Following a bench trial, Ronald Mastrogiovanni was convicted of 11 counts of sexual exploitation of children. Following the denial of his motion for new trial, he appeals and contends that the trial court erred in finding that Mastrogiovanni voluntarily and knowingly waived his right to a jury trial, and that trial counsel was ineffective. Upon our review, we affirm.
“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State,
A defendant’s right to trial by jury is one of those fundamental constitutional rights that the defendant must personally, knowingly, voluntarily, and intelligently choose to waive. A trial court should ask the defendant sufficient questions on the record so that the court can ensure the defendant’s waiver is knowing, voluntary, and intelligent.
(Footnotes omitted.) Watson v. State,
waiver was made both intelligently and knowingly, either... by showing on the record that the defendant was cognizant of the right being waived; or ... by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.
(Citation and punctuation omitted.) Seitman v. State,
Although Mastrogiovanni contends that the evidence does not show how he reached his decision to waive a jury trial, or that he appreciated the ramifications of his decision, there is no
requirement that the trial court expressly inform the accused of those particular... issues which waiver of a jury trial will obviate. A defendant’s consent need not be in a particular, ritualistic form. Since form is unimportant, the only real issue is whether appellant intelligently agreed to a trial without jury. The trial court need only conduct an inquiry of the accused on the record so as to ensure that the waiver is knowing, voluntary and intelligent.
(Citations and punctuation omitted.) Brown v. State,
Here, the evidence supports the trial court’s finding in its order denying the motion for new trial that Mastrogiovanni knowingly and intelligently waived his right to a jury trial. Before the start of trial,
Counsel: I don’t know if the Court wants to make an inquiry or not, but Mr. Mastrogiovanni and I discussed this case---After a lengthy discussion, Mr. Mastrogiovanni and I have decided to — with his interests, he has decided to waive his right to a jury trial and receive before Your Honor a bench trial to try this case. Mr. Mastrogiovanni, is that true? You have been advised of your right to a jury trial?
Mastrogiovanni: Yes, sir, I have.
The Court: All right. Do you have any questions about that?
Mastrogiovanni: No, sir.
At the motion for new trial hearing, Mastrogiovanni’s trial attorney produced several notes he had made during the course of his representation in which he and Mastrogiovanni had discussed having a bench trial rather than a jury trial. In his last notation four days before Mastrogiovanni’s trial, trial counsel wrote that he had confirmed with Mastrogiovanni that he would be on trial in front of the judge, and had fully explained the process, including Mastrogiovanni’s absolute right to a jury trial, and the differences between a jury trial and a bench trial.
Under these circumstances, the record shows that Mastrogiovanni knowingly and intelligently waived his right to a jury trial. See Jacobs v. State,
2. Mastrogiovanni also contends that his trial counsel was ineffective for failing to challenge the use of the search warrant as the basis for the full forensic search of his hard drive that was conducted later at the GBI facility.
[T]o prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington,466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable and professional conduct. [As an appellate court, we] accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.
(Citations and punctuation omitted.) Robinson v. State,
OCGA § 17-5-25 provides in pertinent part that a “search warrant shall be executed within ten days from the time of issuance.... Any search warrant not executed within ten days from the time of issuance shall be void and shall be returned to the court of the judicial officer issuing the same as ‘not executed.’ ” There is no dispute that the search warrant at issue was executed in Mastrogiovanni’s house within the statutory time period. Mastrogiovanni’s contention is that the computer that was seized during the search could not itself be “searched” without a warrant, and the ten-day period window defined by OCGA § 17-5-25 had expired before the forensic analysis took place.
Mastrogiovanni has cited no authority for the proposition that the analysis of items seized during the execution of a valid search warrant requires a second search warrant. We are aware of no authority for the proposition that items seized from the lawful execution of a search warrant must then be analyzed, tested, or
Judgment affirmed.
Notes
Mastrogiovanni did file a motion to suppress the evidence seized during the execution of the search warrant, which, following a hearing, the trial court denied.