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?
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