Opinion
No. 60076-1-I.
July 28, 2008.
Appeal from a judgment of the Superior Court for Whatcom County, No. 06-1-00672-3, Steven J. Mura, J., entered May 22, 2007.
Affirmed by unpublished per curiam opinion.
Joseph Montenegro appeals from the judgment entered on an 11-member jury's verdict finding him guilty of burglary in the first degree and robbery in the first degree. Montenegro contends that he did not knowingly, intelligently, and voluntarily waive his state constitutional right to a 12-person jury. Referring to the record of proceedings in the trial court, Montenegro asserts that it reveals that while his attorney indicated that he intended to consult with Montenegro about waiving a 12-person jury, it does not indicate that the attorney actually did so. The state of the law is that a defendant is deemed to have knowingly, intelligently, and voluntarily waived the right to a 12-person jury only upon a showing of the defendant's expressed agreement to such a waiver, or where there is an indication that defense counsel or the trial judge discussed the issue with the defendant prior to an attorney's expressed waiver on the client's behalf. State v. Stegall, 124 Wn.2d 719, 728-29, 881 P.2d 979 (1994). Because the record herein sufficiently indicates that Montenegro's counsel did, in fact, discuss with him the issue of waiving the right to a 12-person jury prior to informing the court on the record that an 11-person jury was acceptable, we affirm.
I
Montenegro was charged with one count of burglary in the first degree and one count of robbery in the first degree. At trial, a scheduling conflict arose during the State's case in chief. On Wednesday, April 11, 2007, the trial court informed the jurors that the trial would not conclude the following day, as had been anticipated. Due to scheduling difficulties, the trial would continue the next day, April 12, but would have to recess and then recommence on April 16. One of the jurors then reminded the trial court that she was excused as of April 17, and would thus be unable to be present for the trial's completion.
After excusing the jury, the trial court asked the attorneys if they would be willing to conclude the case with an 11-person jury. Montenegro's attorney responded that he would speak with Montenegro to see if Montenegro was willing to proceed with 11 jurors. The trial court then ordered Montenegro's counsel and counsel for Montenegro's co-defendant: "You two talk about it with your clients and let me know in the morning." Later, the judge again ordered the attorneys to "[c]heck with your clients and if they want to go with an eleven person jury then we'll go with eleven."
The next day, April 12, in Montenegro's presence, the trial court confirmed on the record that the parties had met in chambers and had agreed to proceed with 11 jurors:
THE COURT: Before we bring the jury out there's a couple of things we need to do on the record. The court met with counsel in chambers and it's the court's understanding that all counsel are agreeable to the court excusing Juror No. 7 because of her earlier having been excused next Tuesday if [in] fact this case is not finishing when we planned. And the parties are in agreement that we'll try the case with a jury of eleven. Anyone disagree with that?
MR. KAIMAN: No, Your Honor.
MR. RANEY: We have no objection to that, Your Honor.
Mr. Raney was Montenegro's trial counsel.
Mr. Raney was Montenegro's trial counsel.
MR. HULBERT: No, Your Honor.
The trial proceeded with 11 jurors. Montenegro was convicted as charged and received a standard range sentence. He now appeals.
II
Montenegro contends that the trial court record does not establish that he knowingly, voluntarily, and intelligently waived his state constitutional right to a 12-person jury because it does not indicate that his counsel actually discussed the waiver with him before agreeing in open court to proceed with an 11-person jury. Likening his situation to State v. Stegall and State v. Wicke, 91 Wn.2d 638, 591 P.2d 452 (1979), Montenegro contends that his silence cannot serve as the basis for a valid constitutional waiver. Contrary to Montenegro's contention, however, the record herein indicates that, unlike the circumstances in Wicke and Stegall, Montenegro's counsel did discuss the waiver with him prior to agreeing to proceed with an 11-person jury. Thus, we hold that Montenegro validly waived his right to a 12-person jury.
A criminal defendant charged in superior court has a state constitutional right to be tried by 12 jurors. Const. art. I, § 21; CrR 6.1(b); Stegall, 124 Wn.2d at 723. In non-capital cases, the trial may proceed with as few as six jurors. Stegall, 124 Wn.2d at 723.
