State v. Anderson

• Decision Date: 24 January 2002
• Docket Number: No. 00-1563-CR.,00-1563-CR.
• Citation: 249 Wis.2d 586,638 N.W.2d 301,2002 WI 7
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Tyran N. ANDERSON, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

249 Wis.2d 586

2002 WI 7

638 N.W.2d 301

STATE of Wisconsin, Plaintiff-Respondent, v. Tyran N. ANDERSON, Defendant-Appellant-Petitioner.

No. 00-1563-CR.

Supreme Court of Wisconsin.

Oral argument October 4, 2001.

Decided January 24, 2002.

For the defendant-appellant-petitioner there were briefs and oral argument by Michael K. Gould, assistant state public defender.

For the plaintiff-respondent the cause was argued by Gregory M. Weber, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

PROSSER, J., dissents.

¶ 1. N. PATRICK CROOKS, J

Tyran N. Anderson seeks review of an unpublished court of appeals decision affirming his conviction for disorderly conduct,¹ contrary to Wis. Stat. § 947.01 (1997-98).² Anderson contends that his jury trial waiver was both statutorily and constitutionally inadequate because the circuit court and the State failed to affirmatively approve and consent to the waiver, and the circuit court did not engage him in a personal colloquy confirming the written waiver.

¶ 2. We reject Anderson's argument that his jury trial waiver is invalid because the record lacks the required approval of the court and consent by the State. We conclude that the circuit court approved Anderson's jury trial waiver by accepting the waiver on the record, scheduling a bench trial, and then subsequently conducting a bench trial. Similarly, we conclude that the State consented to Anderson's jury trial waiver by participating in a bench trial without voicing objection.

¶ 3. With regard to Anderson's argument that the circuit court erred by failing to engage him in a personal colloquy, we hold that the record is insufficient to determine whether Anderson's jury trial waiver was knowing, intelligent and voluntary. We, therefore, hold that the circuit court should have engaged Anderson in a personal colloquy. We reverse the decision of the court of appeals, and remand for an evidentiary hearing to determine whether Anderson knowingly, intelligently and voluntarily waived his right to a jury trial. Furthermore, recognizing that a jury trial involves a fundamental right, we mandate the use of a personal colloquy in every case where a criminal defendant seeks to waive his or her right to a jury trial.

I

¶ 4. The relevant facts are not in dispute. In November, 1998, Anderson was charged in Milwaukee County Circuit Court with disorderly conduct, contrary to Wis. Stat. § 947.01.³ The charge was later amended to battery under Wis. Stat. § 940.19(1).⁴

¶ 5. Assistant State Public Defender Paul Ksicinski initially represented Anderson, but moved to withdraw on January 26, 1999, citing attorney-client communication problems. On February 25, 1999, the circuit court granted Ksicinski's motion with Anderson's approval. Attorney Scott Connors was appointed as successor counsel. Six months later, Attorney Connors moved to withdraw, also citing, among other reasons, attorney-client communication problems. On October 13, 1999, however, Attorney Connors essentially withdrew his request to withdraw as counsel, acknowledging that Anderson was not entitled to another Public Defender appointment because of the prior withdrawal of Attorney Ksicinski.

¶ 6. The jury trial was scheduled for November 10, 1999. On that morning, when the case was called, Anderson was apparently slow in getting to the defense table and the court, the Honorable Mary M. Kuhnmuench, presiding, addressed Anderson in the following manner:

THE COURT: Mr. Anderson, you're going to have to do better than that. Get in the defense table. Hang on. You pull that crap in front of a jury and I can tell you—You get your butt from the jury box over to the defense table as quickly as possible. I'm not standing for any of this kind of garbage. Do you understand me?

THE DEFENDANT: (No audible response.)

THE COURT: Do you understand me? I don't want any comments from you. All I need from you is for you to do what I tell you to do when I tell you to do it.

¶ 7. After a brief discussion about prior convictions and jury instructions, the court advised counsel that they would begin picking the jury after lunch. Attorney Connors then informed the court that he had discussed with Anderson the possibility of having a bench trial rather than a jury trial. The court instructed Attorney Connors that he would have "to have a waiver of the jury trial form in the file." Anderson subsequently signed a jury trial waiver. The substance of the waiver reads in its entirety:

And now comes the above named defendant, and in his own proper person hereby expressly waives trial by a jury and consents to immediate trial before the court without a jury.

I will be giving up my right to have my case decided by 12 people sitting as a jury; I understand that all 12 of those people would have to agree in order to reach a verdict.

