State v. Shockley

• Decision Date: 21 December 1982
• Citation: 188 Conn. 697,453 A.2d 441
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Ricky L. SHOCKLEY.

Page 441

453 A.2d 441

188 Conn. 697

STATE of Connecticut v. Ricky L. SHOCKLEY.

Supreme Court of Connecticut.

Argued Oct. 6, 1982.

Decided Dec. 21, 1982.

Paul F. Thomas, Cheshire, with whom was Michael R. Sheldon, West Hartford, for appellant (defendant).

John M. Massameno, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Bernard Gaffney, Asst. State's Atty., for appellee (state).

Before SPEZIALE, C.J., and HEALEY, DALY, SPONZO and COVELLO, JJ.

ARTHUR H. HEALEY, Associate Justice.

The issue on this appeal, as framed by the defendant, is whether the defendant Ricky Shockley was denied any federal or state constitutional right, statutory right or right prescribed by rule of court to be tried by a jury where he has been tried by a court after the trial judge accepted his election of a court trial without first advising him that he had an absolute right to be tried by a jury. ¹

In order to put this issue in context certain factual circumstances must be set out. On July 24, 1978, the defendant was arrested and charged in a three count information with kidnapping in the second degree with a firearm in violation of General Statutes § 53a-94a; sexual assault in the first degree with a firearm in violation of General Statutes § 53a-70a and burglary in the second degree with a firearm in violation of General Statutes § 53a-102a. ² At his arraignment on August 8, 1978, the defendant pleaded not guilty to each of the three counts and elected to be tried by a jury of six. On May 9, 1980, the defendant, represented by a public defender, had a hearing on his motion to suppress identification before the court, D. Shea, J. Prior to the court's ruling on the motion to suppress, the defendant withdrew all his pleas and elections on the three counts of the original information. He then entered, and the court accepted, a plea of guilty under the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to a substituted information which charged him with one count of sexual assault in the first degree. ³ Prior to accepting his Alford plea, the court informed him of the rights he would forego by his plea of guilty, including the right to have a trial and to have a jury decide his case.

On June 18, 1980, the defendant, then represented by recently retained private counsel, again appeared before the court, D. Shea, J., and moved for permission to withdraw his Alford plea. The defendant testified at the hearing on this motion and acknowledged that at the time he entered his Alford plea he was told that he was entitled to have a jury make the decision on his case. The court granted the motion, ordered that all "original counts" be reinstated and that all "original pleas of not guilty" be reentered and assigned the case for trial. At the request of the defendant, however, the court permitted him to defer his election of a court or jury trial until he could discuss that matter with his new attorney. ⁴

On Friday, July 11, 1980, the defendant appeared before the court, A. Armentano, J., with his private counsel at which time the state told the court: "[I]n conferring with defense counsel, it is my understanding that there will be a change in the election; but, perhaps, your Honor could [sic] care to inquire." Defense counsel told the court that "[i]t is my understanding Ricky Shockley would like to withdraw his jury election and--and have a trial to the Court, your Honor. I don't know whether your Honor would like to inquire; but that's my understanding." At that time the defendant pleaded not guilty to each of the three counts and elected a court trial on each count. The court then spoke to the defendant concerning his election. ⁵ At that time the defendant acknowledged he knew he was entitled to a jury trial, that he could still have one if he wanted one, that he had a constitutional right to a jury trial, that a trial by court is by one judge and that he discussed it with his lawyer and "want to change to a Court, which is one judge ...." In saying he understood that he had a constitutional right to a jury trial, he answered in the affirmative to the court's next question: "You can have it any time you want as you probably know." Thereafter, the court asked the defendant: "Do you have any questions whatsoever?" The defendant answered "[n]o." The court made a finding that the "[d]efendant knowingly, willingly and voluntarily waived his right to a jury trial and elected a trial by a Court, which is one judge ..." and also declared that the "[c]ase is on trial now...." The case was then continued until Monday, July 14, 1980.

