THE STATE OF WASHINGTON, Respondent v. JAMES WILLIAM STEGALL, Defendant, CARL DAVID HANSEN, Petitioner. In the Matter of the Personal Restraint of CARL DAVID HANSEN, Petitioner.
No. 60614-5
En Banc.
September 29, 1994
719
Norm Maleng, Prosecuting Attorney, and Peter Goldman, Deputy, for respondent.
MADSEN, J. — A 10-member jury convicted Carl David Hansen of two counts involving the possession of cocaine. The Court of Appeals affirmed the convictions. Hansen obtained review in this court, limited to the issue of whether Hansen validly waived his right to be tried by 12 jurors.
FACTS
A police informant met with Defendants Carl David Hansen and James William Stegall and proposed selling them 1 kilogram of cocaine. All three individuals discussed terms of the proposed sale. Stegall subsequently purchased the cocaine from the informant. The police arrested Stegall on the spot and shortly thereafter arrested Hansen in a nearby parking lot. The police arresting Hansen found cocaine in Hansen‘s car.
Hansen was charged by amended information with two counts of possessing cocaine with intent to manufacture or deliver. The first count charged Hansen as an accomplice in Stegall‘s purchase of cocaine; the second count related separately to the cocaine found in Hansen‘s car.
Hansen was tried separately from Stegall. During a pretrial hearing the trial judge suggested to the attorneys that they might want to select a 13th juror as an alternate. The
[W]e will waive the problem on losing the one [juror]. I don‘t think it is necessary to have thirteen. If we start with twelve and we have one that is sick and can not participate. We will waive that problem and go with eleven.
Verbatim Report of Proceedings (Mar. 22, 1991), at 9-10.
Three days later jury selection began. At some point during the afternoon session, counsel had a mishap with the zipper of his trousers. The following portion of the record illuminates the role that counsel‘s broken zipper played in the waiver of Hansen‘s right to a 12-person jury.
THE COURT: Madam Clerk, if you would call 13 jurors, please.
[DEFENSE COUNSEL]: Your Honor, since part of the problem on a trial like this is selecting the jury, we had agreed we would have 12 and if one dropped out we would be bound by the 11.
THE COURT: Tradition is sometimes hard to break. Twelve jurors, please.
(Whereupon, a jury was impaneled.)
[DEFENSE COUNSEL]: Your Honor, I hate to say this Your Honor, but I have kind of a problem in continuing in this case. It‘s personally embarrassing. My zipper has broken on my fly. I had some difficulties after lunch. I was able to get it closed and now I found that it‘s undone from the bottom up. It‘s rather embarrassing. I have been unable to stand up.
THE COURT: You can use the podium.
[DEFENSE COUNSEL]: I was wondering if we can finish doing the juror and maybe we can have the prosecutor do his opening statement and we could be dismissed and come back in the morning.
Verbatim Report of Proceedings (Mar. 25, 1991), at 2-3.
When the prosecutor objected to any delay in the trial, the trial judge decided to proceed with questioning a juror who had requested removal from the case. Defense counsel then indicated he was willing to proceed with 11 jurors, or even with 10 if need be:
[DEFENSE COUNSEL]: Your Honor, my client would have no objection of doing it with an eleven-person jury. If you would dismiss him, I don‘t want to go through the whole mess of another juror. I do feel uncomfortable if the juror himself or herself expressed the idea they would not like to be on specifically a four-day case.
So we would have no objection to proceeding at this point with a[n] eleven-person jury with the same provision; if another one gets sick, we‘ll go with ten, if that‘s all right with counsel.
Verbatim Report of Proceedings (Mar. 25, 1991), at 3-4.
The trial court and counsel then proceeded to examine the juror in question. The trial judge excused the juror. The following colloquy immediately ensued:
[PROSECUTOR]: Your Honor, [excusing the juror] that is still subject to the stipulation of counsel that he‘s willing to go forward in this case with 11 jurors?
[DEFENSE COUNSEL]: Yes, Your Honor, that still is. I know we don‘t want to be in a mess where we have to keep selecting jurors and jurors and jurors. Eleven would be sufficient.
Verbatim Report of Proceedings (Mar. 25, 1991), at 9.
The next day one of the remaining jurors called in sick. The trial judge noted this reduced the number of jurors to 10 and asked defense counsel if he still wanted to proceed. Defense counsel responded, “I am all right with ten“. Verbatim Report of Proceedings (Mar. 26, 1991), at 5. After some unrelated colloquy with counsel, each party gave an opening statement and the testimony began.
The jury convicted Hansen on count 1 as charged. On count 2 the jury convicted Hansen of a lesser included offense, simple possession of cocaine. Hansen was sentenced to 34 months’ imprisonment.
