State v. Garteiz

PER CURIAM:

The defendant, a citizen of Spain, had resided in the United States for 18 months when he was convicted of aggravated robbery, kidnapping, and attempted extortion. His sole point urged on appeal, having reviewable merit, is his claim that he was unfairly denied a jury trial. In waiving the jury trial in the first instance, defendant claims he did not understand what he was doing and that he did not do so knowingly or intelligently.¹ The basis for such conclusion was a claim that he spoke only broken English and equally had a broken understanding of the language.

Defendant’s claim of error belies the clear record in this case. The trial judge, aware of the claimed infirmities, was cautious in protecting the defendant’s right to a jury trial. At trial, the judge examined the defendant as to the- legitimacy and binding nature of his waiver of the jury. At the beginning of the trial and in the presence of defense counsel, the judge made it clear that defendant was waiving his right to a jury, and counsel lodged no objection. The judge required two interpreters to be sworn. At that juncture, the defendant’s counsel made the following statement:

Your Honor, in this matter I have explained to [defendant] his rights to have a jury trial_ [H]e has heretofore indicated that he would like to waive the right and just have the matter tried by Your Honor.

The court inquired if the defendant understood he had “an absolute right” to have the matter tried “to a jury of eight people.” Defendant answered “yes” through the interpreter. The court then inquired, “You are asking me to allow you to waive that right,” and the response again was “yes.” As emphasis, the judge said, “[A]nd you understand I can refuse to waive that right ... and that the prosecutor must agree to that too.” Defendant again answered in the affirmative. To assure no misunderstanding, the court asked the prosecutor if he agreed to the waiver, and the prosecutor said he did.

Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942), is dispositive of both the issue of waiver and the fact of voluntary and intelligent action by an accused with court approval. In referring to Patton v. United States, supra note 1, the Court in Adams held as follows:

The Patton decision left no room for doubt that a determination of guilt by a court after waiver of jury trial could not be set aside and a new trial ordered except upon a plain showing that such waiver was not freely and intelligently made. If the result of the adjudicatory process is not to be set at naught, it is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation but as a demonstrable reality. Simply because a result that was insistently invited, namely, a verdict by a court without a jury, disappointed the hopes of the accused, ought not to be sufficient for rejecting it. And if the record before us does not show an intelligent and competent waiver of the right to the assistance of counsel by a defendant who demanded again and again that the judge try him, and who in his persistence of such a choice knew what he was about, it would be difficult to conceive of a set of circumstances in which there was such a free choice by a self-determining individual.

The judgment is affirmed.

1 . Duncan v. Louisiana, 391 U.S. 145, 391 U.S. 194, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930); State v. Yeck, Utah, 566 P.2d 1248 (1977); State v. Kelsey, Utah, 532 P.2d 1001 (1975).