State v. Lomax

• Decision Date: 24 March 2006
• Docket Number: No. C-040450.,C-040450.
• Parties: The STATE of Ohio, Appellee, v. LOMAX, Appellant.
• Court: Ohio Court of Appeals

Page 205

852 N.E.2d 205

166 Ohio App.3d 555

2006-Ohio-1373

The STATE of Ohio, Appellee, v. LOMAX, Appellant.

No. C-040450.

Court of Appeals of Ohio, First District, Hamilton County.

Decided March 24, 2006.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for appellee.

Rubenstein & Thurman, L.P.A., Inc., and Scott A. Rubenstein, Cincinnati, for appellant.

MARK P. PAINTER, Judge.

{¶ 1} The right to trial by jury is fundamental to Anglo-American jurisprudence—it cannot be lightly surrendered. We hold that the defendant in a felony case, in addition to signing the required written waiver, must orally acknowledge that he understands that he is waiving his right to a jury trial.

{¶ 2} After a bench trial, defendant-appellant, Keith Lomax, was convicted of murder. Because Lomax's waiver of a trial by jury was not made in open court, his jury waiver did not comply with the requirements of R.C. 2945.05. Therefore, the trial court lacked jurisdiction to conduct a bench trial, and we must reverse the conviction and remand the cause for a new trial.

I. Stabbing

{¶ 3} On May 25, 2003, Lomax and his girlfriend, Brandy Tooson, were at a family birthday party. Robert Christian, the victim, was also at the party. At some point during the evening, Tooson and Christian argued over a chair. The argument turned into a pushing match, and though accounts at trial differed, apparently Christian ended up with the chair and Tooson ended up on the floor.

{¶ 4} Tooson was upset, and her cousin Travis punched Christian in the face. While others encouraged Christian to leave the party, Tooson continued complaining that she had been "disrespected" by Christian. Lomax, who had been outside, confronted Christian and asked him, "Did you disrespect my woman?" The men briefly argued, then parted ways.

{¶ 5} As partygoers took Christian outside to a car, Tooson continued to complain that Christian had inappropriately touched her. She questioned Lomax about what he was going to do, stating that Lomax was supposed to protect her.

{¶ 6} Witnesses testified that Lomax went to his car and retrieved something. Lomax then went to Christian and swung at him several times. Christian exclaimed that he had been stabbed. A family member walked with Lomax away from the scene and took a knife out of Lomax's hand.

{¶ 7} At trial, Lomax admitted that he had stabbed Christian, but claimed that it was in self-defense. Lomax testified that Christian had had him in a headlock and that he feared for his life. Only Lomax and Tooson testified that Christian had had Lomax in a headlock. All other witnesses testified that Lomax had not been in a headlock, but had lunged at Christian. The court found Lomax guilty and sentenced him to 15 years to life in prison.

II. Jury Waiver

{¶ 8} In his first assignment of error, Lomax argues that his jury waiver was not properly executed and that, consequently, the trial court lacked jurisdiction to conduct a bench trial.

{¶ 9} In Ohio, a defendant may waive his right to a trial by jury.¹ Under Crim.R. 23(A), a defendant must make the waiver knowingly, intelligently, and voluntarily, and in writing. The Revised Code provides the manner in which a waiver must be made: "Such waiver by a defendant, shall be in writing, signed by the defendant, and filed in said cause and made a part of the record thereof. * * * Such waiver of trial by jury must be made in open court after the defendant has been arraigned and has had opportunity to consult with counsel."²

{¶ 10} The record reflects that Lomax signed a written jury waiver. But Lomax argues that his jury waiver was not made in "open court" and thus was not a valid waiver.

{¶ 11} The only reference to the jury waiver in the trial transcript occurs immediately before opening statements. The court stated, "Okay. I understand we are finally ready on the Lomax case. Since there's going to be a jury waiver, does the state care to make an opening statement at this time?" The "going to be" is the only reference to the jury waiver in "open court." Evidently, the jury waiver was given to the court clerk at some point, because it is in the record before us.

{¶ 12} The question before us is whether a mere reference on the record to a jury waiver is enough to constitute a waiver "made in open court." What exactly is a trial court required to put on the record regarding a defendant's waiver of a jury?

