Opinion
Court of Appeals No. A-10044.
August 12, 2009.
Appeal from the District Court, Second Judicial District, Barrow, Richard H. Erlich, Judge, Trial Court No. 2BA-06-31 CR.
Beth G. L. Trimmer, Assistant Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Sara E. Simpson, Assistant District Attorney, J. Michael Gray, District Attorney, Fairbanks, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Jamon R. Benson was convicted of violating his conditions of release. On appeal, Benson raises a number of claims. The first of these claims is that the trial judge erred when he allowed Benson's attorney to waive Benson's right to a jury trial without a personal waiver by Benson. The second claim is that Benson's conviction is not supported by sufficient evidence. We reject Benson's sufficiency of the evidence argument, but we reverse Benson's conviction because he was denied his right to a jury trial. Our conclusion that Benson's conviction must be reversed makes it unnecessary for us to address the other issues Benson raises in this appeal.
Facts and procedural background
While Benson was on release in another criminal case, he was subject to several court-ordered conditions, including a requirement that he not consume alcohol or be in a place where people were consuming alcohol. On January 19, 2006, police responded to Benson's residence and found him intoxicated along with several other intoxicated individuals. The State charged Benson with violating his conditions of release.
After his arrest in January, Benson was unable to make bail, so he remained jailed in Fairbanks pending his trial. When the date of his trial arrived, Benson refused transport to Barrow, the location of the trial, even though the court had previously warned him that the trial would be held in his absence if he refused transport. Benson claimed that he was concerned that the Fairbanks facility would destroy his documents from other on-going legal cases while he was in Barrow.
Benson participated telephonically in a hearing the morning of trial, but the court disconnected him after finding that he was disruptive. The trial judge proceeded to trial without Benson, concluding he had waived his right to be present. Benson's attorney then waived Benson's right to a jury trial. The court accepted the attorney's waiver, and the State agreed to a bench trial. After hearing the evidence, the court found Benson guilty of violating his conditions of release. Benson's sufficiency of the evidence claim
On appeal, Benson argues that the trial judge found that Benson did not understand that he was subject to conditions of release at the time of his alleged violation. Benson argues that this finding negates the mens rea element of his crime. We read the trial judge's findings differently.
When the trial judge made the statement that Benson cites, he was summarizing Benson's statements to police officers when they contacted him. Benson informed the officers that he was not subject to any conditions of release because those conditions had expired. Although the trial judge recognized that Benson made this statement, the judge found that Benson did in fact understand his conditions of release, and that Benson knew they were in effect at the time. In other words, the judge's statement was not a finding about Benson's mental state at the time of the police contact. Because we reject Benson's interpretation of the trial judge's remarks, we also reject his sufficiency of the evidence argument.
Benson did not waive his right to a jury trial
Benson's attorney argued to the trial court that the decision to waive a jury trial is a choice for the attorney to make. Although initially disagreeing, Judge Erlich ultimately allowed the attorney to waive a jury trial without Benson's consent. That was error.
The law requires the personal waiver by the defendant of the right to a jury trial. In Walker v. State, the Alaska Supreme Court held that "waiver of the right to trial by a jury . . . requires that the court personally address the defendant, and . . . failure to do so is error per se." Alaska Rule of Professional Conduct 1.2(a) states: "In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, whether the client will testify, and whether to take an appeal."
See Patton v. United States, 281 U.S. 276, 312, 50 S. Ct. 253, 263, 74 L. Ed. 854 (1930), abrogated on other grounds by Williams v. Florida, 399 U.S. 78, 92, 90 S. Ct. 1893, 1901, 26 L. Ed. 2d 446 (1970); Walker v. State, 578 P.2d 1388, 1389-90 (Alaska 1978).
Id. at 1389-90; see also McGlauflin v. State, 857 P.2d 366, 369 (Alaska App. 1993), abrogated on other grounds by State v. Coon, 974 P.2d 386, 394 (Alaska 1999).
In this case, the court did not personally address Benson concerning his right to a jury trial. And Benson did not personally make any oral or written statements even suggesting that he intended to give up this right. We must reverse Benson's conviction because he did not personally waive his right to a jury trial.
Having concluded Benson's conviction must be reversed, we do not need to decide whether Benson would be entitled to a new trial based on the other arguments he raises.
Conclusion
Benson's conviction is REVERSED.
Under our law, criminal defendants have a constitutional right to trial by jury. A trial court has no authority to dispense with the jury and proceed with a bench trial unless the defendant personally and knowingly waives their right to a jury trial. Moreover, Alaska Professional Conduct Rule 1.2(a) declares that, in criminal cases, a defense attorney must defer to the defendant on the issue of "whether to waive jury trial".
United States Constitution, Sixth Amendment (as incorporated in the Fourteenth Amendment; see Duncan v. Louisiana, 391 U.S. 145, 149; 88 S.Ct. 1444, 1447; 20 L.Ed.2d 491 (1968)); Alaska Constitution, Article I, Section 11.
