State v. Butrick
| Decision Date | 28 December 1976 |
| Docket Number | No. 3653,3653 |
| Citation | 558 P.2d 908,113 Ariz. 563 |
| Parties | STATE of Arizona, Appellee, v. William E. (Earl) BUTRICK, Appellant. |
| Court | Arizona Supreme Court |
Ross P. Lee, Maricopa County Public Defender, by Terry J. Adams, Deputy Public Defender, Phoenix, for appellant.
Appellant William E. Butrick was charged by information with aggravated assault while armed with a gun or deadly weapon in violation of A.R.S. §§ 13--241 and 13--245(A) and (C). After trial without a jury, the court convicted appellant of exhibiting a deadly weapon other than in self-defense, a violation of A.R.S. § 13--916, suspended imposition of the sentence and placed him on five years probation. From this conviction and sentence Butrick appeals. We have jurisdiction pursuant to 17A A.R.S. Supreme Court Rules, rule 47(e)(5).
The facts out of which this conviction and sentence arose were in great dispute at trial, but apparently began when the Phoenix police were called to the scene of a domestic quarrel at appellant's home. There is no question that appellant had in his possession a machete knife sometime while the police were present in his home. The testimony of defense and state witnesses, however, differed considerably as to how appellant handled that knife and himself during the incident. The trial judge apparently felt there was reasonable doubt with regard to the elements of aggravated assault and, instead, convicted the appellant of what he believed was a lesser included offense, exhibiting a deadly weapon other than in self-defense.
A motion to suppress certain evidence was made by defense and a hearing thereon was scheduled for the morning of the trial. Many of the defense and state witnesses testified at that hearing. After the hearing was completed the record reveals an off-the-record discussion, a recess at 3:15 p.m., and a recommencement of the proceedings at 3:20 p.m.
At this point, the following exchange took place:
'PROSECUTOR: This is Officer Boynton. I take it we're at the point where we're starting the trial. This is my first witness.
Call Officer Boynton to the stand please.'
The officer took the stand, a few preliminary questions were asked, then the following occurred:
The prosecutor did, then, proceed with the questioning of his witness.
This is the only mention, before or during the trial, of a waiver of jury by the appellant. The hearing and trial were completed in one day, October 16, 1975. On October 20, 1975, the parties returned to the court for closing arguments. At this time, the following exchange took place:
The waiver form was filed, and a minute order issued on October 20, 1975 purported to make this entire portion of the record a 'nunc pro tunc' entry.
Appellant raises two issues on appeal:
1. Was 17 A.R.S. Rules of Criminal Procedure, rule 18.1(b) violated by the approval of the waiver after trial, and the manner in which it was taken?
2. Did the trial court err in convicting appellant of an offense which is not a lesser included offense of A.R.S. § 13--245?
and intelligently made by the accused. Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930); State v. Durham, 111 Ariz. 19, 523 P.2d 47 (1974).
'The defendant may waive his right to trial by jury with consent of the prosecution and the court.
(1) Voluntariness. Before accepting a waiver the court shall address the defendant personally, advise him of his right to a jury trial and ascertain that the waiver is knowing, voluntary and intelligent.
(2) Form of waiver. A waiver . . . under this rule shall be made in writing or in open court on the record. . . .'
In State v. Crowley, 111 Ariz. 308, 528 P.2d 834 (1974), this court held that a trial record must affirmatively show a defendant knows he is giving up his or her right to a jury trial when it is waived, and a signed document with a simple recital that his or her rights have been discussed with defense counsel is insufficient to meet the requirement of an affirmative showing.
In Crowley, supra, however, we were concerned not with just a waiver of a jury, but with the waiver of a jury and a submission of the entire question of guilt or innocence to the court based only on the preliminary hearing transcript. There we were talking about the defendant doing something tantamount to pleading guilty, and, in view thereof, determined that the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), should apply to the situation.
In the case before us, we have several factual differences from Crowley, supra. To begin with, the waiver of the jury is not tantamount to a plea of guilty. That is abundantly clear from the fact that a trial with the taking of testimony was had.
Secondly, in Crowley, supra, the form waiver signed simply recited that the defendant had 'fully discussed all legal questions and constitutional rights with his attorney.' In the instant case, the waiver form signed by the appellant on the day the trial began, advised him of his right to a jury trial and explained what the right meant and what a jury was.* It was not just a recital that the defendant discussed and understood his right to a jury trial; it laid out his right, what is meant and that its waiver meant a judge would decide his guilt or innocence.
Also, in Crowley, supra, even though it was determined that the proper procedure had not been followed for determining whether the waivers were knowing, voluntary and intelligent, we remanded the case for an ex post facto determination thereof. In effect, we approved there the procedure followed in the case before us: a determination, after the rights were given up, of whether they were forsaken in accordance with due process of law.
Further, our rule 18.1(b)(2) specifically says the waiver may be made in writing Or in open court. We do wish to clarify, at this juncture, any apparent ambiguity between our rule 18.1(b)(1) and 18.1(b)(2). 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.'
Whether there is an intelligent, competent, self-protecting waiver of jury trial by an accused must depend upon the unique circumstances of each case. Adams v. United States, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942); State v. Smith, 112 Ariz. 321, 541 P.2d 918 (1975). We find that upon the unique circumstances of this case, the waiver of the right to a trial by jury was knowing, voluntary and intelligent and although the trial judge fulfilled his obligation under rule 18.1(b)(1) somewhat belatedly,
he did fulfill it. We also find that the manner in which he did it was...
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