State v. Machia

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 87-404


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
Ephriam J. Machia                            Unit No. 2, Franklin Circuit

                                             September Term, 1989


Joseph J. Wolchik, J.

Howard E.Van Benthuysen, Franklin County State's Attorney, and Peggy Larson,
   Law Clerk (On the Brief), St. Albans, for plaintiff-appellee

Nicholas L. Hadden and Peter M. Miller (On the Brief) of Lynch and Hadden,
   St. Albans, for defendant-appellant


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.

     GIBSON, J.   Defendant appeals his simple assault conviction following
trial by a jury of eleven persons.  The issue on appeal is whether
defendant effectively stipulated to a jury of eleven persons.  We conclude
that he did and therefore affirm.
     In May of 1986, defendant was arraigned in Franklin District Court on
charges of simple assault as the result of an incident in which he struck a
police officer.  Jury selection took place in May of 1987.  Thirteen jurors
were seated, providing just one alternate.  Realizing that this might mean
that defendant would eventually be tried by fewer than twelve jurors, the
court asked both counsel, during an on-the-record bench conference out of
the hearing of defendant, whether they would agree to proceed with eleven
jurors in the event that more than one juror was not able to continue.  Both
counsel agreed, with defense counsel emphasizing that less than eleven
jurors would be unacceptable in any event.
     On the first day of trial, the judge stated in open court on the
record in the presence of defendant that two jurors were not present and
that counsel had agreed to continue with eleven jurors.  Specifically, the
court announced:
          [W]e'll note for the record that it's our understanding
          [that two jurors] are not here.  [One] is quite ill this
          morning, cannot get out of bed.  [The other] is not
          here, and his phone is disconnected.

          . . . .

