Zigan v. State, No. S06A1415.

• Decision Date: 30 November 2006
• Docket Number: No. S06A1415.
• Citation: 281 Ga. 415,638 S.E.2d 322
• Parties: ZIGAN et al. v. The STATE.
• Court: Georgia Supreme Court

281 Ga. 415

638 S.E.2d 322

ZIGAN et al. v. The STATE.

No. S06A1415.

Supreme Court of Georgia.

November 30, 2006.

Reconsideration Denied December 15, 2006.

George P. Donaldson III, Misty Garrett Haskins, Perry & Walters, LLP, Albany, John Randall Hicks, Valdosta, for Appellant.

Joseph Kenneth Mulholland, Dist. Atty., Bainbridge, Marc A. Mallon, Asst. Dist. Atty., Atlanta, Marion T. Pope, Jr., Hasty, Pope & Ball, LLP, Canton, for Appellee.

Joseph Frasher Burford, Prosecuting Attorney's Council of Georgia, Atlanta, Amicus Appellee.

BENHAM, Justice.

This appeal addresses the question whether a criminal defendant may waive a jury trial and, over objection from the State, successfully demand a bench trial. Charged with involuntary manslaughter, appellant Frederick David Zigan waived jury trial and appellant James Paul Freeman initially sought a change of venue, then withdrew that motion and waived jury trial. Upon objection by the State to appellants' motion for a bench trial, the trial court denied the motion, but issued a certificate of immediate review.

We must at the outset distinguish between a waiver of the right to trial by jury and a demand for trial by the court without a jury. The former was recognized more than 100 years ago in Logan v. State, 86 Ga. 266, 12 S.E. 406 (1890), where this Court quoted the predecessor to OCGA § 1-3-7 as providing that "a person may waive or renounce what the law has established in his favor when he does not thereby injure others or affect the public interest." However, in Palmer v. State, 195 Ga. 661(1), 25 S.E.2d 295 (1943), where the appellant complained of the trial court's rejection of his demand for a bench trial, this Court made plain that the ability to waive the right to a jury trial was not the same as the power to demand a bench trial: "There is a difference in a defendant waiving a right he possesses, and in demanding a privilege for which there is no right provided.... [OCGA § 1-3-7], stating `A person may waive or renounce what the law has established in his favor,' does not authorize a defendant to demand that his case be tried by the judge." That principle was reinforced by this Court in McCorquodale v. State, 233 Ga. 369(3), 211 S.E.2d 577 (1974): "There is no federally recognized right to a criminal trial before a judge sitting alone. [Cits.] The opinions of this court are in accord. [Cit.]"

Having established that trial courts have the authority to deny a demand for a bench trial, we are still left with the question presented in this case, whether the prosecution's consent is required in addition to the trial court's agreement to conduct a bench trial pursuant to a defendant's demand. In Glass v. State, 250 Ga. 736(1), 300 S.E.2d 812 (1983), quoting Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 74 L.Ed. 854 (1930), this Court held 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.'" Although Glass is not directly on point since it involves waiver of a unanimous verdict rather than waiver of jury trial entirely, the principles it imported into Georgia jurisprudence from the decision in Patton apply with equal force to the issue of a defendant's demand for a bench trial instead of a jury trial. In fact, the holding of the U.S. Supreme Court in Patton which was quoted in Glass expressly addressed both waiver of a unanimous verdict and waiver of jury trial altogether:

In affirming the power of the defendant in any criminal case to waive a trial by a constitutional jury and submit to trial by a jury of less than twelve persons, or by the court, we do not mean to hold that the waiver must be put into effect at all events. That perhaps sufficiently appears already. Trial by jury is the normal and, with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses. In such cases the value and appropriateness of jury trial have been established by long experience, and are not now to be denied. Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance 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.

Patton v. United States, supra, 281 U.S. at 312, 50 S.Ct. 253.

Appellants argue the decision in Glass was actually based on estoppel, holding that a defendant who begins a trial with a jury cannot change the rules mid-trial. However, no such holding or rationale appears in the published decision in that case and the holding in question was expressly based on the rationale of Patton, in which estoppel played no part. Appellants also argue that Patton did not have the force of law when this Court cited it in Glass because the U.S. Supreme Court had clarified in Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965), that Patton addressed only trials in federal courts and that the states were free to decide the question themselves. That argument would be more persuasive had this Court held in Glass that it was bound by the decision in Patton to reach that result. Instead, this Court quoted the rationale on which the decision in Patton was made and, exercising the freedom recognized in Singer, chose to make a holding "[i]n line with Patton ...."

Having adopted those principles in Glass, and having recognized above their pertinence to a waiver of a jury trial, we conclude their application to the present case requires affirmance of the trial court's denial of appellants' demand for a bench trial. Although appellants' waiver of the right to trial by jury appears adequate, the refusal of the prosecution to consent left the trial court with no choice but to deny the demand.

Judgment affirmed.

All the Justices concur, except SEARS, C.J., who dissents.

SEARS, Chief Justice, dissenting.

Although I agree with the majority that a defendant does not have a right to demand a bench trial, the majority...