Hansen appealed his conviction to the Court of Appeals. He argued, among other issues, that his attorney‘s stipulations to proceed with fewer than 12 jurors did not constitute a knowing, intelligent, and voluntary waiver of his right to a 12-person jury. Hansen also filed a separate personal restraint petition to supplement the trial record with Hansen‘s own declaration as to the 12-juror waiver. In that declaration, Hansen stated: (1) his trial attorney never consulted with him before making these stipulations; (2) his trial attorney never informed him of the significance of having 12 jurors hear his case, especially as it relates to the requirement that jury verdicts be unanimous; and (3) if he had received this information, he would not have consented to proceedings with 10 or 11 jurors.
Hansen filed a Petition for Review in this court on two issues: the omission of an entrapment instruction and the waiver of the 12-member jury. This court granted review only as to the jury issue.
ANALYSIS
A criminal defendant in superior court has a right to be tried by 12 jurors.
The state constitution further provides that:
The right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases in any court of record, and for waiving of the jury in civil cases where the consent of the parties interested is given thereto.
Two Washington cases have addressed a defendant‘s right to have 12 jurors in a felony trial under
In Lane, this court affirmed Ellis’ holding that
The issue presented in this case is whether a valid waiver of the right to a jury of 12 requires a personal expression of waiver by the defendant. Petitioner Hansen argues that a waiver of this constitutional right should not be found unless the record shows the defendant has personally agreed to such waiver after being specifically informed both of the right to 12 jurors and the consequences of such a waiver. We agree with Hansen that a waiver of this right is valid only when the record reflects some personal expression of waiver by the defendant. However, we reject the assertion that an explanation of the consequences of this waiver must likewise appear in the record.
I
In general, constitutional rights may only be waived by knowing, intelligent, and voluntary acts. See, e.g.,
The validity of any waiver of a constitutional right, as well as the inquiry required by the court to establish waiver, will depend on the circumstances of each case, including the defendant‘s experience and capabilities. Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 58 S. Ct. 1019, 146 A.L.R. 357 (1938). Moreover, the inquiry by the court will differ depending on the nature of the constitutional right at issue. For example, when a defendant wishes to waive the right to counsel, and proceed pro se, the trial court must usually undertake a full colloquy with the defendant, on the record, to establish the defendant knew the relative advantages and disadvantages of proceeding pro se. See Acrey, at 211 (“only rarely” will the record contain sufficient information to support a waiver of the right to counsel in the absence of a colloquy with the defendant). A guilty plea, which involves waiving numerous trial rights, is valid only if the record shows not only a voluntary and intelligent waiver, but also an understanding of the waiver‘s direct consequences. State v. Smissaert, 103 Wn.2d 636, 643, 694 P.2d 654 (1985).
By contrast, no such colloquy or on-the-record advice as to the consequences of a waiver is required for waiver of a jury trial; all that is required is a personal expression of waiver from the defendant. Acrey, at 207-08; State v. Wicke, 91 Wn.2d 638, 591 P.2d 452 (1979); State v. Brand, 55 Wn. App. 780, 785 n.5, 780 P.2d 894 (1989) (citing additional cases), review denied, 114 Wn.2d 1002 (1990).
This court has not previously addressed what inquiry is necessary for the valid waiver of the right to a 12-person
Although Allman held that a written waiver of this right is not required, nevertheless, the court held that waiver of the right must be intelligently and voluntarily entered, free from improper influences. Allman, at 173 (citing Lane, at 737). Because the “record show[ed] that Allman chose a 6-person jury after having discussed the matter with his attorney“, the court concluded there was “no evidence that his choice was other than knowingly and voluntarily made“. Allman, at 173.
Although authority from other jurisdictions is not binding, it is informative and we note that a number of courts have directly addressed this issue. None of the courts considering the issue have required the defendant‘s written waiver;
A number of the courts view the waiver of a 12-person jury as a procedural or tactical matter rather than as an integral part of the constitutional right to trial by jury. Accordingly, these courts do not require the defendant‘s express waiver or any colloquy between the court or counsel and the defendant. Rather, counsel‘s stipulation to a reduced number of jurors is accepted, absent the defendant‘s express objection. United States v. Stratton, 779 F.2d 820 (2d Cir. 1985) (no constitutional right to a jury of 12) (citing Williams v. Florida, supra), cert. denied, 476 U.S. 1162 (1986); United States v. Spiegel, 604 F.2d 961, 965-66 (5th Cir. 1979) (distinguishing between the right to a jury and the right to a jury of 12) (citing Williams v. Florida, supra), cert. denied, 446 U.S. 935 (1980); Machia, at 559 (stipulation to fewer than 12 jurors not equivalent to jury waiver where state constitution silent on number of jurors) (citing Williams v. Florida, supra); United States v. Roby, 592 F.2d 406 (8th Cir.) (failure to commit stipulation to writing is procedural error not of constitutional magnitude) (citing Williams v. Florida, supra), cert. denied, 442 U.S. 944 (1979).4
The Court of Appeals in this case followed the first approach, analyzing the election to proceed with a reduced jury as a procedural or tactical matter. To reach this conclusion, the court accepted the finding by the Allman court that this election is “not the same” as waiving the right to jury trial. Stegall, at 760. The court then expanded this point, holding that neither a personal expression of waiver from the defendant, nor a colloquy with counsel or the court, was required to establish a valid waiver. Stegall, at 761.
