Short v. Com.

• Decision Date: 07 February 1975
• Citation: 519 S.W.2d 828
• Parties: Carter Mitchell SHORT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 828

519 S.W.2d 828

Carter Mitchell SHORT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Feb. 7, 1975.

Anthony M. Wilhoit, Public Defender, Timothy T. Riddell, Asst. Public Defender, Frankfort, for appellant.

Ed Hancock, Atty. Gen., Miles H. Franklin, Asst. Atty. Gen., Frankfort, for appellee.

CATINNA, Commissioner.

Carter Mitchell Short appeals from a judgment entered after a trial before the Fayette Circuit Court, without the intervention of a jury, by which he was found guilty of housebreaking and robbery and his punishment fixed at two years' imprisonment on each count. Short asserts that reversible error was committed in that (1) upon his plea of not guilty he could not waive his right to a jury trial because this would violate Section 7 of the Constitution of the Commonwealth; (2) he was not competent to knowingly and intelligently waive a jury trial; (3) the trial court should not have admitted a confession that had been procured without a prior waiver of his Miranda rights; (4) the confession had been procured under circumstances that made it totally untrustworthy; and (5) he should have been found not guilty by reason of diminished capacity.

On December 2, 1973, Short, along with three companions, went to the home of Mrs. Willie Lawson intending to take her Mustang automobile. When they determined that Mrs. Lawson was not there, they broke in and ransacked the house. When Mrs. Lawson returned, the intruders overpowered her and bound her with a rope. Money was removed from her purse and a watch and ring were taken. The four men then took the Lawson car and drove it to northern Kentucky. Mrs. Lawson recognized Short as one of the intruders. When Short returned to Lexington, he was arrested . While in custody, Short signed a written confession that had been prepared by Lt. Arnett of the Lexington Metropolitan Police Department.

Short entered a plea of not guilty and prior to trial filed a motion requesting an order allowing him to waive his right to trial by jury. In open court Short and his attorney again requested the trial court to try the case without a jury; the Commonwealth also agreed to trial without a jury. By agreement of all parties concerned, the court tried Short without the invervention of a jury and found him guilty of house-breaking and robbery.

Short asserts that the right to a jury trial guaranteed by Section 7 of the Kentucky Constitution is inviolate and cannot be waived; therefore, the trial court erred in granting his motion for a trial without a jury. Following this argument to its logical conclusion would establish the rule that under no circumstances could the accused waive a jury trial in a criminal proceeding, whether he be charged with a felony or misdemeanor, for such was the common law of England prior to March 24, 1967. Cf. Kentucky Constitution, Section 233; Aetna Insurance Company v. Commonwealth, 106 Ky. 864, 51 S.W. 624 (1899).

Section 7 of the Kentucky Constitution provides:

'The ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate, subject to such modifications as may be authorized by this constitution.'

The only modification of this right to be found in the Constitution is the provision of Section 248 which authorizes a six-man jury in all civil and misdemeanor cases in courts inferior to the circuit courts.

In Wendling v. Commonwealth, 143 Ky. 587, 137 S.W. 205, (1911), we said:

'* * * when we wish to ascertain what is meant by the right of a trial by a jury as expressed in the Constitution, we turn for information to the common law, where the right originated and from whence it came to us. In looking to this source for information, we find it laid down in 3 Blackstone's Commentaries, p. 350 et seq., and in 1 Hale's Pleas of the Crown, p. 33, that the essential features of a trial by a jury were the right of an accused in a criminal or penal case to demand, when put upon his trial in a court of justice presided over by a judge, that he be tried by a jury of 12 men, and that all of them should agree upon the verdict. These were the fundamental principles intended to be, and that have been, preserved inviolate.'

Although we have held that the constitutional right to a jury trial cannot be waived in felony cases, an aura of uncertainty pervades the soundness of our reasoning. In fact, we have never been required to meet 'head on' the claim that an accused in a felony case may waive his right to a jury trial and have the question of his guilt or innocence submitted to the court. A majority of our cases that have been cited as authority for the proposition that an accused may not waive a jury trial concern not the jury in its entirety but other facets of a jury trial. We have held that an accused may not agree to a trial by a jury composed of less than the constitutionally required 12 members. Branham v. Commonwealth, 209 Ky. 734, 273 S.W. 489 (1925), seven jurors; Jackson v. Commonwealth, 221 Ky. 823, 299 S.W. 983 (1927), eleven jurors; Allison v. Gray, Ky., 296 S.W.2d 735 (1956).

