Saturday, November 30, 2013

Waiving your Rights is Tougher than you Think

State v. Gomez-Lobato (HSC October 30, 2013)
Background. Luis Gomez-Lobato was charged with a single count of abuse of a family or household member. At his arraignment, Gomez-Lobato was represented by a lawyer and had the assistance of a Spanish interpreter. Gomez-Lobato pleaded not guilty. Counsel requested a recess in order to go over the jury waiver form with the interpreter. After a recess, the family court had a colloquy with Gomez-Lobato through the interpreter. The family court received the form and asked if the initials on it were his? He said yes. The family court asked if he understood what he was doing and signing before initialing the form? He said yes. The family court asked if the form was explained to him in Spanish? Yes. The family court inquired if he discussed this with his attorney. Yes. And Gomez-Lobato had no questions for the judge. Based on those answers, the family court concluded that Gomez-Lobato knowingly, voluntarily, and intelligently waived his right to a jury trial.

The prosecution served an amended complaint that changed the date of the alleged incident from Sept. 23, to September 25, 2013. No waiver of jury trial took place. After a one-day bench trial, the family court convicted Gomez-Lobato and sentenced him to probation for two years. He appealed and the ICA affirmed. Gomez-Lobato petitioned for certiorari. The prosecution did not respond.

The Right to a Jury Trial and Waiver of it. A criminal defendant has the right to a trial by jury when the potential penalty is imprisonment for at least six months. HRS § 806-60. And—like most rights—the right to a jury trial can be waived. State v. Ibuos, 75 Haw. 118, 121, 857 P.2d 576, 578 (1993). “[W]aiver shall be either by written consent filed in court or by oral consent in open court entered on the record.” Hawaii Rules of Penal Procedure Rule 23(a). In addition to the rule, the court is still obligated to ensure a knowing, intelligent, and voluntary waiver through an on-the-record colloquy. Tachibana v. State, 79 Hawaii 226, 236, 900 P.2d 1293 (1995); State v. Ibuos, 75 Haw. at 121, 857 P.2d at 578.

“Where it appears from the record that a defendant has voluntarily waived a constitutional right to a jury trial, the defendant carries the burden of demonstrating by a preponderance of the evidence that his/her waiver was involuntary.” State v. Friedman, 93 Hawaii 63, 69, 996 P.2d 268, 274 (2000).

The Rejection of the Ninth Circuit’s Four-Part Colloquy (Again). The Ninth Circuit has held that  when conducting a colloquy about waiving the right to a jury trial, the trial court must inform the defendant that the right to a jury trial encompasses the selection of twelve members of the community, that the defendant may take part in jury selection, a unanimous verdict, and that when there is a waiver of this right, the court alone decides guilt. United States v. Duarte-Higareda, 113 F.3d 1000, 1002 (9th Cir. 1997).

The HSC has rejected this as a mandatory part of the colloquy, and held that these four points are not “constitutionally required.” State v. Friedman, 93 Hawaii at 69, 996 P.2d at 274. According to the HSC, the appellate court must simply assess the “totality of the circumstances surrounding the case, taking into account the defendant’s background, experience, and conduct.” Id. at 70, 996 P.2d at 275. The HSC cautioned trial courts and “advised” that these elements be made part of the colloquy, but it has never required it. State v. Myers, 108 Hawaii 300, 307, 119 P.3d 608, 615 (App. 2005); State v. Mitchell, 94 Hawaii 388, 395, 15 P.3d 314, 321 (App. 200).

The Totality-of-the-Circumstances Reigns Supreme . . . Like Friedman, Gomez-Lobato has argued the need to adopt the bright-line rule by the 9th Circuit. The HSC made it clear that this was not the real issue on appeal. The waiver form included the four elements from Duarte-Higareda. The issue, according to the HSC, was whether the combined effect of the colloquy and the form was enough to show a knowing, voluntary, and intelligent waiver. It wasn’t.

. . . and Here Something More was Needed. The HSC explained that the waiver form was interpreted for Gomez-Lobato and the court communicated to him through an interpreter. The language barrier was significant enough to give the family court notice that his waiver “might be less than knowing and intelligent.” Duarte-Higareda, 113 F.3d at 1003. It should have prompted the family court to ask additional questions “to verify that Gomez-Lobato understood the right he was waiving.” Despite the colloquy and the interpreter, the family court’s questions—do you know what you’re “doing and signing?”—were simply too vague to arise to a voluntary, intelligent, and knowing waiver. The family court did not ask Gomze-Lobato if he “truly” understood the right he was waiving. This is only exacerbated by the fact that the record is void of any information about Gomez-Lobato’s background, experience, and conduct. Thus, the HSC vacated the conviction and remanded for a new trial.

A Very Curious Footnote. The HSC noted that in some cases, a defendant may get a jury trial even when the punishment is less than six months. When the maximum penalty does not exceed 30 days, it is presumed to be a petty misdemeanor and there is no jury trial right. State v. Lindsey, 77 Hawaii 162, 165, 883 P.2d 83, 86 (1994). To overcome the presumption, the court must consider (1) the treatment of the offense at common law, (2) the gravity of the offense, and (3) the authorized penalty for the offense and find that the offense “unequivocally demonstrates that society demands that persons charged with the offense at issue be afforded the right to a jury trial.” Id. If the penalty is more than 30 days, but less than 180 days, then no presumption applies, but the three factors still have to be considered. Id. at 86 n. 5, 883 P.2d at 165 n. 5. Has this intriguing little test has probably been applied to perhaps the most feared of all petty misdemeanors—operating under the influence of an intoxicant?

Justice Acoba’s Concurrence. Justice Acoba wrote separately because he believed that under the constitutional right to a jury trial pursuant to Haw. Const. Art. I, Sec. 14, the right can only be waived when the trial court engages in an on-the-record colloquy that includes notice to the defendant of the four elements from Duarte-Higareda.

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