State v. Britt

• Decision Date: 10 June 2009
• Docket Number: No. SD 29274.,SD 29274.
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Lonzo Jessie BRITT, a/k/a Lonnie Britt, Defendant-Appellant.
• Court: Missouri Court of Appeals

286 S.W.3d 859

STATE of Missouri, Plaintiff-Respondent, v. Lonzo Jessie BRITT, a/k/a Lonnie Britt, Defendant-Appellant.

No. SD 29274.

Missouri Court of Appeals, Southern District, Division Two.

June 10, 2009.

Margaret M. Johnston, of Columbia, MO, for Appellant.

Chris Koster, Attorney General, and Shaun J. Mackelprang, Assistant Attorney General, of Jefferson City, MO, for Respondent.

DON E. BURRELL, Presiding Judge.

Lonzo J. Britt ("Defendant") appeals his conviction following a bench trial of the unclassified felony offense of statutory rape in the first-degree. See section 566.032.¹ Defendant's sole point on appeal is that the trial court plainly erred by trying the case without a jury because the record "did not demonstrate with unmistakable clarity that [Defendant] knowingly, intelligently and voluntarily waived his right to a trial by jury." Finding this assertion to be refuted by the record, we affirm.

I. Facts and Procedural Background

Because Defendant does not challenge the sufficiency of the evidence to support his conviction, we cite only those facts necessary to our disposition of Defendant's point. Defendant's case was originally scheduled for a trial by jury but, by agreement of the parties, the case was re-set to be tried by the court without a jury. About a week before the scheduled bench trial, Defendant's attorney, Rebecca Burke ("Defense Counsel"), filed a written jury trial waiver that stated:

COMES NOW Defendant, by and through counsel, [Defense Counsel], Assistant Public Defender, and having been advised by counsel of his right to trial by jury in the above-captioned cause, hereby waives his right to trial by jury in this case and submits the trial of this cause to the Court, all pursuant to Article I, Section 22(a) of the Constitution of Missouri.

The jury waiver was signed by both Defendant and Defense Counsel.

Just prior to the start of the bench trial, the court asked Defense Counsel if she had "discussed the pros, cons [sic] of having a jury hear this matter as opposed to the Court without a jury[?]" When Defense Counsel responded affirmatively, the court asked her if Defendant had "executed this written request to waive the jury and indicated that was his preference and intent[?]" Defense Counsel again responded in the affirmative. Defendant was present during this exchange and said nothing. The trial court did not directly examine Defendant about his jury waiver. The trial then began without a jury present. After hearing the evidence, the trial court took the matter under deliberation and set a reappearance date. At no point during the bench trial did Defendant indicate that he had wanted or expected his case to be tried to a jury.

About a week later, the parties again appeared before the trial court as ordered to hear the court's decision on the case. The court announced that it found Defendant guilty of first-degree statutory rape and set a sentencing date. Again, Defendant said nothing about any claim that he had been denied a jury trial.

The sentencing hearing took place over a month-and-a-half later, and the trial court sentenced Defendant to serve a term of twelve years in the Department of Corrections. After announcing its sentence, the trial court asked Defendant if he had been satisfied with Defense Counsel's representation. Defendant responded: "Well, I wanted a jury trial and she talked me into just having [the court] take care of it.... I didn't want to and she talked me into it."

II. Standard of Review

As Defendant concedes, because he did not lodge an objection with the trial court to being tried without a jury, we may only review his complaint for possible plain error relief under Rule 30.20. Rule 30.20; State v. Baxter, 204 S.W.3d 650, 652 (Mo. banc 2006). We will do so only if we find that Defendant has established that a manifest injustice or miscarriage of justice has resulted. Id.

III. Discussion

Defendant contends the trial court plainly erred by proceeding to trial without a jury because: 1) the trial court did not personally examine him about his signed, written jury trial waiver; 2) "the record does not show that [Defendant] heard or understood what was being said"; and 3) "although [Defendant] signed a written waiver, [Defendant] cannot read or write, and [Defendant] complained at sentencing that he wanted a jury trial but defense counsel `talked [him] into just hav[ing] [the trial court] take care of it.'"

Rule 27.01(b) provides:

The defendant may, with the assent of the court, waive a trial by jury and submit the trial of any criminal case to the court, whose findings shall have the force and effect of the verdict of a jury. In felony cases such waiver by the defendant shall be made in open court and entered of record.

