State v. West

Annotate this Case

STATE_V_WEST.94-231; 164 Vt 192; 667 A.2d 540

[Filed 01-Sep-1995]

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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.

No. 94-231

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 2, Chittenden Circuit

Shawn L. West January Term, 1995

Alden T. Bryan, J.

Scot Kline, Chittenden County State's Attorney, and Pamela Hall
Johnson, Deputy State's Attorney, Burlington, for plaintiff-appellee

Robert Appel, Defender General, and William A. Nelson, Appellate
Defender, Montpelier, for defendant-appellant

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

DOOLEY, J. Defendant appeals his conviction by court of domestic
assault in violation of 13 V.S.A. § 1042. He argues that (1) his jury
trial waiver was invalid because the court failed to comply with V.R.Cr.P.
23(a), and (2) the evidence was insufficient to support the conviction. We
conclude that defendant's conviction is supported by the evidence, but we
reverse and remand for a new trial because his waiver of his right to trial
by jury was invalid.

Double jeopardy concerns require that we first address whether the
evidence was sufficient to support defendant's conviction. State v.
Durenleau, ___ Vt. ___, ___, 652 A.2d 981, 984 (1994). To determine
whether the evidence is sufficient, we must consider whether the evidence,
taken in the light most favorable to the State and excluding modifying
evidence, fairly and reasonably supports a finding of guilt beyond a
reasonable doubt. State v. Robar, 157 Vt. 387, 391, 601 A.2d 1376, 1378
(1991). At trial, the State presented two witnesses, a police

officer and a friend of complainant. Complainant did not testify for
the State. The police officer testified that complainant and her friend
entered the station on August 9, 1993 at 1:40 a.m. Complainant was crying
and bleeding from the nose. She had dried blood on her face and fresh
blood on her clothes. She was upset. The officer testified that
complainant said that she was "sick of it," and that her boyfriend had
punched her in the face ten minutes before. These hearsay statements were
admitted, over defense counsel's objection, as excited utterances. See
V.R.E. 803(2). The officer also testified, without objection, that
complainant's friend had said that she had seen the assault. The officer
took a picture of complainant, and both complainant and her friend provided
written statements of the incident. The officer stated that the friend
smelled like she had been drinking but that neither of the women appeared
intoxicated.

Later, complainant identified defendant as her boyfriend and he was
brought into the station. Complainant's identification and description of
defendant were not admitted into evidence because she had calmed down by
the time she made these statements. The officer testified, however,
regarding defendant's behavior at the station. She said that defendant was
intoxicated and belligerent, swore at the officers and complainant, and was
so violent that complainant would not go into the same room with him,
although he was handcuffed to the wall. Defendant yelled, "You'll never
pin this on me."

The State's second witness was complainant's friend. She testified
that she had gone out with her boyfriend, defendant and complainant on the
night in question, but claimed that she had been drinking that night and
did not remember the incident or going to the police station. She
recognized her handwriting and her signature on the statement she had
written at the police station. This statement was admitted into evidence
without objection. It stated that she had seen defendant pulling
complainant's hair and that she had called to defendant's father, who came
outside to break up the fight. She also testified that defendant was
complainant's boyfriend. At the close of the State's case, defense counsel
moved to dismiss based on insufficiency of the evidence. He claimed that
the evidence did not establish the identity of the person who had

caused the injury to complainant.

The court issued a written decision, concluding that the evidence was
sufficient to establish beyond a reasonable doubt that defendant had
recklessly caused bodily injury to another person. It found no evidence,
however, to show that complainant was a member of defendant's household, an
element of domestic assault, 13 V.S.A. 1042, but granted the State ten days
to bring to the court's attention any testimony from the trial that
established this element. The court concluded that defendant was guilty of
simple assault, a lesser-included offense of domestic assault, unless the
State was able to point out the evidence necessary to establish domestic
assault. The State did not respond, and the court entered a guilty verdict
on the charge of simple assault.

