State of Louisiana v. A.D. L

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1142

STATE OF LOUISIANA

VERSUS

A.D.L.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 07K6617D
HONORABLE ALONZO HARRIS, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Marc T. Amy, and Billy Howard Ezell,
Judges.

AFFIRMED.

Earl B. Taylor
27th JDC District Attorney
P. O. Drawer 1968
Opelousas, LA 70571
(337) 948-0551
COUNSEL FOR APPELLEE:
State of Louisiana

Annette Fuller Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT APPELLANT:
A.D.L.

Jennifer Ardoin
Assistant District Attorney
P. O. Drawer 1968
Opelousas, LA 70571
(337) 948-0551
COUNSEL FOR APPELLEE:
State of Louisiana

SAUNDERS, Judge.

Following a judge trial, Defendant was convicted of one count of indecent

behavior with a juvenile, a violation of La.R.S. 14:81. He was sentenced to five

years’ imprisonment. Defendant appealed the conviction and sentence. While this

court conditionally affirmed the conviction and sentence, it remanded the matter to

the trial court to conduct an evidentiary hearing on the question of whether

Defendant validly waived his right to a jury trial. This court further instructed the

trial court that if a valid waiver was not made, the conviction and sentence must be

set aside and a new trial granted. Defendant’s right to appeal any adverse ruling

was reserved. State v. A.D.L., 10-1218 (La.App. 3 Cir. 5/11/11), 64 So.3d 448.

An evidentiary hearing was held on August 24, 2011. Thereafter, the

hearing judge ruled that Defendant knowingly and intelligently waived his right to

a jury trial.

Defendant now appeals the hearing judge’s ruling. He asserts that the

hearing judge erred when he required Defendant’s trial counsel to testify at the

hearing without a valid waiver of the attorney-client privilege and when the

hearing judge found that Defendant made a knowing and voluntary waiver of his

right to a jury trial. For the following reasons, we affirm the hearing judge’s ruling

that Defendant validly waived his right to a jury trial.

FACTS:

The facts of this case are found in Defendant’s first appeal. State v. A.D.L.,

64 So.3d 448.

ASSIGNMENTS OF ERROR:

Initially, Defendant argues that his constitutional right to invoke the

attorney-client privilege was violated when the hearing judge required trial counsel,

Attorney Edward Lopez, to testify regarding the issue of whether Defendant

intelligently and knowingly waived the right to a jury trial.

Although the right to a jury trial may be waived in non-capital
cases, it must be “knowingly and intelligently” waived. LSA-C.Cr.P.
art. 780A. Waiver of this right is never presumed. State v. McCarroll,
337 So.2d 475, 480 (La.1976); State v. Zeringue, 03-697 (La.App. 5
Cir. 11/25/03), 862 So.2d 186, 193, writ denied, 03-3523 (La.4/23/04),
870 So.2d 298. Although it remains the preferred method for the
district court to advise a defendant of the right to a jury trial in open
court before obtaining a waiver, that practice is not statutorily
required. State v. Pierre, 02-2665 (La.3/28/03), 842 So.2d 321 (per
curiam); State v. Lokey, 04-616 (La.App. 5 Cir. 11/30/04), 889 So.2d
1151, 1154, writ denied, 04-3195 (La.5/6/05), 901 So.2d 1093. It is
likewise preferred, but not necessary, for the defendant to waive the
right to a jury trial personally. Id. Counsel may waive the right on the
defendant’s behalf, provided the defendant’s decision to do so was
made knowingly and intelligently. Id.

State v. Howard, 10-869, pp. 6-7 (La.App. 5 Cir. 5/24/11), 66 So.3d 1160, 1165.

On May 18, 2011, the State filed a “Motion for La.Code Evid. Art. 507

hearing to Establish Validity of State’s Subpoenas,” wherein it sought to establish

the validity of the subpoenas issued to Judge Donald Hebert, who was the trier of

fact at Defendant’s trial, and to trial counsel, Attorney Edward Lopez. A hearing

was scheduled for July 21, 2011. On May 11, 2011, Judge Hebert, in a PER

CURIAM, recused himself for the purpose of the evidentiary hearing, and on June

15, 2011, Attorney Lopez moved to withdraw as counsel of record, which was

granted by Judge Alonzo Harris. On July 21, 2011, Attorney David Balfour

enrolled as Defendant’s counsel for the purpose of the evidentiary hearing only.

