Opinion
Court of Appeals No. A-9858.
October 7, 2009.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge, Trial Court No. 3AN-02-04148 CR.
Paul Malin, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Following a bench trial, Superior Court Judge Michael L. Wolverton acquitted Oscar A. Cano of sexual assault in the second degree, a class B felony, but found him guilty of the lesser included offense of attempted sexual assault in the second degree, a class C felony. Cano appeals, contending that the record does not establish that he waived his right to a jury trial, and also contending that there was insufficient evidence to support his conviction.
AS 11.41.420(a)(3)(B), (C).
AS 11.41.420 AS 11.31.100.
Waiver of jury trial
Defendants in criminal cases have a constitutional right to a jury trial. This right to jury trial can be waived, but the waiver is not valid unless the record of the proceedings "explicitly demonstrate[s] that the defendant understood and personally relinquished the right to a trial by jury." Moreover, the decision whether to waive this right is personal to the defendant; the defendant's attorney has no independent authority to waive the defendant's right to jury trial.
U.S. Const. amend. VI XIV; Alaska Const. art. I, § 11.
McGlauflin v. State, 857 P.2d 366, 369 (Alaska App. 1993).
The Alaska Rules of Professional Conduct require a defense attorney "to abide by the [defendant's] decision, after consultation with the lawyer, . . . whether to waive jury trial." Alaska R. Prof'l Conduct R. 1.2(a).
In this appeal, Cano argues that Judge Wolverton did not adequately advise him concerning the essential attributes of a jury trial — in particular, that he (or his attorney) could participate in selecting the jurors to try his case, and that he could not be convicted unless the jurors unanimously agreed that he was guilty.
Cano also argues that, even if he did understand the essential attributes of a jury trial, there is additional reason to question the voluntariness of his decision. He points out that the record shows the existence of a disagreement between him and his attorney on this issue, and that he complained about his relationship with his attorney. Cano also argues that, based on some of his responses, Judge Wolverton should have made some inquiry into Cano's mental competence to waive his right to a jury trial.
On Thursday, March 9, 2006 (three business days before Cano's scheduled trial), Cano and his attorney, Robert Herz, appeared before Judge Wolverton. Herz informed the court that Cano had contacted his office two days previously and "[had] demand[ed] a bench trial." Herz said that he replied by informing Cano that the decision whether to waive a jury trial was a decision for Cano, not the attorney, to make. Herz advised Cano to contact him again the next day if he still wanted to have a bench trial.
According to Herz, Cano recontacted him the next day and told him that he still wanted to have a bench trial. Cano later executed a court form entitled "Waiver of Trial By Jury." (More specifically, Cano initialed this form, indicating that he had been advised of his right to trial by jury, that he waived his right to trial by jury, and that he wanted to be tried by the court. This form was also signed by Herz.)
Herz submitted this form to the court, but he told Judge Wolverton that he was not sure whether the court could accept the waiver — because, on the form, Cano had written: "There is no other way for me, because my Due Process has been Denied." Because of what Cano had written, Herz recommended that the court conduct a thorough inquiry before accepting the waiver of jury trial from Cano.
Judge Wolverton then addressed Cano personally, telling Cano that he needed to ask him several questions. From the record, it appears that Cano and Judge Wolverton had known each other for a long time. The record also shows that Cano has an extensive criminal record, including several convictions following jury trials that were appealed to this Court.
See Cano v. Anchorage, 627 P.2d 660 (Alaska App. 1981); Cano v. Anchorage, Alaska App. Memorandum Opinion No. 0728 (November 7, 1984), 1984 WL 908582; Cano v. Anchorage, Alaska App. Memorandum Opinion No. 0783 (February 20, 1985), 1985 WL 1077785; Cano v. State, Alaska App. Memorandum Opinion No. 4225 (June 7, 2000), 2000 WL 727763; and Cano v. State, Alaska App. Memorandum Opinion No. 4903 (August 4, 2004), 2004 WL 1737591.
Judge Wolverton first asked Cano if he had discussed the issue of a jury trial with his attorney. Cano responded that he had talked to his attorney about this issue. Judge Wolverton then told Cano, "You understand, because you've been through this system before, . . . that you have a right to a trial in front of twelve people. Do you understand that?" Cano responded, "Of course I do." Judge Wolverton replied, "Okay. I know you do, but I have to ask these questions, do you understand?" Judge Wolverton then reminded Cano that, in a jury trial, the jury would decide the facts of the case and whether the State had proven the case beyond a reasonable doubt. The judge asked Cano if he understood these principles. Cano again responded, "Of course I do."
Judge Wolverton then asked Cano whether his decision to waive trial by jury was being made freely and voluntarily. Cano responded that the court was putting him "between the sword and the wall." Judge Wolverton replied that he was not pressuring Cano to do anything but clarify his decision — and that it was up to Cano whether to have a jury trial or not. The judge again asked Cano whether his decision to waive a jury trial was made freely and voluntarily. Cano responded that it was.
