State v. Gore, No. 17769.

CourtSupreme Court of Connecticut
Writing for the CourtRogers
Citation955 A.2d 1,288 Conn. 770
Decision Date23 September 2008
Docket NumberNo. 17769.
PartiesSTATE of Connecticut v. Curtis GORE.
955 A.2d 1
288 Conn. 770
STATE of Connecticut
v.
Curtis GORE.
No. 17769.
Supreme Court of Connecticut.
Argued April 24, 2008.
Decided September 23, 2008.

[955 A.2d 3]

Melissa L. Streeto, assistant state's attorney, with whom, on the brief, were Michael L. Regan, state's attorney, Thomas Griffin, supervisory assistant state's attorney, and Stephen Carney, senior assistant state's attorney, for the appellant (state).

Kent Drager, senior assistant public defender, for the appellee (defendant).

[955 A.2d 4]

ROGERS, C.J., and NORCOTT, PALMER, VERTEFEUILLE and SCHALLER, Js.

ROGERS, C.J.


288 Conn. 772

In this appeal, we address the requirements for a knowing, intelligent and voluntary waiver of the right to a jury trial. The sole issue presented is whether defense counsel validly waived a jury trial on behalf of the defendant, Curtis Gore, when there is no evidence that the defendant also personally waived the right on the record. The state appeals1 from the judgment of the Appellate Court, which reversed the judgment of the trial court because the record was "devoid of any evidence that [the defendant personally] made a knowing, intelligent and voluntary waiver of his right to a jury trial," and remanded the case for a new trial. State v. Gore, 96 Conn.App. 758, 760, 901 A.2d 1251 (2006). On appeal to this court, the state claims that the Appellate Court improperly determined that the totality of the circumstances failed to demonstrate that the defendant validly had waived his constitutional right to a jury trial because: (1) defense counsel stated on the record that, after a "lengthy discussion" with the defendant, the defendant had elected to waive his right to a trial by jury, and it reasonably may be presumed that the defendant acquiesced in the waiver by his failure to object; (2) the trial court twice issued a general advisement of constitutional rights, and it reasonably may be presumed that the defendant was present for these advisements; (3) it reasonably may be presumed that defense counsel had advised the defendant of his right to a jury trial; and (4) in light of the defendant's prior experience with the criminal justice system, it reasonably may be presumed that the defendant had

288 Conn. 773

actual knowledge of his right to a jury trial. We disagree and affirm the judgment of the Appellate Court.2

The trial court reasonably could have found the following relevant facts. On August 18, 2004, the incarcerated defendant prevented department of correction employee Christopher Hanney from inserting a meal tray into the defendant's cell through a small metal sliding door. The defendant also reached through the sliding door and grabbed Hanney's hands, cutting Hanney's fingers, hands and wrist with his fingernails. The defendant thereafter was arrested and charged with assault of an employee of the department of correction in violation of General Statutes § 53a-167c (a)(1).3 See id., at 760-61, 901 A.2d 1251. At the defendant's arraignment on September 2, 2004, the trial court, Domnarski, J., addressed all accused persons present in the courtroom in the aggregate,

955 A.2d 5

and advised them of their constitutional rights, including "the right to a public trial and a speedy trial before a judge or a jury." On September 23, 2004, the trial court, Hadden, J., gave an advisement of rights, again addressed to all persons present. Specifically, the court stated, "You have the right to a public trial, and a speedy trial before the court, that's a judge alone, and in most cases before a jury." The court also stated: "If you have any questions concerning your constitutional

288 Conn. 774

rights, please ask me when your case is called."4 Later that same day, the defendant, through counsel, entered a pro forma plea of not guilty and elected a jury trial.

When the case was called for trial on November 17, 2004, the following colloquy took place between the trial court and defense counsel:

"[Defense Counsel]: Your Honor, [the defendant] and I had a lengthy discussion a few moments ago about how to proceed in this case, and at this point, I believe, we're changing our election, if election was made, from a jury trial to a court trial.

"The Court: All right.

"[The Prosecutor]: December 9th, Your Honor.