At the evidentiary hearing, Attorney Balfour stated that Defendant would not

testify as to whether he had waived his right to a jury trial nor was he waiving his

attorney-client privilege. Attorney Balfour appeared to argue that the evidentiary

hearing should address only the question of whether there was a waiver, not

whether it was intelligently or knowingly made. Accordingly, if there was nothing

in the record to establish that Defendant waived the right, he would be entitled to
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have the conviction set aside and, therefore, La.Code Evid. art. 507 was not

applicable. Defendant’s appellate counsel agrees.

In a memorandum filed on August 22, 2011, citing State v. Dominguez, 10-

1868 (La.App. 1 Cir. 12/8/10), 52 So.3d 1117, writ denied, 10-2781 (La. 1/28/11),

56 So.3d 956, the State argued that the question of attorney-client privilege was not

an issue in the case of whether Defendant validly waived the jury trial. In

Dominguez, during pretrial proceedings, defense counsel advised the trial court

that the defendant waived a jury trial. After the defendant was found guilty, he

filed a motion to arrest judgment and claimed that he did not knowingly and

intelligently waive his right to a jury trial. When the State attempted to call his

attorney to testify regarding his decision to waive jury trial, the defendant then

raised the attorney-client privilege. The first circuit stated:

When the record does not clearly indicate a valid waiver of the
right to a jury trial, the recent trend has not been to reverse but to
remand the case to the trial court for an evidentiary hearing on the
issue of whether a valid jury waiver was obtained. See State v. Nanlal,
97-0786 (La.9/26/97), 701 So.2d 963. In State v. Cappel, 525 So.2d
335, 337 n. 3 (La.App. 1st Cir.), writ denied, 531 So.2d 468 (La.1988),
this Court noted that when the record is insufficient to determine
whether the defendant knowingly and intelligently waived his right to
a jury trial, the testimony by defendant and defense counsel at an
evidentiary hearing would certainly be relevant, if not dispositive of
the issue. We conclude that defense counsel’s testimony regarding the
decision to waive the right to a jury trial is not barred by the attorney-
client privilege because relator anticipatorily waived the privilege by
alleging in his motion in arrest of judgment that his election of a
bench trial was not knowingly and intelligently made.

The Louisiana Supreme Court adopted the “anticipatory waiver
theory” in Smith v. Kavanaugh, Pierson & Talley, 513 So.2d 1138
(La.1987). Under the anticipatory waiver theory of the attorney-client
privilege, the court must concern itself solely with whether the
privilege holder has committed himself to a course of action that will
require the disclosure of a privileged communication.

In Smith, the plaintiff filed a legal malpractice action, and the
Supreme Court was faced with the issue of whether the plaintiff had
waived her attorney-client privilege regarding communications with
her present attorney by pleading contra non-valentum or by testifying
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in her deposition about those communications. The Supreme Court
determined that a waiver of the attorney-client privilege could occur
under certain circumstances when certain pleadings are filed:

Furthermore, by electing or committing himself to
introduce his attorney-client communications at trial and
thereby waiving his privilege to such communications, a
party creates a special unfairness to his adversary which
qualifies as an extraordinary circumstance warranting a
court order that his attorney submit to a deposition by his
adversary as to these communications.

513 So.2d at 1141. Because the plaintiff in Smith testified in her
deposition that her current attorney had told her for the first time that
the defendants had maladministered her husband’s succession, the
Court concluded the plaintiff had indicated an intention to use the
disclosed communication with her attorney at the trial of the exception
of prescription to explain her failure to file suit within the prescriptive
period. Under these circumstances, “her deposition testimony may
constitute a pretrial partial disclosure of a privileged communication
amounting to a waiver of her privilege as to relevant communications
with her attorney on the same subject.” 513 So.2d at 1146.

In the instant case, relator and his counsel presumably
discussed the consequences of waiving a trial by jury, since counsel
notified the court well before trial that the defendant intended to
waive his right to a jury trial. That conversation contains evidence that
the court can use to evaluate whether relator knowingly and
intelligently waived his right to a jury trial. By claiming his waiver
was invalid, relator has committed himself to a course of action that
requires disclosure of conversations he had with counsel about the
waiver issue; such disclosure is not barred by the attorney-client
privilege.