Thus far, the record demonstrates that Cano understood the essential aspects of trial by jury, and that he had freely chosen to waive his right to jury trial. But then Judge Wolverton asked Cano whether anyone had made threats or promises to Cano to induce him to waive his right to jury trial — and, in particular, whether anyone had told Cano that he would receive harsher treatment if he demanded a jury trial and was ultimately convicted. Cano answered:
Mr. Herz told me, you know, that you were going to convict me no matter what. That's what he told me very clearly. . . . If I was going to [be tried] by you. . . . [He] told me that, with the members of the jury, I will have more chance to be vindicated. And I told him, "No, I think the judge would be fair." But he told me, "No, he's going to convict you anyway." That's what [Mr. Herz] says to me.
In other words, when Judge Wolverton asked Cano if anyone had threatened him to give up his right to a jury trial, Cano told the judge that the very opposite had occurred — that his attorney had "threatened" him ( i.e., advised him) that he faced a worse prospect of obtaining a favorable verdict if he went ahead with his plan to waive his right to trial by jury.
Cano's answer prompted Judge Wolverton to renew his question, this time trying to make the point of his inquiry more clear:
The Court: [I am going to] ask this question again, and I want you to listen to it. . . . My question is: Has anybody said [that] if you go to trial in front of a jury, you're going to be threatened with harsher punishment, as opposed to going to trial in front of a judge?
Mr. Cano: Mr. Herz told me that.
The Court: He did, huh? Well, then, I can't accept this [waiver]. I need to know if you're doing this freely and voluntarily.
Somewhat paradoxically, Cano then proceeded to explain why he believed that he could get a more favorable verdict from a judge than from a jury. Judge Wolverton interrupted Cano to ask him again, "Do you want a trial in front of just a judge, or do you want to have a jury?" Cano answered that he wanted a trial in front of a judge — but not Judge Wolverton.
Judge Wolverton explained that he, indeed, would be Cano's trial judge — and then he again asked Cano, "Now, do you want to have a trial in front of a judge, or in front of a jury?" Cano answered, "I want to have [my trial] in front of the judge, Your Honor."
Judge Wolverton then asked Cano once more to state whether "[his] decision to do that is being done freely and voluntarily." Cano answered, "Yes, Your Honor." But then, when Judge Wolverton asked the follow-up question, "Has anybody made any threat or promise to cause you to pick the judge instead of a jury?" Cano again answered, "Yes, Your Honor." In other words, Cano again asserted that he had been subjected to a threat.
At this point, Judge Wolverton announced a ten-minute recess so that Herz and Cano could confer privately.
When court resumed, Herz indicated that he had talked to Cano about this issue, and that "[he] was able to get Mr. Cano to listen more closely to the question" by "rephras[ing] it and . . . put[ting] it in simpler terms."
Herz told Judge Wolverton that Cano was acting against his advice. Herz said that he had advised Cano "on a number of occasions" that a jury trial would be better, and that he had also alerted Cano that, if Cano chose a bench trial, Judge Wolverton would be the judge who decided the case. According to Herz, Cano assured him that he understood all of this — and, in spite of all this, Cano still wanted a bench trial.
Acting on Herz's suggestion, Judge Wolverton then asked Cano whether "[anyone had] told [him] that going to trial in front of a jury would be a bad thing." Cano responded, "No."
Based on the foregoing, Judge Wolverton found that Cano had freely and voluntarily waived his right to jury trial.
In Walunga v. State, the Alaska Supreme Court found that the following exchange between the court and the defendant was sufficient to establish that the defendant had waived his right to a jury trial:
630 P.2d 527 (Alaska 1981).
The Court: [The] [r]ecord will reflect that the waiver of jury trial has been filed. Let me ask you, Mr. Walunga, . . . do you realize that, when you sign this, . . . you [will] not have a jury — that I [will] decide the case?
Mr. Walunga: Yes.
The Court: Is that what you want?
Mr. Walunga: Well, at this time, I suppose, I do not know.
The Court: Well, do you understand what you are doing when you sign the waiver of jury trial?
Mr. Walunga: Yeah.
The Court: You know [that] you — [your attorney has] told you [that] you have a right to a jury trial?
Mr. Walunga: Yes, I realize that.
The Court: Okay. All right. [The waiver] will be filed.
Id. at 528 n. 6.
In McGlauflin, by contrast, we held that the record did not show that the defendant had waived his right to a jury trial. In McGlauflin, the defendant's attorney told the court that his client was willing to waive his right to a jury trial. The State agreed to waive its right to a jury trial. The court then addressed McGlauflin:
The Court: Mr. McGlauflin, are you also willing to waive the jury?
Mr. McGlauflin: (no audible response)
The Court: Yes? Mr. McGlauflin [is] nodding in the back of the courtroom. It looks like everything is resolving so that we could go on Tuesday, if that isn't a problem.
McGlauflin never filed a written waiver. We held that this record was insufficient to demonstrate that the defendant "understood and personally relinquished the right to a trial by jury."
Id. at 369.
