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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
HUNTER SETH HEDRICK,
Court of Appeals No. A-12837
Appellant, Trial Court No. 3AN-14-01925 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2676 - September 4, 2020
Appeal from the Superior Court, Third Judicial District,
Anchorage, Michael L. Wolverton, Judge.
Appearances: Emily Jura, Assistant Public Defender, and Beth
Goldstein, Acting Public Defender, Anchorage, for the
Appellant. Donald Soderstrom, Assistant Attorney General,
Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson,
Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Judges.
Judge ALLARD, writing for the Court.
Judge WOLLENBERG, concurring.
Hunter Seth Hedrick was charged with multiple felony assaults for an
unprovoked attack on a hotel security guard andahotel concierge. Hedrick subsequently
waived his right to a jury trial and proceeded to a bench trial before a superior court
----------------------- Page 2-----------------------
judge. After the bench trial had already begun, the State notified the court that it would
be seeking a statutory aggravator under AS 12.55.155(c)(10) - i.e., that the defendant's
conduct was among the most serious included in the definition of the offense. There was
no objection to this late notice.
Following the bench trial, the superior court found Hedrick guilty of the
charged assaults. The superior court also found that the (c)(10) aggravator applied to
Hedrick's conviction for first-degree assault and imposed an aggravated sentence of 21
years and 6 months to serve.
Hedricknowappeals, raising two claims. First, Hedrick argues that his jury
trial waiver was invalid because (according to Hedrick) the superior court failed to
adequately advise him of his right to a jury trial and the consequences of waiving that
right. Second, Hedrick argues that he never waived his right to a jury trial on the (c)(10)
aggravator, and he asserts that the State waived any right to rely on that statutory
aggravator by failing to provide timely notice of the aggravator.
For the reasons explained in this decision, we reject Hedrick's first claim
and we find that the superior court's general jury trial advisement, although limited, was
adequate under our existing case law. However, we agree with Hedrick that he did not
waive his right to a jury trial on the (c)(10) aggravator and his case must therefore be
remanded for resentencing.
Background facts
On February 27, 2014, Hedrick was wandering the streets of Anchorage
after drinking and fighting with his girlfriend. According to Hedrick, he was having a
"mental breakdown." Hedrick spoke to his mother by phone. His mother told him to
check in to a hotel room at the Springhill Suites at University Lake.
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When Hedrick arrived, the concierge at the front desk informed Hedrick
that there were no rooms available but that he would try to find him something. The
concierge asked Hedrick to take a seat while he made some calls. Hedrick soon began
cursing loudly in the hotel lobby, and the concierge asked him to quiet down. The hotel
security guard approached Hedrick and informed him that if he did not stop cursing, he
would be asked to leave.
Hedrick responded by striking the security guard several times with his fist.
Both Hedrick and the security guard fell to the floor, and Hedrick continued to assault
the guard - who already appeared unconscious - by hitting and kicking him in the
head. The concierge jumped over the counter in an attempt to hold off Hedrick. Hedrick
andtheconciergethen wrestled"around the whole of the lobby" until Hedrick eventually
departed, after kicking the unconscious guard one more time. The entire assault was
captured on video from three different angles and introduced into evidence at trial.
The security guard suffered extensive injury as a result of the assault; he
was hospitalized and could not return to work for months. His jaw was wired shut, and
he underwent multiple surgeries to reconstruct his face and right eye. He now wears
dentures for his lost teeth and special glasses to alleviate the double vision he suffers
from a detached retina in his left eye.
The hotel concierge was also transported to the hospital. His arm was
broken in three places, and he spent six weeks with his arm in a cast. His radius and ulna
were permanently curved by seven degrees as a result of the assault. (He testified that
he could have this curvature fixed but declined surgery because he did not feel
comfortable with people placing a titanium rod and screws in his arm.)
When Hedrick was arrested, he told the police that the security guard had
come into his personal space and threatened him and that he had defended himself.