Id. at 1119-20 (footnote omitted).

In the current case, in brief, Defendant encourages this court to decline to

follow Dominguez and points to State v. James, 99-1047 (La.App. 5 Cir. 1/25/00),

751 So.2d 419 (James II), which Defendant “suggests that specific inquiry of the

trial attorney would be improper” in the case of determining whether the defendant

had waived his right to a jury trial. Our reading of James II is that the fifth circuit

did not suggest a trial counsel’s testimony regarding whether a client validly

waived his right to a jury trial was a breach of the attorney-client privilege. State v.

James, 94-720 (La.App. 5 Cir. 5/30/95), 656 So.2d 746 (James I), was very similar
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to the current case. There, the defendant was tried by the trial court and found

guilty of the charged offenses. However, there was nothing in the record to

indicate that he waived his right to a jury trial. On appeal, the fifth circuit

remanded for an evidentiary hearing, stating:

The record, as it now stands, does not show that James executed
a jury waiver; however, James was represented by able counsel at trial
and the record does not contain any defense objection because the
charges were being tried by a judge not a jury. These were serious
felony charges.

Nonetheless, if a defendant is tried and convicted by a judge
when clearly entitled to a jury, the record must show that a jury was
knowingly and intelligently waived. A legal waiver cannot be
presumed, no matter how strong presumption evidence may be. Here,
the state argues that James effectively waived a jury at a pretrial
proceeding.

This Court has authority under State v. Williams, 404 So.2d 954
(La.1981), and other cases to reverse the convictions and remand for a
new trial. This Court also has authority, under State v. Cappel, 525
So.2d 335 (La.App. 1 Cir.1988), writ denied at 531 So.2d 468
(La.1988), and other cases to remand for an evidentiary hearing
regarding the jury waiver. Under the present circumstances, wherein
James had competent counsel and was tried without objection by a
judge, we believe that the interests of justice are better served by a
remand instead of reversals [sic].

Accordingly, we remand for an evidentiary hearing to
determine whether James knowingly and intelligently waived his right
to a jury trial. If the evidence shows that James did not execute such a
waiver, the district judge is instructed to set aside the convictions and
grant a new trial. If the waiver was properly made, the appeal should
be transferred back to this Court for review of this determination and
for review of several errors patent concerning the sentences.

Id. at 746-47 (footnotes omitted).

On remand, the trial court in James I found that there was sufficient

evidence to find that the defendant had made a valid waiver of a jury trial. When

the case came back on appeal, asserting that the trial court erred, the fifth circuit

agreed, stating:

On remand, the State concedes that the original appellate record
is devoid of a waiver by the defendant of his right to trial by jury. At
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the evidentiary hearing, the State introduced the transcript of the
defendant's arraignment, wherein the trial judge (not the one who
presided at the bench trial) advised the defendant of his right to a trial
by jury and his right to waive a jury trial. This transcript does not
contain a response by the defendant to the judge’s recitation of his
rights. The State also called Walter Amstutz, defendant’s former
counsel who now works for the District Attorney’s Office as a
prosecutor, to testify regarding his representation of defendant. James
himself did not testify on remand.

On appeal, James argues that the arraignment transcript does
not establish an affirmative, knowing waiver of his right to a jury trial.
He argues that although the judge advised him of his right to a jury
trial at his arraignment, he made no response or other indication, such
as through counsel, that he understood and waived his right to a jury
trial. He also argues that Amstutz’s testimony at the evidentiary
hearing presents a conflict of interest, since Amstutz represented him
at the arraignment through the Indigent Defender Board but now
works for the Jefferson Parish District Attorney’s Office, the body
who is prosecuting him.

....

The insufficiency of the arraignment transcript highlights the
importance of the next assignment of error. Defendant next argue[s]
that allowing his former counsel to testify at the evidentiary hearing
was an impermissible conflict of interest because he now works for
the District Attorney’s office. Further, defendant argues that his
former attorney’s testimony violates attorney/client privilege, since
James does not allege ineffective assistance of counsel.

This court, on original appeal, cited State v. Cappel, 525 So.2d
335 (La.App. 1 Cir.1988) as authority for remanding the case for an
evidentiary hearing. The court in State v. Cappel specifically stated
that, at such hearing, testimony by the defendant and his defense
counsel would be relevant, if not dispositive, whether the defendant
knowingly and intelligently waived his right to a jury trial. However,
Cappel did not address the specific issue here, whether testimony by
the attorney would waive the attorney-client privilege, or the conflict
of interest presented by Mr. Amstutz’s new employment.

