State v. Coita ( 1989 )

Morse, J.

George Coita was convicted of leaving the scene of an accident (LSA) and driving under the influence (DUI). 23 V.S.A. §§ 1128, 1201(a)(2). These charges arose from an accident on Perkins Pier in Burlington, Vermont, on October 12,

1985, when the defendant ran into a parked vehicle and left the scene. He was apprehended a short time later. On appeal, defendant claims his right to a jury trial under the Vermont Constitution was violated. We reverse and remand.

On January 15,1986, defendant signed a standard “Waiver of Right to Jury Trial” form while in court for a jury drawing in this case. His attorney and the prosecutor also signed the form, but the court did not sign it. The form relates to the offense of DUI and appears — although we cannot be certain — to have been filled out by defendant’s attorney. However, the docket number on the form does not match the docket number of the charges forming the basis of defendant’s convictions. Nevertheless, the waiver form was filed as part of the record in this case. The DDR (Docket and Disposition Report) covering the DUI subject to this appeal notes that on January 15,1986, there was a “waiver of jury.”¹

The court scheduled the trial for February 4, 1986. On that day, the case was continued, and it was noted that the LSA and DUI charges would be tried together. Defendant was given notice of the new trial date and that the matter was set for “court trial.” The trial went forward and was concluded on March 18, 1986. Defendant was convicted on both counts.

Chapter I, Article 10 of the Vermont Constitution provides that, “with the consent of the prosecuting officer entered of record,” an accused

may in open court or by a writing signed by him and filed with the court, waive his right to a jury trial and submit the issue of his guilt to the determination and judgment of the court without a jury.

Defendant argues that State v. Ibey, 134 Vt. 140, 141-42, 352 A.2d 691, 692 (1976), controls this case. The rule in Ibey is clear:

[Ujnder the provisions of chapter 1, article 10 of the Vermont Constitution, it must affirmatively appear from a writing signed by the defendant, or from the oral record made in open court, that the defendant personally indicated, understandingly, his desire to waive a trial by jury.

Id. at 141, 352 A.2d at 692. We do not, however, reach the question whether defendant properly waived his right to trial by jury because we reverse on a related ground.

The waiver form was not signed by the court indicating its consent, as required by V.R.Cr.P. 23(a).² We may, of course, infer that the court did not object to trial by court, but the rule requiring court approval demands more than mere acquiescence. While it is not reversible error for the court to omit making a colloquial record of the defendant’s understanding of the right to jury trial and willingness to waive it, State v. Conn, 152 Vt. 99, 104-05, 565 A.2d 246, 248 (1989), we hold that the trial court must affirmatively indicate its consent by approving a specific waiver. Silent acquiescence to a waiver does not assure us that the court thought about the decision — not only from the defendant’s point of view, but from the prosecutor’s perspective and in the interests of justice.

The requirement of court consent, based on Federal Rule of Criminal Procedure 23(a), is intended “to protect the accused from an improvident waiver and to uphold the interest of the public in jury determinations.” Reporter’s Notes to V.R.Cr.P. 23(a). Professor Moore in his treatise expands upon the rationale as follows:

The purpose of requiring the ... court’s ... approval of a jury trial waiver is twofold. The first is to insure that the trial court assesses the defendant’s mental competence and his awareness of the benefits and burdens of choosing to forego trial by jury — the prerequisites to valid jury trial waiver. The second is to require the court to carry out its responsibility for preserving jury trials which are the “constitutionally preferred method of disposing of criminal cases” and the right of any defendant charged with a non-petty offense.

8A Moore’s Federal Practice § 23.03[2][d], at 23-21 (1989) (quoting United States v. Martin, 704 F.2d 267, 272-73 n.4 (6th Cir.1983)).

As stated in United States v. Saadya, 750 F.2d 1419, 1421 (9th Cir. 1985):

The granting of [waiver of jury trial] approval is a “serious and weighty responsibility” ... that requires the exercise of sound discretion by the district judge. As the Supreme Court noted in Patton v. United States, 281 U.S. 276, 312-13, 50 S.Ct. 253, 263, 74 L.Ed. 854 (1930), “the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial.” The government does not contend that the district judge exercised her discretion in this case. For that reason alone, no effective waiver of the right to a jury trial could have occurred.

The court’s approval of a waiver may trigger a colloquy with the parties resolving any doubts as to what prompted the waiver and the wisdom of it.

We find nothing in our precedents or those from the federal court that allows us to overlook the absence of trial court approval. Indeed, in view of the seriousness of the right to be protected, the cases require “strict compliance with the rule.” United States v. Garrett, 727 F.2d 1003, 1012 (11th Cir. 1984). Nor do we find anything in the facts of this case that would warrant allowing a waiver without trial court approval. Our precedents do not apply an absence of prejudice analysis to jury trial waivers because of the nature of the right involved. See State v. Ibey, 134 Vt. at 141-42, 352 A.2d at 692 (failure to obtain jury trial waiver by the procedure required by the Vermont Constitution requires reversal without any further showing); In re Bowers, 130 Vt. 314, 316, 292 A.2d 813, 814 (1972) (judgment in trial by court, after invalid attempt at jury waiver, is “null and void” since court lacked jurisdiction). Further, there is a strong possibility of prejudice in this case. As Professor Moore points out, approval is required so that the trial judge will carefully supervise the waiver to be sure that it is knowingly and intelligently made and is in the defendant’s interest. The improperly prepared written waiver, assuming that it applies to this case, is strong evidence that the waiver issue was addressed in haste with no supervision by the trial judge. The course of events here may show that the court understood that defendant had waived a jury trial but is no evidence of the quality of that waiver.

Reversed and remanded.

1 The docket number on the form related to another pending DUI charge against defendant which was later dismissed. Defendant was not in court on January 15 for anything related to the other DUI. Defendant’s attorney in this case also represented him in that case. It seems probable — after some sleuthing on our part — that defendant’s attorney merely copied the wrong docket number from defendant’s file.

2 V.R.Cr.P. 23(a) states:

Trial by Jury; Waiver. The defendant may in a signed writing or in open court, with the consent of the prosecuting attorney and the court entered of record, waive a jury trial in offenses not punishable by death or imprisonment in the state prison.