On July 14, 1980, just prior to calling the first witness, the state moved to file an amendment to the information adding two more counts. ⁶ The proposed fourth count charged kidnapping in the second degree in violation of General Statutes § 53a-94 and the fifth count charged sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2). In arguing that the motion be granted the state observed that both of these statutes permitted the charging and prosecution of a defendant both with and without a firearm, that both of such counts while includable under the existing counts could arguably, in the absence of a concession by the defense, ⁷ not be lesser offenses because they were of the same degree. The court, A. Armentano, J., questioned the necessity of the amendment pointing out that the defendant "certainly can't be found guilty" on the first and fourth counts at the same time and on the second and fifth counts at the same time because of the element of a firearm. ⁸ The court, however, granted the state's motion and directed that the defendant be put to plea on the added fourth and fifth counts. After he pleaded not guilty to each count, the following took place: "The Clerk: You elect a trial by court or by jury? The Defendant: Court: The Court: May we proceed? Anything else, Mr. Crowley? Mr Gaffney?" to which counsel for the state and the defendant answered "[n]o." ⁹

On July 15, 1980, after the state had rested its case, the court granted defense motions for judgment of acquittal on each of the three counts of the original information. Thereafter, on July 16, 1980, the defendant was found guilty on each of the counts added by the amendment of July 14, 1980. On August 18, 1980, the court denied the defendant's written motion for a new trial and his written petition for a new trial ¹⁰ and imposed sentence. This appeal followed.

The defendant essentially claims that he was denied his rights to a trial by jury under the United States and Connecticut constitutions, under state statute and under rule of court. He argues that he was entitled to a trial by jury under the sixth and fourteenth amendments to the United States constitution, under article first, § 8, of the Connecticut constitution, and under General Statutes § 54-82b. ¹¹ Furthermore, he claims that the mandatory procedure required by § 54-82b and Practice Book § 839 ¹² in making his election of a court trial were not followed by the trial judge. Accordingly, he argues, there was no valid waiver demonstrated by the record of his right to trial by jury because of this "plainly erroneous" action of the trial court and a remand for a new trial is required. The state maintains that the record amply demonstrates that the defendant validly waived his right to a jury trial. In doing so, it claims that the defendant's arraignment on July 14, 1980, on the two added counts was unnecessary because these two counts were "simply lesser included offenses of two of the original three crimes" upon which he had already waived a jury trial. Alternatively, the state takes the position that even if an arraignment and election on July 14, 1980, on the added counts was necessary, the record, nevertheless, still demonstrates a valid waiver by the defendant of his right to a jury trial.

Under both the United States and Connecticut constitutions the defendant was entitled to a trial by jury on the charges upon which he was presented and in fact tried. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, reh. denied, 392 U.S. 947, 88 S.Ct. 2270, 20 L.Ed.2d 1412 (1968); ¹³ Conn.Const., art. I, § § 8, 19; ¹⁴ State v. Olds, 171 Conn. 395, 408, 370 A.2d 969 (1976). Any defendant may waive that right but only if he does so knowingly and intelligently. Schneckloth v. Bustamonte, 412 U.S. 218, 237-38, 93 S.Ct. 2041, 2052-53, 36 L.Ed.2d 854 (1973); Singer v. United States, 380 U.S. 24, 34, 85 S.Ct. 783, 789, 13 L.Ed.2d 630 (1965). In Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), the United States Supreme Court articulated a classic definition of waiver in stating that it was ordinarily "an intentional relinquishment or abandonment of a known right." We have said that "[a] valid waiver of a constitutional right ... must be knowing and intelligent, accomplished with sufficient awareness of the relevant circumstances and likely consequences." State v. Reed, 174 Conn. 287, 293, 386 A.2d 243 (1978); see Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970). " '[C]ourts indulge every reasonable presumption against waiver' of fundamental constitutional rights and ... 'do not presume acquiescence in the loss of fundamental rights.' " (Citations omitted.) Johnson v. Zerbst, supra. In addition, a waiver of a fundamental constitutional right is not to be presumed from a silent record. See Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969).

Even under this strict standard governing the waiver of constitutional rights the record in this case clearly demonstrates a knowing and voluntary waiver. This finding is not based solely on a reading of the events that transpired on July 14, 1980, immediately prior to the presentation of evidence. Rather our conclusion is based upon the...