Mr. Amstutz testified that he was a contract attorney with the
Parish of Jefferson’s Indigent Defender Board from approximately
November, 1991, until sometime in 1997. He testified that his general
procedure with all clients was to advise them of their rights, including
their right to a jury trial and that they could waive that right. Amstutz
testified that he remembered Mr. James, although he did not have
access to his IDB files on this case. At this point there was an
objection by defense counsel. In a side bar, the court stated that since
the defendant raised the issue as to whether or not he was properly

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advised of his constitutional right to trial by jury, he had waived any
attorney/client privilege with respect to that particular issue.

Mr. Amstutz testified that he always advised his clients of this
right, and that it was his understanding that the defendant, not counsel,
was the one who must make the decision to whether or not to waive
trial by jury. He said that he was not singling out any of his former
cases. He testified that if a bench trial took place, then the defendant
must have waived trial by jury, and that the record spoke for itself.

As we stated above, a waiver of a jury trial is never presumed.
The evidence adduced at the evidentiary hearing shows no affirmative
waiver of this right by the defendant. His former defense counsel
presumed that James must have waived his right to trial, since a bench
trial took place, and said that the record “speaks for itself.” But it is
this presumption that the law does not allow. The evidence, at best,
shows that Amstutz probably advised the defendant of his right to trial
by jury. The evidence does not show that James waived this right,
either knowingly, intentionally, or otherwise. Therefore, James’s
conviction must be reversed, and the matter remanded for a new trial.

We do not find that Amstutz’s testimony breached
attorney/client privilege. The fact, by itself, that Amstutz testified, did
not breach the attorney/client privilege. While he testified that he did
recall a conversation with this defendant, Amstutz kept the scope of
his testimony to his general practice in all of his cases, specifically
saying that he was not singling out any one case. He did not testify to
the substance of any specific conversation with the defendant.

James II, 751 So.2d at 420-21, 422-23.

Our reading of James II is that the fifth circuit found only that there was no

breach of the attorney-client privilege because the trial counsel did not testify to

any specifics of James’ case and not that, if he had, it would have been improper.

In the current case, Defendant essentially argues that he did not raise the

issue of whether he validly waived his right to a trial by jury and he did not waive

the attorney-client privilege. He argues the only issue is whether there was an

actual waiver, not whether the waiver was intelligent or knowing; therefore, it was

error to have compelled trial counsel to testify. He states that “[i]f in fact a valid

waiver had been made, the State could have proven this by other means, such as

producing a transcript of another hearing where a waiver was made or calling

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others present when the waiver was alleged to have been made at docket sounding

to determine what was said and whether Appellant was present at this stage.”

In the current case, the issue before this court was whether the waiver was

knowingly and intelligently made. This court already established that the record

did not memorialize the waiver, as we required the district court clerk’s office to

produce any minute entry and/or the pertinent portion of any transcript concerning

a discussion of Defendant’s waiver of jury trial—of which there was none. It

would have been irrational for this court to have remanded the matter to determine

if there were transcripts or minute entries regarding the waiver when it had already

made that determination. Therefore, as Defendant points out, the resolution would

be to call “others present when the waiver was alleged to have been made at docket

sounding to determine what was said and whether Appellant was present at this

stage.” The only others in this case would be the attorney, the judge, and

Defendant himself.

As noted in James II, in Cappel, 525 So.2d 335, although the issue of the

attorney-client privilege was not before the court while deciding if there was

adequate evidence of a valid waiver of a jury trial, in a footnote, the court stated

“[a]t such hearing, testimony by defendant and defense counsel would certainly be

relevant, if not dispositive of the issue.” Id. at 337, n. 3.

Louisiana Code of Evidence Article 507, in pertinent part, provides:

A. General rule. Neither a subpoena nor a court order shall be
issued to a lawyer or his representative to appear or testify in any
criminal investigation or proceeding where the purpose of the
subpoena or order is to ask the lawyer or his representative to reveal
information about a client or former client obtained in the course of
representing the client unless the court after a contradictory hearing
has determined that the information sought is not protected from
disclosure by any applicable privilege or work product rule; and all of
the following:

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(1) The information sought is essential to the successful
completion of an ongoing investigation, prosecution, or defense.