            All right.  And the record will reflect that counsel
          have agreed to go with eleven jurors in the case, and
          that is what we do have at this particular time.
There is no record of any discussion between either the court and defendant
or defense counsel and defendant concerning defendant's understanding of his
rights or desires relating to the number of jurors.  Defendant did not
object to the decision to go with eleven jurors at the time the decision was
announced, or at any time during the trial, or in his motion for a new trial
following conviction by the eleven-member jury.  Defendant first raises the
issue on appeal.
     Defendant argues that the Vermont Constitution guarantees him a right
to a jury comprised of twelve members, and that neither his counsel's on-
the-record oral stipulation to an eleven-member jury, nor his silence in the
face of the court's announcement, effectively waived his constitutional
right to be tried by a jury of twelve.  We disagree.
     This Court has never considered the constitutional import of reducing
the number of jurors from twelve to eleven.  Chapter 1, Article 10 of the
Vermont Constitution entitles every person charged with a criminal offense
to "a speedy public trial by an impartial jury," provided that the accused
"may in open court or by a writing signed by him and filed with the court,
waive his right to a jury trial and submit the issue of his guilt to the
determination and judgment of the court without a jury."  Article 10 does
not specify the number of jurors required to constitute a jury.  On several
occasions, this Court, while passing on related issues, has noted that
defendants have a constitutional right to be tried by a common-law jury of
twelve; however, none of these cases directly concerned the constitutional
significance of reducing the jury from twelve to eleven members.  See State
v. Couture, 146 Vt. 268, 272, 502 A.2d 846, 849 (1985) (jury instructions
violated Vermont Constitution by allowing conviction without assuring
unanimity regarding essential element of crime); State v. Hirsch, 91 Vt.
330, 338, 100 A. 877, 880 (1917) (municipal court had no power under
Municipal Court Act to try criminal case without jury); In re Marron, 60 Vt.
199, 203-04, 12 A. 523, 526 (1888) (statute requiring prisoner convicted in
six-juror justice's court to procure copies of appeal at own expense did not
infringe on constitutional right to trial by jury); State v. Peterson, 41
Vt. 504, 522-23 (1869) (provisions of city charter assigning final juris-
diction of certain criminal offenses to justice of the peace without
providing for trial by jury violated constitutional right to jury trial).
     Unquestionably, the waiver of a defendant's right to a trial by jury
goes to the heart of a defendant's constitutional rights.  Accordingly, in
State v. Ibey, 134 Vt. 140, 141, 352 A.2d 691, 692 (1976) we held that,
pursuant to Article 10 and V.R.Cr.P. 23(a) (FN1), a writing signed by the
defendant or an oral record made in open court must show that "the defendant
personally indicated, understandingly, his desire to waive a trial by jury."
A further indication of how seriously we consider a waiver of the right to a
jury trial is our recent decision in State v. Coita, ___ Vt. ___, ___, 568 A.2d 424, 425 (1989), where we held that the trial court must affirmatively
indicate its consent to such a waiver; silent acquiescence by the court does
not suffice.  Cf. State v. Conn, 152 Vt. 99, 103, 565 A.2d 246, 248 (1989)
(signed written waiver approved by court is sufficient to establish a prima
facie effective waiver despite absence of indication on record that
defendant's waiver was knowing and intelligent).  Similarly, federal case
law interpreting Fed. R. Crim. P. 23(a), (FN2) upon which V.R.Cr.P. 23(a) is
based, generally requires an express, personal waiver knowingly and
intelligently given in strict compliance with the rules.  See, e.g., United
States v. Garrett, 727 F.2d 1003, 1012-13 (11th Cir. 1984), aff'd, 471 U.S. 773 (1985); United States v. Delgado, 635 F.2d 889, 890 (7th Cir. 1981);
United States v. Lockwood, 604 F.2d 7, 8 (5th Cir. 1979) (per curiam).
     On the other hand, a stipulation to a jury of fewer than twelve persons
is not treated as the equivalent of a jury waiver.  Indeed, V.R.Cr.P. 23 has
separate provisions for the waiver of a jury trial and a stipulation to a
smaller jury panel.  Compare V.R.Cr.P. 23(a) with 23(b).  Moreover, the
stipulation to a jury with fewer than twelve members under V.R.Cr.P. 23(b) (FN3)
not limited to offenses not punishable by death or state imprisonment, as
is the waiver of a jury trial under Rule 23(a).(FN4) 
     Case law interpreting Fed. R. Crim. P. 23(b) offers further indication
of the disparate treatment between a jury waiver and a stipulation to a
reduced jury.  Although Fed. R. Crim. P. 23(b) provides that a stipulation
to a jury of fewer than twelve persons must be in writing,(FN5) that requirement
is not strictly enforced.  The federal courts are divided on whether an
accused is required personally to stipulate to a reduced jury, but none of
the circuits insist on a written stipulation.  See United States v. Spiegel,
604 F.2d 961, 965 (5th Cir. 1979), cert. denied, 446 U.S. 935 (1980)
(discusses differing treatment by various circuits); Hudson v. State, 250
Ga. 479, 483 n.7, 299 S.E.2d 531, 535 n.7 (1983) (same).  According to some
courts, an oral stipulation in open court is sufficient only if, at a
minimum, the record shows that the defendant gave express, personal consent
or was consulted by counsel.  See United States v. Reyes, 603 F.2d 69, 71
(9th Cir. 1979); United States v. Taylor, 498 F.2d 390, 391-92 (6th Cir.
1974) (per curiam); United States v. Ricks, 475 F.2d 1326, 1328 (D.C. Cir.
1973) (per curiam); see also State v. Reid, 155 Ariz. 399, ___, 747 P.2d 560, 563 (1987) (waiver sufficient where record showed counsel conferred
with defendant, defendant was in court when counsel stipulated to continue
with eleven jurors, and defendant did not allege not discussing matter with
counsel); People v. Waters, 641 P.2d 292, 293-94 (Colo. App. 1981) (waiver
sufficient where counsel consulted defendant and defendant voiced no
objection to counsel's statement); cf. Walker v. State, 578 P.2d 1388, 1389-
90 (Alaska 1978) (Alaska Constitution's explicit provision for twelve jurors
requires that waiver be express and personal); State v. Hood, 242 Kan. 115,
125, 744 P.2d 816, 823-24 (1987) (defendant may personally waive right to
twelve-member jury even when against advice of counsel).
      Many courts, however, do not require defendant's express, personal
stipulation when defense counsel agrees to a jury of less than twelve in
defendant's presence and absent defendant's objection.  See, e.g., United
States v. Illinois, 619 F.2d 668, 671-73 (7th Cir.), cert. denied, 449 U.S. 880 (1980) (defendant's presence in court presumed though not explicit in
record); Williams v. United States, 332 F.2d 36, 39 (7th Cir. 1964), cert.
denied, 379 U.S. 976 (1965) (express stipulation not required where defend-
ant was present when counsel orally agreed to stipulation in open court);
Horne v. United States, 264 F.2d 40, 41, 43 (5th Cir.), cert. denied, 360 U.S. 934 (1959) (same); State v. Ciniglio, 57 N.J. Super. 399, 404, 154 A.2d 845, 848 (1959) (same).  Other cases stand for the proposition that the
decision to allow trial by an eleven-member jury is of a procedural and
tactical, rather than of a constitutional, nature, and defense counsel can
stipulate to a reduced jury even though the record does not show that the
defendant personally and intelligently assented to the stipulation.  See
United States v. Spiegel, 604 F.2d  at 965 n.9; United States v. Roby, 592 F.2d 406, 408 (8th Cir.) (per curiam), cert. denied, 442 U.S. 944 (1979);
cf. Hudson v. State, 250 Ga. at 483-84, 299 S.E.2d  at 535 (defendant
acquiesced in his counsel's stipulation to eleven-member jury by not
objecting at trial).  This approach is buttressed by the United States
Supreme Court decision in Williams v. Florida, 399 U.S. 78, 100 (1970),
where the Court held that the federal constitution does not require twelve
jurors for conviction.  Regarding the role of a jury and the significance of
the jury having twelve members, the Court stated:
          [T]he 12-man requirement cannot be regarded as an
          indispensable component of the Sixth Amendment.

