Justia.com Opinion Summary: The Supreme Court granted certiorari to resolve a dispute as to the proper application of La. Const. art. I, sec. 17 as applied to this case. Specifically, the Court granted certiorari to determine whether a defendant loses the right to waive a trial by jury when the initial trial date was set within forty-five days of a pretrial proceeding and the district court indicated to the defendant a waiver was permissible. Defendant Gerald Chinn was charged by bill of information with three counts of attempted first degree murder and one count of aggravated criminal damage to property. Following a series of preliminary motions, a status conference was convened, and at that time, the State requested that the trial be set for a date forty-three days away. Defense counsel agreed to the trial date with the caveat that her client be allowed to waive his right to trial by jury. Following a brief colloquy with the defendant, the district court accepted the defendant’s jury-trial waiver, but the State objected. Finding that the court of appeal erred in ruling the defendant should not be allowed to waive his right to trial by jury under the unique facts of this case, the Supreme Court reversed the appellate court's decision and reinstated the ruling of the district court permitting the defendant to waive his right to trial by jury.
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Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE
NEWS RELEASE #09
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinion handed down on the 10th day of February, 2012, is as follows:
BY WEIMER, J.:
2011-KK-2043
STATE OF LOUISIANA v. GERALD CHINN (Parish of E. Baton Rouge)
(3 Counts Attempted First Degree Murder; 1 Count Aggravated
Criminal Damage to Property)
For the reasons assigned, the ruling of the court of appeal is
reversed and the ruling of the district court permitting defendant
to waive his right to a trial by jury is reinstated. The case is
remanded to the district court for further proceedings consistent
with this opinion.
REVERSED AND REMANDED.
KIMBALL, C.J., concurs and assigns reasons.
JOHNSON, J., concurs in result.
CLARK, J., dissents and assigns reasons.
02/10/12
SUPREME COURT OF LOUISIANA
NO. 2011-KK-2043
STATE OF LOUISIANA
VERSUS
GERALD CHINN
ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT,
PARISH OF EAST BATON ROUGE
WEIMER, Justice
We granted certiorari to resolve a dispute as to the proper application of La.
Const. art. I, § 17 in the factual setting of this case. Article I, § 17 was amended in
2010 to provide that “[e]xcept in capital cases, a defendant may knowingly and
intelligently waive his right to a trial by jury but no later than forty-five days prior
to the trial date and the waiver shall be irrevocable.”1 Specifically, we granted
certiorari to determine whether, consistent with this constitutional provision, a
defendant loses the right to waive a trial by jury when the initial trial date was set
within forty-five days of a pretrial proceeding and the district court indicated to
the defendant a waiver was permissible. Finding that the court of appeal erred in
ruling the defendant should not be allowed to waive his right to trial by jury under
the unique facts of this case, we reverse the decision of the court of appeal and
1
See 2010 La. Acts 1053, § 1.
reinstate the ruling of the district court permitting the defendant to waive his right
to trial by jury.
2
FACTS AND PROCEDURAL BACKGROUND
On September 29, 2009, defendant Gerald Chinn was charged by bill of
information with three counts of attempted first degree murder and one count of
aggravated criminal damage to property, offenses allegedly committed on July 30,
2009. Following a series of preliminary motions, a status conference was
convened on August 29, 2011. At that time, the State requested that the trial be set
for October 11, 2011, a date forty-three days away. This trial date was the initial
trial fixing. Defense counsel agreed to the trial date with the caveat that her client
be allowed to waive his right to trial by jury. Following a brief colloquy with the
defendant, the district court accepted the defendant’s jury-trial waiver, but the
State objected, stating:
Your Honor, let me make something clear. The date that we have
selected is inside the 45 days as required by the constitution. That
date will be a jury trial date.
The State candidly explained: “Your Honor, the State’s rushing this trial
date in order to get a jury trial.” Implicitly overruling the State’s objection, the
district court ordered that a bench trial, as requested by the defendant, be held on
October 11, 2011.