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----------------------- Page 4-----------------------
Procedural history
A grand jury indicted Hedrick on two counts of first-degree assault against
the security guard under two different theories - (1) that Hedrick had acted with the
intent to cause serious physical injury to the guard; and (2) that Hedrick had knowingly
engaged in conduct that resulted in serious physical injury to the guard under
circumstances manifesting an extreme indifference to the value of human life. 1
The grand juryalso indicted Hedrick on one count of second-degree assault
against the concierge for recklessly causing him serious physical injury (i.e., his broken
2
arm).
At a status hearing four days before trial began, Hedrick's attorney
indicated that Hedrick wanted to waive his right to a jury trial and proceed with a bench
trial. After personally addressing Hedrick, the superior court found that there was "a
free, voluntary, and knowing decision to waive a jury trial and to have the case presented
to [the court] for a bench trial." Hedrick, his attorney, the prosecutor, and the trial judge
also signed a "Waiver of Trial by Jury" form, which listed the offenses charged.
The factual dispute at trial centered on Hedrick's mental state -
specifically, whether he intended to cause physical injury to the security guard and
whether heacted under circumstances manifesting an extremeindifferenceto human life.
Hedrick testified that he had watched the videos and now realized that the security guard
had done nothing to provoke the assault. But Hedrick explained that he felt under attack
at the time because of the mental upset he was experiencing and because of his traumatic
childhood. In support of this claim, Hedrick's attorney introduced evidence, through
1 AS 11.41.200(a)(2) and AS 11.41.200(a)(3), respectively.
2 AS 11.41.210(a)(2).
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----------------------- Page 5-----------------------
Hedrick's mother, that Hedrick's father was physically and emotionally abusive and that
Hedrick had witnessed extensive domestic violence in the home.
On the first day of trial, the prosecutor stated that he intended to ask the
court to find that the first-degree assault on the security guard was a "worst offense,"
explaining that it would "rest most definitely on the video and the photographs that
already the court has." Hedrick's attorney did not object. At the conclusion of the
closing arguments the next day, the prosecutor clarified that he was actually asking the
court to find the statutory aggravator under AS 12.55.155(c)(10) - that Hedrick's
conduct was "among the most serious conduct included in the definition of the offense."
Hedrick's attorney again did not object to this request.
During closing arguments, the defense attorney acknowledged that the
videos showed "one of the worst assaults [she'd] seen in [her] time as a lawyer." But she
argued that the videos did not tell the full story - there was other evidence, including
that of Hedrick's intoxication and his history of abuse, that created reasonable doubt as
to whether Hedrick actually intended to seriously injure the security guard and whether
he acted under circumstances manifesting an extreme indifference to the value of human
life. With respect to the second-degree assault, the defense attorney argued that the
concierge did not suffer "serious physical injury" under the statute because he did not
have protracted loss of the use of his arm and could have elected to have surgery to
prevent permanent disfigurement. 3
The superior court took the matter under advisement and issued findings
the next day. The court found Hedrick guilty of all three assaults, ultimately merging the
two first-degree assault counts. The court also found the (c)(10) aggravator with respect
3 See AS 11.81.900(b)(59)(B) (defining "serious physical injury" as "physical injury
that causes serious and protracted disfigurement, protracted impairment of health, protracted
loss or impairment of the function of a body member or organ").
- 5 - 2676
----------------------- Page 6-----------------------
to the merged first-degree assault conviction, explaining that "[a]bsent any dangerous
instrument being used, that was as vicious an attack as I've ever seen in my career."
As a second felony offender, Hedrick faced a presumptive range of 8 to 12
years for the merged first-degree assault conviction and a presumptive range of 2 to 5
years for the second-degree assault conviction. The superior court also had the authority
to sentence Hedrick up to the 20-year maximum sentence for the first-degree assault
based on the court's finding of the (c)(10) statutory aggravator.
At sentencing, the superior court imposed the maximum sentence of 20
years for the merged first-degree assault conviction. The court also imposed 3 years for
the second-degree assault conviction, with 18 months consecutive and 18 months
concurrent to the first-degree assault conviction - for a composite sentence of 21 years
and 6 months to serve. This appeal followed.