            The purpose of the jury trial . . . is to prevent
          oppression by the Government. . . .  Given this purpose, the
          essential feature of a jury obviously lies in the inter-
          position between the accused and his accuser of the common-
          sense judgment of a group of laymen, and in the community
          participation and shared responsibility that results from
          that group's determination of guilt or innocence.  The
          performance of this role is not a function of the particular
          number of the body that makes up the jury.
Id.
     Further evidence that the stipulation to an eleven-member jury does not
constitutionally rise to the level of a waiver of a jury trial is found in
the 1983 amendment to Fed. R. Crim. P. 23(b).  The federal courts have held
that that amendment, which gives the trial court the discretion, once the
jury retires, to excuse a juror for just cause and allow a verdict by a jury
of eleven even absent the consent of the defendant, does not violate the
defendant's constitutional right to a jury trial.  United States v. Armijo,
834 F.2d 132, 134 (8th Cir. 1987), (cert. denied, 485 U.S. 990-91 (1988);
United States v. Smith, 789 F.2d 196, 204-05 (3d Cir.), cert. denied, 479 U.S. 1017 (1986); United States v. Gambino, 788 F.2d 938, 949 (3d Cir.),
cert. denied, 479 U.S. 825 (1986); United States v. Stratton, 779 F.2d 820,
830-835 (2d Cir. 1985), cert. denied, 476 U.S. 1162 (1986).
     The instant case concerns neither Fed. R. Crim. P. 23(b) nor the
excuse of a juror after the jury retires to deliberate; nonetheless, the
recent amendment to Rule 23(b), along with the cited decisions allowing a
court to accept an eleven-member jury verdict without the defendant's
consent, are further corroboration that the stipulation to an eleven-member
jury is not considered to be at the very core of the federal constitutional
right to a jury trial.  In Stratton, the Second Circuit noted that the
available empirical data indicates that "a decrease in jury size of only one
person may have only the most minute effect.  Whatever disadvantage to the
defendant may occur from reducing the jury size from twelve to eleven is of
insufficient proportion to give him a constitutional right to a jury of
twelve . . . ."  779 F.2d  at 834-35 (citing Williams v. Florida, 399 U.S. at
101) (footnote omitted).
     Of course, our decision in the instant matter is based on our
determination of whether a defense counsel's stipulation to an eleven-member
jury violates defendant's right to a jury trial under the Vermont
Constitution.  Defendant urges us to analogize the instant case to State v.
Prime, 137 Vt. 340, 342-43, 403 A.2d 270, 272 (1979), where we held that a
defendant's right to a jury free from the taint of any suspicion of
extraneous influences could only be waived by defendant's personal, knowing
and intelligent waiver.  On the other hand, the State urges us to invoke
State v. Bailey, 144 Vt. 86, 103, 475 A.2d 1045, 1055 (1984), in which we
held that "[t]he right to jury sequestration, absent an allegation of taint
or bias, is not so compelling as to require a personal, affirmative waiver
by defendant himself."  We further stated in Bailey that an express,
personal waiver of a counseled defendant is not required for strategic and
tactical decisions, even those with constitutional implications.  Id.
     We believe that the present case, though not identical, is more
analogous to Bailey than Prime.  The right to an unbiased jury
unquestionably goes to the heart of the right to a jury trial.  Indeed,
Chapter 1, Article 10 of the Vermont Constitution expressly guarantees the
right to an "impartial" jury.  The Vermont Constitution, however, is silent
with regard to the number of jurors required to comprise an impartial jury,
and there is no suggestion of any bias or suspicion of taint in the instant
case.
     We do not mean to intimate that the Vermont Constitution permits less
than twelve jurors absent the defendant's stipulation; rather, we believe
that the decision to stipulate to an eleven-person jury is a "tactical" or
"strategic" one that can be made by counsel with the defendant's implied
consent.  Here, defense counsel's on-the-record oral stipulation to an
eleven-member jury, confirmed in defendant's presence, did not deprive
defendant of his constitutional right to trial by jury.  See Hudson v.
State, 250 Ga. at 483-84, 299 S.E.2d  at 535.  Further, in light of the
foregoing discussion, the trial court's failure to obtain the parties'
written stipulation to an eleven-member jury, as required by Rule 23(b), was
harmless error.  See V.R.Cr.P. 52(a) (any error not affecting defendant's
substantial rights shall be disregarded).
     Affirmed.