At the sentencing hearing, defense counsel maintained that he had
understood that he would be given an opportunity to put on evidence if the
motion to dismiss for insufficient evidence was not granted. Consequently,
the court scheduled the case for further trial. The defense presented two
witnesses, complainant and defendant. Complainant testified that she and
defendant had been boyfriend and girlfriend and that they had two children
together. She remembered going out with defendant to a party on the night
in question and leaving the party with defendant, her friend and the
friend's boyfriend. Complainant drove the car, which belonged to her
friend. She remembered driving to defendant's parents' house. She did not
remember anything after that point until she woke up at that house the next
morning. She did not remember who hit her. She recognized the statement
that she wrote but did not remember writing it. It was not offered into
evidence.

Defendant testified that he remembered leaving the party but that he
was intoxicated and fell asleep in the car. The next thing he remembered
was his father grabbing him. He did not remember hitting complainant. He
denied hitting her because he would not do such a thing. He then admitted
to a previous conviction for simple assault against complainant. On
rebuttal, the police officer testified that complainant and her friend were
at the station several hours that

night, that she observed them to ensure that they were both sober
before requesting written statements, and that she allowed them to drive
when they left the station.

The trial court issued a supplemental opinion, finding that
complainant's testimony was not credible. It further found that the
evidence presented by the defense established beyond a reasonable doubt
that defendant and complainant were household members, and consequently,
concluded that defendant was guilty of domestic assault.

Defendant argues that his conviction cannot be upheld because (1) the
sole evidence to support it is hearsay evidence, which was not shown to be
especially reliable, (2) the court improperly admitted defendant's
statements made at the station under V.R.E. 801(d)(2)(A) and improperly
relied on the statements as propensity evidence, and (3) the State
presented no evidence indicating that complainant was a member of
defendant's household.

Defendant claims that the only evidence that identifies him as the
perpetrator was complainant's hearsay statement, which was not shown to be
especially reliable, and therefore, was insufficient to support the
conviction. He does not challenge the admissibility of the excited
utterance; rather, he maintains that hearsay alone is insufficient to
support a conviction unless it meets specific standards of reliability.
Defendant argues that an excited utterance is not reliable because the
excitement from which we infer reliability -- as this mental state prevents
fabrication -- also impairs the accuracy of the perceptions.

Defendant relies on Robar, in which we reversed the defendant's
conviction because the only evidence identifying the defendant as the
perpetrator was the inquest testimony of one of the State's witnesses, who
testified at trial that she had no memory of the inquest. 157 Vt. at
395-96, 601 A.2d at 1380. We held that "[t]he State cannot meet its burden
of proof if the sole evidence upon which conviction is based is past
recollection recorded or a prior inconsistent statement, unless the prior
statement meets specific standards of reliability." Id. at 395, 601 A.2d
at 1380. We concluded the inquest testimony was not reliable because (1)
it was given six

months after the event, (2) the circumstances and date when the
statement was first made to police were unknown, and (3) it was given as
part of a deal involving potential charges against the witness, upon the
incorrect understanding that the defendant had confessed. Id. at 395-96,
601 A.2d at 1380.

The rule in Robar was adopted from State v. Mancine, 590 A.2d 1107,
1117 (N.J. 1991), in which the Supreme Court of New Jersey rejected a per
se rule barring a conviction based solely on evidence obtained from a prior
inconsistent statement, and ruled that "substantive elements of a criminal
charge may be proven through a prior inconsistent statement alone, provided
that the statement was made under circumstances supporting its reliability
and the defendant has the opportunity to cross-examine the declarant." Id.
at 1119. We do not reach the confrontation issue here because defendant
has not specifically briefed the confrontation issue, although he raised it
below, and because defendant had the opportunity to "cross-examine" the
declarant when he called her in his defense.

The Mancine court concluded that a prior inconsistent statement was
sufficient to support a conviction if "the statement is generally
corroborated and its reliability is supported by the circumstances under
which it was given." Id. at 1117. It therefore upheld a conviction based
on a prior inconsistent statement where (1) the statement was partially
corroborated, (2) it was made shortly after the crime, and (3) there was no
suspicion of coercive tactics by police because the witness was not a
suspect. Id. at 1118-19.

Robar is easily distinguished from this appeal. First, in this case,
complainant's hearsay statement identifying her boyfriend as the
perpetrator was corroborated by the friend's written statement, which
identified "Shawn" as the person who pulled complainant's hair and fought
with her at 1:30 a.m. in front of his parents' house. It was also
corroborated by the officer's observations of complainant's physical and
emotional state, as well as the photograph of the complainant. Further,
the friend testified at trial that she and her boyfriend went out on the
evening in question with complainant and her boyfriend, defendant.
"[C]orroborative evidence

need not tack down each and every fact and allegation," id. at 1119,
"as long as the statement is generally corroborated," id. at 1117.

