Opinion
2016 KA 0310
09-16-2016
STATE OF LOUISIANA v. EDWARD MCKNIGHT
Scott M. Perrilloux District Attorney Patricia Parker Amos Assistant District Attorney Amite, Louisiana Counsel for Appellee State of Louisiana Bertha M. Hillman Covington, Louisiana Counsel for Defendant-Appellant Edward McKnight
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE TWENTY-FIRST JUDICIAL DISTRICT COURT
NUMBER 1300057, DIVISION "E", PARISH OF TANGIPAHOA
STATE OF LOUISIANA HONORABLE BRENDA B. RICKS, JUDGE Scott M. Perrilloux
District Attorney
Patricia Parker Amos
Assistant District Attorney
Amite, Louisiana Counsel for Appellee
State of Louisiana Bertha M. Hillman
Covington, Louisiana Counsel for Defendant-Appellant
Edward McKnight BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
Disposition: CONVICTIONS AND SENTENCES AFFIRMED.
CHUTZ, J.
The defendant, Edward McKnight, was charged by bill of information with aggravated second degree battery of Brian Robinson, a violation of Louisiana Revised Statutes 14:34.7 (count one); two counts of aggravated assault with a firearm upon Barbara Womack and Evan Womack, violations of Louisiana Revised Statutes 14:37.4 (counts two and three); and illegal use of a weapon or dangerous instrumentality, a violation of Louisiana Revised Statutes 14:94F (count four). He entered a plea of not guilty to all charges and, following a bench trial, was found guilty as charged on all counts. The defendant filed motions for new trial, postverdict judgment of acquittal, and arrest of judgment, all of which were denied.
The State filed a motion to invoke the firearm sentencing provision under La. C.Cr.P. arts. 893.1 and 893.3 as to the defendant's charges on counts one, two, and three. The trial court found that a firearm was discharged in connection with counts two and three. See La. C.Cr.P. art. 893.3C. The trial court found that a firearm was discharged and thereby caused bodily injury in connection with count one. See La. C.Cr.P. art. 893.3D. The defendant was then sentenced to fifteen years at hard labor on counts one and four, as to each count, to run concurrently. The defendant was sentenced to ten years at hard labor on counts two and three, as to each count, to run concurrently. The trial court ordered that the sentences imposed on counts one and four run consecutively with the sentences imposed on counts two and three. The defendant filed a motion to reconsider sentence, which was denied. He now appeals, challenging his waiver of his right to a trial by jury. For the following reasons, we affirm the defendant's convictions and sentences.
The sentences on counts one, two, and three were deemed to be served without parole. See La. R.S. 15:301.1 & La. C.Cr.P. art. 893.3G. The sentence on count four was deemed to be served without the benefit of probation, parole, or suspension of sentence. See La. R.S. 15:301.1 & 14:94F: see also State v. Williams , 2000-1725 (La. 11/28/01), 800 So.2d 790, 800-01.
FACTS
On September 24, 2012, Tangipahoa Parish Sherriff's Office Detective Michael Dean responded to a report of a shooting on Sawmill Road in Natalbany, Louisiana. Upon arrival, Detective Dean observed the defendant standing approximately forty feet from the entrance of a home with a handgun in his hand. Deputy Ryan Schumacher arrived on the scene and ordered the defendant to put the weapon down. After the defendant complied, the deputy placed the defendant in handcuffs and read him his Miranda rights. The defendant was secured in a patrol unit and, during transport, stated, "I shot him and I just don't want him hurt too bad."
Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
On the night of the incident, Detective Michael Christmas spoke with witnesses Barbara and Evan Womack, who were the mother and brother of the victim, Brian Robinson. The detective interviewed the victim on October 2, 2012, after he was released from the hospital. According to Detective Christmas, the information provided in the interviews with the witnesses was consistent, and he had no reason to believe that the shooting was accidental or in self-defense.
