Opinion
No. 2019-KO-01957
07-31-2020
STATE of Louisiana v. Roman Joseph LASTRAPES
Writ application denied.
Crichton, J., would grant and docket and assigns reasons.
I would grant and docket the defendant's application to further examine his assertion that he did not properly waive his constitutional right to a jury trial under La. Const. Art. I, § 17 (A). Specifically, defendant alleges that his previous counsel, who withdrew in December of 2016 as a result of a conflict of interest with the victim's family, filed a motion to waive a trial by jury in November of 2016 without defendant's consent, and therefore, it was not properly waived. Regardless of whether the record reflects a contradiction of that assertion, the problem herein begins with the duty of the trial court to ensure defendant unequivocally understands the right which he is surrendering under La. C.Cr.P. art. 780.
As I have written before, the issue of sufficiency of a jury trial waiver effected through counsel continues to appear before this Court. See e.g. State v. Spurlock , 15-1173 (La. 9/25/15), 175 So.3d 955 (Crichton, J., concurring); State v. Muller , 351 So.2d 143 (La. 1977) ; State v. Phillips , 365 So.2d 1304 (La. 1978) ; State v. Pierre , 2002–2665 (La. 3/28/03), 842 So.2d 321 ; State v. Bazile , 2012–2243 (La. 5/7/13), 144 So.3d 719. Again, while not absolutely mandated, the preferred method of securing a defendant's waiver of his right to a jury trial is for the trial court (i) to advise the defendant on the record of his constitutional right to a jury trial; (ii) to secure an oral waiver from the defendant himself; and (iii) if warranted, to make a finding that the defendant has intelligently and voluntarily waived his constitutional right to a jury trial. See Spurlock , Id. ; State v. Brooks , 2001–1138, p.8 (La. App 1 Cir. 3/28/02), 814 So.2d 72, 78, writ denied , 2002–1215 (La.11/22/02), 829 So.2d 1037 ; Adams, Warden of City Prison of Manhattan, et al. v. United States ex rel. McCann , 317 U.S. 269, 277-78, 63 S.Ct. 236, 241, 87 L.Ed. 268 (1942). Just as procedure dictates a proper colloquy during a Boykin guilty plea, such a preservation in the record of the defendant's understanding of a waiver of a jury trial in these circumstances will allow for proper appellate review. Here, other than a written motion, albeit signed by defendant, there is no reflection of what, in my view, would constitute a "knowing and intelligent" waiver by defendant. As such, I would grant and docket the defendant's application to examine whether, under these circumstances, defendant's waiver of his jury trial via motion filed by his previous counsel can satisfy this heavy burden.
See Boykin v. Alabama, 395 U.S. 238, 242, 244, 89 S.Ct. 1709, 1712, 1711, 23 L.Ed.2d 274 (1969) (the United States Supreme Court holding, on appeal of a criminal conviction that it was error for the trial judge to accept a guilty plea without an affirmative showing that it was intelligent and voluntary, and instead, the trial court should "canvass [ ] the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence.")