Second, the statement was made minutes after the assault. We agree
with the Mancine court, which found that a statement made shortly after the
crime "seems more indicative of reliability than a recantation on trial's
eve two years after the crime and her reconciliation with defendant." Id.
at 1118. Indeed, recantation is common in cases of domestic abuse because
victims fear retaliation from the batterer. C. Klein & L. Orloff,
Providing Legal Protection for Battered Women: An Analysis of State
Statutes and Case Law, 21 Hofstra L. Rev. 801, 1187 (1993); see also M.
Dutton, Understanding Women's Responses to Domestic Violence: A
Redefinition of Battered Woman Syndrome, 21 Hofstra L. Rev. 1191, 1232
(1993) (fear of retaliation following separation is reasonable; "most women
who are killed by their abusive partners are killed once they have left the
relationship").

Here, complainant failed to appear for trial twice when subpoenaed by
the State; she then appeared to testify for the defense, maintaining that
she had no recollection of the events in question. The court found that
complainant's testimony at trial was not credible. This finding was
inevitable, based in part on the officer's testimony that complainant
seemed coherent and articulate at the police station, rebutting her
testimony that her memory was impaired due to intoxication. In context,
the trial court's findings regarding complainant's credibility are fully
supported.

Third, the circumstances under which the excited utterance was made
show no indication of coercive tactics. Unlike the witness in Robar,
complainant here was not making a deal with the police, nor was she a
suspect in any crime. She came to the police station to seek protection,
and consequently, had a personal interest in correctly identifying the
perpetrator.

We conclude that complainant's excited utterance in context is
sufficiently reliable to support defendant's identification as the
perpetrator beyond a reasonable doubt. See Watkins v. State, 360 S.E.2d 47, 48 (Ga. Ct. App. 1987) (officer's testimony of complainant's report,

medical technician's testimony of complainant's injuries, and
testimony regarding disordered scene was sufficient to find defendant
guilty beyond reasonable doubt although complainant testified for defense
and recanted her statements).

Defendant also argues that the court erroneously admitted and relied
on statements made by him when he was arrested and brought to the station.
These statements were admitted as admissions under V.R.E. 801(d)(2)(A).
Defendant contends that the statements were improperly admitted because
they were not adverse to defendant's interests. Admissions under V.R.E.
801(d)(2)(A), however, "include any statement made by and offered against a
party opponent." State v. Bernier, 157 Vt. 265, 268, 597 A.2d 789, 791
(1991). "They need not be against the declarant's interest when made."
Id. Defendant also maintains that the statements show only anger at being
arrested and are not probative of whether he assaulted complainant. The
trial court has broad discretion on issues of relevancy, and will be upheld
absent an abuse of discretion. Id. We find no abuse of discretion here as
the evidence of defendant's behavior and language was relevant to
defendant's state of mind on the evening in question. Cf. State v. Kelley,
6 Vt. L. Wk. 84, 85-86 (1995) (evidence of defendant's state of mind
shortly before shooting has substantial probative value).

Finally, defendant maintains that he is entitled to a review of the
sufficiency of the evidence based on the State's case standing alone,
without consideration of the evidence presented by the defense. He
recognizes that a defendant waives any challenge to the trial court's
ruling on a motion for acquittal made at the end of the State's case, when
the defendant presents evidence. See State v. Bressette, 130 Vt. 321, 322,
292 A.2d 817, 818 (1972). Nonetheless, he urges us to reject this rule.
We decline to overrule Bressette, and reaffirm the waiver rule adopted by
the federal courts and most state courts. See, e.g., United States v.
Cheung, 836 F.2d 729, 730, n.1 (1st Cir. 1988) (defendant who presented
evidence in own

behalf waived motion for acquittal at close of government's case);
State v. Nunez, 806 P.2d 861, 868 (Ariz. 1991) (same); Hood v. State, 561 N.E.2d 494, 496 (Ind. 1990) (same); State v. Henshaw, 557 A.2d 1204, 1207
(R.I. 1989) (same).

