State v. Blanton, 45278

• Decision Date: 12 April 1969
• Docket Number: No. 45278,45278
• Citation: 453 P.2d 30,203 Kan. 81
• Parties: STATE of Kansas, Appellee, v. Harold BLANTON, Appellant.
• Court: Kansas Supreme Court

Page 30

453 P.2d 30

203 Kan. 81

STATE of Kansas, Appellee, v. Harold BLANTON, Appellant.

No. 45278.

Supreme Court of Kansas.

April 12, 1969.

Rehearing Denied May 6, 1969.

Syllabus by the Court

1. A waiver of a trial by jury, voluntarily and regularly made by the defendant in a criminal action who knew and understood what he was doing, cannot afterward be withdrawn except in the court's discretion, in the exercise of which the court may consider timeliness of the motion to withdraw and whether a delay of trial or inconvenience to the witnesses would result from granting such motion.

2. A request by a criminal defendant to withdraw his waiver of a jury trial made at or after the commencement of the trial is not timely and should not be allowed, where the granting of such motion would result in unreasonable delay or interruption of the administration of justice and real inconvenience to the court and the state.

3. Under the provisions of K.S.A. 62-1401 a jury may be waived by the defendant in any criminal trial, including one for felony-provided the defendant, the state and the trial court assent to such waiver.

Russell Shultz, Wichita, for appellant.

Russell E. Grant, Deputy County Atty., argued the cause, and Kent Frizzell, Atty. Gen., and Keith Sanborn, County Atty., with him on brief for appellee.

SCHROEDER, Justice.

This is a criminal action in which the defendant was tried by the court without a jury and found guilty of burglary in the first degree. He appeals from the judgment and sentence, and from the order overruling his motion for a new trial.

The only question raised on appeal is whether the trial court abused the exercise of its power of discretion in denying the defendant's motion to withdraw his waiver of trial by jury.

On the 31st day of August, 1967, prior to the case being called for preliminary hearing on the docket of the Sedgwick County court of common pleas, the regularly employed counsel for Harold Blanton (defendant-appellant) entered into plea negotiations with the deputy county attorney of Sedgwick County.

Negotiations between the appellant's counsel, Russell Shultz, and the deputy county attorney resulted in an agreement whereby the state would dismiss the second count (attempted forcible rape) with which the appellant was charged, and the appellant would waive preliminary hearing and enter a plea of guilty in the district court of Sedgwick County to first degree burglary. The state also agreed to recommend that a parole be granted the appellant. (As to the propriety of such plea negotiation between counsel for the defendant in a criminal action and counsel for the state, see State v. Byrd, 203 Kan. 45, 453 P.2d 22, this date decided.) A condition imposed by the state prior to its making a recommendation of parole was that the appellant be psychiatrically examined to assure the state the appellant was not a dangerous person. This apparently was accomplished to the satisfaction of the state.

Upon waiver of preliminary hearing pursuant to the agreement, the appellant was bound over to the district court to stand trial and appear at the opening day of the September, 1967, term of court.

On the opening day of the September term of the district court counsel for the appellant requested that he be tried by a jury. The case was assigned to the jury docket of division No. 1 of the district court of Sedgwick County. Upon call of the jury docket for that division on the 16th day of October, 1967, the appellant appeared with his attorney, Mr. Kirby, an associate of Russell Shultz, and waived his right to a trial by jury in open court. In doing so the appellant gave assurances he knew what he was doing by answering questions put to him by the court pertaining to his waiver. Thereupon the case was set for trial to the court on the 14th day of December, 1967. On that date the appellant again appeared with Mr. Kirby, the associate of Mr. Shultz, and it was announced the appellant would plead guilty, but that Mr. Shultz, appellant's counsel, would not be available to the court until the following morning, December 15, 1967. The case was then set for December 15, 1967, when Mr. Shultz appeared with the appellant before the court.

The record discloses Mr. Kirby had some discussion with the trial judge on December 14. On December 15 prior to calling the case for trial, a conference was requested with the court, during which the trial judge stated as a general policy that 'persons who plead or who are convicted of first degree nighttime burglary with other persons in a residence, would not be placed on probation.'

Thereupon the appellant entered a plea of not guilty.

When the appellant's case was called for trial, and after the court directed the state to call its first witness, appellant's counsel, Shultz, moved the court for permission to withdraw the appellant's waiver of trial by jury.