Hedrick's claim that the superior court failed to adequately advise him of
his right to a jury trial
The Alaska and United States constitutions guarantee a defendant charged
4
with a crime the right to a trial by jury.
However, a defendant may waive their right to
a jury trial under Alaska Criminal Rule 23(a). This rule requires that waivers in felony
cases be done in writing with the approval of the trial court and the consent of the State.
4 U.S. Const. amends. VI, XIV; Alaska Const. art. I, § 11. The Alaska Constitution
guarantees the right to a jury trial for all criminal offenses. See Baker v. City of Fairbanks,
471 P.2d 386, 401 (Alaska 1970). The United States Constitution limits this right to criminal
offenses that include a possible term of imprisonment of more than 6 months. See Baldwin
v. New York, 399 U.S. 66, 69 (1970) (establishing that a defendant is entitled to a jury trial
whenever the offense for which he is charged authorizes imprisonment for more than 6
months); see also Blanton v. City of N. Las Vegas, 489 U.S. 538, 542 (1989) (reaffirming
Baldwin, where the Court determined that the "possibilityof a sentence exceeding six months
. . . is 'sufficiently severe by itself' to require the opportunity for a jury trial").
- 6 - 2676
----------------------- Page 7-----------------------
The written waiver must be combined with an adequate personal inquiry of the defendant
by the trial court to ensure "the waiver is voluntary and knowing." 5
Here, therecord shows that Hedrick executedboth awrittenand oral waiver
of his right to a jury trial. The oral waiver was accomplished on the record and included
the following personal inquiry of Hedrick by the court:
The Court: All right. Mr. Hedrick, your attorney has
advised me that at this point you're prepared to waive a jury
trial and have the case tried as a bench trial to me. Is that
correct?
Mr. Hedrick : Yes, sir.
The Court: All right. And have you had enough time
to talk to your attorneys about this decision?
Mr. Hedrick : Yes, sir.
The Court: And are you satisfied with the advice
given to you?
Mr. Hedrick : Yes.
The Court: And by doing this, I need to make sure that
you're doing this freely and voluntarily. Is that correct?
Mr. Hedrick : Yes, Your Honor.
The Court: And nobody has made any threat or
promise to cause you to waive a jury trial.
Mr. Hedrick : No, Your Honor.
The Court: All right. And you're not under the
influence of any medication or anything that might affect
your decision in deciding to waive a jury trial and have the
case presented to me as a bench trial.
5 Walker v. State, 578 P.2d 1388, 1390 (Alaska 1978); see Walunga v. State, 630 P.2d
527, 528 (Alaska 1980) (explaining that Criminal Rule 23(a) "require[s] a personal inquiry
by the court to determine whether the defendant's waiver is voluntary and knowing").
- 7 - 2676
----------------------- Page 8-----------------------
Mr. Hedrick : Yeah, I -
The Court : That's what you want to do?
Mr. Hedrick : Yes.
The Court : All right. I'll find there's a free, voluntary,
and knowing decision to waive a jury trial and to have the
case presented to me for a bench trial.
In addition to this exchange, Hedrick signed a court form titled "Waiver of
Trial by Jury." The waiver stated: "I have been advised of my right to trial by jury. I
waive trial by jury and request that I be tried by the court." The waiver listed the three
charges Hedrick faced: "AS 11.41.210(a)(2): Assault 2 - Serious Injury, Reckless";
"AS 11.41.200(a)(3): Assault 1 - Serious Injury, Extreme Indif"; and "AS 11.41.-
200(a)(2): Assault 1 - Serious Injury, Intent." This written waiver was also signed by
Hedrick's attorney, the prosecutor, and the trial court.
Onappeal, Hedrickarguesthatthepersonalinquirywas inadequatebecause
the superior court failed to describe the benefits of a jury trial in detail, as well as the
elements of each offense, before accepting Hedrick's waiver of his right to jury trial.
