ORS 136.001. The state argues that the failure to execute written waiver of a jury trial is harmless error absent a showing of actual prejudice, citing State v. Naughten, 5 Or. App. 6, 8, 480 P.2d 448, Sup Ct review denied (1971). That case held that failure of the state to obtain a written waiver was harmless error where there had been an informed oral waiver made by defendant and everything which transpired was written down by the court reporter.
Nonetheless, defendant argues that our decision in State v. Lemon, 162 Or App 640, 986 P2d 705 (1999), compels the opposite result. In that case, the state argued that, as long as the record contained some reference indicating that the defendant waived her right to a jury trial, any error resulting from the absence of a written waiver was harmless error under State v. Naughten, 5 Or App 6, 480 P2d 448 (1971). In Naughten, we held that, although the waiver of a jury trial was not in writing, we were able to determine that the defendant had voluntarily and knowingly relinquished the right to a jury trial.
However, the state contends that, as long as the written record contains some reference indicating that defendant waived her right to a jury trial, any error resulting from the absence of an executed written waiver is harmless and not reversible. The state relies on State v. Naughten, 5 Or. App. 6, 480 P.2d 448 (1971), in support of its harmless error argument. In Naughten, the trial court conducted the following colloquy with the defendant:
There is nothing in the record that assures us that defendant understood what rights he was waiving or that he waived them voluntarily. We cannot say, as we did in State v. Naughten, 5 Or. App. 6, 480 P.2d 448, rev den (1971), that the error was harmless. Reversed and remanded for a new trial.
The failure of a defendant to execute a written waiver of jury trial, required by Article I, section 11, of the Oregon Constitution, ordinarily mandates reversal. State v. McDaniel, 96 Or. App. 337, 772 P.2d 951, rev den 308 Or. 382 (1989); State v. Wiik, 31 Or. App. 571, 570 P.2d 1021 (1977), rev den 281 Or. 323 (1978); but see State v. Naughten, 5 Or. App. 6, 480 P.2d 448, rev den (1971). However, we conclude that, in the circumstances of this case, defendant is not entitled to reversal.
Consent to be tried without a jury requires an express written waiver under Article I, section 11, of the state constitution. See also ORS 136.001. The state agrees that there is no written waiver but cites State v. Naughten, 5 Or. App. 6, 480 P.2d 448, rev den (1971), and argues that that is harmless error if there was no actual prejudice to the defendant. In Naughten, the record showed that the defendant had, with the advice of counsel, personally made an express oral waiver of his right to a jury trial.
We therefore hold that the error, if any, in failing to correct defendant's misinformation concerning the jury vote required for a hung jury was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 23-24, 87 S Ct 824, 17 L Ed 2d 705 (1967); State v. Van Hooser, 266 Or. 19, 25-26, 511 P.2d 359 (1973); State v. Naughten, 5 Or. App. 6, 8, 480 P.2d 448, rev den (1971). Defendant concedes that the constitutional and statutory requirements that the waiver be in writing were met by a letter from him to the trial court.
Accordingly, defendant is entitled to a new trial. State v. Rogers, 83 Or. App. 270, 730 P.2d 43 (1986); State v. Naughten, 5 Or. App. 6, 480 P.2d 448, rev den (1971). Reversed and remanded for a new trial.
The question is whether respondent has stated a basis for a collateral attack on the conviction. This case is not controlled by State v. Naughten, 5 Or. App. 6, 480 P.2d 448, rev den (1971), in which we held that lack of a written waiver was harmless error, because it was beyond any doubt in that case that defendant had not been prejudiced. In Naughten, the defendant, in response to questions from the trial judge, expressly acknowledged that he had been advised of his right to a jury trial and that his waiver was knowingly given.
It is apparent that he remembered little of what happened in the other case. He said that he was never asked whether he wanted a jury trial and "was just told how much money [he] should bring to court." The state argues that State v. Naughten, 5 Or. App. 6, 480 P.2d 448, rev den (1971), applies. In Naughten we held that the failure of the state to obtain a written waiver was harmless error where there had been an informed oral waiver by defendant of his right to a jury trial which appeared in the trial transcript.