The standard of review of the waiver's validity is de novo. State v. Vasquez, 109 Wn. App. 310, 319, 34 P.3d 1255 (2001), aff'd, 148 Wn.2d 303, 59 P.3d 648 (2002).
Generally, a criminal defendant's constitutional rights may only be waived where the waiver is made knowingly, intelligently, and voluntarily. Stegall, 124 Wn.2d at 724. However, the inquiry required of the trial court to determine whether a waiver is so made differs depending on the nature of the constitutional right at stake. Stegall, 124 Wn.2d at 725. Thus, while a defendant's decision to proceed without the assistance of counsel requires a colloquy on the record, and a guilty plea requires a demonstration that the defendant understands the plea's direct consequences, "no such colloquy or on-the-record advice as to the consequences of a waiver is required for waiver of a jury trial; all that is required is a personal expression of waiver from the defendant." Stegall, 124 Wn.2d at 725 (citing City of Bellevue v. Acrey, 103 Wn.2d 203, 207-08, 691 P.2d 957 (1984)). The waiver of the right to a 12-person jury is constitutionally valid "on a showing of either (1) a personal statement from the defendant expressly agreeing to the waiver, or (2) an indication that the trial judge or defense counsel has discussed the issue with the defendant prior to the attorney's own waiver" on behalf of the defendant. Stegall, 124 Wn.2d at 729.
Montenegro asserts that Wicke and Stegall mandate reversal of his conviction. We disagree.
In Wicke, defendant's counsel waived the defendant's right to a jury trial by oral stipulation while the defendant stood quietly beside him. Wicke, 91 Wn.2d at 641. Our Supreme Court held that, absent evidence of the defendant's concurrence with the waiver or evidence that he had discussed the matter with his attorney, the record was insufficient to demonstrate that the defendant knowingly, voluntarily, and intelligently waived his constitutional right to a jury trial. Wicke, 91 Wn.2d at 644.
In Stegall, our Supreme Court extended the rule announced in Wicke to the waiver of the right to a 12-person jury. 124 Wn.2d at 728-29. Declaring the right to a 12-person jury to be an "integral part of a felony defendant's right to jury trial" under article I, section 21, the court held that the waiver of the right to a 12-person jury could be sufficiently demonstrated only upon a showing of a personal statement by the defendant or "an indication that the trial judge or defense counsel . . . discussed the issue with the defendant prior to the attorney's own waiver." Stegall, 124 Wn.2d at 728-29.
In Stegall, the issue of waiving the right to a 12-person jury suddenly arose during jury selection and appeared to be partially attributed to defense counsel's "own desire to avoid the embarrassment of proceeding with jury selection with a broken zipper on his fly." Stegall, 124 Wn.2d at 731. The court observed that the record was devoid of any personal expression by the defendant or any other indication that his attorney had discussed the waiver with him prior to orally stipulating to proceed with fewer than 12 jurors. Stegall, 124 Wn.2d at 731
The record in this case is much different. It indicates that Montenegro's counsel did discuss his right to a 12-person jury with him prior to waiving the right on Montenegro's behalf. When the scheduling conflict arose, Montenegro's counsel was twice ordered by the trial court to discuss with Montenegro whether Montenegro wished to continue with an 11-person jury. The trial court explicitly indicated that the trial would so proceed only if both defendants agreed. The next morning, there was a conference in chambers. After this conference, in open court and in response to the trial court's question concerning the existence of any disagreement with the judge's statement that the parties had met in chambers and all had agreed to proceed with 11 jurors, Montenegro's counsel stated, in the presence of Montenegro, "[w]e have no objection to that, Your Honor."
Montenegro's waiver did not arise suddenly or spontaneously. In fact, Montenegro's counsel was ordered by the court to discuss the issue with Montenegro. The next morning, there was a chambers conference about the matter. This was followed by the judge's declaration of the parties' agreement and the judge's request that the parties affirm the accuracy of his observations on the record. Montenegro's counsel then affirmed the agreement on his own behalf and on behalf of Montenegro. Montenegro was present throughout.
No more was required. Stegall holds that a waiver is sufficient if counsel's representation to the court provides "an indication that . . . defense counsel . . . discussed the issue with the defendant." Stegall, 124 Wn.2d at 729 (emphasis added). Such an indication is present from the circumstances and context of the trial participants' words and actions herein. The waiver was valid.
Affirmed.