                              FOR THE COURT:

                              ____________________________________________
                              Associate Justice




FN1.    Rule 23(a) provides: "The defendant may in a signed writing or in
open court, with the consent of the prosecuting attorney and the court
entered of record, waive a jury trial in offenses not punishable by death or
imprisonment in the state prison."

FN2.    Fed. R. Crim. P. 23(a) provides: "Cases required to be tried by jury
shall be so tried unless the defendant waives a jury trial in writing with
the approval of the court and the consent of the government."

FN3.    Rule 23(b) provides:  "The parties may stipulate in writing that the
jury shall consist of any number less than twelve with the approval of the
court."

FN4.    We cannot agree with the Reporter's Notes to Rule 23, which suggest
that the Vermont Constitution requires that the phrase "not punishable by
death or imprisonment in the state prison" be read into Rule 23(b).  First,
we note that Chapter I, Article 10 now precludes waivers of jury trials
only when the offense is punishable by death; the language regarding state
imprisonment was dropped in a 1974 constitutional amendment.  More pertinent
to our discussion here, the statement in the Reporter's Notes is based on
the conclusion that a stipulation to a jury of less than twelve is pro tanto
a waiver of a jury trial because Vermont cases have held that the Vermont
Constitution guarantees a twelve-member jury.  As we noted earlier, however,
no Vermont case has directly addressed the constitutional significance of
reducing a jury from twelve to eleven members.  In any event, to the extent
that prior cases may be construed as precluding defense counsel from stip-
ulating on the record to an eleven-member jury, they are overruled.

FN5.   Until 1983, Fed. R. Crim. P. 23(b) provided:
          Juries shall be of 12 but at any time before verdict the
          parties may stipulate in writing with the approval of
          the court that the jury shall consist of any number less
          than 12 or that a valid verdict may be returned by a
          jury of less than 12 should the court find it necessary
          to excuse one or more jurors for any just cause after
          trial commences.
     In 1983, the following sentence was added to Rule 23(b): "Even absent
such stipulation, if the court finds it necessary to excuse a juror for just
cause after the jury has retired to consider its verdict, in the discretion
of the court a valid verdict may be returned by the remaining 11 jurors."
NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.

________________________________________________________________________________

                                  DISSENT


                                No. 87-404


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
Ephriam J. Machia                            Unit No. 2, Franklin Circuit

                                             September Term, 1989


Joseph J. Wolchik, J.

Howard E.VanBenthuysen, Franklin County State's Attorney, and Peggy Larson,
   Law Clerk (On the Brief), St. Albans, for plaintiff-appellee

Nicholas L. Hadden and Peter M. Miller (On the Brief) of Lynch and Hadden,
   St. Albans, for defendant-appellant


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     DOOLEY, J., dissenting.  The Vermont Constitution guarantees a
defendant the right to a twelve-person jury -- no more, and no less.  This
right can be waived only by strict adherence to the constitutional waiver
provision, with the same formality required for waiver of an entire jury.
Because the defendant in this case did not personally waive his right to a
twelve-person jury, the waiver was constitutionally defective and he should
be entitled to a new trial.  Therefore, I must dissent.
     I will review first the standards applicable to a waiver of a trial by
jury because these standards are intertwined with those applicable to waiver
of a twelve-member jury.  The majority today recognizes that we consider the
waiver of a jury trial a very serious matter, and I do not disagree with
their analysis on this issue.  I nevertheless explore the issue in greater
detail because it is important to understand fully the standards that we
impose on jury trial waiver.
     The original constitutional provision which preserved the right to a
trial by jury in all criminal matters did not include the waiver provision
currently embodied within Chapter I, Article 10.  This Court addressed the
issue of a jury trial waiver in State v. Hirsch, 91 Vt. 330, 334-38, 100 A. 877, 879-80 (1916), and held that the then current jury statute, P.S. 2216,
did not permit an accused person to waive a jury trial, no matter how
trivial the charge.  Although the Court's decision was based upon statutory
grounds, there was a strong inference that the Constitution itself
prohibited jury waiver.
      In direct response to Hirsch, the Constitutional Commission of 1919
proposed that Article 10 be amended to permit a defendant to waive the
right to a trial by jury in "criminal prosecutions for offenses not
punishable by death or imprisonment in the state prison."  In support of
its proposed amendment, the Commission stated that:
         If the accused pleads not guilty he cannot submit to a
         trial by the court without a jury, no matter how trivial
         the charge and no matter how much he desires an
         immediate hearing.

