STATE OF HAWAII, Plaintiff-Appellee v. KENNETH JOSEPH OLIVERA, Defendant-Appellant
No. 5203
Supreme Court of Hawaii
June 8, 1972
551
RICHARDSON, C.J., MARUMOTO, ABE, LEVINSON and KOBAYASHI, JJ.
Kenneth Joseph Olivera was indicted for burglary in the first degree. At the arraignment proceeding held on July 28, 1969, Olivera enterеd a plea of not guilty. In Olivera‘s presence, Valta Cook, defense counsel representing Olivera, informed the presiding judge that “we would like a judge to try the case as soon as possible.”1 On August 4, 1969, at the proceeding to set a trial date, at which Olivera was present, Olivera‘s counsel concurred in the trial judge‘s state-
A trial by the court resulted in Olivera‘s conviction. On August 13, 1969, Olivera was sentenced to imprisonment at hard labor for twenty years.
Olivera filed a motion on April 7, 1971, asking that the judgment of conviction be set aside and for a new trial. A hearing on the motion was held on June 15, 1971. The motion was deniеd by an order dated June 21, 1971. Olivera appeals that decision to this court.
The sole question is whether a demand in open court for a jury-waived trial by an accusеd‘s counsel in the accused‘s presence constitutes a voluntary and knowing waiver of the accused‘s constitutional right to a jury trial in accordance with
(a) Triаl by jury. Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial with the approval of the court. The waiver shall be either by written consent filed in court оr by oral consent in open court entered on the minutes.
In the present case, no written consent embodying a waiver was filed in court. The question before this court is whether demand by appellant‘s counsel for a trial by the court constituted a valid waiver “by oral consent in open court ....”
The right to trial by jury may be effectively waived only when the accused has acted voluntarily and knowingly. The prеsence and advice of counsel are highly probative in determining that a defendant has acted voluntarily and knowingly. Courts have generally assumed that counsel will рerform his duty to apprise the accused of his rights afforded by law and to take steps to further the best interests of the accused. It is well established that a voluntary and knоwing waiver of a jury trial may be exercised through counsel and need not be announced by the accused personally. Territory v. Van Dalden, 33 Haw. 113, 130-31 (1934); State v. White, 13 Ariz. App. 265, 266, 475 P.2d 750, 751 (1970); State v. McPherson, 12 Ariz. App. 281, 282, 469 P.2d 847, 848 (1970); State v. Jelks, 105 Ariz. 175, 177-78, 461 P.2d 473, 475 (1969); State v. Skaff, 22 Wis. 2d 269, 273-74, 125 N.W.2d 561, 563 (1964); Hensley v. United States, 281 F.2d 605, 607 (D.C. Cir. 1960). An accused‘s presence in court without objection to his counsel‘s relinquishment of the accused‘s right to a jury trial must be held to reflect the accused‘s knowing acquiescence in that decision. People v. Novotny, 41 Ill.2d 401, 409-10, 244 N.E. 2d 182, 187 (1968); Eliachar v. United States, 229 A.2d 451, 452 (D. C. 1967); People v. King, 30 Ill. App.2d 264, 268, 174 N.E.2d 213, 215 (1961); Hensley v. United States, supra at 608. In the present case, appellant‘s presence without objection at the arraignment proceeding and the proceeding to set a trial date shows his knowing acquiescence in the decision to waive his right to trial by jury.
An additional factor is operative in the present case. The hearing on appellant‘s motion to set aside judgment and for a new trial revealed that appellant was well informed of his right to a jury trial and that he voluntarily and knowingly waived this right for tactical reasons. Wе do not believe that the accused is entitled to a new trial when he makes an informed decision to opt for a trial by the court and, when dissatisfied with the outcome, makes a belated demand
Appellant‘s heavy reliance on Boykin v. Alabama, 395 U.S. 238 (1969), is misplaced. The Court in Boykin held that state courts may not assume from a silent record that a guilty plea had been voluntarily made. A guilty plea amounts to a conviction of the offense charged and involves waiver of several constitutional rights: (1) privilege against compulsory self-incrimination; (2) right to a jury trial; (3) right to confront onе‘s accusers. The mandate in Boykin is not binding in the present case since waiver of a jury trial has less conclusive and damaging results than a plea of guilty which waives all rights inherеnt in a trial. See United States v. Hunt, 413 F.2d 983, 984 (4th Cir. 1969); State v. Jelks, 105 Ariz. 175, 461 P.2d 473, 476 (1969).
