State v. Livingston

• Decision Date: 29 January 1991
• Docket Number: No. 89-1005-CR,89-1005-CR
• Citation: 464 N.W.2d 839,159 Wis.2d 561
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Robert L. LIVINGSTON, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 839

464 N.W.2d 839

159 Wis.2d 561

STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Robert L. LIVINGSTON, Defendant-Appellant.

No. 89-1005-CR.

Supreme Court of Wisconsin.

Argued Nov. 28, 1990.

Decided Jan. 29, 1991.

Daniel J. O'Brien, Asst. Atty. Gen. (argued), Donald J. Hanaway, Atty. Gen., on the briefs, plaintiff-respondent-petitioner.

Robert A. Ferg (argued) and Sinclair & Ferg, Ltd., Chippewa Falls, on the brief, for defendant-appellant.

STEINMETZ, Justice.

The issue in this case is whether a criminal jury trial waiver by defense counsel is a personal waiver by the defendant under sec. 972.02(1), Stats. ¹

A second issue raised by the state is whether the state is entitled to a remand for a hearing to inquire into the defendant's intelligence, knowledge and understanding of the purpose and function of a jury trial when the defendant did not personally waive his right to a criminal jury trial pursuant to chapter 972, Stats.

The trial court implicitly ruled in the affirmative as to the first issue and thus found no need to consider the second issue in this case. In an unpublished opinion, the court of appeals reversed the trial court, holding that in accordance with sec. 972.02(1), Stats., and this court's decision in Krueger v. State, 84 Wis.2d 272, 267 N.W.2d 602, cert. denied 439 U.S. 874, 99 S.Ct. 210, 58 L.Ed.2d 188 (1978), the defendant must act "personally" in order for a valid waiver to occur, 155 Wis.2d 466, 455 N.W.2d 913. Insofar as the state conceded that the defendant had not so acted, the court of appeals concluded that no waiver had occurred. With respect to the second issue, the court of appeals found that when a "personal" waiver has not occurred, this court has determined that the appropriate remedy is not a postconviction hearing to determine whether in fact there was a constitutionally valid waiver, but a reversal of conviction and a remand for a new trial. Accordingly, that is what the court of appeals ordered. We affirm the court of appeals.

The defendant, Robert L. Livingston, Sr., was charged and convicted after a trial in the circuit court for Pierce county, the Honorable Eugene A. Toepel, Reserve Judge, and John J. Perlich, Judge, of one count of second degree sexual assault contrary to sec. 940.225(2)(a), Stats. The defendant filed a motion for postconviction relief arguing that his conviction was invalid because he had not validly waived his right to a jury trial in accordance with statutory law and Krueger. Because the trial court did not rule on the defendant's motion in a timely fashion, the clerk of the circuit court entered an order of denial pursuant to sec. 809.30(2)(i). The defendant appealed.

Prior to trial, the prosecution and defense counsel mutually consented in open court to waiver of trial by jury. The defendant was present in the courtroom at the time of this consent, but he was addressed neither by his attorney nor by the court and made no comment at all concerning waiver of his right to a jury. Nevertheless, the trial court considered a waiver to have occurred by virtue of the consent given by the parties. The colloquy between counsel and the court was as follows:

The Court: Do I understand that both counsel are consenting to a trial without a jury?

Mr. Johnson (prosecution): That's correct judge.

The Court: Okay.

Mr. Kucinski (defense counsel): That's right.

The Court: You may proceed.

Mr. Johnson: State calls Bonnie Livingston.

This was the total extent of any court proceedings or any written consents of any nature concerning a jury waiver. The defendant himself made no statement, written or otherwise, waiving his right to trial by jury.

The defendant's right to a jury trial is guaranteed by the Sixth Amendment to the United States Constitution and Article I, sec. 7 of the Wisconsin Constitution. ² It is well established that the right to trial by jury can be completely waived in favor of trial by the court.

The pertinent language of sec. 972.02(1), Stats., requires that criminal defendants, except as otherwise provided, be tried by a jury of 12 "unless the defendant waives a jury in writing or by statement in open court or under s. 967.08(2)(b), on the record, with the approval of the court and the consent of the state." This court previously interpreted the predecessor statute of sec. 972.02(1) ³ to mean that counsel could effectively waive a jury trial on behalf of the defendant.