            . . . .

            The right to trial by jury should not be interfered
         with, but there appears to be no strong reason now
         effective which would require the accused to have a jury
         trial, when neither the accused nor the prosecution
         desire it, and so indicate with certainty.  Conditions
         in force at the time of the adoption of the
         constitution . . . have long since passed away. . . .
         We think a person accused of a misdemeanor should have
         the right to waive a jury trial under such safeguards as
         will protect the accused and the prosecution alike from
         possible abuses.

Constitutional Commission of 1919, Report on State of Vermont Proposals of
Amendment to Constitution 6-7 (1920) (emphasis supplied).  This amendment to
Article 10, adopted in 1924, dealt with only relatively minor offenses.
Thus, we held that a defendant could not waive a jury trial when the offense
charged against him was punishable by imprisonment in the state prison.  In
re Bowers, 130 Vt. 314, 316, 292, A.2d 813, 814 (1972).  We concluded that
the defendant's trial by court after his attempted waiver of a jury trial
was "a nullity."  Id.
     Article 10 was amended again in 1974 to allow defendants to waive jury
trials in all cases unless the offense is punishable by death. It now
provides:
         [I]n all prosecutions for criminal offenses, a person
         hath a right to . . . a speedy public trial by an
         impartial jury of the country; . . . provided,
         nevertheless, in criminal prosecutions for offenses not
         punishable by death, the accused, with the consent of
         the prosecuting officer entered of record, may in open
         court or by a writing signed by him and filed with the
         court, waive his right to a jury trial. . . .

Vt. Const. ch. I, art. 10.  Vermont Rule of Criminal Procedure 23(a)
codifies this jury waiver provision and adds an additional requirement that
the trial court must also consent. (FN1) Even though the rule does not establish
a standard that must be met to waive a jury trial, the Reporter's Notes to
Rule 23(a) make clear that, "[o]f course, as with other constitutional
rights, the court must satisfy itself that any waiver permitted is knowing
and voluntary."
     We have had several occasions to review these constitutional and
statutory waiver provisions.  In State v. Ibey, 134 Vt. 140, 141, 352 A.2d 691, 692 (1976), we stated, "under the provisions of chapter I, article 10
of the Vermont Constitution, it must affirmatively appear from a writing
signed by the defendant, or from the oral record made in open court, that
the defendant personally indicated, understandingly, his desire to waive a
trial by jury."  We concluded in Ibey that the presence of precise language
in the Vermont Constitution relating to waiver of a jury trial requires that
waiver be effectuated by the constitutional procedure and nothing less.  Id.
at 141-42, 352 A.2d  at 692.  As the 1919 Commission on the proposed
amendments to the Vermont Constitution stated, the defendant must indicate
his waiver "with certainty."
     More recently, we noted that our jury waiver precedents do not require
a finding of prejudice in order to reverse a conviction based upon an
ineffective waiver because of the nature of the rights involved.  State v.
Coita, __ Vt. __, __, 568 A.2d 424, 426 (1989).  Rather, we determined in
Coita that "in view of the seriousness of the right to be protected, the
cases require 'strict compliance with the rule.'"  Id. (quoting United
States v. Garrett, 727 F.2d 1003, 1012 (11th Cir. 1984)).  In this light, we
held that the trial court must affirmatively indicate its consent to a jury
waiver.  Therefore it was error to proceed with a trial by court when the
court failed to sign the standard "Waiver of Right to Jury Trial" form even
though it had been signed by the defendant, his attorney and the prosecuting
attorney.  We stated:
         We may, of course, infer that the court did not object
         to trial by court, but the rule requiring court approval
         demands more than mere acquiescence. . . . Silent
         acquiescence to a waiver does not assure us that the
         court thought about the decision -- not only from the
         defendant's point of view, but from the prosecutor's
         perspective and in the interests of justice.

