State v. Jelks

Citation461 P.2d 473,105 Ariz. 175
Decision Date19 November 1969
Docket NumberNo. 1847,1847
PartiesSTATE of Arizona, Appellee, v. Charles Lee JELKS, Appellant.
CourtSupreme Court of Arizona

Gary K. Nelson, Atty. Gen., by Carl Waag, Sp. Asst. Atty. Gen., Leonard M. Bell, Asst. Atty. Gen., Phoenix, for appellee.

Vernon B. Croaff, Former Public Defender, by Anne Kappes, Deputy Public Defender, for appellant.

HAYS, Justice.

Charles Lee Jelks, defendant and appellant, was tried and convicted of robbery and sentenced to a prison term of ten to twelve years. Jelks and co-defendant were tried jointly for the crime.

The victim of the robbery, one Epifanio Guerrero, was seated in a doorway on East Jefferson Street in Phoenix on the morning of May 26, 1967, when he was approached by two men, one of whom had a knife. The two men kicked Guerrero, and took money from his billfold. After the scuffle, from which Guerrero received a cut on his left hand, the two attackers fled down the street. A Phoenix policeman, Officer Calleo, was passing in his patrol car at the time when he noticed a number of men waving to attract his attention, and he observed the defendants coming toward him followed by the victim with blood on his face and hands. Officer Calleo stopped the defendants and placed them under arrest.

At trial, Jelks and his co-defendant were represented by the office of the Public Defender Two attorneys, Mr. Thinnes and Mrs. Bailey, were designated by that office, but there is no indication that either was assigned to any particular defendant.

On appeal, defendant Jelks assigns as error (1) that his counsel's waiver of jury trial was invalid because of the absence of personal examination by the trial judge, (2) that he was denied effective assistance of counsel because he and a co-defendant were represented by the same court appointed counsel, and (3) that he was not identified as the perpetrator of the crime beyond a reasonable doubt. We reject each of defendant's assignments of error, and affirm the conviction.

As the trial commenced, defense counsel and both defendants were present in the courtroom. The jury was waived, in the presence of the defendants, in the following manner:

'THE COURT: All right. There has also been a waiver of jury in this, do I understand also?

MR. THINNES: That's correct, your Honor. I will be acting as co-counsel in this case.

THE COURT: Yes.

MR. THINNES: And both defendants indicated to both Mrs. Bailey and to me that they would waive trial by jury.

THE COURT: Defendants ready at this time?

MR. THINNES: Defendants are ready, your Honor.

THE COURT: All right. Do you want to make an opening statement?'

The trial court made no independent personal examination of either defendant concerning the waiver of jury. Defendant argues that the failure of the trial court to conduct such an examination and to advise defendant of his constitutional rights to a jury trial made the waiver invalid, as violative of his Fourteenth Amendment right of due process of law. We cannot agree.

The right to a trial by jury in criminal cases is fundamental in the American scheme of justice, and is preserved by both the Sixth and Fourteenth Amendments of the U.S. Constitution (cf. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) and Article II, Sections 23 and 24 of the Arizona Constitution, A.R.S. It is well established also that the right to a jury trial may be waived, where an accused is aware of the right and voluntarily and intelligently relinquishes it. Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263 (1930); State v. Thompson, 68 Ariz. 386, 206 P.2d 1037 (1949); State v. Anderson, 96 Ariz. 123, 392 P.2d 784 (1964). In Patton, the U.S. Supreme Court spelled out the criteria for determining the validity of such a waiver:

'* * * before any waiver (of a jury trial) can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and the intelligent consent of the defendant.' 281 U.S. at 312, 50 S.Ct. at 263, 74 L.Ed. at 870.

It is commonplace that many acts which a litigant is called upon to perform during the course of a judicial proceeding are carried out in the litigant's behalf by his attorney, if he has one. In Hensley v. United States, 108 U.S.App.D.C. 242, 281 F.2d 605 (1960), the D.C. Circuit Court of Appeals wrote:

'In general, the relation of attorney and client is one of agency and the general rules of law applicable to agencies apply. Hence, the accused ordinarily speaks and acts through his attorney.' 281 F.2d at 607.

When the accused is present in the court room and represented by competent counsel, he is bound by the actions and concessions of his counsel. A knowing and intelligent waiver of a jury trial can be exercised through counsel, and need not be made and announced by defendant personally. Counsel should not be relegated to the position of an unreliable mouth-piece. The trial court is entitled to rely on the professional responsibility of defense counsel so that when he notifies the court of the fact that his client wishes to waive a jury trial, such waiver was knowingly and understandingly consented to by his client.

Several recent cases in jurisdictions requiring affirmative waiver of the right to a jury trial have held that where defendant's counsel orally waived a jury trial, in defendant's presence, the defendant acquiesced to the waiver by failing to object. People v. Novotny, 41 Ill.2d 401, 244 N.E 2d 182 (1969); State v. Lopez, 22 Utah 2d 257, 451 P.2d 772 (1969); Thompkins v. United States, 251 A.2d 636 (D.C.App.1969); State ex rel. Derber v. Skaff, 22 Wis.2d 269, 125 N.W.2d 561 (1964); Eliachar v. United States, 229 A.2d 451 (D.C.App.1967); Hensley v. United States, supra. In California, as defendant argues, the courts have held that an accused must personally express to the court his consent to the waiver, but such rule stems from a provision of the California Constitution permitting waiver only where consent is expressed in open court by the defendant and consented to by defendant's counsel and the prosecution. Arizona has no such requirement in its constitution.