The victim testified at trial and stated that on the date of the incident, he went to his mother's house to iron clothes. His mother, Barbara, was in her bedroom. The victim's younger brother, Evan, was also at the house. The defendant, who was the boyfriend of Barbara, arrived at the house and went into the bedroom he shared with Barbara. Shortly thereafter, the victim heard the defendant yelling and fighting with Barbara about money. The victim then heard Barbara scream and a gun cock. The victim peeked into the room where the defendant and Barbara were, and he saw the defendant pointing a gun in Barbara's face. The victim told the defendant, "somebody has to leave the house, either you leave or we leave." The victim turned around to exit and get the keys to his truck to leave, and the defendant followed him and asked, "Where the f*** you think you're going? What the f*** you're going to get?" The victim said, "Well, we just need to leave." The defendant responded, "F*** that." At this point, the victim was in the living room of the house, and when he turned back around, he saw Barbara and Evan "hugged up in the corner just screaming and begging." The defendant was standing between the victim and Barbara and Evan, yelling and waiving the gun. As the defendant raised the gun, the victim turned around, and the defendant shot the victim in his back. According to the victim, the defendant fired three or four shots. After being shot, the victim ran outside and went to a neighbor's house to call 911.
WAIVER OF JURY TRIAL
In three related assignments of error, the defendant challenges his waiver of his right to a jury trial. In his first assignment of error, the defendant contends that the trial court erred by granting the waiver without a written motion signed by the defendant and his attorney as required by La. C.Cr.P. art. 780. In his second assignment of error, the defendant asserts that his waiver was not free and voluntary. Specifically, he maintains that the trial court did not address him or question defense counsel as to whether the defendant was informed of the rights that he was waiving. He claims that the record does not indicate whether he was informed that the jury could not have information that he had prior convictions, that the jury members would be from the community, that he could participate in their selection, that it would take at least ten of the twelve jurors to convict him, and that in a jury trial, the jury decides guilt or innocence, and the judge makes rulings of law. He also asserts that he was not informed that he would not be allowed to withdraw the waiver. In his third assignment of error, defendant urges that the trial court's denial of his right to a jury trial is a structural defect, not subject to harmless error review. He contends that the "entire conduct of the trial from beginning to end was affected by the error" and concludes that the defect "requires automatic reversal of the conviction."
The defendant was arraigned on February 14, 2013, and entered a plea of not guilty to all counts. The following month, on March 12, 2013, the defendant was represented by Barry Pike. A preliminary examination was held that day, and the trial court found probable cause. Pretrial motions were continued by the State until April 10, 2013. On April 10, 2013, the pretrial motions were continued until May 7, 2013, on joint motion. On May 7, 2013, the defendant was represented by Brett Duncan. A pretrial conference was set for June 12, 2013, and the State offered the defendant a plea agreement for fifteen years at hard labor to remain open until the next court date. On June 12, 2013, the defendant was represented by Michael Nunnery. The defendant filed a motion to continue, which the trial court granted. The pretrial conference was continued until August 14, 2013. On August 14, 2013, the pretrial conference was set for October 9, 2013, and trial was set for October 21, 2013.
On October 21, 2013, defense counsel Nunnery stated, "Your Honor, [the prosecutor] and I, we have been talking back and forth for the last couple of weeks regarding this matter. And I think the best position and posture to put it in today is to go ahead on and let's say we are ready for trial tomorrow morning, and we are going to waive the jury. We are going to do a bench trial." The trial court questioned the timeliness of the motion, and the parties had a discussion at the bench off of the record. The matter was passed, and after it was resumed, the following colloquy occurred:
[The court]: I think we had Mr. Nunnery. We were going to take care of his. I think that's Mr. McKnight.
[The State]: Yes, ma'am. We set this for 8:30 tomorrow morning for a bench trial. It's my understanding that Mr. Nunnery has waived the jury.
[Nunnery]: That's correct, Your Honor.
[The State]: It's my understanding the court is going to allow him to do that at this time.
[The court]: Is there any objection from the State?
[The State]: No objection.