We do not agree with Hedrick that the court's inquiry was inadequate as
a matter of law. The underlying question is whether Hedrick was provided with enough
information to ensure that he knowingly waived his right to a jury trial. Here, the record
shows that the trial court personally addressed Hedrick and specifically explained the
6
consequences of waiving a jury trial.
6 See White v. State, 2007 WL 1098426, at *4 (Alaska App. Apr. 11, 2007)
(unpublished) (upholding waiver of the right to a jury trial where the "record, viewed as a
whole, demonstrate[d] that [the defendant] understood and personally chose to waive jury
trial" and showed "that [the superior court] addressed [the defendant] personally and
explained the key differences between a jury and a bench trial").
- 8 - 2676
----------------------- Page 9-----------------------
In support of his claim, Hedrick cites McGlauflin v. State -a case in which
7
we found the trial court's colloquy with the defendant inadequate.
But Hedrick's case
is distinguishable from McGlauflin, where the trial court only asked McGlauflin a single
8
We found this inquiry insufficient
question: "[A]re you . . . willing to waive the jury?"
because the trial court failed to explain that waiving the right to a jury trial meant that the
9
court would be the factfinder.
Here, in contrast, the trial court did make clear that by waiving his right to
a jury trial, Hedrick was agreeing to have the trial court decide his guilt. Although the
trial court could have gone into more detail about the important features of a jury trial,
the inquiry that occurred was in accord with other inquiries that have been upheld as
adequate.10
The court also confirmed with Hedrick that he was not under the influence
of medication and that there were no other influences that affected his decision to waive
his right to a jury trial and have his case decided by the court. In addition, Hedrick did
not hesitate or show any confusion about the rights he was waiving. Given these
circumstances, we reject Hedrick's claim that the trial court failed to adequately advise
him of his right to a jury trial before accepting his waiver of that right.
7 McGlauflin v. State , 857 P.2d 366 (Alaska App. 1993).
8 Id. at 368.
9 Id. at 369.
10 See Dolchok v. State, 639 P.2d 277, 279 n.4 (Alaska 1982); Walunga, 630 P.2d at 528
n.6 (Alaska 1980).
- 9 - 2676
----------------------- Page 10-----------------------
Hedrick also argues that, under the Alaska Supreme Court's case Hutton
11
v. State, the superior court was required to describe the elements of each offense. But
Hutton is distinguishable on its facts. Hutton was charged with three offenses - first-,
second-, and third-degreeweapons misconduct. AtHutton's request,thecourtbifurcated
his trial so that the first- and second-degree weapons misconduct charges were tried to
the jury first. At this initial trial, the jury convicted Hutton of first-degree weapons
misconduct, acquitted himofsecond-degreeweaponsmisconduct,andfound, in aspecial
12
interrogatory, that Hutton knowingly possessed a concealable firearm. This special
interrogatory constituted a guilty finding by a jury on one of the elements of the third-
degree weapons misconduct charge.
However, there were two elements left of the third-degree weapons
misconduct charge that still remained to be tried to a jury - whether Hutton had a prior
felony conviction and whether he had acted in reckless disregard of that felony
13
conviction at the time he possessed the concealable firearm.
Hutton subsequently waived his right to a jury trial on the prior convictions
element. But Hutton was never advised of, and never waived, his right to a jury trial on
the "reckless disregard" mens rea element. On appeal, the Alaska Supreme Court
11 Hutton v. State, 350 P.3d 793 (Alaska 2015).
12 Id. at 794.
13 Id. at 798-99; see AS 11.61.200(a)(1) (third-degree weapons misconduct); Afcan v.
State, 711 P.2d 1198, 1199 (Alaska App. 1986) (explaining that "recklessness [is] the
applicable, culpable mental state with respect to the circumstances of [the] offense" and
therefore "it was necessary for the state to establish that [the defendant] was aware of or
recklessly disregarded the fact that he had been convicted of a felony").
