State v. Baker

• Decision Date: 27 November 2007
• Docket Number: No. 1 CA-CR 06-0296.,1 CA-CR 06-0296.
• Citation: 217 Ariz. 118,170 P.3d 727
• Parties: STATE of Arizona, Appellee, v. Evan Lamont BAKER, Appellant.
• Court: Arizona Court of Appeals

170 P.3d 727

217 Ariz. 118

STATE of Arizona, Appellee, v. Evan Lamont BAKER, Appellant.

No. 1 CA-CR 06-0296.

Court of Appeals of Arizona, Division 1, Department E.

November 27, 2007.

Terry Goddard, Arizona Attorney General By Randall M. Howe, Chief Counsel, Criminal Appeals Section and Jessica L. Quickle, Assistant Attorney General, Phoenix, Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender, By Susan L. Corey, Deputy Public Defender, Phoenix, Attorneys for Appellant.

OPINION

BROWN, Judge.

¶ 1 Evan Lamont Baker appeals his convictions for aggravated driving under the influence, asserting he did not knowingly, voluntarily, and intelligently waive his right to a jury trial before his case was submitted to the trial court for a determination of guilt or innocence based upon a stipulated record. For the following reasons, we vacate his convictions and sentences and remand for a new trial.

BACKGROUND

¶ 2 In December 2003, Baker was arrested for driving under the influence of alcohol. He was charged with two counts of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs while his driver's license or privilege to drive was suspended, cancelled, revoked or refused, both class four felonies. At the initial pretrial conference in October 2005, a jury trial was set for January 2006, but was later continued at Baker's request. In February 2006, the trial court held an evidentiary hearing on Baker's motion to suppress. Following the court's denial of the motion, the State requested that Baker "at least let [the prosecutor] and [the judge's staff] know before the trial date if he's going to plead to the Court so we don't order a jury or go into case transfer."

¶ 3 At a hearing on March 2, 2006, the trial court confirmed with the prosecutor and defense counsel their desire to submit the matter on a stipulated record. After reviewing a police report, a chemical analysis of blood report, and a driving record, the court found Baker guilty on both counts.

¶ 4 Baker was sentenced to concurrent four-month terms of incarceration. He timely appealed and this court has jurisdiction pursuant to Article 6, Section 9 of the Arizona State Constitution and Arizona Revised Statutes Section 12-120.21 (2003).

DISCUSSION

¶ 5 Baker argues that his convictions must be reversed because he never waived his right to a jury trial. Baker also maintains he was not properly informed of additional rights, pursuant to State v. Avila, prior to submission of his case to the court on a stipulated record. 127 Ariz. 21, 617 P.2d 1137 (1980).¹ The State contends that Baker's convictions should be affirmed because the record shows he made a knowing, voluntary, and intelligent waiver of his rights and, even if such a waiver is not evident, he has failed to show prejudice.

¶ 6 "The right to a jury trial is a fundamental right secured to all persons accused of a crime by the Sixth Amendment of the United States Constitution and, in Arizona, by Article 2, [sections] 23 and 24 of the Arizona Constitution." State v. Butrick, 113 Ariz. 563, 565, 558 P.2d 908, 910 (1976). The right is "fundamental to the American scheme of justice." Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). "The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered." Id. at 155, 88 S.Ct. 1444.

¶ 7 It has long been held that a jury trial waiver is valid only if the defendant is aware of the right and manifests an intentional relinquishment or abandonment of such right. State v. Conroy, 168 Ariz. 373, 376, 814 P.2d 330, 333 (1991); State v. LaGrand, 152 Ariz. 483, 487, 733 P.2d 1066, 1070 (1987). "The pivotal consideration in determining the validity of a jury trial waiver is the requirement that the defendant understand that the facts of the case will be determined by a judge and not a jury." Conroy, 168 Ariz. at 376, 814 P.2d at 333.

¶ 8 We cannot presume a valid waiver of a jury right based on a silent record. State v. Ward, 211 Ariz. 158, 162, ¶ 13, 118 P.3d 1122, 1126 (App.2005) (citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)). Prior to accepting a waiver, the trial court is obligated to "address the defendant personally, advise the defendant of the right to a jury trial and ascertain that the waiver is knowing, voluntary, and intelligent." Ariz. R.Crim. P. 18.1(b)(1) (emphasis added).

