State v. Marino

• Decision Date: 12 July 1983
• Citation: 190 Conn. 639,462 A.2d 1021
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Joseph MARINO.

Page 1021

462 A.2d 1021

190 Conn. 639

STATE of Connecticut v. Joseph MARINO.

Supreme Court of Connecticut.

Argued April 5, 1983.

Decided July 12, 1983.

Richard Emanuel, Asst. Public Defender, with whom, on the brief, was Jerrold H. Barnett, Public Defender, for appellant (defendant).

John M. Massameno, Asst. State's Atty., with whom were Catherine J. Capuano, Sp. Asst. State's Atty., and, on the brief, Francis M. McDonald, State's Atty., Richard E. Maloney, Deputy Chief State's Atty., and Katherine J. Lambert, Deputy Asst. State's Atty., for appellee (state).

Before PETERS, HEALEY, SHEA, GRILLO and CIOFFI, JJ.

SHEA, Associate Justice.

After a trial by a three judge court pursuant to General Statutes § 53a-45(b), the defendant was found guilty of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a as a lesser offense included in the murder indictment which the grand jury had returned. In his appeal from the judgment the defendant has raised four claims of error: (1) that his waiver of a jury trial was not made knowingly, intelligently and voluntarily; (2) that the evidence was insufficient to establish his guilt beyond a reasonable doubt; (3) that there was an insufficient evidentiary basis for the court to consider manslaughter in the first degree with a firearm as an offense included in the indictment; and (4) that his statements to the police after the shooting were the product of an unlawful seizure of his person and, therefore, should not have been admitted in evidence.

I

The circumstances surrounding the defendant's waiver of his right to a jury trial were as follows:

On April 25, 1978, a grand jury returned an indictment charging the defendant with murder. The clerk then read the indictment to the defendant who entered a plea of not guilty. The clerk then inquired whether he elected trial by court or jury. His counsel requested trial by a three judge court and it was so ordered. The state's attorney suggested that the court question the defendant himself concerning his election. The court then inquired, "You are seeking a trial by a three judge court. I presume, Mr. Marino, that you do understand that this means your trial will be had before a court and not before a jury and that that court will consist of three judges; do you understand?" The defendant responded affirmatively to this question and to a further inquiry as to whether it was his free and voluntary choice. ¹

In support of the claim that his waiver of a jury trial was neither knowing, intelligent, nor voluntary, the defendant points mainly to two deficiencies in the proceedings related thereto: (1) that he was never told of his entitlement to a jury of twelve ² whose verdict had to be unanimous; and (2) that he was never informed that a decision by a three judge court could be reached by a simple majority, although the three judges who found him guilty in this case were actually unanimous.

Although the claim of an ineffective jury trial waiver is being raised for the first time on appeal, it is unquestionable that this issue involves a fundamental constitutional right guaranteed by the sixth amendment and that we must review the record to determine whether it clearly indicates that the defendant has been deprived of that right illegally. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). It should be noted that the defendant makes no claim that the procedures set forth in Practice Book § 839 ³ and General Statutes § 54-82b ⁴ concerning waiver of a jury trial were not followed. A mere deviation from these prescribed procedures, of course, would not in itself constitute a claim of constitutional error eligible for appellate review sufficient to overcome our general prohibition against raising on appeal issues never presented to the trial court. State v. Shockley, 188 Conn. 697, 713, 453 A.2d 441 (1982); see Practice Book § 3063.

The right to a jury trial in a criminal case is among those constitutional rights which are related to the procedure for the determination of guilt or innocence. The standard for an effective waiver of such a right is that it must be "knowing and intelligent," as well as voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 237, 93 S.Ct. 2041, 2052, 36 L.Ed.2d 854 (1973); Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 263, 74 L.Ed. 854 (1930). The issue before us, however, is not in full measure whether the defendant acted knowingly and intelligently in waiving a jury trial, as in cases where an evidentiary hearing upon that subject has been held. See Ciummei v Commonwealth, 378 Mass. 504, 511-14, 392 N.E.2d 1186 (1979). We must decide whether the bare appellate record before us furnishes sufficient assurance of an effective waiver at least to satisfy constitutional requirements for the disclosure of such a waiver on the record.