Even if we consider the evidence presented by the defense, defendant
maintains that the evidence did not establish that he and complainant were
"`household members,' an element of domestic assault. The domestic assault
statute adopts the definition of "household members" from 15 V.S.A. §
1101(2), which provides: "Household members" means persons living together
or sharing occupancy and persons who have lived together in a sexual
relationship." We conclude that the evidence that (1) complainant and
defendant were boyfriend and girlfriend on the night of the assault, (2)
had two children together, and (3) shared occupancy of the same residence
that night, was sufficient to establish beyond a reasonable doubt that the
complainant and defendant were household members.

II.

Defendant also argues that he is entitled to a new trial because his
waiver of a jury trial did not comply with V.R.Cr.P. 23(a). The State
counters that defendant should not receive a new trial because he failed to
show prejudice from any rule violation and the trial court substantially
complied with the purpose of the rule.

Rule 23(a) provides that the court shall not accept a waiver of jury
trial without addressing defendant in open court, and informing him and
determining that he understands that (1) he may participate in the
selection of the twelve members of the jury, (2) any verdict of guilty must
be unanimous, and (3) the court alone decides guilt or innocence if the
jury is waived. V.R.Cr.P. 23(a). In this case, the entire open-court
colloquy was as follows:

The Court: Mr. West, you understand you're giving up
your right to a jury trial?

Defendant: Yes.

The Court: You understand the defendant [sic] will
decide both the facts and law on this case?

Defendant: Yes.

The Court: You have signed this document freely and
willingly?

Defendant: Yes.

(Emphasis added.)

It is clear that this colloquy failed to comply with V.R.Cr.P. 23(a).
Of the three messages required to be communicated by Rule 23(a), only the
last was addressed at all by the trial court, and even this message was
improperly conveyed. The trial court erroneously informed defendant that
he, and not the court, could adjudicate his guilt.(FN2) There was no
indication that defendant understood any of the characteristics of the jury
trial right or the consequences of a waiver. In State v. Conn, 152 Vt.
99, 103, 565 A.2d 246, 248 (1989), we determined that an on-the-record
colloquy between a defendant and the trial court is desirable to assure
that defendant's jury trial waiver is voluntary, knowing and intelligent,
and we quoted at length from a decision of the Massachusetts Supreme
Judicial Court, which had required such

a colloquy. See Ciummei v. Commonwealth, 392 N.E.2d 1186, 1189-90
(Mass. 1979). We concluded that only a personal colloquy will enable the
court to ensure the defendant understands the critical information on which
the waiver must be based. We rejected the use of preprinted information on
a printed form because of the great risk such information would neither be
read nor absorbed. See Tucker v. State, 399 A.2d 931, 932 (Md. Ct. Spec.
App. 1979) (waiver on written waiver form does not comply with Maryland
Rule 735(d), which requires court to make "inquiry of the defendant on the
record" and determine defendant has "knowingly and voluntarily waived the
right").

We rejected, however, the approach of the Massachusetts court of
announcing a decision requiring such a colloquy prospectively for only
future criminal trials. We found that the provision of the Vermont
Constitution that requires us to promulgate rules governing practice and
procedure in criminal cases, Vt. Const. ch. II, § 37, states a preference
for implementing procedural change through rulemaking rather than through
decision. Conn, 152 Vt. at 105, 565 A.2d at 249. Thus, we referred the
question of appropriate rulemaking to our Advisory Committee on the Vermont
Rules of Criminal Procedure for action. Id. It responded with the
amendment to Criminal Rule 23(a), which we adopted in 1992.

Having adopted the amendment to Rule 23(a), we are now required to
enforce it. We recently held in State v. Coita, 153 Vt. 18, 21, 568 A.2d 424, 426 (1989), that there is nothing in our precedents or those from
other jurisdictions that allows us to overlook a violation: "[I]n 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)).

We cannot accept either of the State's arguments why we should
overlook non-compliance with the rule. The first -- that defendant has
failed to show prejudice -- was directly addressed by Coita. Over a
vigorous dissent on this exact point, we held that we "do not apply an
absence of prejudice analysis to jury trial waivers because of the nature
of the right involved." Id. at 22, 568 A.2d at 426. We must add that such
a requirement would be wholly

inconsistent with a prophylactic rule created to ensure that a waiver
is informed, voluntary and intelligent. The point of the amendment to Rule
23, as with Miranda warnings and other such advice or colloquy
requirements, is to create specific requirements to avoid a case-by-case
inquiry of the state of mind of the defendant.

The State's second argument is that there was substantial compliance
with the requirements of the rule. We recognize that, in the comparable
situation presented by Rule 11, we have required only substantial
compliance with the colloquy requirements before the court accepts a guilty
plea. See In re Hall, 143 Vt. 590, 596, 469 A.2d 756, 759 (1983).
Although Rule 11 requires the court to advise defendant of specific rights
and consequences of a plea of guilty, it does not require that "the plea
hearing judge read verbatim the enumerated rights." Id. at 594, 469 A.2d
at 758. Instead, it "is enough that the court engages in an open dialogue
with the defendant involving a discussion of all of the Rule 11(c) elements
to the end that the court is satisfied, and the record substantiates, that
the defendant knows and understands the full array of legal consequences
that attach to a guilty plea." Id. at 595, 469 A.2d at 758; see also In re
Bentley, 144 Vt. 404, 411, 477 A.2d 980, 983 (1984) (acceptance of guilty
plea affirmed where there was "substantial but not complete compliance with
Rule 11").

We also recognize that other courts have enforced similar jury trial
waiver colloquies, whether imposed by rule or decision, with flexibility.
For example, following the decision in Ciummei, the Massachusetts court
made clear that the decision "established no rigid pattern which must
invariably be followed in conducting a colloquy before accepting a waiver
of the right to trial by jury." Commonwealth v. Abreu, 463 N.E.2d 1184,
1186 (Mass. 1984). Thus, the colloquy may vary from case to case "provided
the essentials of the procedure are maintained." Commonwealth v. Towers,
623 N.E.2d 489, 490 (Mass. App. Ct. 1993). On appeal, the question to be
answered is "whether the colloquy has provided an evidentiary record upon
which the trial judge could find the waiver of a defendant was voluntary
and intelligent." Abreu, 463 N.E.2d at 1186.

Despite our recognition that a substantial compliance standard might
be appropriate for review of waiver colloquies under Rule 23(a),(FN3) such a
standard would not help the State here. We have to characterize the
situation here as total noncompliance with the rule. Two out of three of
the required disclosures were not made at all, and the other was made in a
garbled manner. Because the disclosures were not made, we cannot determine
whether defendant understood the information to be disclosed.

Reversed and remanded.

For the Court:

Associate Justice

-------------------------------------------------------------------------------
Footnotes

FN1. The exact text of V.R.Cr.P. Rule 23(a) that pertains to the on-
the-record colloquy is as follows:

The court shall not accept the defendant's waiver of the right to
trial by jury without first, by addressing the defendant personally
in open court, informing that person of, and determining that the
person understands, the following:
(1) That the jury consists of 12 members of the community,
and that the defendant may participate in their selection;
(2) That before the defendant can be convicted, all 12
members of the jury must agree on defendant's guilt;
(3) That where a jury is waived, the court alone decides
guilt or innocence in accordance with the facts and the law.

FN2. The State has not claimed that there was an error in the
transcription of the colloquy. Thus, we assume that the court misspoke.
We doubt that defendant seriously believed that he, rather than the court,
would determine his guilt. In view of the omissions from the colloquy, we
do not have to decide whether the error in specifying the decision-maker
would alone be grounds for a new trial.

FN3. We do not view the Coita statement that strict compliance is
required as an inflexible decision. In Coita, the court failed to approve
the jury waiver in writing, a specific requirement of the rule. Here, we
can enforce the substance and policy of the rule without giving talismanic
significance to particular wording.

-------------------------------------------------------------------------------
Concurring and Dissenting

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, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

No. 94-231

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 2, Chittenden Circuit

Shawn L. West January Term, 1995

Alden T. Bryan, J.

Scot Kline, Chittenden County State's Attorney, and Pamela Hall
Johnson, Deputy State's Attorney, Burlington, for plaintiff-appellee

Robert Appel, Defender General, and William A. Nelson and Henry
Hinton, Appellate Defenders, Montpelier, for defendant-appellant

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

MORSE, J., concurring and dissenting. I concur with the Court that
the evidence was sufficient to convict defendant, but I dissent to Part II
because any error in the jury waiver was de minimis and harmless.
Defendant, his lawyer, the prosecutor, and the trial judge signed a
document entitled in bold print WAIVER OF RIGHT TO JURY TRIAL, which said,

I, the Defendant named above, am charged with the crime of
Domestic Assault an offense that is not punishable by death or life
imprisonment. I have been informed by the Court and my lawyer
that I have the right to have my guilt or innocence determined by
a jury after trial. I fully understand that right. I understand that,
if I choose to have a jury trial, the jury would be made up of
twelve members of the community, and my lawyer and I would
take part in choosing which jurors would hear my case. I also
understand that, to be convicted, all twelve members of the jury
would have to agree that I am guilty beyond a reasonable doubt.

I hereby waive (give up) my right to a trial by jury. I agree to
a trial by Court, which means that the Judge alone will decide if
I am innocent or guilty after a trial without a jury.

In addition, the trial court spoke to defendant personally in open
court in his attorney's presence and determined that defendant "understood"
he was "giving up [his] right to a jury trial" and that he had signed the
WAIVER document "freely and willingly." Nevertheless, this Court requires
a more informed waiver in the form of the trial court's oral repetition of
information contained in the written waiver.

In fact, this case does not bring into question defendant's
"understanding" of what he was giving up. Defendant does not claim he did
not understand his waiver nor does he say that he has changed his mind
about waiving trial by jury. For all we know, we remand so that defendant
may have another bench trial. This case, then, turns on the insistence on
technical form regardless of substance, thereby ignoring V.R.Cr.P. 52(a)
(error not affecting substantial rights should be "disregarded").(FN1)

It is indeed difficult to fathom any violation of V.R.Cr.P. 23(a).
Defendant was addressed personally in open court and was informed of his
right to a jury trial. The details of the right were explained in the
document that defendant signed, and in the context of this case, the
procedure seems to me to meet the requirement of the rule. If defendant
failed to understand the contents of the form and his lawyer's explanation
of waiving a jury, a judge's reading of the form from the bench would
hardly improve defendant's understanding. The difference between trial by
judge and trial by jury is not a difficult concept to grasp. Presumably,
defense counsel fully advised defendant about the decision to waive the
jury. Usually, jury waiver is counsel's

idea in assessing trial strategy. By placing the trial court here in
error, the elevation of form over substance is unreasonably high.

The Court relies on State v. Coita, 153 Vt. 18, 21, 568 A.2d 424, 426
(1989), to hold that prejudice is irrelevant and "strict compliance with
the rule" is required. I do not read Coita, which I wrote, as reaching
this case. There we reversed because the court did not affirmatively
indicate its consent to trial by court. We stated:

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.

. . . .

The court's approval of a waiver may trigger a colloquy with the
parties resolving any doubts as to what prompted the waiver and
the wisdom of it.

Id. at 20, 21, 568 A.2d at 425, 426. Thus, in Coita "strict
compliance with the rule" required the trial judge to affirmatively
indicate the court's consent to waiver of jury trial by defendant. "Strict
compliance" in that regard happened here. The judge signed the waiver and
spoke to defendant about waiving the jury, and determined that defendant
understood. No doubts about the waiver were raised and defendant to this
day has not suggested there were any doubts.

I would affirm the conviction.

__________________________________
Associate Justice

--------------------------------------------------------------------------
Footnotes

FN1. Because any error was harmless, it could not amount to plain
error. V.R.Cr.P. 52(b) (plain error must affect substantial rights).
Defendant, who had counsel, did not object to the colloquy under V.R.Cr.P.
23(a); he raises this issue for the first time on appeal. In the
comparable situation under V.R.Cr.P. 11, where the defendant fails to
object before the trial court, we review alleged errors in a plea colloquy
only for plain error. State v. Thompson, ___ Vt. ___, ___, 650 A.2d 139,
140 (1994). V.R.Cr.P. 23(a) "requires the court to conduct an inquiry
analogous to that required by [V.R.Cr.P.] 11." V.R.Cr.P. 23 Reporter's
Notes to 1992 Amendment. Because we require an objection to the colloquy
when a defendant waives the right to trial altogether under V.R.Cr.P. 11, I
would require an objection when a defendant waives the right to trial by
jury under V.R.Cr.P. 23(a).

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