(2) The purpose of seeking the information is not to harass to
the attorney or his client.

(3) With respect to a subpoena, the subpoena lists the
information sought with particularity, is reasonably limited as to
subject matter and period of time, and gives timely notice.

(4) There is no practicable alternative means of obtaining the
information.

We find that considering the above jurisprudence and La.Code Evid. Art.

507, the trial court did not err when it allowed trial counsel to be subpoenaed and

questioned concerning whether Defendant knowingly and intelligently waived his

right to a trial by jury. All of the prerequisites of article were satisfied. The

information sought was essential to the completion of the current appeal. The

State’s purpose for issuing the subpoenas was not to harass either the client or the

attorney but to resolve a question ordered to be resolved by this court. The

subpoenas listed the specific information sought and gave timely notice. Finally,

there was no alternative means of obtaining the information. The only indication in

the record that a jury trial was waived was the fact that a judge trial occurred

without objection and the question was not raised on appeal—it was this court that

noticed and raised the error patent.

At the evidentiary hearing, the hearing judge ruled:

Well, look, I read both of your briefs, and this Court finds that
under the rules of professional conduct a lawyer may reveal
information related to the representation of the client to the extent that
the lawyer reasonably believes necessary to respond to allegations in
any proceedings concerning the lawyer’s representation of a client.

So, this Court finds that the attorney-client privilege does not
exist on the issue of whether the defendant knowingly and
intelligently waived his right to trial by jury. So, that’s the issue here,
whether the defendant fully was informed of his rights regarding
waiving his rights to trial by jury. So, the subpoenas are necessary.

9

According to Attorney Lopez, at the time of the trial, he was a District

Defender for St. Landry Parish. He had been District Defender for approximately

fifteen years and had tried “over a hundred” criminal cases during that time. He

stated that of those cases perhaps fifteen or twenty were tried in front of a judge

rather than a jury. He testified that it was his practice to look at a case, the evidence,

the nature of the charge, and then he would make an independent decision as to

whether the client should consider waiving the jury. He stated that in the current

case, particularly after a La.Code Evid. art. 404(B) hearing, where it was

determined that evidence of other incidents of inappropriate sexual contact with

minors would be admitted, he decided that the case was better off being tried in

front of a judge.

Attorney Lopez testified that he recalled discussing the matter with

Defendant sometime in March 2010. He asserted that at the time, he had numerous

contacts with Defendant, and he was of the belief that Defendant was intelligent

and comprehended the “general nature of the matters that he was facing.” He

explained that Defendant had copies of all of the discovery he had in his file,

except for DVD’s and videotapes of the alleged previous victims, which they

viewed together in Attorney Lopez’s office. Attorney Lopez stated while it is very

rare that he “instructs” a client, he will “strongly suggest [in] some situations.”

A. Mr. Richard, and I’m going to be very honest. I would have felt
very uncomfortable trying this case before a jury. I just don’t think I
would have. I mean, I would have if I was forced to, but I didn’t feel
comfortable with it under the circumstances. So, I would have
probably strongly suggested that he listen to what my thoughts were.

Q. Did he indicate, well let me ask you. If he’d said no I want a jury
trial, what would you’ve done?

A. You mean if he said no I want a jury trial?

Q. Yeah, yeah.

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A. I would have had to—I would have had to do what he wanted.

Q. Did he indicate he wanted a jury trial, at any point in time?

A. No.

Attorney Lopez stated that he believed Defendant had made a “knowing and

intelligent decision to follow” his advice to elect a judge trial. He stated that he

“surely” told him he had a right to a trial by jury.

A. That he had a right to a trial by jury. Did I elaborate on that in great,
great detail, probably not, but I did inform him that it was obviously
two ways to go with this matter.

Q. Do you remember how many conversations you had regarding the
jury trial waiver, or was there just one where you—go ahead?

A. I—there was [sic] surely, surely two. There was surely one in my
office, and that’s the one I can sort of recall how we were sitting and
where we were sitting. I remember that discussion. The second one
was before I informed the Judge that we were going to waive the jury,
and I believe it was at maybe a docket sounding or the morning of a
jury selection, in any case, when I informed Judge Hebert, when Mr.
[L.]’s name was called, sort of what are we going to do. I said, we’re
waiving the jury, Your Honor. And I believed that I would have talked
to him prior to that, me saying that to a Judge again.

