Taylor v. State

• Decision Date: 30 May 1980
• Docket Number: No. 5214,5214
• Citation: 612 P.2d 851
• Parties: Walter E. TAYLOR, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 851

612 P.2d 851

Walter E. TAYLOR, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 5214.

Supreme Court of Wyoming.

May 30, 1980.

Gerald M. Gallivan, Atty.-Director, Wyoming Defender Aid Program, Richard R. Honaker, Public Defender, Cheyenne, Michael H. Schilling, App. Counsel, State Public Defender, and Paul H. Byrtus, Student Intern, Wyoming Defender Aid Program, Laramie, for appellant.

John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Richard Scott Rideout, Asst. Atty. Gen., Marta Adams, Asst. Atty. Gen., Cheyenne, and Lowell H. Fitch, County Atty., Goshen County, for appellee.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROSE, Justice.

This appeal asks this question: May a criminal defendant in a Wyoming State court waive his right to a unanimous jury verdict by stipulating with the State and the court that a majority jury verdict will govern? We will hold that a defendant may waive a unanimous verdict under the conditions and according to the standards herein set out and established, but, under the facts of this case, the defendant did not do so. We will, therefore, reverse the 10 to 2 majority verdict finding the defendant guilty of aggravated robbery and remand for a new trial.

When a jury was unable to return a unanimous verdict in appellant-defendant's trial for aggravated robbery, Mr. Taylor, the defendant, the defense counsel, the prosecuting attorney and the court agreed to accept a 10 to 2 majority verdict. The record demonstrates that the appellant's trial attorney intended to waive appellant's right to a unanimous verdict and to waive the right to appeal the very issue here presented. The court twice secured an affirmative answer from Mr. Taylor when he was asked if a majority verdict would be acceptable to him. The court also secured an acknowledgement from the appellant to the effect that a nonunanimous guilty verdict would not be appealed.

The record does not reveal that Taylor had been advised of or knew the consequences of declining to enter into the above-mentioned agreement and insisting upon his right to a unanimous verdict.

THE COMMON-LAW JURY TRIAL A CRIMINAL DEFENDANT'S UNDISPUTED RIGHT

It is beyond dispute that the Wyoming Constitution guarantees a criminal defendant in a court of record the right to a unanimous verdict by twelve impartial jurors, i. e., a common-law jury trial. Wyoming Constitution, Article 1, Section 9 ¹, and First National Bank v. Foster, 9 Wyo. 157, 61 P. 466 (1900), rehearing denied 9 Wyo. 168, 63 P. 1056 (1901). ² The issue As has been noted, fn. 2, supra, this court declared at the turn of the century that the criminal defendant has an absolute right to a common-law jury trial. The Wyoming Rules of Criminal Procedure provide for waiver of the defendant's right to be tried by a jury, Rule 24(a), W.R.Cr.P. ³ and the defendant's right to waive a jury trial has never been questioned before this court. Rule 32, W.R.Cr.P. ⁴, is concerned with the verdict in a criminal jury case. Subsection (a) requires the verdict be unanimous; and subsection (d) provides for the polling of the jury when the verdict is returned to the court. The last-mentioned subsection further provides that if the polling does not produce unanimity, the jury may be either discharged or directed to retire for further deliberation. These rules make no provision for accepting a less-than-unanimous verdict and no provision concerning waiver of rights governed by Rules 24(a) and 32, supra. The rules do, however, speak to the proposition that we, in adopting them (and consistent with First National Bank v. Foster, supra), have rejected any argument that might be advanced to the effect that the public has an interest in the resolution of a criminal trial through the common-law jury process only. In other words, the rules implicitly acknowledge that the right to trial by jury is a constitutional right of the defendant, the waiver of which is qualified in the context that it may not be exercised without the approval of the court and the consent of the State ⁵.

before the court in this appeal is, however, whether or not common-law-trial-by-jury requirements may be discharged in a state criminal trial by a jury of twelve impartial persons rendering, with the consent of the court, State and defendant, a verdict which is less than unanimous. In other words, may a unanimous verdict be waived in Wyoming where the common-law criminal jury trial is a constitutional guarantee? There are no opinions of this court which answer this question.

Historical Overview

3 W. Blackstone, Commentaries, observes:

"In order to avoid intemperance and causeless delay (the jury) are to be kept without meat, drink, fire or candle, unless by permission of the judge, till they are all unanimously agreed." 3 Id. at 375.

In addition to being compelled to deliberate without "meat, drink, fire or candle," the search for jury unanimity in early England carried with it another hazard. The Blackstone Commentaries go on to observe that while the jury was not required to reach a unanimous verdict by the time the judge left the town, if they did not do so they were obligated to trail after him, being carried around the circuit in a cart. Further, at 3 W. Blackstone, Commentaries, 379, it is said:

"Upon these accounts the trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English Jury trials could not be waived by consenting defendants at common law. Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965). The choice was first given in America in Massachusetts and Maryland. The first constitution of Massachusetts "The Body of Liberties of 1641" contained as Liberty XXIX the following:

law . . . (I)t is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals. . . . "

" 'In all actions of law, it shall be the liberty of the plaintiff and defendant, by mutual consent, to choose whether they will be tried by the bench or by a Jury, unless it be otherwise determined. The like liberty shall be granted to all persons in Criminal cases.' " 380 U.S. at 28-29, 85 S.Ct. at 787.

Early proceedings of the General Assembly in Maryland contained the following from an Act of 1642:

" ' . . . The Defendt. in any cause civill or Criminall may put himself for tryall upon the judge or Court, or, upon his Country or may wage his Law in cases allowable by the law of England(.) if both parties joyn in the tryall it Shall be tryed according to their agreemt.' I Archives of Maryland 151, 186 (1642)." State v. McKay, 280 Md. 558, 375 A.2d 228, 233 (1977).

After the adoption of the United States Constitution, and particularly by reason of Article III, Section 2 ⁶, which was calculated to protect the defendant from government oppression, it was long believed that jury trial was the only method of deciding a criminal case in this country. ⁷

The issue of whether a defendant could waive a jury trial in a federal case was first presented to the United States Supreme Court in Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930), fn. 5, supra. While the case did not contemplate trial before a judge alone, the waiver of a unanimous twelve - in favor of a unanimous eleven-man jury was considered by the Supreme Court as though it did because waiver of common-law-jury-trial rights of any kind was so foreign as to be thought about as tantamount to waiver of the right to trial by jury itself.

The Patton Court examined Article III, Section 2, fn. 6, supra, and the Sixth Amendment ⁸ and decided that a jury trial was a right which the accused might "forego at his election." In its opinion, the Court spoke of the right to trial by jury as a "privilege," not an "imperative requirement," and observed that jury trial was principally for the benefit of the accused. The Patton Court went on to make the following observation concerning the issue of waiver of the defendant's right to trial by jury:

" . . . Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance The court, in State v. McKay, supra, comments:

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." 281 U.S. at 312-313, 50 S.Ct. at 263. (Emphasis supplied.)

" . . . Nevertheless, the Court's decision in Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, is instructive. There, the Court said that the jury trial afforded by Article III and the Sixth Amendment is 'a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted.' Id. at 288, 50 S.Ct. at 254. This, as we observed earlier, included the element of unanimity. In holding that an entire jury or the presence of any of its members could be waived by the defendant with the consent of the court and the prosecution, the Patton court concluded 'that the framers of the Constitution simply were intent upon preserving the right of trial by jury primarily for the protection of the accused.' Id. at 297, 50 S.Ct. at 257." 375 A.2d at 233. (Emphasis supplied.)

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