- 10 - 2676
----------------------- Page 11-----------------------
vacated Hutton's conviction for third-degree weapons misconduct, finding that his
waiver of jury trial was incomplete. 14
Here, in contrast to Hutton, Hedrick did not waive his right to a jury trial
on some, but not all, of the elements of a charged offense. Instead, he waived his right
to a jury trial on all three charged offenses. Hutton was informed of the elements
through his indictment, which included the elements of each offense. The elements of
each offense were also listed - albeit, in shorthand fashion - in the written waiver of
jury trial that Hedrick executed and that his attorney, the prosecutor, and the trial court
judge all signed. Notably, Hedrick has pointed to nothing in the record to suggest that
he was confused about the nature of the charges or the elements of the offenses.
Accordingly, we reject Hedrick's claim that his jury waiver was invalid as
a matter of law because the superior court failed to advise him of the specific elements
of the charged offenses.
Hedrick's claim that he never knowingly and intelligently waived his right
to a jury trial on the "most serious" aggravating factor under
AS 12.55.155(c)(10)
Pursuant to the United States Supreme Court decisions in Apprendi v. New
15 16 17
Jersey,
Blakely v. Washington, and United States v. Booker, the state and federal
14 Id. at 799.
15 Apprendi v. New Jersey , 530 U.S. 466, 490 (2000) ("Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.").
16 Blakely v. Washington, 542 U.S. 296, 303-04 (2004) ("[T]he 'statutory maximum' for
Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant
(continued...)
- 11 - 2676
----------------------- Page 12-----------------------
constitutional right to a jury trial extends to any fact (other than a prior conviction) that
increases the maximum sentence a judge may impose. In accordance with this principle,
AS12.55.155(f)(2) providesthat" Blakely aggravators" - i.e.,statutory aggravators that
do not rely on prior convictions - must be presented to a trial jury unless the defendant
"waives trial by jury, stipulates to the existence of the factor, or consents to have the
factor proven under procedures set out in [AS 12.55.155(f)(1)]."
Hedrick argues that because he never expressly waived his right to a jury
trial on the "most serious" aggravating factor under AS 12.55.155(c)(10) (a Blakely
aggravator), the superior court was precluded fromfinding this aggravator at sentencing.
The State argues that the superior court did not err in finding the aggravator because
Hedrick's waiver of his right to a jury trial on the charged offenses automatically
included waiver of his right to a jury trial on any statutory aggravators that might apply.
According to the State, "waiver of the right to a jury trial includes both the guilt and
sentencing phases of the case."
We disagree with the State that waiver should be presumed under these
circumstances. Here, the record shows that Hedrick had no notice of the proposed
statutory aggravator until after Hedrick had waived his right to a jury trial and the bench
trial had already commenced. Because Hedrick was not on notice of the aggravator at
the time he waived his right to a jury trial, we conclude that his waiver cannot reasonably
be interpreted as including a knowing and voluntary waiver of his right to a jury trial on
16 (...continued)
'statutory maximum' is not the maximum sentence a judge may impose after finding
additional facts, but the maximum he may impose without any additional findings.").
17 United States v. Booker, 543 U.S. 220, 244 (2005) (reaffirming Apprendi 's holding
that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a plea of guilty or a jury
verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt").
- 12 - 2676
----------------------- Page 13-----------------------
the statutory aggravator. We express no opinion as to whether waiver could be presumed
in circumstances where the State provides timely pretrial notice of the proposed
aggravator(s).
Having concluded that Hedrick did not knowingly waive his right to a jury
trial on the "most serious" aggravator, we now turn to the question of prejudice. The
State argues that there was overwhelming evidence that Hedrick's conduct was "among
the most serious" and therefore any error was harmless beyond a reasonable doubt.
Hedrick argues that this type of error is structural and not susceptible to a harmlessness
analysis. Hedrick recognizes that we have previously held otherwise in Milligrock v.
State, but he asserts that Milligrock is wrongly decided and should be overturned. 18
Weneed not reachthequestion ofwhether Milligrock was wrongly decided
because we conclude that a remand is required under the circumstances presented here.
In Milligrock, we were able to conclude that the Blakely error was harmless beyond a
reasonable doubt because the factual underpinnings of the "same household" aggravator
19
were undisputed.
