TERRITORY OF HAWAII v. ROBERT LANTIS.
No. 2670.
Supreme Court of the Territory of Hawaii
Argued July 6, 1948. Decided July 28, 1948.
38 Haw. 178
Kemp, C. J., Peters and Le Baron, JJ.
(Kemp, C. J., dissenting.)
On general appeal from the district court of Honolulu, jury trial demanded, the defendant, after a trial de novo in the circuit court without a jury, was convicted of the offense of refusing, contrary to the provisions of
Only one specification of error need be considered for the purposes of this opinion. That specification presents the paramount questions of whether or not the defendant by his conduct waived the right to a trial by jury and whether or not the trial judge properly proceeded to try the case without a jury both as to the facts and the law, pursuant to the provisions of
The right involved in the question presented is one of ancient origin. It has its inception in that great document of human liberty, the Magna Charta of England. It was one of the most cherished heritages of the founders of our nation. It is safeguarded in the Constitution of the United States by guarantees that “The Trial of all Crimes, except in cases of Impeachment, shall be by Jury” (
Nevertheless, the courts indulge every reasonable presumption against waiver of such a fundamental right and do not presume acquiescence in its loss. (See Johnson v. Zerbst, supra; Hodges v. Easton, 106 U. S. 408; Aetna Ins. Co. v. Kennedy, 301 U. S. 389.) Before it may be said that an accused has waived his right to a trial by jury, it must affirmatively appear that he knows he possesses such a right, is competent to exercise an informed judgment of relinquishment or abandonment and does so intelligently and voluntarily. (Adams v. United States ex rel. McCann, supra; House v. Mayo, supra.) That a grave responsibility rests upon a trial court not to deprive an accused of such a highly regarded right is evident from its very nature, which dictates that the accused‘s life, liberty, or property shall not be taken from him except by the joint action of the court and an impartial jury of twelve persons. An accused in a criminal case is not deemed to have waived a jury trial by not making a written demand for one as are the parties in a civil case. (See
In this case the circuit court acquired jurisdiction of the Territory‘s cause and the defendant‘s person upon a notice and certificate of appeal which twice signifies that a “jury trial” had been “demanded” by the defendant. This state of the record created a strong presumption against waiver (see Stevens v. Mutual Protection F. Ins. Co., 84 N. H. 275, 149 Atl. 498, 69 A. L. R. 624) and constituted a cogent reason for the trial judge to keep the case on the jury-trial calendar until an actual waiver had been made with an expressed consent of court as prescribed by statute. However, the trial judge did not indulge in the presumption and neither kept the case on such calendar nor determined or consented to waiver, his attention at that time not being directed to the state of the record. The defendant appeared in person without an attorney, answered “ready” and submitted to a trial without a jury.
“The Court: Mr. Lantis, just for the purpose of the record here, McGregor did appear for you and he advised the court that he was waiving jury trial. Now is that correct?
“Mr. Lantis: Jury trial? I don‘t know anything about a jury trial.
“The Court: He advised me that there was a waiver of jury trial. I want to straighten this record out. There are two ways of trying a case, one, by jury, and the other, before the court.
“Mr. Lantis: It is all right the way it is.
“The Court: All right. Let the record show he waived jury trial.”
Unquestionably the “McGregor” referred to was an attorney licensed to practice in the circuit court and claimed by the defendant to be under retainer from him. But the record is silent as to whether this attorney at any time appeared with the defendant, either in open court or
The colloquy, however, marks the extent of the trial judge‘s inquiry into the field of waiver. The inquiry arose at a time toward the close of trial when obviously it was difficult for the defendant, whose liberty and property were at stake, to take any position which could be interpreted as being in opposition to that of the trial judge, nor was the defendant asked whether he wanted a jury trial or desired to relinquish the right thereto. He was without counsel and his attention primarily directed to a court record which was not before him and in which he had no particular interest. These are some of the facts and circumstances which rendered it doubly important that the fundamental right involved be made definite and clear to the defendant.