¶ 9 Baker decided, through the assistance of counsel, to submit his case to the trial court for a determination of guilt or innocence based on a stipulated record. From that action, we cannot simply infer that he made a knowing, voluntary, and intelligent waiver of his right to a jury trial. Rather, we must examine the record to determine whether Baker effectively waived his constitutional right. See Avila, 127 Ariz. at 25, 617 P.2d at 1141 ("[I]n any proceeding involving the surrender of Constitutional rights, it must appear from the record that the waiver was knowingly, intelligently, and voluntarily made."). See also Conroy, 168 Ariz. at 376, 814 P.2d at 333 (finding proper waiver of jury trial because record showed trial court carefully explained jury trial right to defendant and that by waiving the right he was abandoning the privilege of having a jury decide his guilt or innocence).

¶ 10 The State points to various portions of the record, asserting that taken together they show a knowing, voluntary, and intelligent waiver. On the day set for trial, the trial court stated: "[T]his is [the] time set for the firm trial setting and the Court has been advised that the parties desire to have this matter submitted on the police report and other documents; is that correct?" Later in the same proceeding, the court asked: "And we had a discussion that was off-the-record just a moment ago which indicated that the parties would like to come back on Tuesday, March 14th for the Court to enter its ruling based upon the records; is that correct?" The State suggests that because defense counsel answered affirmatively to both questions, and because Baker himself was present during the hearing and did not "object or express any concerns," Baker knowingly, voluntarily, and intelligently waived his right to a jury trial. We disagree.

¶ 11 These brief conversations between the court and defense counsel do not establish that Baker made a knowing, voluntary, and intelligent waiver of his right to a jury trial. Nothing in the record suggests that the court personally addressed Baker, nor is there any evidence that Baker either orally waived or signed a written waiver of his right to a jury trial. See Ariz. R.Crim. P. 18.1 ("A waiver of jury trial under this rule shall be made in writing or in open court on the record."); Butrick, 113 Ariz. at 566, 558 P.2d at 911 ("Although the defendant's waiver may be either written or oral, pursuant to 18.1(b)(2), the court must always address the defendant personally, pursuant to 18.1(b)(1) to ascertain `that the waiver is knowing, voluntary and intelligent.'" (Emphasis added.)).

¶ 12 In addition, in cases involving a defendant's submission of the determination of guilt or innocence to the court on a stipulated record, the trial court record must affirmatively show that a defendant knows he or she is giving up the right to a jury trial when it is waived. Butrick, 113 Ariz. at 566, 558 P.2d at 911 (citation omitted) (noting that a signed document indicating that a defendant's rights have been discussed with defense counsel is not sufficient to meet the requirement of an affirmative showing).

¶ 13 Moreover, acceptance of the State's suggestion would improperly shift the burden of ensuring an effective jury trial waiver to the accused. See State v. Ritchey, 107 Ariz. 552, 554, 490 P.2d 558, 560 (1971) (concluding that the "burden of coming forth and asserting one's own basic constitutional rights cannot be placed upon persons who may be reluctant to take such affirmative action before the court"). The State's position also fails to recognize the trial court's duty to personally advise a defendant of the right to a jury trial. See State v. Cochran, 109 Ariz. 327, 328, 509 P.2d 220, 221 (stating that waiver of "jury trial is valid only if expressly and intelligently made by the defendant"); Ritchey, 107 Ariz. at 554, 490 P.2d at 560 (rejecting the state's argument that the defendant consented to a trial without a jury simply by sitting through a bench trial without objecting to the absence of a jury); State v. Wren, 115 Ariz. 257, 258, 564 P.2d 946, 947 (App.1977) (finding defendant's waiver ineffective even though defense "counsel purported to do so at the time of trial with the concurrence of the court and the state").

¶ 14 The State also suggests that language from two minute entries shows a proper waiver. The first minute entry, relating to the hearing when the parties submitted the stipulated record to the court, states as follows: "The Defendant waives [t]rial by jury and agrees to submit the matter to the Court based on the items indicated on the record." The second minute entry, relating to the sentencing hearing, states that the defendant "knowingly, intelligently and voluntarily waived his right to a trial by jury and was found guilty after a trial by the Court."

¶ 15 The transcripts of these proceedings, however, contain no discussion of waiver of a jury trial right or any indication that Baker was informed of his right to have his guilt or innocence decided by a jury. Nor do the transcripts indicate that he was personally addressed by the court. A mere reference in a minute entry is insufficient to establish that Baker knowingly, intelligently, and voluntarily waived his right to a jury trial. Simply stating that a waiver occurred, with nothing more, is the functional equivalent of a silent record because it fails to...