While we acknowledge the Williams v. Florida, supra, analysis followed by Allman, we find Wicke, and the other cases dealing with the waiver of a constitutional right to jury trial, offer a more persuasive analogy to the present case. As we recognized in Ellis and Lane, both the right to a jury, as well as the right to a 12-person jury, are protected by
Our conclusion is further supported by the language of
(b) Number of Jurors. Unless otherwise provided by these rules, the number of persons serving on a jury shall be 12, not including alternates. If prior to trial on a noncapital case all defendants so elect, the case shall be tried by a jury of not less than six, or by the court.
(c) Juror Unable To Continue. If a case has not yet been submitted to the jury and a juror is unable to continue and no alternate jurors were selected or none are available, or if a case has been submitted to the jury and a juror is unable to continue, all defendants may elect to continue with the remaining jurors. The court shall declare a mistrial for any defendant who does not elect to continue with the remaining jurors. If some, but not all, defendants elect to continue with the trial, the court shall proceed with the trial for those defendants unless the court determines manifest necessity requires a mistrial.
Pursuant to
The final question Hansen raises regarding the waiver of this right is whether the trial court should have engaged in a colloquy with Hansen concerning the consequences of a
II
Hansen contends that the record of waiver in this case is insufficient for a finding of waiver as it shows only his silent presence in the courtroom when his counsel consented to 11, then 10, jurors.
The burden of proving the waiver of a constitutional right rests with the State, not the defendant. In re James, 96 Wn.2d 847, 851, 640 P.2d 18 (1982); Seattle v. Crumrine, 98 Wn.2d 62, 65, 653 P.2d 605 (1982). As this court stated in Wicke, “every reasonable presumption should be indulged against the waiver . . . absent an adequate record to the contrary“. Wicke, at 645. Silent acquiescence does not by itself give the court any basis for concluding that the defendant‘s election met constitutional standards. Wicke, at 645.
In Wicke, the defendant stood silently as counsel waived his right to jury. The record failed to demonstrate that counsel consulted with his client or that the court questioned Wicke‘s concurrence. In the absence of a written waiver by the defendant, a colloquy on the record, or evidence of consultation with counsel this court concluded that the constitutional requirement of a knowing, intelligent, and voluntary waiver was not met. Wicke, at 645.
In the absence of either a personal expression from the defendant waiving a 12-person jury, or an indication that either counsel or the judge discussed this right with the defendant, we cannot find a knowing, voluntary, and intelligent waiver of the right to a 12-person jury. Accordingly, the Court of Appeals is reversed and the matter remanded for a new trial.
UTTER, DOLLIVER, SMITH, GUY, and JOHNSON, JJ., concur.
ANDERSEN, C.J. (dissenting) — The majority changes existing law and judicially amends the Superior Court Criminal Rules, and in the process provides an opportunity for an untold number of criminal defendants to belatedly challenge their convictions.
Until today, there was no requirement that the decision to be tried by a jury of less than 12 be in writing or be expressed personally by the defendant. It had always been considered that “[s]uch an election is not a waiver of a jury trial.” State v. Allman, 19 Wn. App. 169, 173, 573 P.2d 1329 (1977), review denied, 90 Wn.2d 1009 (1978).
If the majority proposes to change rather than interpret the criminal rules pertaining to trial by a jury of less than
I would affirm the Court of Appeals on this issue and hold that a written or express waiver on the part of a defendant is not required in order for trial to proceed where defense counsel, on behalf of and in the presence of defendant, elects to continue with the remaining jurors.
For the foregoing reasons, I dissent.
BRACHTENBACH and DURHAM, JJ., concur with ANDERSEN, C.J.
Notes
“(a) Trial By Jury. Cases required to be tried by jury shall be so tried unless the defendant files a written waiver of a jury trial, and has consent of the court.
“(b) Jury of Less Than Twelve.
“(1) If prior to trial on a noncapital case, all defendants so elect, the case shall be tried by a jury of six, or by the court.
“(2) If a juror is unable to continue and if no alternate jurors have been selected or if none is available, all defendants may elect to continue with the remaining jurors; otherwise a mistrial may be granted on motion of any defendant.” Allman, at 173.