The State sought supervisory review of the district court’s ruling. The court
of appeal granted the State’s application and reversed the district court. Citing La.
Const. art. I, § 17(A), the appellate court ruled that the district court erred in
allowing the defendant to waive his right to a jury trial less than forty-five days
prior to the scheduled trial date. State v. Chinn, 11-1632 (La.App. 1 Cir. 9/15/11)
(unpub’d). One member of the panel concurred to explain further:
The Louisiana Constitution provides that trial in a felony
“shall” be by jury. La. Const. art. I, § 17(A). Under certain
circumstances the defendant may waive that right: “Except in capital
3
cases, a defendant may knowingly and intelligently waive his right to
a trial by jury but no later than forty-five days prior to the trial date
and the waiver shall be irrevocable.” La. Const. art. I, § 17(A). The
time limit was added to this provision by amendment in 2010.
Defendant’s request to waive trial by jury in this case occurred after
the effective date of the amendment, forty-three days before the
scheduled trial date, and almost two years after the bill of information
was filed. Although the trial court prior to the constitutional
amendment had discretion to allow waiver at any time prior to the
commencement of trial (see La. Code Crim. P. art. 780(B)), the
amended provision in the constitution no longer allows such
discretion for waivers taking place less than forty-five days prior to
the trial date. The constitution is the supreme law of this state, to
which all legislative acts must yield. When a statute conflicts with a
constitutional provision, the statute must fall. M.J. Farms, Ltd. v.
Exxon Mobil Corp., 2007-2371 (La. 7/1/08), 998 So.2d 16, 32.
Accordingly, as to the trial date scheduled for October 11,
defendant’s waiver of a jury trial came too late.
Id., (Kuhn, J., concurring).
The defendant applied for supervisory review to this court. We granted that
application to consider whether, under the unique facts of this case, the provisions
of La. Const. art. I, § 17(A) were properly applied by the appellate court. State v.
Chinn, 11-2043 (La. 10/5/11), ___ So.3d ___.
DISCUSSION
Before its 2010 amendment, La. Const. art. I, § 17(A) provided in pertinent
part:
Except in capital cases, a defendant may knowingly and
intelligently waive his right to a trial by jury.
The time for effectuating this waiver was fixed by La. C.Cr.P. art. 780(B) as
follows:
The defendant shall exercise his right to waive trial by jury in
accordance with the time limits set forth in Article 521. However,
with the permission of the court, he may exercise his right to waive
trial by jury at any time prior to the commencement of trial.[2]
2
We note, as did Judge Kuhn, that this statutory provision was not amended following adoption of
the 2010 amendment to La. Const. art. I, § 17.
4
Louisiana C.Cr.P. art. 521 set forth time limits as follows:
Pretrial motions shall be made or filed within fifteen days after
arraignment, unless a different time is provided by law or fixed by the
court at arraignment upon a showing of good cause why fifteen days
is inadequate.
Upon written motion at any time and a showing of good cause,
the court shall allow additional time to file pretrial motions.
The constitutional provision bestowed a right upon defendants to waive the
right to a trial by jury. That right was statutorily subject to two relevant time
periods: (1) the fifteen-day period following arraignment, during which the right
to waive a jury trial is essentially unrestricted; and (2) the period commencing at
the sixteenth day post-arraignment and extending to any time prior to the
commencement of trial, during which period the right to waive a jury trial is
subject to court approval.
With the 2010 amendment of La. Const. art. I, § 17(A), a third time period
was imposed.3 That period commences forty-five days prior to trial. During this
period, a defendant is prohibited from waiving the right to a trial by jury, and the
district court’s ability under La. C.Cr.P. art. 780(B) to approve a waiver is
similarly restricted. See La. Const. art. I, § 17(A) (“Except in capital cases, a
defendant may knowingly and intelligently waive his right to a trial by jury but no
later than forty-five days prior to the trial date and the waiver shall be
irrevocable.”). It is this third time period that is at issue here.
