State v. Conn

• Decision Date: 07 July 1989
• Docket Number: No. 86-016,86-016
• Citation: 152 Vt. 99,565 A.2d 246
• Parties: STATE of Vermont v. Donald L. CONN.
• Court: Vermont Supreme Court

Page 246

565 A.2d 246

152 Vt. 99

STATE of Vermont v. Donald L. CONN.

No. 86-016.

Supreme Court of Vermont.

July 7, 1989.

Jeffrey L. Amestoy, Atty. Gen., Susan R. Harritt, Asst. Atty. Gen., and Nancy Gianlorenzo, Law Clerk (On the Brief), Montpelier, for plaintiff-appellee.

Walter M. Morris, Jr., Defender General, and William A. Nelson, Appellate Defender, Montpelier, for defendant-appellant.

Before ALLEN, C.J., and PECK and DOOLEY, JJ., and BARNEY, C.J. (Ret.) and SPRINGER, District Judge (Ret.), Specially Assigned.

DOOLEY, Justice.

Donald L. Conn, defendant below, was convicted after a trial by court of careless and negligent driving, 23 V.S.A. § 1091(a); leaving the scene of an accident, 23 V.S.A. § 1128; and driving with license suspended (seventh offense), 23 V.S.A. § 674. He appeals his conviction on two grounds: (1) that the purported waiver of his right to a jury trial was defective; and (2) that the information failed to allege a knowledge element. We reject both claims and affirm the conviction.

On May 31, 1985, Ms. Joy Greenwood was driving her car on Interstate 89, through Bolton, Vermont when she noticed a gray car come up fast behind her. The gray car nearly collided with her before it swerved into the breakdown lane and slowed. Ms. Greenwood again saw the car come up from behind her, traveling at between 85 and 100 miles-per-hour. This time the gray car hit the rear end of Ms. Greenwood's vehicle lifting it into the air. Ms. Greenwood observed the driver of the gray car and recorded its license plate number.

A witness also observed the collision, after noticing that the gray car weaved all over the road and was driven, at times, in the breakdown lane. The witness also clearly observed the driver of this car because it passed him at one point and the operator turned and smiled at him. The witness estimated that the gray car was travelling between ninety and one hundred miles-per-hour when it hit Ms. Greenwood's vehicle.

After the accident, both Ms. Greenwood and the witness left the interstate highway in Waterbury to report the collision to the police. They both observed the operator of the gray car looking under the hood of the car at a Waterbury gas station and that radiator fluid was leaking from the car and the front end was damaged. The operator was later identified as the defendant.

Defendant was arraigned on July 8, 1985, on the three charges, and was represented at arraignment and subsequent criminal proceedings by a public defender. On August 12, 1985, during a calendar call, defendant waived his right to jury trial by a writing, as provided in V.R.Cr.P. 23(a). ¹ The waiver of jury trial form was signed by defendant, the state's attorney, defendant's attorney and was approved by the presiding judge. The waiver form identified the charges against defendant only as "LSA, DLS, C & N." ² There was no on-the-record discussion of the waiver between the court and the defendant. ³

A trial by court was held on October 20, 1985, resulting in a guilty finding on each of the offenses occurring on November 7, 1985. In findings of fact and conclusions of law, the trial court rejected defendant's claims that he was unaware of the accident and that he did not receive notice that his license was suspended.

Defendant first challenges the waiver of jury trial. A trial by jury in a criminal case is an individual right which may be waived. U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a ... trial by an impartial jury...."); Vermont Const. ch. I, art. 10 ("in all prosecutions for criminal offenses, a person hath a right to ... a speedy public trial by an impartial jury...."). The Vermont Constitution sets forth specifically the methods by which a waiver may be obtained. Chapter I, Article 10 provides that "the accused, with the consent of the prosecuting officer entered of record, may in open court or by a writing signed by him and filed with the court, waive his right to a jury trial...." See also State v. Ibey, 134 Vt. 140, 141, 352 A.2d 691, 692 (1976). Vermont Rule of Criminal Procedure 23(a) reiterates this waiver procedure and adds a requirement for the consent of "the court entered of record." It is undisputed that the written waiver in this case meets the requirements of the Vermont Constitution and Criminal Rule 23(a).

