Young v. State

• Decision Date: 13 December 1971
• Docket Number: No. 56312,No. 2,56312,2
• Citation: 473 S.W.2d 390
• Parties: Julius YOUNG, Jr., Movant-Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 390

473 S.W.2d 390

Julius YOUNG, Jr., Movant-Appellant, v. STATE of Missouri, Respondent.

No. 56312.

Supreme Court of Missouri, Division No. 2.

Dec. 13, 1971.

Parks G. Carpenter, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, for appellant.

John C. Danforth, Atty. Gen., Jefferson City, for respondent.

MORGAN, Presiding Judge.

On January 18, 1967, appellant, herein referred to as movant, was tried to the court for the crime of possession of a narcotic drug, to-wit: heroin, and was sentenced to a term of six years confinement. Section 195.020, RSMo 1969, V.A.M.S. On appeal, judgment and sentence were affirmed in State v. Young, Mo., 427 S.W.2d 510. Thereafter, movant, under Criminal Rule 27.26, V.A.M.R., moved to have the judgment and sentence vacated. After an evidentiary hearing, relief was denied and movant has appealed.

Movant submits that his original trial before the court violated his right to trial by jury, because: (a) he was not advised by the court of his right to trial by jury, and the record does not affirmatively show that he knowingly and intelligently waived such right; and (b) he was not so advised by his trial counsel 'to the extent' that he appreciated his 'constitutional' right to trial by jury and the full consequences of 'waiver' of trial by jury. In addition, it is submitted that the trial court erroneously placed on movant the burden of showing the waiver of a jury was not knowingly and intelligently made when the burden on that issue was that of the state.

There can be no doubt but that an accused can waive his constitutional right to trial by jury, Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, and that the right of so doing may be subjected to the approval of the trial court. Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630. Consistent therewith is the present practice in this state. 'Prior to the 1945 Constitution of Missouri a defendant charged with a felony could not waive trial by jury. State v. Talken, 316 Mo. 596, 292 S.W. 32, 33(5); and see also § 546.040, V.A.M.S. However, Article I, Section 22(a), Constitution of 1945, V.A.M.S., authorized waiver of jury trial in criminal cases, and the manner of such waiver is spelled out in Criminal Rule 26.01(b): 'The defendant may, with the assent of the court, waive a trial by jury and submit the trial of any criminal case to the court, whose findings shall have the force and effect of the verdict of a jury. Such waiver by the defendant shall be made in open court and entered of record. '' State v. Butler, Mo., 415 S.W.2d 784. In the instant case, as in Butler, the crux of the argument made is that the 'court failed to ascertain on the record' that the defendant was award of his right to trial by jury. The only factual distinction is that in Butler both the accused and his attorney signed the written waiver of a jury, and in the instant case the waiver was signed only by defense counsel. In each, the assent of the judge was shown. To further delineate the argument made, it should be observed that the contention is not that the attorney could not act for movant, but that it was the separate and distinct duty of the trial court to 'ascertain of record' that the movant knowingly and intelligently authorized a waiver of trial by jury. Movant equates the waiver of trial by jury and consent to trial before the court with the entering of a guilty plea. It is argued that in the latter instance there is a waiver of the right to confront one's accusers, the privilege against self-incrimination and the right to trial by jury, which can only be approved if the trial judge has made a record affirmatively showing such action to have been voluntarily and intelligently taken. Reliance is placed on Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. See Criminal Rule 25.04, V.A.M.R. It is then submitted that there must be a comparable record finding prior to allowing waiver of the one right involved here, i.e., trial by jury. It is not necessary that we consider at length the validity of the analogy made for the reason that: 'In Mountjoy v. Swenson, W.D., Mo., 306 F.Supp. 379, the court held that even Boykin does not, in proceedings collaterally attacking a conviction on a plea of guilty, limit the prosecution 'to the record of inquiry made by the state trial judge in accepting the plea.' 306 F.Supp. 384. See Davis v. Swenson, W.D., Mo., 308 F.Supp. 635.

'(2) The trial court in this case was, therefore, permitted to consider and pass upon the voluntariness of appellant's pleas on the basis of the record at the time of the pleas and of the evidence adduced at the hearing on the collateral attack.' State v. Grimm, Mo., 461 S.W.2d 746, 752. It would not be logical to hold that a review of the prior waiver of a jury trial for a trial to the court should be more restrictive than review of a prior plea of guilty. We leave open the possibility that the direct opposite might be true. In any event, we will assume the inadequacy of the record at the time the jury was waived, and look to the additional record made in the Rule 27.26 evidentiary hearing.

Movant testified that in 1965 he had entered a plea of guilty to armed robbery; that in the instant case he recalled two pre-trial hearings--the first a preliminary hearing and the second on a defense motion to suppress evidence; that he did not realize his trial counsel had signed the jury waiver; and, that he was not advised that he could be tried to a jury. Further, in a rather novel, but certainly ambivalent approach, he testified that he didn't realize at the time that he was actually being tried but thought the trial was another hearing 'to get the evidence together.' To buttrees the latter suggestion, his counsel...