¶ 8. After a recess, the court reconvened and discussed Anderson's jury trial waiver. After stating appearances, the complete discussion went as follows:

THE COURT: The Court is in receipt of a waiver of trial by jury that is signed and dated today's date. The Court will receive it and enter it in the trial as a knowing and voluntary waiver of his right to a jury trial. We will proceed with a bench trial at 1:30 this afternoon. Are there any questions of the Court?

MS. ZIMMERS [State]: No.

THE COURT: We'll see you both back at 1:30.

When the proceedings reconvened, the case was presented to the circuit court and Anderson was found guilty.

¶ 9. Anderson appealed his conviction. The Court of Appeals found that Anderson's jury trial waiver was sufficient and affirmed the circuit court's judgment. On March 6, 2001, this court granted Anderson's Petition for Review.

II

¶ 10. A defendant's right to a jury trial is guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 7 of the Wisconsin Constitution.⁵ While the right to a jury trial is recognized as a fundamental right, see State v. Cleveland, 50 Wis. 2d 666, 670, 184 N.W.2d 899 (1971),

it is also well established that a defendant can completely waive the right to a jury trial in favor of a trial by the court. Wisconsin Stat. § 972.02 establishes the procedure for a criminal defendant to waive his right to a jury trial. Section 972.02(1) states:

Except as otherwise provided in this chapter, criminal cases shall be tried by a jury selected as prescribed in s. 805.08, unless the defendant waives a jury in writing or by statement in open court or under s. 967.08(2)(b), on the record, with the approval of the court and the consent of the state.

¶ 11. This case is not the first opportunity for a Wisconsin appellate court to interpret Wis. Stat. § 972.02(1). Rather, previous cases interpreting § 972.02 have established several requirements for determining a valid waiver of the right to a jury trial. The waiver cannot be based on circumstantial evidence or reasonable inferences. Cleveland, 50 Wis. 2d at 670. The defendant, not his attorney, must waive the right to a jury trial by an affirmative act of the defendant himself. State v. Livingston, 159 Wis. 2d 561, 569, 464 N.W.2d 839 (1991). Furthermore, the court must advise the defendant of the unanimity requirement, such that the court cannot accept a jury verdict that is not agreed to by each member of the jury. State v. Resio, 148 Wis. 2d 687, 696-697, 436 N.W.2d 603 (1989). Finally, this court has stated that "[t]he right to a trial by jury is one of the rights that is `so fundamental to the concept of fair and impartial decision making, that their relinquishment must meet the standard set forth in Johnson v. Zerbst, 304 U.S. 458 (1938).'" Resio, 148 Wis. 2d at 694 (quoting State v. Albright, 96 Wis. 2d 122, 130-131, 291 N.W.2d 487 (1980)). Accordingly, a jury trial waiver must be "an intentional relinquishment or abandonment of a known right or privilege." Johnson, 304 U.S. at 464; see also Resio, 148 Wis. 2d at 694

.

¶ 12. Anderson claims his jury trial waiver is both statutorily and constitutionally infirm. First, he claims that his jury trial waiver does not comply with the requirements of Wis. Stat. § 972.02(1) because while his jury trial waiver was in writing, the record lacks the required "approval of the court and the consent of the state." Anderson also contends that his jury trial waiver is invalid, because the circuit court failed to engage him in a personal colloquy to determine that his waiver was knowing, intelligent, and voluntary. We independently review both of Anderson's claims, benefiting from the analyses of the circuit court and the court of appeals. "Whether an individual is denied a constitutional right is a question of constitutional fact that this court reviews independently as a question of law." State v. Klessig, 211 Wis. 2d 194, 204, 564 N.W.2d 716 (1997) (reviewing whether defendant waived right to counsel).

¶ 13. Anderson first argues that the record fails to demonstrate approval of the court or consent by the State sufficient to satisfy Wis. Stat. § 972.02(1). Specifically, Anderson relies on Spiller v. State, 49 Wis. 2d 372, 182 N.W.2d 242 (1971), for his position that silence by the court and the State lacks the required affirmative acts, in order to waive the right to a jury trial.

¶ 14. In Spiller, the defendant claimed that he waived his right to a jury trial, making it error for his case to be subsequently tried before a jury. Id. at 373. At his arraignment, Spiller stated that he waived his right to a jury trial. Id. The transcript is silent, however, on the reaction of the district attorney and the court. Id. Nearly eight months later, Spiller's case went to trial before a jury and no mention was made of the alleged jury trial waiver. Id. On appeal, Spiller argued it was error for him to be subject to a jury trial because his jury trial waiver was valid. Focusing on the required approval of the court and consent of the State, this court held that there was no...