Yes, sir.

"THE COURT: But your lawyer has discussed with you about waiving the jury trial and trying the matter before this Court; is that correct?

"THE DEFENDANT: Yes, sir.

"THE COURT: That is agreeable with you?

"THE DEFENDANT: Yes, sir.

"THE COURT: That is what you want, is it?

"THE DEFENDANT: Yes, sir."

Prior to that time, at his arraignment, appellant was informed by the court of his several constitutional rights, including:

"You are entitled to a jury trial or a trial before the Court. If you want either one of those, it will be arranged within a reasonable period of time and certainly within 60 days that the matter comes of issue.

"Do you understand you have all of those rights?

"THE DEFENDANT: Yes, sir."

At the time of sentencing, defense counsel in the presence of the defendant and on his behalf stated:

"Nevertheless, your Honor, I think it is important to know that the defendant is charged here with burglary, two counts of it. It is a non-violent crime. There have been no injuries reported by any individuals involved. Mr. Robbins, on request of the police did cooperate, made a confession to the police as well as allowed them the privilege of searching his premises.

"The only issue which we brought before this Court was the legality of the search and seizure and subsequent confessions were obtained, and that's why this matter was taken to Court and tried without a jury so that the matter could be preserved for appeal." (Emphasis added.)

No objection was ever made to the district court that appellant was inadequately advised of his right to a trial by jury nor that he was unlawfully deprived of a jury trial.

Rule 24, W.R.Cr.P., concerns the matter of jury waiver:

"(a) Trial by jury.-Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the state.

"(b) Trial without a jury.-In a case tried without a jury the court shall make a general finding and shall in addition on request find the facts specially. If an opinion or memorandum of decision is filed, it will be sufficient that the findings of fact appear therein."

This rule is substantially identical to Rule 23(a) and (c), F.R.Cr.P.

The appellant did not reduce his waiver of jury trial to any separate document "in writing" to which he affixed his signature. There can be no question about the approval of the court or the State; their consent can be implied from the fact that the subject was never mentioned and the trial judge and prosecutor representing the State did proceed to play their respective roles in the ensuing trial in the absence of a jury.

Article 1, Section 9, Wyoming Constitution, declares that "(t)he right of trial by jury shall remain inviolate in criminal cases. * * * " It is the "right to trial by jury" that is inviolate. The language of the constitution does not mandate trial by jury but guarantees it. In Taylor v. State, Wyo., 612 P.2d 851 (1980), it was confirmed that while the right of an accused to a jury trial may be waived, it must be jealously guarded and waived only with express, intelligent and voluntary consent of the defendant. So, that raises the real question in this appeal: Did the appellant expressly, intelligently and voluntarily waive his inviolate right to trial by jury?

The appellant acknowledges that there are federal cases which hold that while the federal rule, identical to our Rule 24, provides that the waiver should be in writing, a valid waiver can be made orally. Weight in such cases must be given to federal precedent. Hicklin v. State, Wyo., 535 P.2d 743, 79 A.L.R.3d 1050 (1975); Dobbins v. State, Wyo., 483 P.2d 255 (1971). We do this particularly when there is no state precedent discussing a point covered by similar rules. Whitefoot v. Hanover Insurance Company, Wyo., 561 P.2d 717 (1977).

That a defendant may waive trial by jury guaranteed by Article 3, Section 2, clause 3 and the Sixth Amendment to the Constitution of the United States, ¹ is settled in the landmark case of Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263 (1930), where the reasons for the privilege of waiver by the defendant are fully explored. The Patton Court concluded:

" * * * Trial by jury is the normal and, with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses. In such cases the value and appropriateness of jury trial have been established by long experience, and are not now to be denied. Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact-finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant. And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity." ²

In United States v. McCurdy, 450 F.2d 282 (9th Cir. 1971), there was no written waiver; and the advice to the defendant and his responses were remarkably like that given here. The court there noted that the purpose of a writing under Rule 23 is to provide the best record evidence of the express consent of the defendant. The court concluded that the express consent given by the defendant personally which appeared on the record was equally good evidence; and that this, as a minimum, must appear. The court's holding was that where the waiver is spread upon the record, there is compliance with Rule 23(a), F.R.Cr.P.

United States v. Grasso, 468 F.Supp. 264 (E.D.Pa., 1979), aff'd, 612 F.2d 575 (3d Cir. 1979), is an interesting case which explains with clarity the relationship which must exist between failure of formal compliance with the writing requirement, Rule 23(a), F.R.Cr.P., and substantive compliance through an express consent and a knowing and intelligent waiver of a right to a jury trial. The defendant there was tried without a jury. Before that trial, he was not voir dired by the trial judge on jury waiver but did file a written waiver. He was granted a new trial because of newly discovered evidence. Before the new trial, without a jury, he was not voir dired by the trial judge as to his right to a jury trial nor did he furnish a written waiver. His attorney had advised the trial judge by telephone that the defendant was waiving trial by jury. He was found guilty and sentenced. In a post-conviction proceeding, the court considered the question and held that at a minimum the defendant must not only allege and show failure to comply with either the written or voir dire procedure for waiving a jury trial but also allege and show that there was not a knowing and intelligent waiver. The court concluded that a waiver is not constitutionally infirm if knowingly and intelligently made, failure to memorialize it in writing or on the record notwithstanding.

It is observed in examination of the federal cases that even though there is a written waiver, a defendant often complains on appeal that it was not knowingly and intelligently made. See for example, United States v. Echevarria, 561 F.2d 26 (7th Cir. 1976); United States v. Makris, 483 F.2d 1082 (5th Cir. 1973), cert. denied, 415 U.S. 914, 94 S.Ct. 1408, 39 L.Ed.2d 467, on remand, 398 F.Supp. 507, aff'd, 535 F.2d 899, reh. denied, 540 F.2d 1086; United States v. Hunt, 413 F.2d 983 (4th Cir. 1969); Gauthier v. Burke, 402 F.2d 459 (7th Cir. 1968).

When confronted with an appeal claiming no adequate waiver, our point of concentration should be on substance not form. The requisite inquiry on the adequacy of jury waiver is of a dual nature: (1) was the waiver express and (2) was it knowing, intelligent and voluntary.

The second question is given short shrift in United States v. Hubbard, 603 F.2d 137 (10th...