Id. at ___, 568 A.2d  at 425.  Additionally, we have held that a written
waiver signed by the defendant, defendant's attorney, the state's attorney
and approved by the court, which shows an understanding of the right to be
waived, is sufficient to establish a prima facie waiver because it meets the
strict requirements of a written waiver.  State v. Conn, 152 Vt. 99, 103,
565 A.2d 246, 248 (1989).  We stated that in the absence of evidence to the
contrary, such a showing is sufficient to establish a knowing, intelligent
and voluntary waiver sufficient to satisfy constitutional requirements.  Id.
     Relatively few state constitutions contain jury waiver provisions
similar to ours.  Those states with such provisions also require strict
compliance with the constitutional waiver methods and the statutes or rules
which implement the constitutional mandate.   In Virginia, an accused "may,
with his consent and the concurrence of the Commonwealth's Attorney and of
the court entered of record, be tried by a smaller number of jurors, or
waive a jury."  Va. Const. art. I, { 8.  The Virginia Court of Appeals has
held that in order for a defendant to waive a trial by jury, the record must
reveal that the defendant gave an express and intelligent consent to the
waiver as shown by his personal response to questions by the trial court.
McMormick v. City of Virginia Beach, 5 Va. App. 369, 372, 363 S.E.2d 124,
125 (1987).  In the absence of this record, the appeals court reversed the
defendant's conviction even though there was no indication that the
defendant ever requested a jury trial.  Id.
     The Idaho Constitution provides that "trial by jury may be waived in
all criminal cases, by the consent of all parties, expressed in open court."
Idaho Const. Art. I, { 7.  The Idaho Court of Appeals has stated that
"[b]ecause trial by jury is one of the fundamental guaranties of the rights
and liberties of the people, every reasonable presumption should be indulged
against its waiver."  State v. Wheeler, 114 Idaho 97, 101, 753 P.2d 833, 837
(1988).  It added that it would not find waivers of jury trials in doubtful
cases, and that the defendant must personally waive his right to trial by
jury after being advised by the court of the existence of the right.  In the
absence of strict compliance with the constitutional and statutory
provisions, the court reversed for a new trial.
     In New York, a trial by jury in criminal cases can be waived only "by a
written instrument signed by the defendant in person in open court before
and with the approval of a judge or justice of a court having jurisdiction
to try the offense."  N.Y. Const. art I, { 2.  A defendant's oral waiver of
a jury trial does not comply with the constitutional mandate of a "written
instrument," and such a waiver is ineffective.  People v. Brown, 37 A.D.2d 980, 980, 327 N.Y.S.2d 820, 820-21 (1971).  But see People v. Basora, 111 A.D.2d 248, 248, 489 N.Y.S.2d 91, 92 (1985) (evidence that defendant signed
a written waiver, rather than the waiver itself, is sufficient to meet the
constitutional requirement).
     It is clear from these precedents that jury waivers must comply
strictly with constitutional and statutory requirements, and failure to
meet this high standard will result in reversal of a conviction, even when
there has been no showing of prejudice to the defendant.  I am not sure that
the majority would disagree with these points; I make them only for
emphasis.  Our disagreement comes at the next step -- whether consent to
trial by less than twelve jurors must comport with the requirements for
waiver of trial by jury.
     The majority distinguishes between the waiver of the entire jury and
the waiver of only one or two jurors and holds that the counsel for a
defendant may waive the defendant's right to a twelve member jury if the
waiver is made or announced on the record in the defendant's presence
without his or her objection, or if the defendant otherwise acquiesces in
the waiver.  I disagree because I believe that a jury comprised of less than
twelve members is not a jury as defined by the Vermont Constitution.
Therefore, there is no constitutional difference between a bench trial and a
trial before an eleven person jury.  The right to a twelve person jury is a
personal right to the defendant which can be waived only by the methods
specified in the Constitution for waiver of the entire jury.
     Over one hundred years ago, this Court determined that a jury, as used
in our Constitution, means a common law jury of twelve persons.  State v.
Peterson, 41 Vt. 504 (1869).  The primary issue in Peterson was whether
certain provisions in the City of Burlington's charter were unconstitutional
because they conferred final jurisdiction in criminal causes upon the police
court where the accused was entitled to a jury of six persons, but where
there was no right to a jury of more than six.  Id. at 515-16.  In its
thorough analysis, the Court relied on the Magna Carta, Judge Blackstone,
England's common and statutory law, as well as the United States
Constitution.  The primary focus, however, was on the development of the
Vermont Constitution's provisions for jury trials.  The Court unequivocally
concluded that in Vermont, "[t]he word 'jury,' as used in the constitution,
means a common law jury of twelve men."  Id. at 522 (emphasis in original).
The Court wrote:
         The excellence of trial by jury in criminal causes can
         not be over estimated, for it is in such causes that the
         accused have the right to demand that the truth of every
         accusation . . . shall be confirmed by the unanimous
         suffrage of twelve men of his equals, indifferently
         chosen, and superior to all suspicion."