{¶ 13} We fail to understand how something can be "made in open court" unless it is, in fact, made on the record—that is, made in court and taken down in the transcript.

{¶ 14} The law in Ohio is sparce—probably because this situation rarely happens— most records include an extensive colloquy between the judge and defendant, discussing the waiver. We will first look to federal cases, then Ohio, then other states.

III. Federal Waiver

{¶ 15} The United States Supreme Court has repeatedly held that while a defendant has the right to waive a jury trial, a trial court has the responsibility to ensure that the waiver is made knowingly and intelligently and also to approve the jury waiver.³ A colloquy between the court and the defendant serves both to emphasize to the defendant the seriousness of the decision to waive the right to trial by jury and to create a clear record of the circumstances of the waiver, establishing that express and intelligent consent was indeed given by the defendant.⁴

{¶ 16} Numerous federal appellate courts have held that there is no constitutional requirement that a court conduct an on-the-record colloquy with the defendant prior to the jury-trial waiver.⁵ The right for a defendant in federal court to waive the right to a jury trial is governed by Fed.R.Crim.P. 23(a). The rule allows a non-jury trial provided that (1) the defendant waives a jury trial in writing, (2) the government consents, and (3) the court approves. There is no federal statute analogous to R.C. 2945.05 that requires that a jury waiver be "made in open court."

{¶ 17} Despite the lack of a clear constitutional or statutory directive for federal courts to conduct a colloquy to inform a defendant on the record of his or her rights and to ascertain that a waiver is made knowingly and intelligently, a majority of federal appellate courts have held that such a colloquy is preferable to a mere acceptance of a written waiver;⁶ some have required it.⁷

{¶ 18} For example, the Sixth Circuit Court of Appeals has stated that a determination that the defendant is knowingly and intelligently waiving a jury "is most appropriately made on the record before the waiver is executed. A contemporaneous colloquy with the defendant before the jury trial waiver is executed could create a record capable of withstanding subsequent challenges, satisfy the court's responsibility, facilitate intelligent appellate review, conserve scarce judicial resources, and enhance the finality of criminal convictions."⁸ The court then proceeded to "implore the district courts to personally inform each defendant of the benefits and burdens of jury trials on the record prior to accepting a proffered waiver."⁹

{¶ 19} Similarly, the Second Circuit Court of Appeals has held, "In order to obviate any future misunderstandings, however, we suggest the district courts individually inform each defendant, on the record, of the fundamental attributes of a jury trial before accepting a waiver. * * * This court urges that at a minimum the district courts inform each defendant that a jury is composed of twelve members of the community, that the defendant may participate in the selection of the jurors, that the jury's verdict must be unanimous, and that a judge alone will decide guilt or innocence if the defendant waives the right to a jury trial."¹⁰

{¶ 20} The Seventh Circuit Court of Appeals now requires by rule that district courts interrogate defendants on their understanding of the right to a jury trial and a waiver of that right, since the court's suggestions that the district courts conduct such a colloquy went unfollowed.¹¹ The court decided that "[f]ormal adoption of a procedure analogous to that required for guilty pleas by Rule 11, Fed.R.Crim.P., will provide an additional safeguard against unintelligent waiver. It will avoid the argument now raised on appeal and tend to prevent misunderstanding * * *."¹²

{¶ 21} In Patton v. United States, the Supreme Court held that courts must ensure that a defendant's jury waiver is "express and intelligent," because of its seriousness. "Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant. And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity."¹³

{¶ 22} The federal caselaw is overwhelming that a colloquy conducted between a trial court and the defendant concerning a jury waiver is at least strongly recommended. Ohio caselaw indicates that it is not only a good idea, but required.

IV. Ohio Jury Waiver

{¶ 23} In State v. Jells,¹⁴ the Ohio Supreme Court considered what on-the-record inquiry by the trial court was required for a valid jury waiver. The court held, "There is no requirement in Ohio for the trial court to interrogate a defendant in order to determine whether he or she is fully apprised of the right to a jury trial. The Criminal Rules and the Revised Code are satisfied...