But that is not the case with the "most serious" aggravator at issue
here. Although the defense attorney conceded the overall brutality of the assaults, she
made various factual arguments about why the assaults should nevertheless not be found
20
to be "most serious." Because a jury might have resolved those factual questions
18 Milligrock v. State , 118 P.3d 11, 16 (Alaska App. 2005) (approvingly citing United
States Supreme Court decisions holding that "courts must apply a harmless error analysis
when assessing the effect of Sixth Amendment errors").
19
Id. at 17 (explaining that "the evidence was undisputed that Milligrock's assault was
committed upon a woman who had lived with him for five years and who had born his
child").
20
Cf. State v. Parker, 147 P.3d 690, 695 (Alaska 2006) ("The legislature intended for
the 'most serious' aggravating factor and the 'least serious' mitigating factor to have a
(continued...)
- 13 - 2676
----------------------- Page 14-----------------------
differently than the judge and might therefore have reached a different conclusion
regarding the existence of the aggravator, we cannot say that the error was harmless
beyond a reasonable doubt, and we therefore conclude that a remand is required.
At the resentencing, the State is entitled to pursue any non-Blakely
21
aggravators ( i.e., statutory aggravators based on a defendant's prior convictions ) that
might apply -including, but not limited to, the (c)(19) aggravator identified by the State
22
in its briefing on appeal. If, however, the State intends to pursue statutory aggravators
that require a jury trial, the superior court must either hold a jury trial or obtain a valid
23
jury trial waiver from Hedrick.
Conclusion
Hedrick's convictions areAFFIRMED,but his sentence is VACATEDand
this case is remanded to the superior court for a resentencing.
20 (...continued)
limited scope.").
21 See AS 12.55.155(f)(1).
22 See AS 12.55.155(c)(19) (defendant's prior criminal history includes an adjudication
as a delinquent for conduct that would have been a felony if committed by an adult).
23 See AS 12.55.155(f)(2).
- 14 - 2676
----------------------- Page 15-----------------------
Judge WOLLENBERG, concurring.
I agree with the Court that the colloquy regarding Hedrick's jury trial
1
waiver was adequate under Alaska case law. As Professor LaFave explains in his
treatiseon criminal procedure, although courts differ on precisely what a jury trial waiver
colloquy should include, "detailed explanations about the jury right are generally not
2
necessary."
Here, the trial court made clear that, by waiving his right to a jury trial,
Hedrick was agreeing to have the trial court decide his guilt. The trial court also
questioned Hedrick about whether he was under the influence of any medication or other
substances that might affect his decision-making, whether his waiver was the result of
any improper threats or inducements, and whether he had sufficient time to speak with
his attorney.
At the same time, federal and state courts around the country strongly
recommend that - as a matter of best practice - a jury waiver colloquy also include a
description of the salient features of a jury trial. These courts recognize that engaging
a criminal defendant in a robust oral colloquy helps ensure that the defendant's waiver
1 See, e.g., Walunga v. State, 630 P.2d 527, 528 n.6 (Alaska 1980).
2 6 Wayne R. LaFave et al., Criminal Procedure § 22.1(h), at 44 (4th ed. 2015); see also
People v. Sivongxxay, 396 P.3d 424, 436 (Cal. 2017) ("[W]e have never insisted that a jury
waiver colloquy invariably must discuss juror impartiality, the unanimity requirement, or
both for an ensuing waiver to be knowing and intelligent."); Davis v. State, 809 A.2d 565,
569-70 (Del. 2002) ("The determination of whether there has been an intelligent and
voluntary waiver depends upon the 'totality of the circumstances surrounding the particular
case, including the background, experience and conduct of the accused.'" (quoting Mealey
v. State, 347 A.2d 651, 652 (Del. 1975))); Commonwealth v. Hardy , 693 N.E.2d 1365, 1367
(Mass. 1998) ("[N]o rigid pattern . . . must invariably be followed in conducting a colloquy
before accepting a waiver of the right to trial by jury." (internal quotation marks omitted)).