Insofar as the right to a jury trial is based upon the federal constitution, it is appropriate to examine the procedure prescribed for an effective jury trial waiver by the federal rules of criminal procedure. Rule 23(a) provides: "Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government." The only record of the waiver required by most of the federal courts is the executed document itself. United States v. Tobias, 662 F.2d 381, 387 (5th Cir.1981). Although personal interrogation of the defendant to determine his understanding of the significance of his execution of the waiver form is the better practice, it is not essential under either the rule or the federal constitution. United States v. Scott, 583 F.2d 362, 363 (7th Cir.1978); United States v. Kidding, 560 F.2d 1303, 1311-12 (7th Cir.) cert. denied sub nom., 434 U.S. 872, 98 S.Ct. 217, 54 L.Ed.2d 151 (1977); Estrada v. United States, 457 F.2d 255, 257 (7th Cir.1972); United States v. Mitchell, 427 F.2d 1280, 1281 (3d Cir.1970); United States v. Straite, 425 F.2d 594, 595 (D.C.Cir.1970); United States v. Hunt, 413 F.2d 983, 984 (4th Cir.1969). The court of appeals for the seventh circuit, however, has adopted prospectively a supervisory rule prescribing a detailed jury waiver formula. ⁵ United States v. Delgado, 635 F.2d 889, 890 (7th Cir.1981); United States v. Scott, supra, 364. Similar jury waiver inquiries have been established prospectively by the courts of Massachusetts and Pennsylvania. Ciummei v. Commonwealth, supra, 509-11, 392 N.E.2d 1186; Commonwealth v. Morin, 477 Pa. 80, 84-85, 383 A.2d 832 (1978). Desirable as these reforms may be, we are not inclined to adopt them retroactively.

Both General Statutes § 54-82b(b) ⁶ and Practice Book § 839 ⁷ require that the judge advise the defendant at the time he pleads of his right to a trial by jury. We have indicated that a literal compliance with these provisions is not essential "if the record affirmatively discloses that the defendant intelligently and knowingly did waive his right to trial by jury." State v. Shockley, 188 Conn. 697, 711, 453 A.2d 441 (1982). Neither the statute nor the rule specify the precise content of the advice to be given a defendant who seeks a non-jury trial. The colloquy with the court in this case does establish that, with counsel present, this defendant voluntarily chose to be tried by a three judge court rather than a jury. The federal standard for jury waiver set forth in Federal Rule 23(a), which has frequently been held constitutionally adequate, accomplishes nothing more by way of assurance of a knowing and intelligent waiver on the part of a defendant. It is not unreasonable to infer such a waiver from the free expression by a defendant of his election of a non-jury trial especially where he is represented by counsel. See Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942) (an accused, without counsel by his own election, may voluntarily waive right to jury if capable of determining his own best interest). We, therefore, find no violation of the defendant's federal constitutional right to a jury trial. We also see no reason to demand as a constitutional necessity a more elaborate procedure for an effective waiver of the right of jury trial as guaranteed by our state constitution. Conn. Const., art. I, § 19.

We must emphasize the limited nature of our holding in this case. Undoubtedly a more comprehensive colloquy than this record discloses is generally desirable where a defendant elects trial without a jury. See United States v. Delgado, supra, 890. Our concern on this appeal, however, is only with the adequacy of the record to show a waiver of a jury trial when its effectiveness is first questioned on appeal without the benefit of a factual exploration of that issue at some evidentiary proceeding. There is nothing before us to indicate that the defendant was not of ordinary intelligence and educational background and that the choice of court or jury was not fully discussed with him by his counsel. We cannot assume that in performing his duty of competent representation his counsel did not advise the defendant of the consequences of his choice, even to the extent of the refinements the defendant now demands. ⁸ We hold that the record in this case satisfies the constitutional requirement for an affirmative disclosure of an effective jury waiver which may be relied upon in the absence of some contrary indication.

II

A recital of the facts which the panel might reasonably have found is necessary for consideration of the claim of the defendant that there was insufficient evidence to sustain his conviction of manslaughter in the first degree with a firearm.

On February 10, 1978, at about 1:30 p.m., the police responded to a report of a shooting at 41 Cooke Street in Waterbury. Officer Charles Muccino and two paramedics ran upstairs to the third floor apartment occupied by the defendant and the victim. The door was open and they ...