The defendant frames the unique and fact-based issue posed in this case as
whether it is within the district court’s inherent authority to allow a defendant to
waive the right to a jury trial – although the waiver occurs inside the forty-five-day
period imposed by La. Const. art. I, § 17(A) as amended in 2010 – when the State,
3
See 2010 La. Acts 1053.
5
as it admitted in the district court, requests an early trial date in an attempt to
prevent that waiver. The defendant argues that while the district attorney has the
right under La. C.Cr.P. art. 61 to determine whom and when to prosecute,4 and the
district court is mandated by La. C.Cr.P. art. 702 to set a case for trial on motion of
the State,5 the district attorney’s authority to select a trial date is tempered by, and
must be considered in conjunction with, the inherent power of the district court to
control its docket as conferred by La. C.Cr.P. art. 17.6 Otherwise, the defendant
argues, the State could render the constitutional right to waive a jury trial
meaningless, as it attempted to do in this case, simply by selecting a trial date less
than forty-five days away.
The State counters that a plain reading of La. C.Cr.P. arts. 61 and 702
establishes that the State is the party possessing the right to control the prosecution
of a criminal offense and to determine who, when and how to prosecute.
However, the State submits that the narrow question of who actually controls the
4
La. C.Cr.P. art. 61 provides:
Subject to the supervision of the attorney general, as provided in Article 62,
the district attorney has entire charge and control of every criminal prosecution
instituted or pending in his district, and determines whom, when, and how he shall
prosecute.
5
La. C.Cr.P. art. 702 provides:
Cases shall be set for trial by the court on motion of the state, and may be set
for trial on motion of the defendant.
Courts shall adopt rules governing the procedure for setting cases for trial and
giving notice thereof. The defendant shall be given notice of trial sufficiently in
advance thereof so that he may summon his witnesses.
6
La. C.Cr.P. art. 17 provides:
A court possesses inherently all powers necessary for the exercise of its
jurisdiction and the enforcement of its lawful orders, including authority to issue such
writs and orders as may be necessary or proper in aid of its jurisdiction. It has the
duty to require that criminal proceedings shall be conducted with dignity and in an
orderly and expeditious manner and to so control the proceedings that justice is done.
A court has the power to punish for contempt.
6
setting of trial dates – whether it is the district court that has ultimate control over
the scheduling of criminal cases for trial or the State that controls the setting of
trial dates – is an argument in semantics, because regardless of who “sets” the trial
date, the actual fixing of that date has, is, and should be a collaborative effort.7 In
any event, the State insists the issue of who has the right to control the setting of a
trial date is not the ultimate issue in this case because although the State requested
a trial date only forty-three days away, the defendant agreed to that date, and by
doing so, the defendant forfeited his right to waive a trial by jury.
As an initial matter, it must be pointed out that the transcript in this case
establishes that counsel for defendant expressly conditioned agreement to the
October 11, 2011, trial date upon her client’s ability to waive his right to a trial by
jury. Therefore, the State’s argument that the defendant forfeited his right to
waive a trial by jury by agreeing to the October 11 trial date is without merit.
Therefore, the question that remains for resolution is that posed by the
defendant: whether, by moving for a trial date less than forty-five days in
advance, the State can take advantage of the provisions of La. Const. art. I, §
17(A) to prevent a defendant from waiving his right to a trial by jury. The answer
7
In this regard, the State acknowledges that while under La. C.Cr.P. art. 702, the district court must
set a trial date upon the State’s motion, the article does not require the district court to set the specific
date offered by the State. Such an acknowledgment is consistent with this court’s ruling in State v.