- 15 - 2676
----------------------- Page 16-----------------------
of the right to jury trial is both knowing and voluntary - and avoids later claims of an
invalid waiver.
Almost uniformly, these courts encourage trial judges to advise defendants
about the following four characteristics of a jury trial:
(1) a jury is comprised of twelve community members (in
felony cases) or six community members (in misdemeanor
cases);
(2) the defendant's attorney (or the defendant, if self-
represented) may participate in the selection of the jurors
from the panel summoned for jury service;
(3) the jury's verdict must be unanimous; and
(4) if the defendant waives the right to a jury trial, the
judge alone will decide guilt or innocence. 3
3 See, e.g., United States v. Shorty, 741 F.3d 961, 966 (9th Cir. 2013); United States v.
Lilly , 536 F.3d 190, 198 (3d Cir. 2008); United States v. Robertson, 45 F.3d 1423, 1432 (10th
Cir. 1995); Marone v. United States , 10 F.3d 65, 68 (2d Cir. 1993); United States v. Martin,
704 F.2d 267, 274-75 (6th Cir. 1983); United States v. Delgado, 635 F.2d 889, 890 (7th Cir.
1981), abrogated on other grounds, United States v. Rodriguez, 888 F.2d 519, 527-28 (7th
Cir. 1989); Sivongxxay, 396 P.3d at 437; State v. Feregrino, 756 N.W.2d 700, 706 (Iowa
2008); Ciummei v. Commonwealth, 392 N.E.2d 1186, 1189-90 (Mass. 1979); State v. Ross,
472 N.W.2d 651, 654 (Minn. 1991); State v. Redden, 487 S.E.2d 318, 326 (W. Va. 1997);
see also State v. Blann, 90 A.3d 1253, 1253 (N.J. 2014) (requiring that "an official jury
waiver form containing the . . . four items be prepared for use" and that "trial judges engage
in a colloquy with defendants that includes those four items, at a minimum, to assess the
voluntariness of a waiver request"); Commonwealth v. Williams, 312 A.2d 597, 600 (Pa.
1973) (holding that, for a defendant to knowingly and intelligently waive the right to a jury
trial, the defendant must know "the essential ingredients of a jury trial," including that the
jurors will be drawn from members of the community, that the verdict must be unanimous,
and that the defendant will be allowed to participate in jury selection).
- 16 - 2676
----------------------- Page 17-----------------------
These advisements are in addition to those case-specific inquiries that trial judges
regularly make to ensure that a defendant's waiver of rights is knowing and voluntary
- inquiries like those made by the trial judge in this case. 4
I encourage trial judges to follow this guidance when engaging a criminal
defendant in a colloquy regarding the decision to waive the right to a jury trial and have
a bench trial. If defendants are informed on the record of the defining features of a jury
trial, courts may more confidently answer the critical question of whether a criminal
defendant understands that he has the right to have a jury decide the facts of his case -
and that he is agreeing to forgo that right in favor of having his case decided solely by
5
a judge.
4 See Sivongxxay, 396 P.3d at 437 (recommending that "the trial judge take additional
steps as appropriate to ensure, on the record, that the defendant comprehends what the jury
trial right entails" - which may include "asking whether the defendant had an adequate
opportunity to discuss the decision with his or her attorney, . . . asking whether counsel
explained to the defendant the fundamental differences between a jury trial and a bench trial,
or . . . asking the defendant directly if he or she understands or has any questions about the
right being waived"); Ciummei, 392 N.E.2d at 1189-90 (declining to create a "rigid pattern"
for trial judges conducting a jury trial waiver colloquy but noting that a judge "should make
sure that the defendant has conferred with his counsel about the waiver, and that he has not
been pressured or cajoled and is not intoxicated or otherwise rendered incapable of rational
judgment").
5 See Sivongxxay, 396 P.3d at 437 (recommending that, going forward, trial courts
advise a criminal defendant of the "basic mechanics of a jury trial in a waiver colloquy" and
"take additional steps as appropriate to ensure, on the record, that the defendant comprehends
what the jury trial right entails").
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| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
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