"The Court: All right. We'll set this matter for a trial on December 9th [at 2 p.m.]...."

Neither the trial court nor defense counsel asked the defendant whether he consented to the waiver, nor did

288 Conn. 775

the defendant personally acknowledge the waiver on the record.

At the beginning of the defendant's trial, conducted by a third judge, Boland, J., the state informed the trial court that "[o]n a previous occasion ... the defendant waived his right to a jury trial [and] had the matter set down for a court trial." Thereafter, the defendant was convicted of assault of an employee of the department of correction and ultimately was sentenced. The defendant appealed from his conviction to the Appellate Court, claiming, inter alia,5 that he had not knowingly, intelligently

955 A.2d 6

and voluntarily waived his right to a jury trial.6 State v. Gore, supra, 96 Conn. App. at 760, 901 A.2d 1251. Although the defendant had not challenged the validity of the waiver at trial; id., at 766, 901 A.2d 1251; the Appellate Court reviewed his claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and concluded that the waiver of the defendant's right to a jury trial by defense counsel "was constitutionally deficient." State v. Gore, supra, at 769, 901 A.2d 1251. Accordingly, the Appellate Court reversed the judgment of the trial court and remanded the case for a new trial. Id. This certified appeal followed.

We begin our analysis by setting forth the applicable standard of review. "The right to a jury trial in a criminal case is among those constitutional rights which are

288 Conn. 776

related to the procedure for the determination of guilt or innocence.7 The standard for an effective waiver of such a right is that it must be knowing and intelligent, as well as voluntary. ... Relying on the standard articulated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), we have adopted the definition of a valid waiver of a constitutional right as the intentional relinquishment or abandonment of a known right.... This strict standard precludes a court from presuming a waiver of the right to a trial by jury from a silent record.... In determining whether this strict standard has been met, a court must inquire into the totality of the circumstances of each case.... When such a claim is first raised on appeal, our focus is on compliance with these constitutional requirements rather than on observance of analogous procedural rules prescribed by statute or by the Practice Book." (Citations omitted; internal quotation marks omitted.) State v. Ouellette, 271 Conn. 740, 751-52, 859 A.2d 907 (2004). Our task, therefore, is to determine whether the totality of the record furnishes sufficient assurance of a constitutionally valid waiver of the right

288 Conn. 777

to a jury trial. See State v. Crump, 201 Conn. 489, 500, 518 A.2d 378 (1986). Our inquiry is dependent upon "the particular facts and circumstances surrounding [each] case, including the background, experience, and conduct of the accused." (Internal quotation marks omitted.) State v. Shockley, 188

955 A.2d 7

Conn. 697, 707, 453 A.2d 441 (1982). In examining the record, moreover, we will "indulge every reasonable presumption against waiver of fundamental constitutional rights and ... [will] not presume acquiescence in the loss of fundamental rights.... Johnson v. Zerbst, supra at [464]. In addition, a waiver of a fundamental constitutional right is not to be presumed from a silent record. See Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)." (Internal quotation marks omitted.) State v. Shockley, supra, at 707, 453 A.2d 441.

Our resolution of this issue in this particular case involves a two part inquiry. First, we must determine whether defense counsel alone may waive a jury trial on the defendant's behalf as a matter of trial strategy — an affirmative determination of which would end our inquiry. If not, we must decide what is constitutionally required to demonstrate that the defendant, himself, knowingly, intelligently and voluntarily waived a jury trial. Specifically, we must determine whether the record must contain some affirmative indication from the defendant personally that he or she is waiving the right to a jury trial, or, alternatively, whether counsel's expression of the waiver on the defendant's behalf, combined with the defendant's silence while counsel waives the right to a jury trial, may constitute a knowing, intelligent and voluntary waiver.