The facts of Cano's case are closer to the facts of Walunga. The record shows that Cano understood the fundamentals of the right to trial by jury, and that Cano also understood that it was his personal decision whether to waive his right to jury trial, despite any contrary advice from his attorney. Moreover, the record shows that Cano and his attorney engaged in repeated discussions of this issue, and that, from the outset of these discussions, Cano expressed his desire to waive his right to jury trial and go to trial in front of a judge. Cano persisted in this choice even after he was told that he could not have a different judge, and that Judge Wolverton would decide his case if he waived a jury.
It may be true that Judge Wolverton never expressly advised Cano that he or his attorney could participate in the selection of the jurors, and that the court would not accept a guilty verdict from the jury unless and until the jurors had reached unanimous agreement that the State had proved its case. But given Cano's experience with the criminal justice system, given the several conversations between Cano and his attorney concerning the issue of jury trial, and given Cano's answers to Judge Wolverton's questions, we conclude that any omissions in Judge Wolverton's explanation of the right to jury trial were harmless. There is substantial evidence to support the conclusion that Cano understood the essential aspects of trial by jury. And, given the record that the supreme court found to be adequate in Walunga, there is no reason to question Cano's mental competence to waive his right to trial by jury.
See Walunga, 630 P.2d at 528 n. 4 (reviewing the trial court's findings regarding a defendant's waiver of the right to jury trial under a "substantial evidence" standard).
See id. at 528-29.
Cano raises one additional claim regarding his right to trial by jury: he argues that Judge Wolverton erred by failing to inform him of his right to have a jury decide any aggravating factors that might apply at his sentencing.
See Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Even assuming that Judge Wolverton was under a duty to mention this aspect of the right to jury trial, the issue is moot in Cano's case. At Cano's sentencing, Judge Wolverton found two aggravating factors: (1) that Cano "had a prior criminal history [which] includes conduct involving aggravated assaultive behavior or repeated instances of assaultive behavior," and (2) that Cano's "prior criminal history includes convictions for five or more crimes . . . that are class A misdemeanors under the law of this state." These aggravating factors were based solely on Cano's prior criminal convictions. Because these aggravating factors were based solely on Cano's prior convictions, Cano was not entitled to a jury trial on theseaggravators. Therefore, even if we assume that Judge Wolverton erred in failing to inform Cano of his right to jury trial on some aggravating factors, that error was harmless in Cano's case.
AS 12.55.155(c)(8).
AS 12.55.155(c)(31).
Blakely, 542 U.S. at 301; Tyler v. State, 133 P.3d 686, 689-90 (Alaska App. 2005).
The evidence was sufficient to support Cano's conviction
Cano contends that there was insufficient evidence to support his conviction. He was initially charged with sexual assault in the second degree for engaging in sexual penetration with C.C., who was incapacitated or unaware that the sexual act was being committed. Judge Wolverton convicted Cano of attempted sexual assault in the second degree. "A person is guilty of an attempt to commit a crime, if, with intent to commit a crime, the person engages in conduct which constitutes a substantial step toward the commission of that crime." Judge Wolverton explained that he acquitted Cano of sexual assault in the second degree because there was a reasonable doubt whether Cano had actually penetrated C.C. But he concluded that the evidence established, beyond a reasonable doubt, that Cano had attempted to engage in sexual intercourse with C.C. while she was incapacitated.
AS 11.41.420(a)(3)(B), (C).
AS 11.31.100.
When we review a claim that a conviction is not supported by sufficient evidence, we view the evidence and the reasonable inferences from that evidence in the light most favorable to upholding the trial court's verdict. We are to determine "whether the finding of guilt is supported by substantial evidence, that is, such relevant evidence which is adequate to support a conclusion by a reasonable mind that there was no reasonable doubt as to [the defendant's] guilt."
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981) (quoting Martin v. Fairbanks, 456 P.2d 462, 464-65 (Alaska 1969)).
It appears uncontested that C.C. was incapacitated. An eye witness, Shaun Johnson, testified that he saw Cano having sexual intercourse with C.C. while she was incapacitated. Cano acknowledges this testimony, but points out that the evidence shows that Johnson was intoxicated. In his findings, Judge Wolverton conceded that "there were obvious and significant memory problems for Mr. Johnson." He therefore had a reasonable doubt about Johnson's testimony that he actually observed sexual penetration. But he concluded that Johnson's testimony was corroborated by other witnesses who had not been drinking. He concluded that these witnesses had been far enough away that they could not corroborate Johnson's testimony that Cano had actually penetrated C.C. But the observations of these witnesses and the other corroborating evidence led him to the conclusion that Cano had at least attempted sexual penetration, which might not have been completed "due to Mr. Cano's obvious level of intoxication that night." Judge Wolverton's findings are supported by the record and support his decision to convict Cano of attempted sexual assault in the second degree. Conclusion
We conclude that Cano's waiver of the right to jury trial was both knowing and voluntary. We further conclude that the evidence presented at Cano's trial is sufficient to support his conviction for attempted sexual assault in the second degree. Accordingly, the judgment of the superior court is AFFIRMED.