Simpson, 551 So.2d 1303 (La. 1989), in which the court explained that “[u]nder the court’s inherent
power, the trial judge of the division to which the case is assigned has ultimate control over the
scheduling of criminal cases for trial, although the district attorney has the primary responsibility to
move to set criminal cases for trial.” Simpson, 551 So.2d at 1304-05 (footnotes omitted). Indeed,
La. C.Cr.P. art. 702 charges the district court with adopting rules governing the procedure for setting
cases for trial and providing adequate notice thereof, to which the State must adhere. This language
suggests that the district attorney’s right to control the criminal docket is not unfettered. At any rate,
the State acknowledges that, in the final analysis, it is the district court that retains ultimate control
of the trial date, as it has the power to grant continuances pursuant to La. C.Cr.P. arts. 707-715.
Obviously, a trial date should be chosen with the input of the parties and the court.
7
to this question requires an interpretation of the 2010 amendment to La. Const. art.
I, § 17(A).
As explained in Radiofone, Inc. v. City of New Orleans, 93-0962, p. 7
(La. 1/14/94), 630 So.2d 694, 698, the role of the court in construing a
constitutional provision is to ascertain and give effect to the intent of the people
who adopted the provision. In seeking to discover that intent, the court is
generally guided by the same rules followed in interpreting laws and written
instruments. Id. Therefore,
[w]hen a constitutional provision is clear and unambiguous, and its
application does not lead to absurd consequences, it must be applied
as written without further interpretation in search of its intent. Every
provision must be interpreted in light of the purpose of the provision
and the interests it furthers and resolves. When the provision is
susceptible of different meanings, it is interpreted by examining the
context and the text in which it occurs as a whole and by giving it the
meaning that best conforms to its purpose.
Radiofone, 93-0962 at 7, 630 So.2d at 698.
In this case, the court of appeal relied on a literal application of La. Const.
art. I, § 17(A) to hold that the district court erred in allowing the defendant to
waive his right to trial by jury less than forty-five days prior to the scheduled trial
date. However, as the defendant points out, such a literal application of the
constitutional provision produces a result clearly unintended by the redactors of
the provision: it allows the State, as it admittedly attempted in this case, to deprive
a defendant in a non-capital proceeding of the constitutionally guaranteed right to
waive a trial by jury simply by moving for a trial setting within the forty-five-day
period engrafted onto the original constitutional provision by the 2010
amendment. A literal application here produces a result demonstrably at odds with
the intent of the redactors of the constitutional amendment, who, had they desired
8
to deprive the defendant of the right to waive a trial by jury, and not just limit the
time period in which that right might be exercised, could have simply deleted the
right to waive a trial by jury altogether. That they did not do so is most telling and
dispositive of the issue presented in this case.
An examination of the relevant legislative history confirms this conclusion.
See Ocean Energy, Inc. v. Plaquemines Parish Government, 04-0066, p. 7
(La. 7/6/04), 880 So.2d 1, 7 (“In construing a constitutional provision, the courts
may consider the object sought to be accomplished by its adoption, and the evils
sought to be prevented or remedied, in light of the history of the times and the
conditions and circumstances under which the provision was framed.”); State v.
Johnson, 03-2993, p. 12 (La. 10/19/04), 884 So.2d 568, 575 (“[I]n many cases,
the legislative history of an act and contemporaneous circumstances may be
helpful guides in ascertaining legislative intent.”); La. R.S. 24:177(B)(2)(a) (“The
occasion and necessity for the law, the circumstances under which it was enacted,
concepts of reasonableness, and contemporaneous legislative history may also be
considered in determining legislative intent.”).
The 2010 amendment to La. Const. art. I, § 17(A) originally appeared as
H.B. 940, Reg. Sess., 2010. As originally introduced, the proposed amendment
hinged a criminal defendant’s right to waive a jury trial on the prosecution’s
consent and court approval:
Except in capital cases, a defendant may knowingly and intelligently
waive his right to a trial by jury, with the approval of the court and
the consent of the prosecuting attorney.