It is not our intention to dilute the constitutional potency of the right to a trial by jury. On the contrary, this right, firmly ingrained in the American scheme of justice, should be jealоusly protected against unjust intrusion. Although the accused may effectively waive this right through his legal counsel, we recognize that it is clearly the preferred practice for the trial judge to advise the accused of his right to a jury trial and to conduct a personal interrogation of the accused. This practice would servе several useful purposes. First, it would provide a more solid factual basis for the trial judge to determine whether the defendant is fully apprised of his right to a jury trial and voluntarily wishes to relinquish this right. In addition, the trial judge‘s on-the-record interrogation of the accused himself would facilitate determination, in any post-conviction proceedings, as to whether the waiver was made knowingly and voluntarily and thus discourage unmeritorious appeals. United States v. Straite, 425 F.2d 594, 595-96 (D.C. Cir. 1970); Jackson v. United States, 262 A.2d 106, 109 (D.C. 1970); United States v. Hunt, supra at 984, State v. Skaff, 22 Wis.2d 269, 274, 125 N.W.2d 561, 563 (1964).
The judgment is affirmed.
Robert W. Jinks (Carlsmith Carlsmith Wichman & Case of counsel) for appellant.
DISSENTING OPINION OF LEVINSON, J.
I dissent.
The appellant‘s right to a trial by jury in the instant case is a fundamental right guaranteed by the
This right . . . is one of the fundamental personal rights guaranteed to an accused both in the constitutiоn of the State of Hawaii and the United States Constitution. Such right may be waived. Diaz v. United States, 223 U.S. 442, 450 (1912). But waiver is never presumed. Johnson v. Zerbst, 304 U.S. 458, 464 (1938). For an effective waiver, there must be express and intelligent consent on the part of the accused. Patton v. United States, 281 U.S. 276, 312 (1930). Whether there has been such waiver should be determined by the trial court upon penetrating and comprehensive examination. Von Moltke v. Gillies, 332 U.S. 708, 723 (1948). That the acсused waived his right with full understanding of the nature of his action must appear of record. Johnson v. Zerbst, supra; Von Moltke v. Gillies, supra. Presuming waiver from a silent record is not permissible. Carnley v. Cochran, 369 U.S. 506, 516 (1962).
Here, the waiver, if it is effective at all, must stand on counsel‘s action, not on any action of appellant. Before approving the stipulation, the court did not inquire of appellant whether she authorized or acquiesced in it, or understood its import. . . .
There are cases which sanction defense counsel‘s
waiver of certain aspects of the right . . . , where such waiver is considered as a matter of trial tactics and procedure. [Citations omitted.] But wherе a waiver goes beyond the bounds of trial tactics and procedure, and impinges significantly on constitutionally guaranteed right, it must be the personal action of thе beneficiary of the right.
See also, Boykin v. Alabama, 395 U.S. 238 (1969).1
Of course, every trial decision, which involves the exercise of judgment, is in a sense “a matter of trial tactics and procedure.” The significаnt inquiry under Casey is whether the waiver at issue impinges significantly on a constitutionally guaranteed right. Construed in this light, the decision “[w]hether to be tried by a jury is an important matter to be decidеd by the defendant; it is not merely a tactical decision which may be left to defense counsel.” American Bar Association Project on Minimum Standards for Criminal Justice, Stаndards Relating to Trial by Jury, commentary to Standard 1.2(b) (Approved Draft, 1968), at 38.
To me, it is beyond dispute that
I would reverse the judgment of the circuit court and remand for a new trial.