State v. Swain, 6813

• Decision Date: 21 August 1979
• Docket Number: No. 6813,6813
• Citation: 61 Haw. 173,599 P.2d 282
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. George SWAIN, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 282

599 P.2d 282

61 Haw. 173

STATE of Hawaii, Plaintiff-Appellee, v. George SWAIN, Defendant-Appellant.

No. 6813.

Supreme Court of Hawai'i.

Aug. 21, 1979.

Syllabus by the Court

1. Where a defendant has a constitutional right to a trial by jury in district court, the judge must inform the defendant of his right. Where a defendant was not so informed, waiver of jury trial may not be implied from failure to request it. Rule 5(b)(1), Hawaii Rules of Penal Procedure.

2. Although an attorney may waive the right to trial by jury for his client, express or implied concurrence of the defendant must be obvious for the waiver to be effective. Where counsel merely proceeded to trial without requesting a trial by jury, and where the defendant was not informed of his right by the district judge, waiver was not effective.

Michael T. I. Kim, Honolulu, on the brief, for defendant-appellant.

Robert P. Goldberg, Deputy Pros. Atty., Honolulu, on the brief, for plaintiff-appellee.

Before RICHARDSON, C. J., OGATA and MENOR, JJ., KOBAYASHI, Retired Justice, and LUM, Circuit Judge, assigned by reason of vacancies.

PER CURIAM.

The defendant was convicted of assault in the third degree, under HRS § 707-712. He appeals, claiming (1) that the trial court erred in denying his motion for a new trial by jury, and (2) that he did not effectively waive his right to trial by jury.

The offense of which the defendant was convicted on the facts was a misdemeanor, punishable by imprisonment for not more than one year. It was not a petty misdemeanor. HRS § 707-712; HRS § 706-663. He therefore had a constitutional right to a trial by jury. State v. Shak, 51 Haw. 612, 466 P.2d 422 (1970); United States v. Davis, 430 F.Supp. 1263 (D.Hawaii 1977).

On October 3, 1977, the defendant appeared before the court in answer to the charge. The court's Minutes of Court Proceedings contain the following entry:

"Defendant present. Case continued to 10/17/77 for arr. plea and trial a. m. Defendant referred to Public Defender."

On October 27, 1977, the defendant appeared with deputy public defender Shelton Jim On. Prior to trial, Mr. Jim On informed the court of the defendant's failure to appear at his office prior to the trial date and that his only consultation with the defendant took place shortly before trial. The trial court then asked counsel, with the defendant present, "You ready to go to trial?" The deputy public defender responded, "Yes, I am. Mr. Swain also wishes to enter a plea of not guilty at this time." Thereafter, the matter proceeded to trial, and the court on the evidence adduced found the defendant guilty as charged. There is nothing in the record to indicate that the defendant was ever advised by the court or by his counsel of his right to a trial by jury.

The defendant subsequently retained private counsel and moved for a new trial, alleging, Inter alia, that he had been deprived of his right to a trial by jury. The district judge denied the motion and the defendant appeals.

Under HRS § 604-8, ¹ a defendant in district court who has a right to a jury trial may waive that right by failing to request a trial by jury within ten days of arraignment. However, according to Rule 5(b), Hawaii Rules of Penal Procedure, ² a defendant, after being informed of his right to jury trial, receives such jury trial unless he waives his right in writing or orally in open court.

We need not attempt at this time to effect a reconciliation of the foregoing provisions, for we are satisfied that whichever rule or statute is applied, the defendant did not effectively waive his right to a jury trial.

Under either provision, a defendant's waiver of his constitutional right must be knowing and voluntary. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Although the Sixth Amendment does not require that a judge interrogate the defendant as to the voluntariness of his waiver of a right to jury trial, it must at least be shown from the record or from the totality of circumstances that the defendant was aware of and understood his right and voluntarily waived it. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); United States v. Kidding, 560 F.2d 1303 (7th Cir. 1977); People v. Rodrigues, 275 Cal.App.2d 946, 80 Cal.Rptr. 397 (1969).

Rule 5(b)(1) requires that the district judge inform the defendant of his right in "appropriate" cases. It is clear that "appropriate" cases are those in which the accused has a constitutional right to a jury trial. In the case Sub judice, since nothing on the record shows that the defendant was informed of his right by either the judge or his counsel, or that he was otherwise aware of it, his waiver was ineffective and his motion for new trial by jury was improperly denied.

However, Appellee argues that although the defendant did not personally waive his right, his counsel did so by proceeding to trial. Although an attorney may waive the right to trial by jury for his client, express or implied concurrence of the defendant must be obvious for the waiver to be effective. State v. Olivera, 53 Haw. 551, 497 P.2d 1360 (1972). This was the situation in Olivera where defense counsel in the presence of the defendant, advised the trial court:

"MR. COOK: Your Honor, we would like a judge to try the case as soon as possible

"THE COURT: The record would show a jury-waived trial demand has been made by Mr. Cook for his client, Mr. Olivera."

Additionally, in Olivera, this court found from the record before it that the defendant in that case was well informed of his right to a jury trial and that he voluntarily and knowingly waived this right for tactical reasons. Under those circumstances, effective waiver was found by this court.

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