H.B. 940, Reg. Sess., 2010. The bill was passed by the House of Representatives;
however, in debates on the Senate floor, an amendment was proposed which
would delete the provision that required the defendant’s waiver to be with the
9
consent of the prosecuting attorney and court approval and substitute in its stead
the following language, which reflects the current wording of the constitutional
provision:
Except in capital cases, a defendant may knowingly and intelligently
waive his right to a trial by jury but no later than forty-five days prior
to the trial date and the waiver shall be irrevocable.
Senate Floor Amendment 4948 to Engrossed H.B. 940, Reg. Sess., 2010.
The amendment was debated at length and initially failed to pass. However,
after additional debate, the amendment was called for a vote again. See Senate
Floor Amendment 5261 to Engrossed H.B. 940, Reg. Sess., 2010. On the second
attempt, it passed, and the House concurred in the amendment. On November 2,
2010, 2010 La. Acts 1053, amending La. Const. art. I, § 17, was ratified in a
statewide election. The governor proclaimed the adoption of the amendment on
November 10, 2010, and it became effective 20 days later, pursuant to La. Const.
art. XIII, § 1(C), on November 30, 2010. See 2010 La. Acts 1053.
Given the legislature’s refusal to approve the bill as originally drafted,
which would have granted prosecutors unbridled discretion to veto a criminal
defendant’s waiver of his right to a jury trial, it appears that the court of appeal
erred in this case in applying the provisions of La. Const. art. I, § 17(A) to
accomplish precisely that result. The defendant’s claim that the setting of a trial
date less than forty-five days in the future constitutes a prosecutorial veto, like the
one rejected by the legislature, has merit in the unique factual situation of this
case.
The clear intention of the redactors of La. Const. art. I, § 17(A) was to
prevent last minute waivers by criminal defendants of the right to a jury trial.
Consistent with that intent, La. Const. art. I, § 17(A) was enacted to limit the time
10
period in which a criminal defendant charged with a non-capital offense may
exercise his or her constitutional right to waive a jury trial. However, the
constitutional provision was not enacted to deprive a defendant of the right to
waive a jury trial entirely, nor was it enacted to allow the fixing of trial dates in
such a manner as to deprive a defendant of the opportunity to knowingly and
intelligently waive the right to a trial by jury.
In this case, proper application of La. Const. art. I, § 17(A) required the
district court to take into account two considerations. First, as the district court
properly recognized, the defendant has a constitutional right to request a waiver of
a jury trial. Second, because La. Const. art. I, § 17(A) prescribes a time limit for
exercising that right, the district court could not accept a waiver and
simultaneously set a trial date within the forty-five-day time limit of the
constitutional provision. Such was required by the posture of this case, where
even though the defendant agreed to a trial date less than forty-five days in
advance if he could also waive the jury, the State objected to the waiver. The
legislative history of the 2010 amendment demonstrates that La. Const. art. I, §
17(A) was not intended to give the district attorney unfettered control over a
defendant’s ability to waive a jury trial. Where, as here, the State did not agree to
allow a waiver within the forty-five-day period, the sole course of action available
to the district court that did not cause the defendant’s right to waive the jury trial
to conflict with the forty-five-day period of La. Const. art. I, § 17(A) was to
consider the waiver, and if the waiver was accepted, to set a trial date beyond the
forty-five-day period.
As indicated by the actions of the district court in permitting the defendant
to waive the right to a trial by jury, the court intended to exercise its discretion to
11
allow the defendant to waive his right to a jury trial.8 However, as noted above,
the district court could not set a trial date within forty-five days and
simultaneously allow the defendant to waive his right to a jury trial over the
State’s objection. To protect the defendant’s constitutional right to waive a jury
trial in this matter, the trial date could not be set within forty-five days such that
the right to waive the jury trial would be lost. Under the unique facts of this case,
the district court erred, not in allowing the waiver, as the court of appeal ruled, but
in setting the initial trial date less than forty-five days away.