[The court]: Without objection. The matter will be set for 8:30 in the morning. This is number 2 on the list, Edward McKnight.
[Nunnery]: Thank you, Your Honor.
[The court]: [The prosecutor] may be in another trial, at least we can find out what's going on. The trial would commence at 9:00.
[Nunnery]: Things should get clearer in the next couple of hours.
[The court]: If you [find] out something, let us know.
[Nunnery]: Thank you, Your Honor.
[The court]: And you are sure he does not want to take the offer that has been made?
[Nunnery]: Not at this time, no. We will be discussing that in the morning.
[The court]: Let the record reflect the accused was personally present with retained counsel and took notice for 8:30 Tuesday.
The minute entry for October 22, 2013, indicates that an ad hoc judge was present. The defendant was present with Nunnery. The pretrial conference was continued until January 7, 2014. On January 7, 2014, no appearance was made by the defendant or Nunnery and a bench warrant was issued. On July 21, 2014, the defendant was present without Nunnery, and he moved to continue. The pretrial conference was continued until August 26, 2014. On August 26, 2014, the defendant was present with Nunnery, who filed a motion to withdraw as counsel, which the trial court granted. The court reappointed the public defender's office. The pretrial conference was continued until September 24, 2014.
On September 24, 2014, the defendant was present in court and represented by Nicky Muscarello as conflict counsel. On motion of the defendant, the pretrial conference was continued until November 19, 2014. The trial court set bond at $75,000.00. On November 19, 2014, on motion of the defendant, the pretrial conference was continued until January 27, 2015, and the bench warrant issued on January 7, 2014, was recalled. On January 27, 2015, pretrial was set for February 25, 2015, and trial was set for March 2, 2015. On February 25, 2015, the motion to revoke bond was granted, and the defendant was remanded in open court pending his next court hearing for trial.
On March 2, 2015, in reference to an offer of fifteen years from the State, Muscarello asked the defendant whether he desired to accept the State's offer. The defendant responded that he wanted to "[n]ot take the offer and proceed to jury trial." The following colloquy then occurred:
[The court]: And he does want a jury trial?
[Muscarello]: And that's another issue that - my understanding is at some point he was represented by another attorney. They waived the jury. I asked the minute clerk before Your Honor got here to look it up. I recall discussing this matter in open court and saying that, you know, it is not my desire to waive the jury and therefore you had stated that because he wasn't properly questioned that that probably was off the table. The minutes don't reflect that. And [the prosecutor] I think wants to proceed forward with a bench trial.
[The State]: Your Honor, it came to my attention that he had waived the jury trial as reflected in the minutes back in 2013. It's clear that the defendant waived the jury trial which it's the State's understanding, pursuant to the code, is irrevocable. So it would be the State's position that he did waive it.
[The court]: Madam Clerk, would you raise your right hand. Do you swear the testimony you're about to give will be the truth, the whole truth, and nothing but the truth, so help you God?
[Deputy Clerk of Court]: I do.
[The court]: Would you examine the minutes and tell the court exactly what they reflect as regards the jury trial? And do you know what that code article is off the top of your head, for the State?
The clerk stated that on October 21, 2013, the defendant was present with his attorney, Nunnery, and he waived the jury trial. The trial court asked the clerk to examine the record for a written motion. The clerk indicated that the motion was made in open court. Referring to Article 780, the State incorrectly pointed out that at the time the waiver was entered, the Louisiana Code of Criminal Procedure read that the waiver was revocable, but as of the hearing, the code stated that the waiver was irrevocable. After an off-the-record discussion at the bench, the court stated, "After reviewing the statutes, the court believes that the right to waive the jury is irrevocable based upon procedural issues of this date. Your motion to go with the jury is denied. I will give you time to take writs." Defense counsel reiterated that he was not representing the defendant at the time that the waiver was made.
Other matters on the docket were heard. When discussions regarding the waiver issue resumed, defense counsel stated:
Judge, with regards to Mr. McKnight, two matters, one is my memory has been refreshed. When we were in court, it was either last time or the time before that, Your Honor had—the issue of waiving the jury came up. In her ruling Your Honor had said that we could have a jury trial because they failed to do a colloquy on Mr. McKnight.