"Under the constitution and Rule 27.01(b) the waiver must appear in the record with `unmistakable clarity.'" Baxter, 204 S.W.3d at 653. The waiver must be "voluntarily, knowingly and intelligently made." State v. Sharp, 533 S.W.2d 601, 605 (Mo. banc 1976). The waiver is not required to be in writing, but that is the preferred method. State v. Ramirez, 143 S.W.3d 671, 675 (Mo.App. W.D.2004). "Although some cases have found that failure to examine the defendant on the record was plain error, `it does not follow that the trial court's failure to do so necessarily results in a reversal of [the] conviction.'" Baxter, 204 S.W.3d at 653 (quoting State v. Hatton, 918 S.W.2d 790, 795 (Mo. banc 1996)). The "case turns on whether there are facts in the record that demonstrate that the defendant's waiver was knowing, voluntary, and intelligent." Id. at 654.

Defendant relies heavily on this court's decision in State v. Mitchell, 145 S.W.3d 21 (Mo.App. S.D.2004). In Mitchell, defendant's attorney filed a letter with the court prior to trial which indicated that he and his client had conferred about the matter and had decided to have the case tried to the court without a jury. Id. at 23. On appeal, the defendant contended his attorney's statement in the letter was inadequate on its face to waive his right to a jury trial and that the trial court failed to ascertain on the record that the defendant knowingly and intelligently authorized such a waiver. Id. at 24. This court agreed and granted the defendant a new trial, noting there was "nothing in the record to evidence that [the defendant] was ever advised of his right to a jury trial, the effects of such a waiver, or even any type of affirmative statement by [the defendant] regarding a waiver." Id. Further, the court stated that although "`the record reflects that ... trial counsel waived the right to a jury trial, the [defendant] never expressly waived, on the record, his right, either in writing or orally.'" Id. (quoting Luster v. State, 10 S.W.3d 205, 212 (Mo.App. W.D.2000)).

Defendant contends that "although [Defendant's] name was signed to a written waiver, the record also showed that [Defendant] could not read nor write" and that "while a waiver was touched upon by the trial court and [Defense Counsel] in [Defendant's] presence, the record also showed that at times [Defendant] had a hard time hearing the proceedings." Further, Defendant avers that his case "only differs from Mitchell in that [Defendant's] signature appears on a written waiver, which the record reflects [Defendant] was unable to read."

While we disagree with Defendant's assertion that the only difference between Mitchell and this case is that Defendant's signature appears on the written waiver, we do find Defendant's signature very significant. In the instant case, Defendant signed a written waiver that indicated he had "been advised by counsel of his right to trial by jury" and that he "waive[d] his right to trial by jury in this case." Unlike in Mitchell where only "trial counsel waived the right to a jury trial," here, Defendant signed a written document that waived his right to a jury trial. 145 S.W.3d at 24. As a result, Defendant expressly waived, on the record and in writing, his right to trial by jury. See State v. Butler, 415 S.W.2d 784, 785 (Mo. banc 1967) (finding nothing in the record to impeach the memorandum of waiver signed by defendant and his attorney waiving defendant's right to trial by jury); State v. Turnbough, 604 S.W.2d 742, 746 (Mo.App. E.D.1980) (finding that the waiver signed by counsel and the defendant indicating the defendant waived jury proceedings and was aware of his right to jury trial was effective despite not being signed by the judge).

Further, Defendant's contention that this waiver should be considered invalid because the record establishes Defendant cannot read or write is without merit. First, there is no requirement that Defendant know how to read or write to waive a trial by jury. Instead, the waiver must be "voluntarily, knowingly and intelligently made." See, e.g., Sharp, 533 S.W.2d at 605. Here, in accordance with the preferred method, the waiver was submitted to the court in writing. See Ramirez, 143 S.W.3d at 675. And while the trial court did not directly examine Defendant about his written waiver,² it did ask Defense Counsel, in Defendant's presence, if she had discussed the matter with Defendant and if it was Defendant's intent to waive trial by jury. Defense Counsel responded in the affirmative and Defendant said nothing to contradict that response.

Other evidence in the record suggests Defendant was not only capable of understanding what was read or discussed with him, but that he was also able to indicate his understanding by singing or initialing. At trial, Deputy Pam Buchanan ("Deputy Buchanan") testified that she was present when another deputy, Deputy Poynor, read Defendant the Miranda³ warnings. She testified that the warnings were read from a departmental form and that Defendant initialed each sentence of those warnings, indicating that he understood each sentence, and then signed the form at the bottom.

Defendant testified that the Miranda warn...