CONCLUSION
For the reasons assigned, the ruling of the court of appeal is reversed and
the ruling of the district court permitting defendant to waive his right to a trial by
jury is reinstated. The case is remanded to the district court for further
proceedings consistent with this opinion.
REVERSED AND REMANDED.
8
As noted, La. C.Cr.P. art. 780(B), quoted infra, was not changed following the amendment of La.
Const. art. I, § 17 and affords the district court the discretion to allow a waiver.
12
02/10/12
SUPREME COURT OF LOUISIANA
No. 2011-KK-2043
STATE OF LOUISIANA
VERSUS
GERALD CHINN
ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICTCOURT,
PARISH OF EAST BATON ROUGE
KIMBALL, C.J., concurs and assigns reasons.
I respectfully concur in the result. While I agree with the majority’s
decision to reverse the court of appeal and reinstate the ruling of the trial
court permitting the defendant to waive his right to a trial by jury, I disagree
with the portion of the majority’s reasoning finding the district court erred in
failing to set a trial date more than forty-five days from the initial setting of
the trial.
The majority’s analysis of the legislative history of La. Const. art. I, §
17 is fundamental to the ultimate outcome in this case. The role of the court
in construing a constitutional provision is to ascertain and give effect to the
intent of the people who adopted the provision. Radiofone, Inc. v. City of
New Orleans, 93-0962, p.7 (La. 1/14/94), 630 So.2d 694, 698. The starting
point in the interpretation of a constitutional provision is the language of the
constitution itself. East Baton Rouge Parish School Bd. v. Foster, 02-2799,
p.16 (La. 6/6/03), 851 So.2d 985, 996 (citations omitted).
When a
constitutional provision is plain and unambiguous, and its application does
not lead to absurd consequences, its language must be given effect. Id. In a
case like this, where a literal interpretation of the article would lead to
1
absurd consequences, this Court must search the legislative history to
ascertain and give effect to the intent of the redactors who adopted the
provision. See State v. Johnson, 03-2993, p.12 (La. 10/19/04), 884 So.2d
568, 575. (“[I]n many cases, the legislative history of an act and
contemporaneous circumstances may be helpful guides in ascertaining
legislative intent.”); La. R.S. 24:177(B)(2)(a) (“The occasion and necessity
for the law, the circumstances under which it was enacted, concepts of
reasonableness, and contemporaneous legislative history may also be
considered in determining legislative intent.”).
Juxtaposing the initial proposed amendment to La. Const. art. I, § 17
with the enacted version, it is readily apparent the redactors did not intend to
provide unbridled discretion to the prosecutor and trial court to prevent a
defendant from exercising his or her constitutionally granted right to waive a
trial by jury.
The amendment represents a compromise, whereby the
redactors added the forty-five day period to protect the State from last
minute waivers by a defendant and removed the clause requiring the
prosecution’s consent and court approval. The compromise clearly indicates
the redactors intended to back away from the unilateral waiver initially
proposed. To allow the State to set the trial date within the forty-five day
period would run afoul of the spirit of the constitutional amendment. See
La. C.Cr.P. art 3.1
The language of the constitutional amendment, as
supported by its legislative history, clearly was not written envisioning a
situation where the State set a trial date purposely within the forty-five day
period. Where a procedure is not specifically prescribed the court may
1
La. C.Cr.P. art. 3 provides: “Where no procedure is specifically prescribed by this Code
or by statute, the court may proceed in a manner consistent with the spirit of the
provisions of this Code and other applicable statutory and constitutional provisions.”
2
proceed in a manner consistent with the spirit of the constitutional provision.
Id.
In a case such as this, where the State uses its power granted by La.
C.Cr.P. art. 612 to set the trial date within the forty-five day period, the
defendant’s constitutional right to waive a trial by jury must be preserved.