In State ex rel. Derber v. Skaff, 22 Wis.2d 269, 274, 125 N.W.2d 561 (1964), we held that "the presence and silent acquiescence of the defendant in a case such as the instant one sufficiently demonstrates the authority of the attorney to speak for the defendant, and makes the attorney's statement his own." Similarly, in Dascenzo v. State, 26 Wis.2d 225, 231-32, 132 N.W.2d 231 (1965), in which we relied upon Skaff, we held that it was not error under the statute to allow a case to be tried by a six-member jury rather than a 12-member jury without the express consent of the defendant, who was present when counsel stipulated to the six-member jury in a short colloquy with the court. In reaching their respective conclusions, Skaff and Dascenzo essentially relied upon the general proposition that an attorney acts on behalf of his client. However, in Skaff we said that "it would be good practice for defense counsel or the court to address questions to the defendant in order to make it clearer of record that defendant joins in the waiver." Skaff, 22 Wis.2d at 274, 125 N.W.2d 561.

In Krueger, 84 Wis.2d at 281-82, 267 N.W.2d 602, portions of Skaff and Dascenzo were overruled. We stated:

Nevertheless, we now overrule State ex rel. Derber v. Skaff, supra, and Dascenzo v. State, supra, insofar as they permit a trial court, in situations similar to that presented by this case, to presume from a defendant's silence that a waiver of the jury trial made by counsel is an expression of the defendant's knowing and voluntary intent. Even if it is reasonable to assume that most defense attorneys will inform a client of the right and its meaning to the defendant, it seems wholly unreasonable to expect a defendant who does not understand these matters to contradict a waiver made by his attorney. We hold that the record must support, without the aid of these presumptions, the conclusion that the defendant in fact made a knowledgeable and voluntary choice.

Krueger further held that "henceforth a record demonstrating the defendant's willingness and intent to give up the right to be tried by a jury must be established" before a waiver to which counsel has consented actually can occur. Id. 84 Wis.2d at 282, 267 N.W.2d 602. Krueger did not specifically adopt a formal procedure to be followed in making such a record, although it did cite with approval "the procedure followed in White v. State, 45 Wis.2d 672, 682-83, 173 N.W.2d 649 (1970), where the record was developed by the district attorney, and the procedure suggested in ABA Standards Relating to Trial by Jury, sec. 1.2(b) (1968), which places the responsibility of developing the record on the trial court itself." Id.

Krueger made no reference to any statutory language, but rather focused directly upon the more fundamental issue of ensuring that a waiver be constitutionally valid. ⁴ Nevertheless, it is clear that this court's reasoning underlying Krueger and the legislature's reasoning in enacting sec. 972.02(1), Stats., are coextensive in relevant part. That is, what was said in Krueger with regard to waiver of trial by jury is directly applicable to sec. 972.02(1). The court of appeals recognized this in State v. Moore, 97 Wis.2d 669, 294 N.W.2d 551 (Ct.App.1980). In Moore, the court of appeals relied upon Krueger in explaining sec. 972.02(1), Stats. Concerning sec. 972.02(1), the court of appeals said:

'Neither circumstantial evidence nor reasonable inference will support a waiver.' ...

Our supreme court and our legislature, however, have taken a strict per se position; that is, waiver must be in writing or by oral statement in open court. We must abide by that rule.

Moore, 97 Wis.2d at 671-672, 294 N.W.2d 551.

Conceivably, Krueger could have been read to allow that evidence other than defense counsel's assertions, but not including personal assertions by the defendant, might possibly produce compliance with the requirement that "the defendant waive" his right to trial by jury. However, in Moore and other cases, the court of appeals correctly interpreted sec. 972.02(1), Stats., and Krueger to "require the defendant to personally, not through his attorney, make a knowing and voluntary waiver of his right to a jury trial." Moore, 97 Wis.2d at 671, 294 N.W.2d 551 (emphasis added); accord State v. Cooley, 105 Wis.2d 642, 645, 315 N.W.2d 369 (Ct.App.1981); State v. Cloud, 133 Wis.2d 58, 62, 393 N.W.2d 123 (Ct.App.1986). Accordingly, we hold that any waiver of the defendant's right to trial by jury must be made by an affirmative act of the defendant himself. The defendant must act personally; he and only he has the power and authority to waive his right to a jury trial, and that power and authority is legally effective only by virtue of an affirmative act by him. Neither counsel nor the court nor any other entity can act in any way or to any degree so as to waive on the defendant's behalf his right to trial by jury. The affirmative act by the defendant, in order to constitute a personal waiver, must be such as to comply with at least one of the specific means of effecting a waiver provided in sec. 972.02(1), and the court and the state must consent in order for a waiver to occur in accordance with the statute. The record must clearly demonstrate the defendant's personal waiver; the personal waiver may not be inferred or presumed. All of these concerns reflect the fact that the ultimate question is what the defendant wants--a court trial or a jury trial; it is his decision, no matter what advice he has received. If ...