149 Conn. App. 583
Conn. App. Ct.2014Background
- Defendant Jeremy D. was charged with multiple crimes including sexual assault in the fourth degree and two counts of risk of injury to a child.
- Before jury selection, he elected to waive a jury trial and proceed to a court trial; canvass stated differences between jury and court trial and irrevocability of the choice.
- Defendant, represented by counsel, affirmed understanding and voluntary nature of the waiver during the canvass.
- On March 19, 2012, he moved to withdraw his election, claiming confusion from the court’s use of the word create regarding burden of proof.
- Judge denied the motion to withdraw; trial proceeded before a court and defendant was convicted on three counts and sentenced to a term of fifteen years with five years to serve and fifteen years probation.
- On appeal, defendant challenged the validity of the waiver as knowingly intelligent and voluntary.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the jury waiver knowingly intelligent and voluntary? | D argues the canvass misled him due to confusion and inexperience. | D claims the court’s wording mischaracterized burden and he was not fully cognizant. | Waiver valid; knowingly, intelligently and voluntarily made. |
| Did the court’s use of 'create' during canvass render the waiver invalid or require withdrawal? | State argues neutral use of term; no curing of burden shifting occurred. | D asserts misstatement shifted burden and justified withdrawal. | No reversible error; not sufficiently confusing to shift burden. |
Key Cases Cited
- State v. Tocco, 120 Conn. App. 768 (2010) (strict waiver standard; totality of circumstances governs validity)
- State v. Gore, 288 Conn. 770 (2008) (personal assertion of waiver not conclusive evidence; presence of counsel considered)
- State v. Fernandez, 27 Conn. App. 73 (1992) (warning about burden-shifting language in instructions and potential dilution of burden on state)
- State v. Findlay, 198 Conn. 328 (1986) (use of term create in describing defense strategy)
- State v. Buster, 27 Conn. App. 263 (1992) (defendant’s attempt to create reasonable doubt through evidence)