Walker v. State, 578 P.2d 1388, 1389-1390 (Alaska 1978).
Benson's appeal raises the question of whether these provisions of law continue to apply in situations where the defendant refuses to attend their trial.
Benson refused to be transported from his place of incarceration (Fairbanks) to the place of his trial (Barrow), even after the superior court warned him that, if he persisted in refusing transport, the trial would proceed in his absence. When the superior court called Benson's case for trial, Benson's attorney announced that he wished to waive a jury and proceed with a bench trial. The superior court initially questioned whether the defense attorney was authorized to make this decision. However, the court ultimately concluded that Benson's refusal to attend his trial amounted to an abdication of Benson's personal authority to decide whether to be tried by jury — and that the authority to make that decision now rested with Benson's attorney.
This reasoning might be more persuasive if a bench trial were the default in criminal cases, with the defendant bearing the burden of affirmatively invoking the right to trial by jury. But that is not the law. Under our constitution, the default procedure in criminal cases is trial by jury, and a court has no power to dispense with a jury unless the defendant affirmatively waives that right. This rule does not change even when the defendant refuses to attend their trial.
Walker v. State, 578 P.2d at 1389-1390; see also Knix v. State, 922 P.2d 913, 918 n. 6 (Alaska App. 1996).
When a defendant refuses to attend their trial, there still may be some instances where the trial judge retains the means of contacting the defendant personally and asking whether the defendant wishes to waive trial by jury. This was true in Benson's case. And Judge Coats's lead opinion suggests that Benson's case might be decided on the narrow ground that the superior court failed to seek a waiver from Benson when the superior court could have.
I believe, however, that it does not make any difference whether the superior court could have contacted Benson. Even if Benson had absconded to parts unknown, the fact remains that a criminal defendant is entitled to a jury trial unless the defendant personally waives that right.
In White v. State, 514 P.2d 814 (Alaska 1973), the Alaska Supreme Court dealt with another procedural right that is personal to the defendant: the right to appeal a criminal conviction. The defendant in White absconded from custody following his sentencing, and his appeal was dismissed, but the supreme court reinstated the appeal after White was returned to custody. In so doing, the supreme court held that the right to pursue a criminal appeal can be lost only through the defendant's knowing and voluntary waiver; it can not be forfeited. Id. at 815.
Under Alaska Professional Conduct Rule 1.2(a), an attorney representing a criminal defendant must abide by the defendant's decision whether to pursue an appeal.
White, 514 P.2d at 814-15.
Similarly, I conclude that the right to trial by jury can not be forfeited, even when (1) the defendant flees or otherwise refuses to attend the trial and (2) the trial court can not make contact with the defendant. Under our constitution, the default procedure in criminal cases is trial by jury, and that procedure must be followed unless the defendant affirmatively waives this right.
Cases from around the country support this view of the law: State v. Cochran, 509 P.2d 220, 220-21 (Ariz. 1973); Howell v. State, 589 A.2d 90, 99-100 (Md.App. 1991); State v. Mazza, 750 A.2d 133, 135-36 (N.J. App. 2000); People v. Green, 518 N.Y.S.2d 559, 560-62 (N.Y. Crim. Term 1987). See also State v. Boyles, 204 P.3d 184, 185 (Utah App. 2009) (accepting the State's concession of error where the defendant (acting pro se) failed to appear for trial, and the court permitted the state to try the case to the judge).
I acknowledge that, in Benson's case, the superior court did not proceed with a bench trial as some sort of punishment for Benson's refusal to attend the trial. Rather, the superior court proceeded with a bench trial because the defense attorney affirmatively requested it.
The defense attorney told the superior court that, under the Alaska Rules of Professional Conduct, a criminal defendant has the ultimate authority to make certain strategic decisions concerning the litigation, and that these areas of client authority are expressly listed in the rule. This is correct; see Professional Conduct Rule 1.2(a).
However, the defense attorney then told the superior court that "[t]he right to elect between [a] court trial and a jury trial is not enumerated in that rule" — and that defense attorneys therefore retain the right to decide whether to waive a defendant's right to jury trial. This is simply wrong. Professional Conduct Rule 1.2(a) expressly states that "[i]n a criminal case, the lawyer shall abide by the client's decision . . . whether to waive jury trial".
Benson's attorney further declared that, having considered the matter, he had concluded that Benson would not derive "[even] the slightest advantage" by having his case tried to a jury rather than to the court — "that there was [no] prospect that the outcome would be different".
But even assuming, for purposes of argument, that Benson had no prospect of obtaining a more favorable verdict from a jury, the fact that a bench trial would be no worse for Benson than a jury trial does not override the constitutional mandate of trial by jury in criminal cases unless the defendant personally waives that right.