Although he was not in the room when Attorney Lopez advised the judge of

the decision, Defendant was in the courthouse at the time he advised the trial court

of the decision. Attorney Lopez stated he remembered this because a date was set

for the trial and he had to make certain Defendant knew of the date. He further

explained that following these sessions with the judge and other attorneys, which

included the district attorneys, regarding trial priority list, the usual practice was to

then go into to the courtroom and put in to the minutes certain decisions made

while in the judge’s “backroom.” However, after waving the jury trial and leaving

the session, he told Defendant he was free to leave for the day because they had the

trial date.

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Judge Donald W. Hebert testified that he had no conversation with

Defendant regarding waiving a jury trial. He recalled that “as we were going

through the Simpson list priority list, [Attorney Lopez] indicated that the matter

would be going to trial, and that it would be a bench trial, and that the defendant

was waiving the jury.” He testified that the fact a contemporaneous record was not

made of the waiver was “a short coming on my part.” He stated that at the time of

trial, he had no concerns about it being a judge trial because “of the caliber of

defense counsel that was involved.”

The hearing judge then ruled:

Here’s how I see it. From Attorney Ed Lopez’s testimony here
on the stand today. You know, he said, basically I independently made
a determination that the case should be tried by a Judge. He went [sic]
to say that the 404(B) evidence convinced me that the case should be
tried by a Judge. Yes, I have an independent recollection of discussing
waiving the jury with the defendant, probably, initially at my office.
He, the defendant, was able to answer my questions and to make
comments as to the defense. I had no reason to believe that the
defendant was not able to assist me. We discussed the 404(B)
evidence with him. The defendant he was talking about. I delivered a
copy of the tapes and the discovery to the defendant. We may have
reviewed them together, probably at my office. We had numerous
personal contact, or I had numerous personal contacts with the
defendant. I probably talk [sic] to him more than any other clients. I
made it known to the defendant that they have to suffer the
consequences, and I would have felt very uncomfortable trying this
case before a jury. And I probably strongly suggested to the defendant
the jury be waived. He did not indicate, talking about the defendant,
that he wanted a jury trial after me advising him. I believed that he
understood that he had a right to trial by jury, on at least two
occasions. One, at my office and for sure, the second one before I
informed the Judge that we were going to waive the jury at docket
sounding in the backroom, which is in the Judge’s chambers.

Mr. Lopez went on to say, on cross examination, that he always
believed that this case would be tried by the Judge. Mr. Lopez said he
had an independent recollection of telling Judge Hebert that they were
going to waive the jury.

So, this Court, after hearing all of the evidence and arguments
of counsel, rules that the defendant in this case, [A. D. L.] made a
knowingly [sic] and intelligent waiver of his rights to trial by jury and
elected to be tried by a bench trial before Judge Hebert.
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Defendant argues there is nothing in the record to indicate that he believed

and, “more importantly, desired the case be tried by a judge instead of before a

jury.” He asserts that the “hearing judge’s summary of the facts is not fully

supported by the record[.]”

In State v. Singleton, 05-622 (La.App. 5 Cir. 1/31/06), 922 So.2d 647

(Singleton I), the defendant was tried by the trial court and found guilty of

aggravated rape. Prior to trial, defense counsel filed a motion to waive the jury

trial and the trial court signed the motion the same day in chambers without a

hearing. Although defense counsel had signed the motion, defendant had not. On

appeal, the defendant alleged that he had left the decision to waive his right to a

jury to his attorney but then asserted that he had not been advised of the options

and benefits of a jury trial. Because the record was devoid of any testimonial

evidence of the validity of the waiver, the fifth circuit remanded the matter to the

trial court for an evidentiary hearing on whether the defendant had knowingly and

intelligently waived the right and reserved his right to appeal an adverse decision

by the trial court.