The trial court judge responded that she did not remember that, and defense counsel would have to get a transcript. Defense counsel went on:
Well, I was refreshed by someone that was there with me and so I felt ninety-nine percent that had occurred. Now I'm a hundred percent that that occurred. And [the prosecutor] was there and she might have pregnancy brain, as my wife likes to call it.
The prosecutor stated that she did not recall that occurring. Defense counsel requested a continuance in order to obtain transcripts of proceedings from the two prior court dates, which were January 27, 2015, and February 25, 2015. On April 22, 2015, pretrial motions were set for May 12, 2015. On May 12, 2015, trial was set for August 17, 2015.
On August 17, 2015, the first day of trial, the State offered the defendant a plea deal wherein it would dismiss counts two, three, and four in exchange for the defendant's guilty plea to count one. Under the terms of the deal, the defendant would be sentenced to ten years, and the State would not file a habitual offender bill of information. The State also noted that the trial court had yet to rule on the jury waiver issue. The trial court addressed defense counsel and stated that the defendant "was previously represented by Mr. Nunnery. On October 21, 2013, Mr. Nunnery and his client, your client, did, in fact, waive the jury." Defense counsel responded, "That is correct." The trial court then ruled, "So this will be a trial to me as the judge." Defense counsel then stated:
That is correct. Now we did ask the court to review that to make sure, you know, that was in fact done correctly. I mean, as his attorney I'm going to advise him that I would have never advised him to do that, but I don't know if they had a meeting of the minds and if they, you know, if they discussed waiving the jury. I just wanted to cover the basis in the record, but as far as
The trial court judge interrupted defense counsel and asked whether he wanted the defendant to be sworn in to be questioned regarding the plea deal offered by the State. The following colloquy occurred:
[Muscarello]: And you understand that the State has offered to dismiss multiple charges and to have you plead to aggravated second degree battery in exchange for a ten year plea, no multi bill; is that correct?
[The defendant]: Right.
[Muscarello]: And your choice today is to not take that offer and you want to proceed to trial?
[The defendant]: Right.
[The defendant]: Excuse me. I also wanted to know can I have a jury trial?
[Muscarello]: The next matter we have to discuss is his prior attorney had waived the jury. The court said they were going to make a ruling on whether that was going to be maintained or if we were going to go to jury trial.
[The court]: I will take argument from counsel in connection with that at this point.
The State argued, incorrectly, that at the time the defendant waived his right to a jury trial, the waiver was revocable, but by the time of the hearing, the article was amended and the waiver was no longer revocable. According to the State, because the change was procedural, the applicable law was that in effect at the time of the hearing. Defense counsel offered the transcript of the waiver into evidence and argued that the waiver was not made knowingly and intelligently. The State responded that the waiver was discussed in open court with the defendant present and represented by counsel. The trial court judge asked the clerk to read the minute entry from the day after the waiver was entered, October 22, 2013. According to the clerk, the minute entry stated that the defendant was present with counsel and an ad hoc judge, and the pretrial conference was continued until January 7, 2014. The court then stated, "So obviously he came the next morning and the trial for one reason or another was continued, but it doesn't reflect that it was because no jury was there. So obviously he acquiesced in that at that point; therefore, the court finds that it is a knowing waiver." The defendant reserved his right to appeal the ruling. When the parties returned for trial later that day, the court noted:
The court does recognize that there may be a conflict between the Code of Criminal Procedure and the Constitution; however, Constitution Article 1, Section 17 specifically states that the waiver to trial by jury shall be irrevocable. Therefore, we're proceeding with the trial at this time. [The defendant] was personally present with Mr. Nunnery, his counsel in 2013, when the jury was waived....
He's been in court eleven times since that date. The revocation has not been presented. The Constitution does say that it shall be irrevocable; therefore, the court follows the Constitution.