Id. at 523.  We have never wavered from this position.   Indeed, the
majority recognizes that the Vermont Constitution guarantees the right to a
jury composed of twelve jurors.
     This right to twelve jurors is in sharp contrast to federal
constitutional right to a jury under Sixth Amendment.  In recent years, the
United States Supreme Court has concluded that "the fact that the jury at
common law was composed of precisely 12 is a historical accident,
unnecessary to effect the purposes of the jury system and wholly without
significance 'except to mystics.'"  Williams v. Florida, 399 U.S. 78, 102
(1970).  While the Supreme Court decisions are limited to state cases, other
federal courts have applied this same holding to federal cases.  See United
States v. Smith, 789 F.2d 196, 205 (1986); United States v. Stratton, 779 F.2d 820, 831 (1985); United States v. Gambino, 598 F. Supp. 646, 658-61
(D.N.J. 1984).  Thus, numerous federal precedents on which the majority
relies are inapplicable to this case.
     Although the Supreme Court may be correct that the common law reason
for requiring twelve jurors has been lost over the years, there is no
reason for Vermont to abandon its definition of a jury.  The Vermont concept
of a jury is deeply rooted in our heritage.  Since this Court's holding in
Peterson that a jury under the state constitution is composed of twelve
members, the jury provision of Article 10 has been amended twice without any
attempt to modify the common law definition.  Hence, I believe it is clear
that, despite changing interpretations of the federal Constitution, the
Vermont Constitution still guarantees the right to a twelve person jury in
criminal cases.
     Thus, my first difference with the majority is that its holding is
inconsistent with the plain meaning of the words in Article 10.  The article
provides the specific method for waiving a "jury trial."  Since a jury trial
is a trial with twelve jurors, consent to a proceeding with fewer than
twelve jurors is, by definition, waiver of a "jury trial."
      This interpretation has been reached in the other states with similar
constitutional provisions -- that is, where a "jury" is defined as twelve
people, and there is a specific waiver provision.  The only two states which
meet these qualifications and have specifically addressed the issue of an
eleven person jury are Missouri and California.  In both of these states,
the courts have held that a defendant's consent to be tried by less than
twelve persons must be as formal and complete as the consent to a trial by
court.  See People v. Trejo, 217 Cal. App. 3d Supp. 1026, 1032-33, 266 Cal. Rptr. 266, 270 (1990); People v. Loving, 67 Cal. App. 3d Supp. 12, 15-16,
136 Cal. Rptr. 851, 853 (1977); State v. McGee, 447 S.W.2d 270, 273 (Mo.
1969), cert. denied, McGee v. Missouri, 397 U.S. 1056 (1970).  The Missouri
Constitution states "that in every criminal case any defendant may, with
the assent of the court, waive a jury trial and submit the trial of such
case to the court."  Mo. Const. art. I, { 22(a).  The Missouri Supreme Court
concluded that this constitutional provision means that in every criminal
case, the defendant may, with the assent the trial court, waive a jury trial
and submit the case to the court, or waive a jury of twelve and submit the
case to a jury of less than twelve members.  McGee, 447 S.W.2d  at 273.  The
court reasoned that in either situation, the defendant was waiving his
constitutional right to a jury, and therefore such a waiver must be
accomplished pursuant to the constitutional requirements.
     In a California case on facts nearly identical to those present in this
         case, the Court of Appeals stated that:
         [The] constitutional guarantee of the right to a jury
         trial is the right as it existed at common law at the
         time the constitution was adopted.  The common law jury
         consisted of 12 persons.  Thus, a defendant's consent to
         be tried by less than 12 persons must be as formal as a
         waiver of the entire jury.

People v. Ames, 52 Cal. App. 3d 389, 392,  124 Cal. Rptr. 894, 896 (1975)
(citations omitted).  The court reversed the conviction of a defendant who
remained silent while her counsel agreed to continue the trial with eleven
jurors because it found that the defendant did not personally waive her
right to be tried by a jury of twelve.
     The majority provides several reasons why the waiver of a twelve member
jury is not accorded the same constitutional significance as the waiver of a
defendant's right to a trial by jury.  I do not find them persuasive.
     First, the majority's analysis of V.R.Cr.P. 23 is unhelpful to its
conclusion that the Vermont Constitution does not require consent to a
reduced number of jurors to meet the standards for waiver of a jury trial.
Obviously, the substance of a criminal rule is not determinative on the
meaning of the Vermont Constitution.  I assume that the majority finds the
rule helpful because it indicates a prior endorsement of this Court, which
promulgated the rule, of the majority position.  No such endorsement can be
found in the rule.
     As the majority concedes in footnote 4 of its opinion, the Reporter's
Notes to Rule 23 are directly contrary to its position.  The Notes state
that although its language on consent to a smaller jury appears to apply to
all cases, "it must be read as limited by the language of Ch. I, Art. 10, of
the Vermont Constitution, to trials of offenses not punishable by death or
imprisonment in the state prison."  They go on:
         a stipulation for a jury of less than twelve is pro
         tanto a waiver of the right to trial by jury.
            . . . .