The trial court has the duty to see that an accused person's election to waive a jury trial is knowingy and understandingly made. Such a duty cannot be perfunctorily discharged. We are not persuaded, however, that defendant Jelks did not understand what was happening. By permitting his attorney, in his presence and without objection on his part, to waive his right to a jury trial, defendant must be held to have knowingly acquiesced in that decision.

In view of the importance of the right of a trial by jury as a fundamental right, it is doubtful that a written waiver signed only by the attorney or an oral waiver by counsel out of the defendant's presence would be sufficient waiver without something of record to show authorization or ratification by the defendant. However, the presence and silent acquiescence of the defendant in this case sufficiently demonstrated the authority of the attorney to speak for Jelks, and made the attorney's statements those of the defendant.

In holding as we do, we are mindful of the U.S. Supreme Court's decision in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), which requires Federal judges to interrogate personally a defendant who wishes to enter a Guilty plea to determine whether the defendant fully understands his rights and the consequences of his act. The McCarthy rule has subsequently been applied to the courts of the several states in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). We see nothing in these cases, however, to suggest that the requirement of personal interrogation by the court applies to waiver, by defense counsel, of his client's right to trial by jury. A plea of guilty is much more than a waiver of a Constitutional right; it amounts to a conviction of the offense charged. To hold, as defendant suggests, that the requirement of personal interrogation of an accused by the court applies in all cases where waiver of a fundamental Constitutional right is involved, would lead to a ludicrous result, stripping the defense counsel of his vital role at the trial proceedings. When as a matter of trial strategy defense counsel permits a statement of the defendant to be admitted in evidence, must the court prior thereto explain to the defendant the Constitutional rights which he may be waiving? We do not believe that justice is better served by sacrificing the time honored system of advocacy to the ritual of magic words.

Defendant's second assignment of error cites an alleged conflict of interest in that two attorneys of the Public Defender's office jointly represented both Jelks and his co-defendant at trial. Defendant does not, however, point out exactly what the alleged conflict of interest was, other than 'the mere fact that two individuals were involved creates a conflict in attitude, in approach, in trial strategy.' Brief for Appellant at 22.

The matter of representation of two defendants by the same Public Defender has been previously discussed by this Court in State v. Collins, 104 Ariz. 449, 454 P.2d 991 (1969), and State v. Kruchten, 101 Ariz. 186, 417 P.2d 510 (1966). We see no important factual distinction in the present case where two rather than one public defenders jointly represented the co-defendants. In both Collins and Kruchten, we cited with approval the following language in Lugo v. United States, 350 F.2d 858 (9 Cir. 1965):

'* * * while we cannot indulge in nice calculations about the amount of prejudice which results from a conflict of interest * * *, neither can we create a conflict of interest out of mere conjecture as to what might have been shown.' 350 F.2d at 859.

We cannot say that a clear conflict of interest occurred in the present case. Defendant has failed to...

To continue reading

Request your trial
29 cases
  • Delph v. Slayton
    • United States
    • U.S. District Court — Western District of Virginia
    • May 8, 1972
    ...F.2d 1295 (9th Cir.1971); United States v. Penland, 300 F.Supp. 354 (D.C.Mont. 1969), aff'd, 429 F.2d 9 (9th Cir.1969); State v. Jelks, 105 Ariz. 175, 461 P.2d 473 (1969), cert. denied, 398 U.S. 966, 90 S.Ct. 2179, 26 L.Ed.2d 549 (1970). In Virginia § 19.1-191(4) amounts to a waiver when de......
  • Ciummei v. Com.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • July 25, 1979
    ... ... Dr. Elliot R. Reiner, a staff psychiatrist of the Worcester State Hospital, had examined the petitioner pursuant to G.L. c. 123, § 15(A ), and § 18(A ), and his two reports, dated November 25, 1975, had declared ... Straite, 138 U.S.App.D.C. 163, 164, 425 F.2d 594, 595 (1970); United States v. Hunt, 413 F.2d 983, 984 (4th Cir. 1969); State v. Jelks, 105 Ariz ... 175, 178, 461 P.2d 473 (1969) (with a dissent); Quartz v. State, 258 So.2d 283, 284 (Fla.Dist.Ct.App.1972); State v. Olivera, 53 ... ...
  • State v. Crump, 11224
    • United States
    • Connecticut Supreme Court
    • December 2, 1986
    ... ... See State v. Jelks, 105 Ariz. 175, 461 P.2d 473 (1969), cert. denied, 398 U.S. 966, 90 S.Ct. 2179, 26 L.Ed.2d 549 (1970); State v. Watson, 19 Ariz.App. 369, 507 P.2d 981 (1973); Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973); State v. Olivera, 53 Hawaii 551, 497 P.2d 1360 (1972); State v. Long, 408 So.2d ... ...
  • Com. v. Pavao
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • November 18, 1996
    ...cert. denied, 464 U.S. 838, 104 S.Ct. 129, 78 L.Ed.2d 125 (1983); United States v. Hunt, 413 F.2d 983 (4th Cir.1969); State v. Jelks, 105 Ariz. 175, 461 P.2d 473 (1969), cert. denied, 398 U.S. 966, 90 S.Ct. 2179, 26 L.Ed.2d 549 (1970); Quartz v. State, 258 So.2d 283 (Fla.Dist.Ct.App.1972); ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT