CHARLES E . JACKSON V. COMMONWEALTH OF KENTUCKY
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AS MODIFIED : SEPTEMBER 11, 2003
RENDERED : AUGUST 21, 2003
TO BE PUBLISHED
,*ixPr"ar eauti . of ~i
1999-SC-1122-MR
IDACTIE-APPELLANT
CHARLES E . JACKSON
V.
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN MINTON, JR., JUDGE
99-CR-00508
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
VACATING AND REMANDING
I . INTRODUCTION
Following a one-day bench trial before the Warren Circuit Court, Appellant was
found guilty of First-Degree Assault and sentenced to a twenty (20) year term of
imprisonment . Appellant appeals to this Court as a matter-of-right' and argues that his
conviction must be reversed for a new trial because "the record is silent as to any
knowing and intelligent waiver by the Appellant of his right to a trial by jury." After a
review of the record and relevant precedent, we agree with Appellant that the record
contains no valid waiver of his right to trial by jury. As such, we vacate Appellant's
conviction for First-Degree Assault . But, in lieu of ordering a new trial at this stage of
the proceedings, we remand the case for the trial court to conduct an evidentiary
hearing to determine whether the bench trial was conducted without Appellant's waiver
of his right to a jury trial, in which case Appellant is entitled to a new trial, or whether
1 KY . CONST . § 110(2)(b) .
Appellant actually knowingly, voluntarily, and intelligently waived his right to trial by jury
but was erroneously permitted to communicate that waiver through his attorney rather
than in writing . Stated otherwise, we remand the case for the trial court to evaluate
whether its failure to require Appellant's written waiver was a mere technical error or a
prejudicial error that wrongfully deprived Appellant of his right to trial by jury.
II. FACTUAL AND PROCEDURAL BACKGROUND
On July 13, 1999, at Appellant's arraignment, the trial court read the grand jury's
indictment to Appellant, informed Appellant of his rights - including his right to trial by
an impartial jury - and asked Appellant if he understood those rights . Appellant
responded affirmatively. Subsequently, on August 26, 1999, Appellant's defense
attorney, in Appellant's presence, informed the trial judge that "Mr. Jackson has advised
me that he would like to move for a bench trial ." Neither the trial court nor defense
counsel made any inquiry of Appellant regarding his consent to the waiver, nor did
Appellant acknowledge the waiver personally on the record . Nonetheless, after the
Commonwealth stated its agreement to waive trial by jury, the trial court stated on the
record that "[b]oth sides are waiving their rights, and this matter is set for a bench trial ."
After the proceedings, Appellant and his counsel began to argue in open court
regarding the delay in the trial date and Appellant's receipt of discovery materials, and
Appellant was forcibly removed from the court room.
Following a substitution of counsel, Appellant appeared in court on September 7,
1999, and his new counsel advised the trial court that he "had met with Mr. Jackson and
he [Jackson] again has voiced his request for a bench trial." Again, the Commonwealth
agreed to proceed without a jury, and again Appellant was not personally questioned
regarding the waiver. The trial court then scheduled the case for trial without a jury.
At trial, the evidence showed that, in April 1999 : (1) Appellant, an ex-Marine and
former detention officer at the Warren County Regional Jail, telephoned his exgirlfriend, Charlotte Burton ("Burton"), and asked her to come to his house to collect
some belongings that she had left there ; (2) Burton picked up a friend, Ella Louise
Church ("Church") and the two women drove to Appellant's residence where they found
Burton's belongings boxed up outside the house; (3) Burton accepted Appellant's
invitation to come inside the home to collect her mail ; (4) once Burton came inside his
home, Appellant grabbed her by the hair and began to beat her with a baton ; (5)
Church heard Burton's screams and hailed a passing Bowling Green police officer who
arrested Appellant as he attempted to pursue Burton as she fled from his home ; (6)
after receiving his Miranda rights, Appellant admitted to assaulting Burton; and (7)
Burton suffered serious injuries - a broken rib that punctured her right lung and caused
it to collapse and scalp lacerations that had to be sutured with staples - that were
characterized by her treating physician as "life-threatening" and still caused her
occasional pain as of the date of trial, which was more than five months after the
assault itself . Upon this evidence, the trial court found Appellant guilty of First-Degree
Assault and sentenced him to the maximum prison sentence of twenty (20) years.
Appellant's sole claim of error on appeal is that his conviction should be reversed and
that he should receive a new trial "because a silent record cannot substitute for the
requirements necessary to try the Appellant without a jury."
Ill. ANALYSIS
Both the Sixth Amendment to the United States Constitution, which provides that
"[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the state and district wherein the crime shall have been
committed,
112
and Section 7 of the Kentucky Constitution, which provides that "[t]he
ancient mode of trial by jury shall be held sacred, and the right thereof remain
involate, ,3 guarantee a criminal defendant the right to trial by jury. Although "[i]t is now
well settled that an accused, in the exercise of a voluntary and intelligent choice, may
waive his right to a jury trial,
,4
it was not until 1930 that the United States Supreme
Court held definitively that a criminal defendant could waive his federal constitutional
right to a trial by jury ,5 and it was not until 1975, in Short v. Commonwealth ,6 that our
predecessor Court followed suit and held that a Kentucky felony defendant could waive
the right to a jury trial.
In Short, the Court held that, in order to effectuate a valid waiver, the defendant
must knowingly, voluntarily, and intelligently waive the right to an impartial jury, that the
Commonwealth must consent, and that the trial court must approve.' The Court further
explained that:
In determining whether a waiver of a jury trial is made
understandingly, intelligently, competently, and voluntarily,
the court must apply the same standards that are required
on the acceptance of a guilty plea . The record made as the
hearing preceding the acceptance of a waiver by the court
2 U .S. CONST. § amend VI . The Fourteenth Amendment makes this portion of
the Sixth Amendment applicable to the states. Duncan v. Louisiana , 391 U.S . 145, 88
S .Ct. 1444, 20 L .Ed .2d 491 (1968).
3 Ky. CONST. § 7 .
4 Marshall v. Commonwealth , Ky., 60 S .W .3d 513, 522 (2001).
5 Patton v. United States , 281 U .S. 276, 312, 50 S.Ct. 253, 263, 74 L .Ed . 854
(1930), abrogated by Williams v. Florida , 399 U.S. 78, 91, 90 S.Ct. 1893, 1901, 26
L.Ed .2d 446 (1970).
6 Ky., 519 S.W.2d 828 (1975).
Id . at 832-3 .
must affirmatively set out facts which will permit an
independent determination of its validity. 8
Thus, as we have recently explained, "a trial court may not presume a waiver of the
right to a jury trial from a silent record, and . . . a court should not presume
acquiescence in the loss of a constitutional right ."9
In 1981, we promulgated RCr 9.26(1), which states "[c]ases 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 Commonwealth ."' 0 RCr 9.26(1) essentially
codifies the holding in Short , but, by adding an additional requirement that a
defendant's waiver must be in writing, clarifies that Kentucky "does not require a
separate colloquy with the defendant with respect to voluntariness," 11 and instead
"presumes voluntariness from a written waiver [without] requiring] further investigation
8 Id . at 833.
9 Marshall v. Commonwealth, supra note 4 at 522 (citations omitted) .
Trial):
10 RCr 9 .26(1) (emphasis added) . See also AOC Form 440 (Waiver of Jury
I,
, being advised of my Constitutional
right to a trial by jury, and with approval of the Court and
consent of the Commonwealth pursuant to RCR 9 .26(1),
hereby and without reservation waive any and all such
legal right to a trial by jury and request a court trial .
In further witness of my voluntary and unconditional
consent, I further state that my signature affixed below was
signed in the presence of this Honorable Court without any
threats, promises, duress, or agreements whatsoever, and
with full knowledge of my rights as above stated . (Emphasis
in original) .
AOC Form 440 requires the signatures of the defendant, defense counsel (if any) the
prosecuting attorney, and the Judge .
11
Marshall v. Commonwealth , supra note 4 at 522 (emphasis added) .
by the trial court . "12 As such, RCr 9.26(1) establishes a waiver procedure that contains
an explicit "in writing" requirement that is not required under the constitutional
parameters described in Short.
The record in this case, which contains no written waiver from Appellant,
establishes that the trial court committed error when it tried Appellant without a jury
without following the waiver procedure set forth in RCr 9 .26(1). Our Rules of Criminal
Procedure, however, provide that "no error or defect . . . in anything done or omitted by
the court or by any of the parties . . . is ground for granting a new trial . . . unless it
appears to the court that the denial of such relief would be inconsistent with substantial
justice" 13 and that "[t]he court at every stage of the proceeding must disregard any error
or defect in the proceeding that does not affect the substantial rights of the parties . "14
Although we have not previously addressed whether RCr 9 .26(1)'s "in writing"
requirement is mandatory or whether, as the Commonwealth argues, some form of oral
waiver might nonetheless be sufficient, we find some guidance in the federal courts'
12 _Id. See also Crone v, Commonwealth , Ky.App ., 680 S.W.2d 138,140 (1984)
("The record here does not indicate in any manner that the appellant waived his right to
a jury trial in the manner provided in Short[.]").
13
RCr 9 .24 (emphasis added) .
_Id . (emphasis added) . See also Johnson v. State, 72 S .W .3d 346, 348 (Tex.
Crim. App. 2002):
14
We have recognized that "neither the federal nor the state
constitution require that a trial by jury be waived in writing ."
Rather, [in Texas Code of Criminal Procedure Art . 1 .13,] the
legislature has chosen to specify the manner in which a jury
may be waived. Since Johnson alleges merely that there
was no written jury waiver, and does not allege that there
was no jury waiver at all, he alleges statutory error, not
constitutional error. We therefore analyze harm under
Appellate Rule 44.2(b). If the error "does not affect
substantial rights" then it "must be disregarded ." (footnotes
omitted) .
interpretation of Federal Rule of Criminal Procedure (FRCP) 23(a), which is virtually
identical to our rule . 15
Under the federal rule, four (4) conditions are necessary for a valid waiver: (1)
the defendant must knowingly, voluntarily, and intelligently waive his right to trial by jury;
(2) the government's attorney must consent ; (3) the trial court must agree; and (4) the
waiver must be in writing . 16 Federal courts have held that the "writing requirement is
designed to impress the defendant with the gravity of the right relinquished and provide
the best evidence of the defendant's voluntary consent. "17 However, most United
States Courts of Appeals have not required strict compliance with FRCP 23(a)'s "in
writing" provision 18 and have found the failure to secure the waiver in writing to be nonprejudicial in cases "where the record clearly reflects that the defendant 'personally
gave express consent in open court, intelligently and knowingly."'19 And, in that regard,
the federal appellate courts that have addressed the issue strongly urge the federal trial
courts to engage the defendant in a colloquy concerning waiver of a jury trial to inform
the defendant that a jury consists of twelve members of the community, that a
15
FRCP 23(a) states: "[c]ases 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 consent of
the government ."
16
United States v. Robertson , 45 F.3d 1423, 1431 (10th Cir. 1995), cert. denied ,
516 U .S . 844 (1995).
17 United States v. Martin , 704 F .2d 267, 271 (6th Cir. 1983) . See also United
States v. Robertson , supra note 16 at 1431 ; Marshall v. Commonwealth , supra note 4
at 522 (quoting United States v. Martin , supra) .
18 United States v. Robertson, supra note 16 at 1431 ; United States v. Robinson,
8 F.3d 418, 422 (7 Cir. 1993) ; United States v. Garrett, 727 F.2d 1003, 1012 (11 Cir.
1984), affd 471 U.S . 773, 105 S.Ct. 2407, 851 L .Ed .2d 764 (1985).
19
United States v. Saadva , 750 F .2d 1419, 1420 (9th Cir. 1985) (quoting United
States v. Guerrero-Peralta , 446 F.2d 876, 877 (9th Cir. 1971)) ; United States v.
Robinson , supra note 18 at 422 .
defendant can take part in selecting his or her jury, that a jury verdict must be
unanimous, and that the court alone will decide a defendant's guilt or innocence if the
defendant waives his or her right to a jury trial .2° Thus, under federal law, a written
waiver is only one factor to consider in determining if the defendant knowingly,
voluntarily, and intelligently waived the right to trial by jury.
We agree with the federal courts' analysis, and thus conclude that a failure to
comply with RCr 9 .26(1)'s "in writing" requirement will not prejudice a defendant's
substantial rights if the trial court engages in a colloquy with the defendant to ensure
that the defendant's waiver is constitutionally adequate - i .e. , that the defendant is
knowingly, voluntarily, and intelligently waiving the right to a jury trial . In the case at bar,
however, the record contains neither a written waiver from Appellant nor any oral waiver
from Appellant's own mouth. The trial court did not conduct a colloquy with Appellant
regarding his right to trial by jury, and, in fact, Appellant was never even asked and
never personally acknowledged on the record his consent to the waiver. Instead, the
"waiver" in this case consisted of Appellant's attorneys' statements to the trial court made in open court and in Appellant's presence - that Appellant requested a bench
trial. Although Appellant correctly observes that his attorneys' statements did not and
cannot constitute a constitutionally valid waiver of his right to trial by jury, our review of
the relevant federal authority persuades us that a new trial is not automatically required
in such cases .
2°
See United States v. Robertson, supra note 16 at 1432 ; United States v.
Cochran , 770 F.2d 850, 852-53 (9 Cir. 1985) ; United States v. Martin , supra note 17 at
274-5 . We observe that, in Kentucky, which utilizes jury sentencing, the colloquy
should also address the defendant's understanding that, in the event of a guilty verdict,
the trial judge instead of a jury would fix the punishment .
We can imagine only three (3) possible factual explanations for Appellant's
attorneys' requests for a bench trial : (1) counsel requested a bench trial without any
prior consultation with Appellant ; (2) counsel requested a bench trial without fully
consulting with Appellant and explaining his right to a jury trial to him in a manner that
would allow him to knowingly, intelligently, and voluntarily waive the right; or (3) counsel
fully explained Appellant's right to a jury trial to him, and Appellant knowingly,
intelligently, and voluntarily elected to waive that right by requesting a bench trial
through counsel . If explanation (1) or (2) accurately describes the state of facts present
here, then Appellant's attorneys acted without valid authorization, there was no valid
waiver of Appellant's right to trial by jury, and Appellant is entitled to a new trial.
However, if explanation (3) fits the bill, a new trial would be a windfall for Appellant
because Appellant would have made a constitutionally-adequate waiver of his right to a
jury trial that was simply not reflected in the record .
Some of the United States Courts of Appeals have closely examined the
question of what relief is appropriate in cases where the record contains an attorney's
representation that the defendant wishes to waive his right to trial by jury, but no valid
written or oral waiver from the defendant personally . In United States v. Garrett ,2' for
example, the appellant objected "that his Sixth Amendment right to a trial by jury . . .
was not properly waived inasmuch as there was only an oral waiver by counsel, not a
written waiver by Garrett himself. ,22 The Eleventh Circuit recognized the possibility that
21
Supra note 18.
_Id . at 1012 . See also _Id . at 1013 n .7 ("In his main brief, Garrett does not
assert that he was denied the right to a jury trial ; rather he urges reversal on the ground
that the record contains "neither a written waiver by appellant nor any indication that he
was ever made aware of his rights to a jury trial [ . . . ] let alone waived such right.") .
22
the appellant had invited error23 by knowingly failing to perfect his waiver and thus,
instead of reversing for a new trial, remanded the case for further fact-finding as to
whether the appellant actually waived his right to trial by jury:
Next, we must determine whether Garrett has made out a
valid claim of improper waiver. We begin with the
observation that [the] purpose of Rule 23(a) is to ensure that
a criminal defendant is aware of his jury right before waiving
it and that any waiver is personal and unequivocal . . . . Thus,
reversal is warranted where there is no written waiver signed
by the defendant in the record and the defendant asserts
either that he was unaware of hisjury right or that he did not
consent to its waiver.
This is not to say that the court will invariably grant relief
for purely technical violations of the rule, as where a
defendant knowingly acquiesced in a waiver which was
never reduced to writing . If the defendant admits, or the
government plainly demonstrates, that at the time of the
waiver the defendant was not ignorant of his jury right and
consented to the waiver, reversal would not be in order, for
the defendant cannot complain on appeal of an alleged error
invited or induced by himself.
It is unclear from Garrett's appellate briefs whether he
presents us with a purely technical claim . Moreover, the
record is silent as to whether Garrett was in fact cognizant of
his jury right and agreed to counsel's oral waiver, hence
inviting error by remaining silent. We therefore remand to
the district court for an evidentiary hearing on this issue .
Unless the government succeeds in proving Garrett's
knowledge and consent, express or implied, Garrett must be
afforded a new trial, before a jury . . . . [O]nly if the
augmented record firmly establishes Garrett's knowledge
and consent will the [judgment] stand .24
And, in United States v. Robinson ,25 another case where the "waiver' of jury
proceedings came from the appellant's counsel rather than the appellant personally, the
23
See United States v. Page, 661 F.2d 1080, 1082-3 (5t" Cir. 1981), cert.
denied, 455 U.S . 1018 (1982).
24
United States v. Garrett , supra note 18 at 1012-13 (emphasis added and
footnotes and citations omitted) .
25
Supra note 18 .
- 1 0-
Seventh Circuit disagreed with the appellant's contention that automatic reversal was
required when neither a written waiver nor a colloquy appeared in the record .26 The
Court acknowledged that it could not characterize the error as harmless on the basis of
the silent record before it, 27 but, instead of ordering a new trial, vacated the conviction
and remanded the case for an evidentiary hearing on the question of whether the
appellant's attorney's "waiver" was authorized :
[W]hen there is no written waiver, no colloquy between the
judge and the defendant, [and] no comments by counsel
which demonstrate that he obtained a knowing and voluntary
waiver from his client . . . the record is effectively silent.
Thus, on the record before us, the simple claim by Robinson
that he did not waive his right to a jury is sufficient to require
a factual rebuttal by the government. Therefore, we remand
to the district court for a finding, supported by a developed
record, regarding Robinson's waiver of trial by jury . . . .
If the government can introduce evidence that Robinson
was told of his right to a jury trial by his attorneys and agreed
to the bench trial, no jury trial is required . If the government
is unable to rebut Robinson's claim then Robinson is entitled
. . . to a jury trial . . . .28
Given their factual similarities to the case at bar, we find the relief found
appropriate in Garrett and Robinson to be a persuasive and viable alternative in this
case . Appellant acknowledged at arraignment that he understood his right to trial by
jury and then, on two (2) separate occasions, stood beside his attorneys without
26
Id . at 422 .
27
_Id. ("However, we cannot say that the district court's failure to follow United
States v. Scott [, 83 F.2d 362, 364 (7th Cir. 1978)] was harmless because there is
nothing else in the record before us which satisfactorily demonstrates that Robinson
personally gave a knowing and voluntary waiver of his right to have a jury[.]").
28 _Id . at 425 (citation omitted) . Cf. United States v. Ac ee , 83 F.3d 882, 887-8 (7th
Cir. 1996) (remanding in a case where the validity of the appellant's waiver of his right
to appeal was contested "since it may still be possible to glean further and more reliable
information from either the defendant or defense counsel about the circumstances
surrounding the agreement .").
comment as they announced to the trial court that Appellant requested a bench trial .
And, even after the bench trial, Appellant sent the trial judge a three (3) page letter in
which he offered additional information regarding his trial testimony and requested the
return of some belongings seized from his home, but, significantly, expressed no
surprise over the fact that the trial had been conducted without a jury present. It was
only on appeal - and thus after the trial judge had sentenced him to the maximum
sentence of twenty (20) years - that Appellant first contested the propriety of the bench
trial conducted in his case . Even on appeal, however, Appellant does not assert that
his attorneys acted without his informed consent when they requested a bench trial on
his behalf . Instead he argues simply that "the record is silent as to any knowing and
intelligent waiver by the Appellant of his right to a trial by jury." Although we recognize
that this record would not be silent if the trial court had merely complied with RCr
9 .26(1) and required Appellant to execute a written waiver, we find this to be an
"extraordinary case ,29 in which the factual backdrop is sufficiently suggestive of invited
error that a remand is a more appropriate remedy than a new trial .
Accordingly, we vacate Appellant's conviction and remand this case to the trial
court for an evidentiary hearing at which the Commonwealth may attempt to prove that
Appellant's attorneys' bench trial requests were the result of proper consultation with
Appellant and a knowing, voluntary, and intelligent waiver by Appellant of his right to
trial by jury. The Commonwealth shall have the burden of proof on this issue, and if the
Commonwealth does not satisfy its burden, Appellant shall be entitled to a new trial . If,
however, the trial court finds that Appellant made a constitutionally-valid waiver of his
right to trial by jury that he communicated to the court through his attorneys' motions,
29 United States v. Garrett, supra note 18 at 1013.
-12-
the trial court should reinstate the judgment of conviction, and Appellant may seek
appellate review of the trial court's factual determination .
IV. CONCLUSION
For the above reasons, we vacate Appellant's conviction for First-Degree Assault
and remand the case to the Warren Circuit Court for further proceedings consistent with
this opinion .
Lambert, C .J . ; Graves and Johnstone, JJ ., concur. Wintersheimer, J ., concurs in
result only. Cooper, J ., dissents by separate opinion in which Stumbo, J ., joins.
APPELLANT :
Charles Jackson
#139758
Luther Luckett Correctional Complex
PO Box 6
LaGrange, Kentucky 40031
COUNSEL FOR APPELLEE :
A. B . Chandler, III
Attorney General
Courtney J . Hightower
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
RENDERED : AUGUST 21, 2003
TO BE PUBLISHED
,*ixprrmr C~vixzf of ~PnfurhV
1999-SC-1122-MR
CHARLES E. JACKSON
V
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN MINTON, JR., JUDGE
99-CR-00508
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE COOPER
On April 17, 2001, I circulated a draft opinion that would have reversed this case
for a jury trial because of the failure to follow the procedure mandated by RCr 9 .26(1):
"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 Commonwealth ."
Alas, there were not four members of this Court willing to enforce our own rule. Now,
twenty-eight months later, the majority of this Court has decided to remand this case to
the trial court for a "retrospective voluntariness hearing," compare Thompson v.
Commonwealth , Ky., 56 S.W.3d 406 (2001) (retrospective competency hearing), to
determine whether Appellant "knowingly, voluntarily, and intelligently" made an off-the
record, unwritten waiver of his right to trial by jury.
Of course, the burden of proof will be on the Commonwealth ; and unless the
Commonwealth can find, e.q., a jailhouse informant, the only persons who could testify
to the critical fact would be Appellant and his attorneys . No doubt, Appellant, whose
conviction is not yet final, will assert his Fifth Amendment right not to testify against
himself, U .S . Const., amend . V; and, no doubt, he will assert his lawyer-client privilege
to prevent his attorneys from testifying against him . KRE 503. (This is not a
malpractice action or an RCr 11 .42-type proceeding in which Appellant is claiming
ineffective assistance of counsel so as to constitute an automatic waiver. Appellant is
claiming that he did not make a written waiver of his right to trial by jury as required by a
rule adopted by this Court .)
To preclude any further delay in the resolution of this matter, I simply adopt the
legal analysis of my original draft opinion (portions of which have been adopted by the
majority opinion) as my dissent, viz:
Section 7 of the Kentucky Constitution guarantees a criminal
defendant the right to trial by jury. "The ancient mode of trial by jury shall
be held sacred, and the right thereof remain inviolate, . . ." The Sixth
Amendment of the United States Constitution also preserves this right: "In
all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime
shall have been committed . . . ." The history of trial by an impartial jury
stretches back to the Magna Carta and the early history of England, where
The Fourteenth Amendment makes this portion of the Sixth Amendment
applicable to the states. Duncan v. Louisiana , 391 U .S. 145, 88 S .Ct.
1444, 20 L. Ed .2d 491 (1968).
juries developed as a means to protect individuals against the arbitrary
and oppressive power of the crown. Duncan v. Louisiana , supra note 1, at
151, 88 S.Ct . at 1448; but see Williams v. Florida, 399 U .S. 78, 91, 90
S .Ct. 1893, 1901, 26 L .Ed.2d 446 (1970) (suggesting that juries do not
derive from the Magna Carta) . Thus, Blackstone termed the right to trial
by jury "the glory of the English law." 3 William Blackstone,
Commentaries on the Laws of England 379 (photo . reprint 1992) (1768) .
As English colonists settled America, they brought this heralded right with
them :
Those who emigrated to this country from England brought with
them this great privilege 'as their birthright and inheritance, as a
part of that admirable common law which had fenced around and
interposed barriers on every side against the approaches of
arbitrary power.'
Thompson v. Utah, 170 U .S . 343, 349-50,18 S.Ct. 620, 622, 42 L.Ed .
1061 (1898) (quoting 2 J. Story, Commentaries on the Constitution of the
United States § 1779), overruled on other grounds, Collins v. Youngblood ,
497 U .S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). Thus, the right to a
jury trial is imbedded in the history of our nation and our Commonwealth
and is fundamental to our system of justice . As the United States
Supreme Court has said :
The framers of the constitutions strove to create an independent
judiciary but insisted upon further protection against arbitrary
action. Providing an accused with the right to be tried by a jury of
his peers gave him an inestimable safeguard against the corrupt or
overzealous prosecutor and against the compliant, biased, or
eccentric judge .
Duncan, supra note 1, at 156, 88 S .Ct. at 1451 .
So important was this right that not until 1930 was it definitively held
that a criminal defendant could waive the right to a trial by jury. Patton v.
United States , 281 U .S . 276, 312, 50 S.Ct. 253, 263,74 L.Ed . 854 (1930),
abrogated by, Williams v. Florida , supra ; see also Adams v. United States
ex rel McCann, 317 U .S . 269, 275, 63 S .Ct. 236, 240, 87 L.Ed . 268
(1942). And not until 1975 did Kentucky follow suit and hold that a felony
defendant could waive the right to a jury trial . Short v. Commonwealth ,
Ky., 519 S .W.2d 828 (1975) . In that case, our predecessor Court held
that, in order to effectuate a valid waiver, the defendant must voluntarily,
intelligently, and knowingly waive the right to an impartial jury, that the
Commonwealth must consent, and that the court must approve . Id . at
832-33 . See also Patton , supra, at 312, 50 S .Ct. at 263 ; Adams, supra , at
275, 63 S .Ct. at 240 . In determining whether a valid waiver has occurred,
the same standards apply as are required on the acceptance of a guilty
plea ; and the record must disclose affirmative "facts which will permit an
independent determination of [the waiver's] validity." Short, supra, at 833,
citing Boykin v. Alabama , 395 U.S . 238, 89 S .Ct. 1709, 23 L .Ed .2d 274
(1969).
In 1981, we promulgated RCr 9 .26(1), which states "[c]ases
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
Commonwealth ." (Emphasis added .) This essentially codifies the holding
in Short but adds the important proviso that a defendant must waive a jury
trial "in writing ." We have not previously addressed whether the "in
writing" requirement of RCr 9.26(1) is mandatory or whether, as the
Commonwealth posits, some form of oral waiver might suffice .
Federal Rule of Criminal Procedure (FRCP) 23(a) is identical to
RCr 9 .26(1).2 Under the federal rule, four conditions must be met for a
valid waiver. One, the defendant must knowingly, voluntarily, and
intelligently waive that right. Two, the government's attorney must
consent. Three, the trial court must agree . Four, the waiver must be in
writing . United States v. Robertson, 45 F .3d 1423, 1431 (10th Cir. 1995),
cert . denied, 516 U .S. 844 (1995). Federal courts have held that the
"writing requirement is designed to impress the defendant with the gravity
of the right relinquished and provide the best evidence of the defendant's
voluntary consent." United States v. Martin , 704 F .2d 267, 271 (6th Cir.
1983). See also Robertson , supra, at 1431 ; United States v. GuerreroPeralta , 446 F.2d 876, 877 (9th Cir. 1971) .3 However, most United States
Courts of Appeals do not require strict compliance with the "in writing"
provision of FRCP 23(a). Robertson , supra , at 1431 ; United States v.
Robinson, 8 F.3d 418, 422 (7th Cir. 1993) ; United States v. Garrett, 727
F.2d 1003, 1012 (11th Cir. 1984), affd, 471 U .S . 773, 105 S .Ct. 2407, 851
L.Ed.2d 764 (1985). But "[t]he only exception [to the "in writing"
2 FRCP 23(a) states: "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 consent of the government."
3 Guerrero-Peralta concerned waiver of the requirement of a twelveperson jury. However, other Ninth Circuit cases cite it as applicable to
waiver from jury trial to bench trial. E.g., United States v. Saadya, 750
F.2d 1419, 1420 (9th Cir. 1985) .
requirement] is where the record clearly reflects that the defendant
'personally gave express consent in open court, intelligently and
knowingly."' Saadya, supra note 3, at 1420 (quoting Guerrero-Peralta ,
supra , at 877) ; Robinson , supra, at 422 . This would seem to comport with
the pre-RCr 9 .26(1) holding in Short v. Commonwealth , supra, at 833, that
an inquiry similar to that required for determining the validity of a guilty
plea would suffice . See Boykin v. Alabama , supra .
In that regard, all of the United States Courts of Appeals that have
addressed the issue strongly urge that federal trial courts engage the
defendant in a colloquy concerning waiver of a jury trial to inform the
defendant that a jury consists of twelve members of the community, that a
defendant can take part in selecting his/her jury, that a jury verdict must be
unanimous, and that the court alone will decide a defendant's guilt or
innocence if a jury is waived . See Robertson, supra , at 1432; United
States v. Cochran , 770 F.2d 850, 852-53 (9th Cir. 1985); Martin , supra , at
274-75 . This colloquy ensures that the defendant's waiver is voluntary,
knowing, and intelligent; that challenges to the waiver are avoided on
appeal; and that the defendant truly understands the enormity of the right
forfeited . Cochran , supra, at 852. Thus, under federal law, a written
waiver is only one factor to consider in determining if the defendant
knowingly, voluntarily, and intelligently waived the right to trial by jury. In
addition and of equal importance is whether the defendant personally
waived the right in open court and if the trial judge conducted a colloquy
with the defendant to ensure a knowing, intelligent, and voluntary waiver.
Here, there was no written waiver "to impress the defendant with
the gravity of the right relinquished and provide the best evidence of the
defendant's voluntary consent ." Martin , supra , at 271 . Nor did the waiver
come from Appellant's own mouth ; instead, his counsel informed the trial
judge of the waiver as Appellant stood silently by. Thus, even if we were
to apply the less stringent federal standard permitting an oral rather than a
written waiver, the facts of this case would still require reversal; for
Appellant was never asked and never personally acknowledged on the
record his consent to the waiver or that he fully understood the gravity of
that decision . Waiver of the right to trial by jury will not be inferred from
silence or mere acquiescence . We are not persuaded otherwise by the
decision of the United States Court of Appeals for the Fifth Circuit in
United States v. Page, 661 F.2d 1080 (5th Cir. 1981), cert. denied , 455
U .S . 1018 (1982) . There, the defendant's waiver was held valid, despite
the absence of a written waiver and despite the fact that, as here, counsel
informed the trial judge of the waiver and the defendant merely failed to
object . However, the court made much of Page's education and
occupation, a Ph.D . in parasitology and a former university professor of
biology; the actual waiver by Page's counsel: "'[H]e and his client, Dr.
Page, had given considerable thought over . . . the weekend to the
question of whether to try this case to the jury . . . [and] they both decided
that a bench trial was preferable . . . ;"' and the fact that the venire were
present in the courtroom when the waiver was made (thus emphasizing
the defendant's right to a jury trial) . Id . at 1080-82 . Even if we were
inclined to follow Page , none of those factors are present here . The
record does not reflect that Appellant is a highly educated individual, or
that he and his counsel discussed the pros and cons of a bench trial as
opposed to a trial by jury, or that the decision to waive jury trial was an
informed choice agreed upon by both Appellant and his attorney. Nor,
unlike Page , were the venire present in the courtroom and immediately
ready to provide a trial by jury when the waiver occurred . Furthermore,
not all United States Courts of Appeals would agree with Page. See
Guerrero-Peralta , supra, at 877, stating "[a]n assertion by defense counsel
that the defendant has consented [to a waiver] is less reliable evidence,
even when coupled with the inference of acquiescence drawn from
defendant's failure to protest . Such an assertion is insufficient to show
that the defendant's consent . . . was given with the requisite degree of
understanding ."
The United States Supreme Court has stated :
Trial by jury is the normal and . . . the preferable
mode of disposing of issues of fact in criminal cases
. . . . Not only must the right of the accused to a trial
by a constitutional jury be jealously preserved, but the
maintenance of the jury as a fact-finding body in
criminal cases is of such importance and has such a
place in our traditions, that, before any waiver can
become effective, the consent of government counsel
and the sanction of the court must be had, in addition
to the express and intelligent consent of the
defendant. And the duty of the trial court in that
regard is not to be discharged as a mere matter of
rote, but with sound and advised discretion, with an
eye to avoid unreasonable or undue departures from
that mode of trial . . . and with a caution increasing in
degree as the offenses dealt with increase in gravity.
Patton , supra , at 312-13, 50 S .Ct. at 263 .
This was a one-day trial . This Court has spent three years searching for an
excuse to avoid enforcement of our own rule of criminal procedure so as to affirm this
conviction . Unable to do so, the majority now remands the case to the trial judge with
directions to conduct his own search . I believe we should either enforce RCr 9 .26(1) or
rescind it. I also believe an appellate court should decide cases on the basis of the
record before it, not remand cases to the trial court with the option of either creating a
better record that will justify an affirmance or assuming the awkward posture of having
to reverse his/her own judgment . It may be just a coincidence, but I do not recall this
Court ever remanding a case so that the record could be supplemented on behalf of a
criminal defendant . Usually we refer to the defendant's obligation to preserve the error,
e;q. , Commonwealth v. Ferrell , Ky., 17 S .W .3d 520 (2000), or to ensure that the record
is properly forwarded for review, e.g., Fanelli v. Commonwealth , Ky., 423 S .W.2d 255
(1968).
Accordingly, I dissent.
Stumbo, J ., joins this dissenting opinion .
~uyrmt Qlaurf of 'f1ixrkV
1999-SC-1122-MR
CHARLES E. JACKSON
V
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN MINTON, JR ., JUDGE
99-CR-00508
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER
On the Court's own motion, the Opinion of the Court by Justice Keller rendered
August 21, 2003 shall be modified on page 8, footnote 20, as attached hereto . Said
modification does not affect the holding .
Entered : September 11, 2003.
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