Defense counsel objected and reserved the defendant's right to appeal. On appeal, the defendant argues that his waiver was invalid because his trial counsel failed to file a written motion, and the waiver was not "free and voluntary," constituting a structural defect, which is not subject to harmless error review.
The right to trial by jury in felony and certain misdemeanor cases is protected by both the federal and state constitutions. See U.S. Const. amend. VI; La. Const. art. I, §§ 16 & 17A. Effective December 1, 2010, La. Const. art. I, § 17A provided, "Except in capital cases, a defendant may knowingly and intelligently waive his right to a trial by jury but no later than forty-five days prior to the trial date and the waiver shall be irrevocable." A waiver of trial by jury is valid only if the defendant acted intelligently and knowingly. See State v. Kahey , 436 So.2d 475, 486 (La. 1983). A waiver of this right is never presumed. State v. Brooks , 2001-1138 (La. App. 1st Cir. 3/28/02), 814 So.2d 72, 76, writ denied, 2002-1215 (La. 11/22/02), 829 So.2d 1037. Prior to accepting a waiver, the trial court is not obligated to conduct a personal colloquy inquiring into the defendant's educational background, literacy, and work history. State v. Allen , 2005-1622 (La. App. 1st Cir. 3/29/06), 934 So.2d 146, 154. The Louisiana Supreme Court has specifically refused to adopt an absolute rule that a jury waiver cannot be made by the defendant's attorney when the defendant is considered to have understood his right and consented to such a waiver. See State v. Phillips , 365 So.2d 1304, 1308-09 (La. 1978), cert. denied, 442 U.S. 919, 99 S.Ct. 2843, 61 L.Ed.2d 287 (1979).
Prior to its amendment, La. C.Cr.P. art. 780B provided that a defendant "shall exercise his right to waive trial by jury in accordance with the time limits set forth in Article 521. However, with permission of the court, he may exercise his right to waive trial by jury at any time prior to the commencement of trial." Subsection C of Article 780 provided that the "defendant may withdraw a waiver of trial by jury unless the court finds that withdrawal of the waiver would result in interference with the administration of justice, unnecessary delay, unnecessary inconvenience to witnesses, or prejudice to the [S]tate." At all relevant times, La. C.Cr.P. art. 521 provided that "[p]retrial motions shall be made or filed within fifteen days after arraignment, unless a different time is provided by law or fixed by the court at arraignment upon a showing of good cause why fifteen days is inadequate."
Article 780 was amended effective June 17, 2013, and at the time of this trial provided:
A. A defendant charged with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge.Written Motion
B. The defendant shall exercise his right to waive trial by jury in accordance with Article I, Section 17 of the Constitution of Louisiana. The waiver shall be by written motion filed in the district court not later than forty-five days prior to the date the case is set for trial. The motion shall be signed by the defendant and shall also be signed by defendant's counsel unless the defendant has waived his right to counsel.
C. With the consent of the district attorney the defendant may waive trial by jury within forty-five days prior to the commencement of trial.