We conclude that a defendant personally must waive the fundamental right to a jury trial, and that counsel may not make that decision as a matter of trial strategy. We also conclude that there must be some affirmative indication from the defendant himself or herself on

288 Conn. 778

the record that he or she knowingly, intelligently and voluntarily has decided to waive a jury trial. In other words, the defendant's passive silence in this case while defense counsel purported to waive the defendant's right to a jury trial is not sufficient to demonstrate a knowing, intelligent and voluntary waiver.8 Finally, we take this opportunity to exercise our supervisory authority prospectively to require the trial court, in the absence of a written waiver, to canvass the defendant to ensure that his personal waiver of the fundamental right to a jury trial is knowing, intelligent and voluntary.

Turning to the first step in our analysis, we conclude that the Appellate Court properly determined that defense counsel alone may not waive the right to a jury trial on the defendant's behalf as a matter of trial strategy. See State v. Gore, supra, 96 Conn.App. at...

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88 practice notes
  • Martyn v. Warden, CV124004920S
    • United States
    • Superior Court of Connecticut
    • March 9, 2016
    ...a new trial in the interests of justice, particularly in light of the Connecticut Supreme Court's recent decision in State v. Gore, 288 Conn. 770, 955 A.2d 1 (2008). Gore addressed the requirement of a knowing, intelligent and voluntary waiver of the right to a jury trial. Specifically, the......
  • State v. Smith, No. 17731.
    • United States
    • Supreme Court of Connecticut
    • November 25, 2008
    ...Id., at 478, 915 A.2d 872. The mechanism by which a right may be waived, however, varies according to the right at stake. State v. Gore, 288 Conn. 770, 778, 955 A.2d 1 (2008). "For certain fundamental rights, the defendant must personally make an informed waiver.... For other rights, howeve......
  • State v. Elson, No. 31511.
    • United States
    • Appellate Court of Connecticut
    • December 7, 2010
    ...a new rule of procedure that the court believes is necessary to protect the integrity of the judiciary; see, e.g., State v. Gore, 288 Conn. 770, 787-88, 955 A.2d 1 (2008) (supervisory power invoked to adopt rule that "when a defendant ... indicates that he wishes to waive a jury trial in fa......
  • State v. Davis, No. 18864.
    • United States
    • Supreme Court of Connecticut
    • April 22, 2014
    ...rights and ... [do] not presume acquiescence in the loss of [such] rights.” (Internal quotation marks omitted.) State v. Gore, 288 Conn. 770, 777, 955 A.2d 1 (2008). The court in Kitchens was obliged to acknowledge that determining whether a knowing and intentional waiver may be implied fro......
  • Request a trial to view additional results
88 cases
  • Martyn v. Warden, CV124004920S
    • United States
    • Superior Court of Connecticut
    • March 9, 2016
    ...a new trial in the interests of justice, particularly in light of the Connecticut Supreme Court's recent decision in State v. Gore, 288 Conn. 770, 955 A.2d 1 (2008). Gore addressed the requirement of a knowing, intelligent and voluntary waiver of the right to a jury trial. Specifically, the......
  • State v. Smith, No. 17731.
    • United States
    • Supreme Court of Connecticut
    • November 25, 2008
    ...Id., at 478, 915 A.2d 872. The mechanism by which a right may be waived, however, varies according to the right at stake. State v. Gore, 288 Conn. 770, 778, 955 A.2d 1 (2008). "For certain fundamental rights, the defendant must personally make an informed waiver.... For other rights, h......
  • State v. Elson, No. 31511.
    • United States
    • Appellate Court of Connecticut
    • December 7, 2010
    ...a new rule of procedure that the court believes is necessary to protect the integrity of the judiciary; see, e.g., State v. Gore, 288 Conn. 770, 787-88, 955 A.2d 1 (2008) (supervisory power invoked to adopt rule that "when a defendant ... indicates that he wishes to waive a jury trial ......
  • State v. Davis, No. 18864.
    • United States
    • Supreme Court of Connecticut
    • April 22, 2014
    ...rights and ... [do] not presume acquiescence in the loss of [such] rights.” (Internal quotation marks omitted.) State v. Gore, 288 Conn. 770, 777, 955 A.2d 1 (2008). The court in Kitchens was obliged to acknowledge that determining whether a knowing and intentional waiver may be implied fro......
  • Request a trial to view additional results

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