The defendant‘s part in the colloquy is threefold and consists of a query: “Jury trial?,” an admission of a lack of knowledge upon the subject of a jury trial and a response that “It is all right the way it is,” which the trial judge apparently deemed to be a waiver of the right to a trial by jury. Relative thereto, the trial judge stated: “All right, let the record show he waived jury trial,” which is noted on the minutes by the entry: “Defendant appeared in person—waives jury trial.”
Assuming without deciding that the mere form of both the conclusion of a factual waiver of jury trial made in open court and that entered on the minutes satisfied the requirements of the statute, such does not suffice unless the substance thereof constitutes a valid consent, conditioned
It is understandable that the trial judge inferred a waiver of jury trial because the response is expressive of a tacit approval of the way of trial, already taken, without a jury. But this court is of the opinion that he did so too lightly. The response amounted to nothing more than the opinion of a mere layman accused of crime and is entitled to no more weight than the information upon which it is predicated. The defendant‘s preceding query and admission of lack of knowledge concerning a jury trial indicated an insufficiency of information and an incompetency to exercise an informed judgment. It was therefore the duty of, and incumbent upon, the trial judge to explain to the defendant the function and advantages of a jury trial and to inform him of his constitutional right to be tried by a jury, regardless of the court‘s inconvenience should that right be exercised. This duty was not met and the indicated insufficiency and incompetency remained.
The total information supplied to the defendant by the trial judge does not purport to be definitive of a jury trial or informative of the right thereto. It merely points to the fact that a jury trial is one of two ways to try a case. It did not inform the defendant of the essentials necessary to choice or that a jury trial of one accused of crime is guaranteed by the Constitution of the United States for his protection, so that the defendant could appreciate the implications to which the guarantee gave rise. It therefore did not place the defendant in a position to appraise the advantages of a trial with a jury over possible disadvantages of one without a jury. Hence the colloquy did not establish any reason upon which to say that the defendant‘s response constituted an exercise of an informed judgment to forego the advantages of a jury
Certainly within the confines of the colloquy the response was not a proper basis for either a judicial determination of, or a court‘s consent to, an intelligent waiver of the constitutional right of trial by jury, nor do the facts and circumstances including the defendant‘s background, experience and conduct, extending beyond such colloquy, make it one. Such facts and circumstances will be considered briefly in connection with presumptions generated at the time the circuit court acquired jurisdiction of the cause.
Although the defendant‘s notice of appeal in signifying a demand by him for a jury trial gave rise to a presumption that he knew of the existence of the right to a trial by jury, that presumption is a rebuttable one. The notice employed here is a printed form prepared by the district court for the convenience of appealing litigants, both civil and criminal, and contains opposite the words “Jury trial” the word “demanded” and the word “waived,” the latter in this case being deleted by typewriter. It does not appear who did the typing nor that the defendant acted advisedly with respect to a known right. The record does not show what his legal or educational qualifications were, or what his prior court experience was other than that obtained in the district court where there is no jury and where the defendant had no attorney. Upon this state of the record the inference is that the defendant, if he deleted the word “waived,” did so and signed the notice pro forma without the knowledge that a jury trial in the circuit court was a matter of right or likewise signed after someone else, presumably a clerk, had made the deletion. Such inferred lack of knowledge at that time is consonant
It follows that the burden of proving an intelligent waiver of a known right to a trial by jury in the circuit court has not been sustained by the record which renders the court‘s oral consent invalid. As a matter of law, therefore, the defendant should have been tried by a jury and the trial without one deprived him of his constitutional right to a jury trial. Consequently, a new trial is warranted.
Judgment reversed and the cause remanded below with instructions to grant a new trial in conformity with this opinion.
J. E. Collins (Smith, Wild, Beebe & Cades also on the briefs) for plaintiff in error.
T. Suyenaga, Assistant Public Prosecutor, City and County of Honolulu (also on the brief), for defendant in error.