         Stipulations for juries of less than twelve are thus
         prohibited in Vermont except in cases where waiver is
         constitutionally permitted, unless the Vermont Court
         should follow the lead of the United States Supreme
         Court in re-examining and overruling such older
         decisions.

As the rule is interpreted by the Notes, in order to stipulate to a jury
with less than twelve members, Rule 23 requires that the defendant waive his
or her right to a trial by jury pursuant to Rule 23(a).
     The majority's response to the Notes is that they are wrong, (FN2) but that
response does not help the majority argument.  The Notes, right or wrong,
represent the understanding of the drafting committee -- the equivalent of
legislative history -- when the rules were adopted.  They show that the
separate treatment of reduced-size-jury stipulations in V.R. Cr.P. 23(b) was
not intended to suggest that such agreements are governed by different
constitutional standards from jury trial waivers.  The Court can now change
the law but it cannot rewrite the drafting history of the rule.  There is,
therefore, no prior Court endorsement of the position announced today in
Criminal Rule 23.  The adoption of the rule is either a prior endorsement of
the position in this dissent or, more likely, no endorsement of any
position.
     The majority's position is not advanced by its arguments based on Fed.
R. Crim. P. 23.  Since the federal Constitution does not require a jury of
twelve persons and provides no specific method for waiver of jury trial, the
federal courts face less constraints on how jury trials may be waived and,
as the 1983 Amendment to Federal Rule 23(b) provides, may allow fewer than
twelve jurors, even without the consent of the defendant.  Likewise, I find
no relevance to cases from jurisdictions in which there is no constitutional
right to a twelve-person jury or no specific waiver provision.  As indicated
above, the cases in states with constitutional provisions like ours are
contrary to the majority position.
     Finally, the majority's argument depends upon a comparison of the right
to an impartial jury with the right to a jury of twelve members.  This is a
comparison of wholly different concepts.  Defendant does not argue that an
eleven-person jury is not impartial; rather, he claims that an eleven-person
jury is not a jury at all.  All our precedents support his position.
     While I have grounded this dissent on the specific requirements of the
Constitution, I must also indicate my concern that the majority has not
required compliance with V.R.Cr.P. 23(b) and has not stated clearly what
rule will govern in the future.  Although Rule 23(b) clearly and
specifically requires a written stipulation to allow for less than twelve
jurors, there was no writing in this case.  We have apparently abandoned the
holding of State v. Coita that in view of the seriousness of the jury trial
right, strict compliance with Rule 23 is required.  The majority opinion
gives no reason for authorizing non-compliance with the rule.
     If there is a reason for allowing non-compliance with the rule, it
apparently lies in the fact that the defendant heard the trial judge state
that his lawyer had agreed to a jury of eleven persons and took no action.
The opinion places continuing emphasis on this fact although it nowhere says
it is determinative.  If it is to be determinative, we should amend the rule
rather than adding a new route to compliance by opinion.  In any event, I
find the burden placed on the defendant to be wholly unrealistic.  In this
case, the judge stated:  "And the record will reflect that counsel have
agreed to go with eleven jurors in this case, and that is what we do have at
this particular time."  Nowhere did the court instruct the defendant that he
had a right to a twelve-member jury.  Nor did the court ever specifically
state that counsel waived the right to a twelve-member jury.  There is no
mention that the defendant ever consulted counsel, or that defendant knew
that he had a constitutional right to a twelve-person jury.  Under the
majority's rule, defendant apparently can avoid his conduct (or absence of
conduct) being considered a waiver only if he stands up and directly attacks
the actions of his attorney in open court.  I cannot imagine many defendants
doing that, especially when they are ignorant of their rights and are
relying on their attorney to protect them.  The reality is that attaching
significance to the defendant's silence turns over defendant's personal
right to decide on the composition of the jury to defendant's lawyer with a
rationale that lets the Court act as if the defendant really made the
decision.  I dissent.





                                        Associate Justice




FN1.    V.R.Cr.P. 23(a) states:
          Trial by Jury; Waiver.  The defendant may in a signed writing
     or in open court, with the consent of the prosecuting attorney and
     the court entered of record, waive a jury trial in offenses not
     punishable by death or imprisonment in the state prison.

FN2.    As the Notes state, the Court should address the issue squarely and
overrule the earlier cases, but it has failed to do so.