The facts demonstrate the defendant’s attorney expressly conditioned the
agreement to set the trial date within the forty-five day period upon her
client’s ability to waive his right to a trial by jury. The State even readily
admits part of the rationale for setting the trial date within the forty-five day
period was to take away the defendant’s constitutionally granted right to
waive a trial by jury. This amounts to a clear prosecutorial veto, which was
rejected by the redactors as indicated by the legislative history.
Under the majority’s approach the constitutional amendment would be
interpreted as rigidly against the State as against the defendant. This would
essentially mean the State would never be able to set the case for trial
pursuant to its power granted by La. C.Cr.P. art. 61 less than forty-five days
before trial. The majority’s interpretation would also impair the ability of
both the State and the defendant to agree on a trial date less than forty-five
days before trial. Pursuant to my interpretation, both the State and defendant
would have more flexibility in setting the trial date, and the State’s power to
determine when it will prosecute pursuant to La. C.Cr.P. art. 61 would be
preserved. Therefore, in my opinion, if the State sets the trial date within the
forty-five day period, for the defendant’s right to be preserved, the defendant
2
La. C.Cr.P. art. 61 provides: “Subject to the supervision of the attorney general, as
provided in Article 62, the district attorney has entire charge and control of every
criminal prosecution instituted or pending in his district, and determines whom, when,
and how he shall prosecute.”(Emphasis added).
3
must be allowed to exercise his or her right of waiver notwithstanding such
forty-five day period.
4
02/10/12
SUPREME COURT OF LOUISIANA
No. 2011-KK-2043
STATE OF LOUISIANA
v.
GERALD CHINN
CLARK, Justice, dissents and assigns reasons:
Courts exercising criminal jurisdiction in every parish have different, historical
ways of deciding when trial is set. Some courts set an initial trial date at arraignment.
If a case is not ready for trial, if the defendant pleads guilty, or if a case that has more
priority must be heard, the court will reset the trial. Other courts wait to set an initial
trial date until the parties are ready to commence trial.
Before the 2010 constitutional amendment to La. Const. art. 1, § 17(A) , La.
C.Cr.P. art. 780(B) and La. C.Cr.P. art. 521 operated together to mandate that the
defendant waive his constitutional right to a trial by jury within fifteen days of
arraignment. Under further provisions of La. C.Cr.P. art. 780(B), however, the
defendant was permitted to waive trial by jury at any time prior to the commencement
of trial with the condition he obtain permission of the trial court.
After the 2010 amendment, the statutes continue to mandate that the defendant
make his decision to waive his constitutional right to a trial by jury within fifteen
days of arraignment. The further provisions of La. C.Cr.P. art. 780(B) remain, as
well. The difference wrought by the constitutional amendment is the restriction on
the trial court’s discretion in allowing for a waiver of the constitutional right to trial
by jury for the time period of 45 days before trial.
The issue here is not whether the defendant was faced with an initial trial
setting within 45 days of arraignment and the elimination of his constitutional right
to waive a jury trial. I believe the majority opinion ignores the fact the initial setting
of the trial occurred almost two years after the bill of information was filed in 2009
and well after the defendant’s arraignment.
This defendant’s case straddles the time period before and after the effective
date of the constitutional amendment. After the effective date of the constitutional
amendment, the defendant’s arraignment had long passed. The only time limitation
remaining for this defendant was the constitutional restriction placed on the trial
court’s discretion to allow the defendant to exercise his right to waive a jury trial
within 45 days of trial. In effect, the defendant could have waived his right to trial
by jury at any time after charges were brought against him, including the nearly two
years he waited without exercising this right.1 Instead, the defendant gambled his
initial trial setting would be set for a future time period longer than 45 days hence.
He lost that bet.
I agree with the court of appeal concurrence that the amended provision in the
constitution no longer allows discretion for waivers taking place less than 45 days
before the trial date. As to the trial date scheduled for October 11, the defendant’s
waiver of a jury trial came too late, but I believe he had years in which to exercise
that constitutional right.
1
Fifteen days after arraignment, the defendant could only waive trial by jury with the
trial judge’s permission.
]]>