When the matter came back to the fifth circuit in State v. Singleton, 07-321,

pp. 3-6 (La.App. 5 Cir. 10/30/07), 971 So.2d 396, 397-99, writ denied, 09-2021

(La. 8/18/10), 42 So.3d 391 (footnote omitted) (Singleton II), on whether the trial

court erred when it determined that the defendant had knowingly and intelligently

waived a jury trial, the fifth circuit, while affirming the trial court’s ruling,

discussed the trial court’s findings:

On remand at the evidentiary hearing, defendant testified that
he did not tell his attorney to submit a document waiving his right to a
jury trial and that he did not sign any document to that effect. He
testified that his counsel told him a bench trial would be best because
he would get less time than he would with a jury trial. Specifically,
defendant stated the following:
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Well, when he explained it to me over the phone,
and the way he told it to me, he said, if you go with a jury
trial and the victim goes to boo-hooing and this and that
and get the people to believe and the judge will believe
her, you can get—you’ll get lesser time if you go with a
judge trial. He said I’ll get 60 to 70 years. That’s what
he told me.

After the trial court asked about his opinion at that point,
defendant responded, “When he told me that, I said, well, I said, well,
you the lawyer, you know what you’re talking about. He said yes, and
he hung up the phone. And that was it.”

Defendant claimed he did not speak to his counsel thereafter.
He admitted that he did not present objections at the bench trial and
stated he did not raise his objection sooner because he did not
understand. He explained to the judge that he found out after trial that
it was better to have a jury trial because ten out of twelve people
render a verdict instead of the one judge.

Nathan Folse, defendant’s former trial attorney, testified at the
hearing as well. He testified that when defendant turned down the plea
offer made by the State, they discussed in depth his choice between a
bench trial or a trial by a jury of twelve. Mr. Folse testified that
because of the sensitivity of the case involving defendant’s minor
niece, they discussed that it may be in defendant’s best interest to be
judged by the judge alone, rather than a twelve-person jury. He
explained that prior to trial and during the case they had discussions of
whether the case would be best heard by a judge instead of a jury.
They discussed counsel’s experience with juries in St. James Parish
and their conviction rates, the nature of the case involving the alleged
rape of a minor child and the involvement of defendant’s family. Mr.
Folse testified explicitly that he discussed this with defendant
numerous times, with many discussions being in person. Mr. Folse
testified that defendant was aware that he would file a Motion to
Waive a Jury Trial and was in agreement. Mr. Folse stated that
defendant never expressed reservations about having a bench trial and
that he first became aware of defendant’s objection to the bench trial
when he received a call about being a witness in this matter. Mr. Folse
could not recall why defendant’s signature was not obtained on the
motion.

Also at the hearing, the trial court asked Mr. Folse if prior to
trial Mr. Folse had talked to the court about defendant wanting to
waive his jury trial. Mr. Folse responded that there was a discussion
at the bench that defendant wanted to waive his right to a trial by jury
and the court tried to advise that he might want a jury trial. According
to Mr. Folse, defendant was advised of what the trial court thought
might be in his best interest, but defendant decided he wanted to
waive his right to a jury trial and have a bench trial.
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On remand, at the evidentiary hearing, the trial court stated the
following:

Okay. Based on the testimony and based on the
court’s knowledge of this particular--the intricacies of
this particular case, there’s no doubt in this court’s mind
that this defendant did, in fact, waive his right to a jury
trial. At no time did he express to this court that he
wanted to have a jury trial.

As a matter of fact, the court remembers, and it’s
not on the record, but the court remembers this defendant
specifically telling his counsel that he wanted to have a
bench trial. And the court told his counsel that he should
have a jury trial, or advised him he might want to have a
jury trial, but he insisted on having a bench trial.

Therefore, based on this particular hearing, the
court finds no merit whatsoever in the defendant's
contention that he did not knowingly and intelligently
waive his right to a jury trial, and let the record so reflect.

....

In the present case, a Motion to Waive Trial by Jury was filed
by defense counsel. Although this Court, in defendant’s first appeal,
found the attorney-filed motion was insufficient to show a knowing
and intelligent waiver, we find that the testimonies elicited at the
evidentiary hearing show a valid waiver.

In the current case, only the trial counsel’s testimony evidenced the validity

of the waiver. The trial judge never spoke with Defendant and could only verify

that he was told Defendant had waived jury trial. Unlike the situation in the

Singleton case, where a motion to waive jury trial was filed several months prior to

trial, in the current case, there was no indication of a waiver other than the fact the

judge trial took place without objection.