Defendant makes two arguments why the waiver in this case should be found invalid: (1) since there is no showing on the record that the waiver was "knowing and intelligent," it is insufficient to waive a constitutional right; (2) even if the waiver is constitutionally sufficient, this Court should require that trial judges conduct an on the record colloquy between the court and the defendant to show that a knowing and intelligent waiver was made. We cannot accept the first argument, although we do agree that the better practice is for the trial judge to inquire of the defendant on the record to be sure that the waiver is knowing and intelligent. The overwhelming weight of authority in the state and federal courts is that such an on-the-record colloquy is not constitutionally required. See, e.g., United States v. Cochran, 770 F.2d 850, 851 (9th Cir.1985); United States v. Scott, 583 F.2d 362, 364 (7th Cir.1978); People v. Norman, 703 P.2d 1261, 1271 (Colo.1985); State v. Marino, 190 Conn. 639, 644-46, 462 A.2d 1021, 1025-26 (1983); Hutchins v. State, 493 N.E.2d 444, 445 (Ind.1986). We adopt the rationale of most of these cases that a written waiver signed by the defendant and counsel, which shows an understanding of the right to be waived, is sufficient to establish a prima facie effective waiver. See Cochran, 770 F.2d at 851; Norman, 703 P.2d at 1271. In the absence of evidence to the contrary, such a showing is sufficient to establish a knowing, intelligent and voluntary waiver sufficient to satisfy constitutional requirements. Here, there was a sufficient written waiver and no evidence to suggest that defendant's waiver was not knowing, intelligent or voluntary. There was no constitutional violation in this case.

We accept defendant's second argument that it is better practice for the trial court to engage a defendant wishing to waive his right to a jury trial in a colloquy, on the record, to determine whether the waiver is voluntary, knowing, and intelligently made. See, e.g., Cochran, 770 F.2d at 852 ("strongly believe ... trial courts should conduct colloquies with the defendant before accepting a waiver of the right to jury trial") (emphasis in original); Scott, 583 F.2d at 364 ("the better practice is to interrogate defendants on the subject of their understanding of the right to a jury trial and waiver thereof"). In Ciummei v. Commonwealth, 378 Mass. 504, 509-10, 392 N.E.2d 1186, 1189-90 (1979), the Supreme Judicial Court of Massachusetts itemized the kind of on-the-record colloquy that should occur:

In the exchange, the judge will advise the defendant of his constitutional right to a jury trial, and will satisfy himself that any waiver by the defendant is made voluntarily and intelligently. We do not intend to create a rigid pattern but note that, where a defendant needs a compendious reminder, the judge might state that the jury consists of members of the community, that the defendant may participate in their selection, that the verdict of the jury must be unanimous, that they decide guilt or innocence while the judge makes rulings of law in the course of the trial, instructs the jury on the law, and imposes sentence in case of guilt; and that, where a jury is waived, the judge alone decides guilt or innocence in accordance with the facts and the law. The judge should make sure that the defendant has conferred with his counsel about the waiver, and that he has not been pressured or cajoled and is not intoxicated or otherwise rendered incapable of rational judgment.

We add that the judge's responsibility should not be "discharged as a mere matter of rote," but rather "with sound and advised discretion" as befits the relinquishment of so vital a right. On the other hand, ... the defendant, being competent, must simply have indicated a comprehension of the nature of the choice. In most cases, the conversation should take but a few minutes.

Id. (citations omitted) (quoting Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 263, 74 L.Ed. 854 (1930)).

The issue before us, however, is whether we should take any...