The trial court overruled the appellant's motion and the case proceeded to trial before the court without a jury. The state put on its evidence and rested, and the defendant presented no evidence. After brief arguments the court found the appellant guilty of burglary in the first degree. The state had moved to dismiss the attempted forcible rape charge and the motion was sustained by the trial court.

Thereafter the appellant filed a motion for a new trial which was heard by the trial court on the 5th day of January, 1968, and overruled.

While no criminal appeals in Kansas appear to have involved a situation calling for the exercise of the court's discretion to grant an application for a jury trial once waived, courts of other jurisdictions have announced the rules governing such action. The prevailing rule is clearly stated in People v. Melton, 125 Cal.App.2d Supp. 901, 271 P.2d 962, 46 A.L.R.2d 914. The court there said:

'A waiver of trial by jury, voluntarily and regularly made, cannot afterward be withdrawn except in the discretion of the court. People v. Colton, 1949, 92 Cal.App.2d 704, 707, 207 P.2d 890; People v. Cowan, 1940, 38 Cal.App.2d 144, 149, 100 P.2d 1079; People v. Hooper, 1936, 16 Cal.App.2d 704, 707, 61 P.2d 370; and see 50 C.J.S. Juries § 111(b), pp. 825-826. In the exercise of the discretion thus vested in it, the court may consider such matters as the timeliness of the motion to withdraw the waiver and whether a delay of the trial or inconvenience to witnesses would result from the granting of such motion.

'On the other hand, where the request to withdraw the waiver of a jury trial is made sufficiently in advance of trial so as not to interfere with the orderly administration of the business of the court or to result in unnecessary delay or inconvenience to witnesses or to the prejudice of the other party to the action, the court should exercise its discretion to allow the moving party the jury trial he seeks. Certainly, when dealing with a right so fundamental as to be characterized by our Constitution as one which should 'remain inviolate,' the court should only deny the privilege thus accorded a defendant charged with crime to a trial by his peers where some adverse consequence will flow from his change of mind.' (pp 904, 905, 271 P.2d pp. 963, 964.)

Many cases supporting the foregoing rule are cited in the Melton opinion and in the ALR citation there indicated.

In the Melton case it was held an abuse of discretion on the part of the trial court to deny a motion for a jury trial made through counsel thirteen days before the date set for trial and one week after the defendant, when without counsel, waived a jury, where it appeared the granting of a jury trial would not have prejudiced the prosecution, and that the waiver was induced by the defendant's inability to furnish additional bail which the clerk told him would be required for a jury trial.

In Floyd v. State, 90 So.2d 105 (Fla.1956), the trial court's order denying the defendant's motion to withdraw a waiver of trial by jury was reversed. There the case was scheduled for trial one week after counsel for the defendant moved to withdraw the waiver. In doing so the court held:

'The fundamental right of a defendant to trial by jury will best be protected if the withdrawal of a waiver to such a trial is refused by a court only when it is not seasonably made in good faith, or is made to obtain a delay, or it appears that some real harm will be done to the state, such as unreasonable delay or interruption of the administration of justice, real inconvenience to the court and the state, or that additional expense to the state will be occasioned thereby.' (Syl. 2.)

In the opinion the court said:

'In the case before us the defendant, while represented by counsel who later withdrew, was arraigned on November 16, 1954 at which time he waived trial by jury. On November 26, 1954 his first counsel filed his notice of withdrawal as counsel for defendant. The case was set for trial on December 14, 1954 on which date defendant and his second counsel appeared, the latter counsel announced that he was representing the defendant and moved to be allowed to withdraw the waiver. The trial court denied the motion, but continued the trial for one week to allow defendant's new counsel to prepare for trial.

'In denying the motion to withdraw the waiver, the court stated that since the defendant was, at the time of arraignment, represented by counsel the waiver of trial by jury would not be set aside. There was nothing to show that the State or the court would be inconvenienced in any way, or that any valid ground, within the rule we have adopted above, existed for denying the motion. It was not shown that justice would have been delayed or impeded. As a matter of fact while the trial started on December 21, 1954 it was never completed in an orderly procedure but was brought to a close by the summary action of the trial court on March 9, 1955.

'We think the denial of the motion to withdraw the waiver was an abuse of discretion under...