In McPerkin v. Commonwealth, 236 Ky. 528, 33 S.W.2d 622 (1931), and Hayes v. Commonwealth, Ky., 470 S.W.2d 601

(1971), we examined the 'other side of the coin' and held that there was nothing in the Kentucky Constitution which granted an accused the unqualified right to be tried by a judge without the intervention of a jury. Two of our more recent cases say that the constitutional right to a jury trial cannot be waived in a felony case; however, in neither case was the right to waive an issue before the court.

The only issue on appeal in Tackett v. Commonwealth, Ky., 320 S.W.2d 299 (1959), concerned the sufficiency of the evidence. The record disclosed that Tackett had waived trial by jury. However, the constitutionality of this waiver was not put in issue by the parties. The court, having concluded that this question required consideration, held that the right to a jury trial as guaranteed by Kentucky Constitution Section 7 could not be waived in a felony case .

Meyer v. Commonwealth, Ky., 472 S.W.2d 479 (1971), questioned, among other grounds, the manner of selecting a jury to try a capital offense. No effort was made to waive a jury trial or agree to a trial by a jury of less than 12 members. In discussing the rights of an accused in a murder trial, the opinion stated:

'Of course, the Commonwealth may waive its right to demand the death penalty. The defendant may not waive jury trial when he enters a plea of not guilty.'

The common-law doctrine that an accused could not waive a jury trial arose in those days when the accused could not testify in his own behalf, was not allowed counsel, and was punished, if convicted, by the death penalty or some other grievous punishment out of all proportion to the gravity of his crime. Our present system of criminal justice has, to a great extent, eliminated the harshness of the common-law system. Constitutional protection of the rights of an accused is now so extensive that the prohibition against waiver is no longer essential.

The rationale of the doctrine that an accused could waive nothing is one of the primary concepts of our Bill of Rights. However, as our present system of criminal jurisprudence has evolved, the strict prohibition against any type of waiver has been modified to the extent that an accused may by his own act waive the protective aspects of an otherwise guaranteed constitutional right. We have recognized the right of an accused to waive a jury by pleading guilty. Lee v. Buchanan, Ky., 264 S.W.2d 661 (1954); Allison v. Gray, Ky., 296 S.W.2d 735 (1956). In is well established that a jury trial may be waived in a misdemeanor case. Ashton v. Commonwealth, Ky., 405 S.W.2d 562 (1966). An accused may also waive his right to freedom from self-incrimination, Kentucky Constitution Section 11, Jasper v. Commonwealth, Ky., 471 S.W.2d 7 (1971); his right against unreasonable search and seizure, Kentucky Constitution Section 10, Fugate v. Commonwealth, 294 Ky. 410, 171 S.W.2d 1020 (1943), Hall v. Commonwealth, Ky., 261 S.W.2d 677 (1953); his right to counsel, Kentucky Constitution Section 11, Carson v. Commonwealth, Ky., 382 S.W.2d 85 (1964); and in misdemeanor cases, the right to a unanimous verdict by the jury, Ashton v. Commonwealth, Ky., 405 S.W.2d 562 (1966).

An examination of the rule in those jurisdictions having a constitutionally guaranteed right to a jury trial similar to that of the Kentucky Constitution discloses that a majority of them now allow an accused to waive a jury trial on the question of guilt or innocence. Cf. Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930); Adams v. United States, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 1735 (1942). A footnote to Justice Marshall's dissenting opinion in Chaffin v. Stynchcombe, 412 U.S. 17, 45, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973), recites that of the states with jury sentencing Kentucky is apparently the only one that does not permit a waiver of the right to a jury trial on a plea of not guilty . We have concluded that current constitutional safeguards are so comprehensive that there remains no further necessity for the rule that an accused may not waive a jury trial. We have long held that an accused in a misdemeanor case could waive a jury...