D. A waiver of trial by jury is irrevocable and cannot be withdrawn by the defendant.
Since the amendment to Article 780 was effective June 17, 2013, the requirement that the jury trial waiver be in writing was in effect at the time of the October 21, 2013 waiver in this case. The record reveals no written waiver of jury trial as required by Article 780B. However, the defendant and his attorney were in open court when defense counsel addressed the court and requested waiver of the jury trial. The absence of a written waiver of jury trial as required by Article 780 is harmless error where the defendant and his counsel were present in open court when the judge addressed the defendant's right to a jury trial and his waiver thereof. See State v. Favron , 2014-1393 (La. App. 1st Cir. 3/6/15), 2015 WL 996376, n.1 (unpublished) (citing State v. Bell , 2013-1443 (La. App. 3d Cir. 6/4/14), 140 So.3d 830, 832); see also Phillips , 365 So.2d at 1308-09 (waiver made by defense attorney in a defendant's presence in open court was sufficient). The defendant herein was present in open court when his counsel addressed the court and requested a waiver of jury trial. Accordingly, the error in failing to obtain a written waiver in violation of Article 780 is harmless under the facts of this case. Knowing and Intelligent Waiver
To be valid, a defendant's waiver of his right to a jury trial must be knowing and intelligent. "[W]hether or not there is an intelligent, competent, self-protecting waiver of jury trial by an accused must depend upon the unique circumstances of each case." Adams v. United States ex rel. McCann , 317 U.S. 269, 278, 63 S.Ct. 236, 241, 87 L.Ed. 268 (1942). The state constitution and Louisiana Code of Criminal Procedure also require that a criminal defendant knowingly and intelligently waive his right to jury trial. See La. Const. art. I, § 17A; La. C.Cr.P. art. 780A. A criminal defendant's waiver is deemed knowing and intelligent when he understands "that the choice confronting him was, on the one hand, to be judged by a group of people from the community, and on the other hand, to have his guilt or innocence determined by a judge." United States ex rel. Williams v. DeRobertis , 715 F.2d 1174, 1180 (7th Cir. 1983), cert. denied, 464 U.S. 1072, 104 S.Ct. 982, 79 L.Ed.2d 219 (1984). That is all the defendant needs to know and understand. "Greater proof of knowing and intelligent waiver has been neither constitutionally nor jurisprudentially required." See State v. Johnson , 389 So.2d 1302, 1305 (La. 1980). A criminal defendant's waiver of his right to trial by jury is knowing and intelligent when he demonstrates his understanding that he will proceed to trial before a judge upon that waiver. Information about the composition of the jury pool and any outstanding discovery, although of some strategic value, does not provide the defendant with any greater understanding of the constitutional right at stake. State v. Bazile , 2012-2243 (La. 5/7/13), 144 So.3d 719, 734.
Although there is no colloquy between the trial court judge and the defendant to highlight his understanding of the right to a jury trial and his knowing and intelligent waiver of this right, there is adequate evidence to demonstrate a valid jury trial waiver. When the parties appeared on October 21, 2013, for a jury trial, in the defendant's presence, defense counsel moved to waive the jury trial and proceed with a bench trial. The State did not object to the waiver, and the trial court accepted the waiver without any objection by the defendant. Moreover, this was not the defendant's first criminal offense and, thus, he had prior experience as an accused in the trial of a criminal prosecution. See Phillips , 365 So.2d at 1309. Under these circumstances, we disagree with the defendant's claim that he did not knowingly and intelligently waive his right to a trial by jury. Timeliness
The defendant's previous offenses included charges for assault, aggravated battery, manslaughter, murder, and possession of controlled dangerous substances. --------
As noted by the trial court, pursuant to both La. Const. art. I, § 17A and La. C.Cr.P. art. 780D, the waiver of a trial by jury is irrevocable and cannot be withdrawn by the defendant. Even if the defendant's exercise of this right might have been untimely under Article I, Section 17A and Article 780D (the defendant's waiver was not made more than forty-five days before the trial date), any such error is not structural in nature and was waived when the defendant elected to be tried before the trial judge in a bench trial. Once the trial court accepted the defendant's untimely waiver with no objection by the State, that waiver became irrevocable by operation of the amendments to Article I, Section 17A and Article 780. To allow the defendant to knowingly and intelligently waive his right to trial by jury and then to reverse the defendant's convictions and sentences on appeal because of an untimely waiver, would be to allow the defendant to seek a favorable outcome from the judge and then to resort on appeal to an error that he instigated in the trial court. Such an outcome would not be in the interests of justice. See State v. Boudreaux , 2015-1945 (La. 1/6/16), 182 So.3d 940 (Crichton, J., concurring); State v. T.T., 2012-0146 (La. App. 1st Cir. 9/21/12), 111 So.3d 71, 75.
These assignments of error are without merit.
DECREE
For all these reasons, we affirm the convictions and sentences of defendant, Edward McKnight.
CONVICTIONS AND SENTENCES AFFIRMED.