In James I, 656 So.2d 746, the matter was raised on appeal when the

defendant asserted that the trial court erred by not placing nor having included in

the record proof that he waived a jury trial. In James II, 751 So.2d 419, a

transcript of the arraignment was submitted which showed that while the trial court

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advised James that he had a right to a jury trial or a judge trial if he should so

choose but there was no election or response in the record. Then, while trial

counsel testified as to his general practice regarding whether his clients received a

jury trial or a judge trial, he did not testify to the substance of any specific

conversation with James. Accordingly, the fifth circuit found the record

insufficient, reversed James’ conviction, and remanded for a new trial.

In the current case, as previously noted, there was no testimonial evidence or

minute entry indicating Defendant was advised of his right to a jury trial. He was

arraigned on August 21, 2008. According to the minute entry, he waived formal

arraignment. “Defendant’s Written Plea of Not Guilty in Lieu of Formal

Arraignment with Notice of Trial Date and Other Appearance Dates” was filed on

August 21, 2008, wherein Defendant was notified of his felony jury selection date.

Otherwise, there was no indication he was advised of his right to elect a jury trial

or a judge trial. However, unlike in James II, defense counsel testified to the

substance of at least one specific conversation with Defendant regarding whether

he should elect a judge trial over a jury trial and stated there was a second

conversation at the courthouse just prior to advising the trial court that Defendant

waived a jury trial.

Defendant argues this court should find that the record now before this court

is insufficient to establish whether Defendant validly waived the right to a jury trial.

In Singleton I, 971 So.2d 396, there was some indicia of evidence in the record

prior to trial that the defendant may have waived his right to a jury trial—the

motion to waive jury trial. The written motion together with trial counsel’s

testimony at the evidentiary hearing and the defendant’s admission he had a

conversation with his attorney about the election were found to be sufficient

evidence of a knowing and intelligent waiver. The same was found in State v.
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Fuslier, 07-572 (La.App. 3 Cir. 10/31/07), 970 So.2d 83, wherein the only

evidence of a waiver was an unsigned motion to waive filed prior to trial by

defense counsel. At the evidentiary hearing, defense counsel testified regarding

extensive conversations he had with Fuslier regarding the benefits of waiving a

jury trial. Furthermore, Fuslier also testified he understood the strategy of a judge

trial in his case.

However, we find that the testimony given at the evidentiary hearing was

sufficient to support the hearing judge’s ruling. Defendant refused to testify at the

evidentiary hearing. Initially, the State asked Defendant his position on the issue

of whether he knowingly and voluntarily waived the right to a jury trial. However,

as noted above, Attorney Balfour advised the hearing judge that Defendant wished

to remain silent and asserted the attorney-client privilege. The State argued it was

not a matter of the Fifth Amendment right against self-incrimination. The State

argued:

There’s nothing in any jurisprudence that says that you have the right
to remain silent whether or not you intended something. You come in.
You take a plea. He came in. He sat through a trial. He has taken a
position, and I think that, that’s why we have to determine whether or
not he intends to—let’s say we do this. Let’s say we go through this
hearing, and you determine that he is going to be given a second bite
at the apple. And—I don’t think he’s entitled to it, but then he waives
the jury again. What’s the point of that? I mean, I think the Court has
a right to hear him, but to hear from him at this point say do you
intend to continue with your waiver. Because you made knowingly
and intelligently on the front end, or do you contend that you were not,
because that’s the issue. You were not knowingly and intelligently
properly informed so that you could knowingly and intelligent waiver,
and that’s all he’s got to take a position.

At the evidentiary hearing, there was nothing before the hearing judge to

refute Defendant’s trial counsel’s testimony that Defendant knowingly and

intelligently waived a jury trial. The hearing judge had Attorney Lopez’s

testimony to consider, and, as pointed out by the State, Defendant made no

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objection during trial, nor raised the issue on appeal. The trier of fact can accept or

reject, in whole or in part, the testimony of any witness. Furthermore, it is not the

function of the appellate court to second-guess the credibility of a witness as

determined by the trier of fact or to reweigh evidence absent impingement on the

fundamental due process of law. State v. Frith, 08-52 (La.App. 5 Cir. 4/29/08),

985 So.2d 782. Finally, whereas the issue of whether Defendant waived the right

to a jury trial was an issue of fact and not of law, we cannot say that the hearing

judge abused his considerable discretion.

DECREE:

We affirm the hearing judge’s ruling that found Defendant validly waived

his right to a jury trial.

AFFIRMED.

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