State v. Irving
| Decision Date | 05 April 1975 |
| Docket Number | No. 47532,47532 |
| Citation | 533 P.2d 1225,216 Kan. 588 |
| Parties | STATE of Kansas, Appellee, v. Theodore Leonard IRVING, II, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In an action tried to the court resulting in a conviction for promoting prostitution, a class A misdemeanor, the record is examined and it is held: The trial court erred in failing to advised the defendant of his right to a jury trial and in failing to require defendant to personally waive his right to a jury trial in writing or in open court for the record.
Robert W. Hedrick, Kansas City, argued the cause and was on the brief for appellant.
Nick A. Tomasic, Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Warren McCamish, Asst. Dist. Atty., were with him on the brief for appellee.
Defendant, Theodore Leonard Irving, II, appeals from a criminal conviction of promoting prostitution, a class A misdemeanor (K.S.A. 21-3513), punishable by a term of confinement in the county jail not to exceed one year and a fine not exceeding $2,500.
After being tried and found guilty in the Wyandotte County magistrate court, defendant appealed to the district court. Prior to trial defendant appeared before the court with his counsel to present his motion to quash a search warrant. At that time the court stated that defendant had waived his right to a jury trial by not demanding the same within forty-eight hours of the appeal. Accordingly, defendant was tried by the court and found guilty as charged. Immediately thereafter, defendant Irving filed a motion for a new trial and a motion to set aside the verdict, both of which were denied. A renewed motion for a new trial and judgment of acquittal, based upon the allegation of newly discovered evidence, were likewise denied.
Although defendant raises several points on appeal, we need only concern ourselves with his final claim of error. Defendant contends he was denied the right to a jury trial. He attacks the trial court's statement that he had waived that right by not bringing an appeal within forty-eight hours. The state claims defendant's actions indicated an implied waiver of his right to a jury trial.
The right of a criminal defendant to be tried by a jury of his peers, rather than by the court alone, is 'fundamental to the American scheme of justice.' (duncan v. Louisiana, 391 U.S. 145, 88 S.Ct 1444, 20 L.Ed.2d 491.) In Duncan, the court held that the Sixth Amendment, as applied to the atates through the Fourteenth, requires that defendants accused of serious crimes be afforded the right to trial by jury, and the right was said to be applicable to any offense where imprisonment for more than six months is authorized.
In addition, Section 5 of the Kansas Bill of Rights provides 'The right of trial by jury shall be inviolate.' Further expression of this right can be found in K.S.A. 22-3403(1) and 22-3404(1), which provide for the mothod of trial in felony and misdemeanor cases, respectively.
Despite the fundamental nature of the right to a jury trial, it is agreed these constitutional and statutory provisions extend a privilege to the accused which may be waived. (Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854; United States v. Taylor, 498 F.2d 390 (6th Cir. 1974); State v. Christensen, 166 Kan. 152, 199 P.2d 475.) Since the right to trial by jury is constitutionally preserved, waiver of the right should be strictly construed to afford a defendant every possible opportunity to receive a fair and impartial trial by jury. It is provided by statute in this state that a jury trial may be waived in any criminal trial where the defendant, the state, and the trial court assent to such waiver. (K.S.A. 22-3403(1), 22-3404(1).) We have stated the test for determining the validity of a waiver of the right to a jury trial is whether the waiver was voluntarily made by a defendant who knew and understood what he was doing. (State v. Blanton, 203 Kan. 81, 453 P.2d 30.) Whether this test is satisfied in any given case will depend on the particular facts and circumstances of that case, but a waiver of the right to a jury trial will not be presumed from a silent record. (Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; United States v. Taylor, supra; People v. Jaworski, 387 Mich. 21, 194 N.W.2d 868.)
The American Bar Association Standards for Criminal Justice, Trial by Jury, Section 1.2(b), recommends the following:
'The court should not accept a waiver unless the defendant, after being advised by the court of his right to trial by jury,...
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Ciummei v. Com.
...between judge and defendant when the waiver is made; this should be in addition to the written memorial. See also State v. Irving, 216 Kan. 588, 590, 533 P.2d 1225 (1975); State v. Boilard, 359 A.2d 65, 68 n. 4 (Me.1976). And experience indicates that the practice ought to be prescribed rat......
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Dumas v. State
... ... People, 193 Colo. 270, 565 P.2d 940, 942 (1977) (en banc) ("That expensive and time consuming process [of proceedings on remand] is rarely necessary where the record reflects a personal expression of the defendant's desire to waive trial by jury."); State v. Irving, 216 Kan. 588, 533 P.2d 1225 ... Page 255 ... (1975); Ciummei v. Commonwealth, 378 Mass. 504, 508, 392 N.E.2d 1186 (1979), or even though the applicable rule, like Florida's, does not go nearly that far. United States v. Scott, 583 F.2d 362 (7th Cir.1978); United States v. Delgado, 635 F.2d ... ...
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State v. Gore
...v. Swan, 108 Idaho 963, 964-66, 703 P.2d 727 (Ct.App.1985); Kellems v. State, 849 N.E.2d 1110, 1111-14 (Ind.2006); State v. Irving, 216 Kan. 588, 589-90, 533 P.2d 1225 (1975); Jackson v. Commonwealth, supra, 113 S.W.3d at 131-33; State v. Thompson, 720 N.W.2d 820, 825-28 (Minn.2006); State ......
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State v. Chavez-Majors
...of Chavez–Majors' claim that he did not validly waive his right to jury trial, he cites the well-known case, State v. Irving , 216 Kan. 588, 589, 533 P.2d 1225 (1975), for the proposition that the "test for determining the validity of a waiver of the right to a jury trial is whether the wai......
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Appellate Decisions
...advised Johnson of right to jury trial, record does not reflect that the district court personally did so as required by State v. Irving, 216 Kan. 588 (1975), which is reversible error. Case remanded to district court for further proceedings where Johnson may either exercise or properly wai......
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Appellate Decisions
...of right to jury trial, (2) motion to suppress blood draw evidence HELD: Waiver claim was considered. Two-part test in State v. Irving, 216 Kan. 588 (1975), is applied finding Chavez-Majors did not knowingly and voluntarily waive right to jury trial. District court's mention that plea agree......
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Appellate Decisions
...to apply exception to general rule that issues not raised in district court cannot be raised on appeal. Factors in State v. Irving, 216 Kan. 588 (1975), discussed and applied to facts of case, finding district court failed to advise Frye of his right to a jury trial or to effectively accept......