State of Louisiana v. Ben James Thompson

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

13-261

STATE OF LOUISIANA

VERSUS

BEN JAMES THOMPSON

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 46373
HONORABLE DURWOOD W. CONQUE, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Billy Howard Ezell, J. David Painter, and James T. Genovese,
Judges.

AFFIRMED.
André R. Bélanger
Yigal Bander
Manasseh, Gill, Knipe & Bélanger, PLC
8075 Jefferson Highway
Baton Rouge, LA 70809
(225) 383-9703
COUNSEL FOR DEFENDANT-APPELLANT:
Ben James Thompson

Ted L. Ayo, Assistant District Attorney
Fifteenth Judicial District
100 North State Street, Suite 215
Abbeville, LA 70510
(337) 898-4320
COUNSEL FOR THE STATE OF LOUISIANA

PAINTER, Judge.

Defendant, Ben James Thompson, appeals the trial court’s finding that he

knowingly and intelligently waived his right to trial by jury. We affirm.

FACTS AND PROCEDURAL HISTORY

When we previously considered this case in State v. Thompson, 12-83, pp. 1-

2 (La.App. 3 Cir. 10/10/12), 100 So.3d 375, 376, we set forth the facts and

procedural history as follows:

The State charged Defendant with armed robbery with the use
of a firearm. Defendant allegedly entered the Food-N-Fun in Kaplan,
Louisiana[,] while armed with a gun[,] and demanded money from the
cashier. Defendant stipulated that he entered and robbed the cashier at
the convenience store, but he denied he was armed with a weapon.
He also contested that he used force or intimidation while committing
the offense.

This court also noted that:

Defendant Ben James Thompson was convicted of armed
robbery with the use of a firearm, a violation of La.R.S. 14:64 and
14:64.3, after a bench trial.

The trial court sentenced Defendant to twenty-five years at hard
labor without benefit of probation, parole, or suspension of sentence.
The trial court also sentenced him to an additional five years for using
a firearm, which the court ordered to run consecutively to his sentence
for armed robbery.

Id. at 375-76.

This court conditionally affirmed Defendant’s conviction and sentences but

remanded the case to the trial court for an evidentiary hearing on the issue of

whether Defendant validly waived his right to trial by jury. The hearing ordered

by this court was held on November 15, 2012. At the conclusion of that hearing,

the trial court found that Defendant knowingly and intelligently waived his right to

trial by jury. Defendant appealed that ruling and is now before this court alleging

that the trial court erred in finding that the State proved that he validly waived his

right to trial by jury. We find that this assignment of error lacks merit and affirm

both the trial court’s ruling and Defendant’s conviction.

DISCUSSION

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. An error patent review was previously

conducted by this court in Thompson, 100 So.3d 375, and we will not repeat that

review in this opinion.

Waiver of Trial by Jury

In his only assignment of error, Defendant contends that the trial court

committed legal error and manifest factual error in finding that the State proved

that he validly waived his right to trial by jury.

In State v. Bazile, 12-2243, pp. 17-19 (La. 5/7/13), __ So.3d __ (footnote

omitted), the supreme court discussed the waiver of the right to trial by jury as

follows:

To be valid, a defendant’s waiver of his right to a jury trial must
be knowing and intelligent. Adams [v. United States ex rel. McCann],
317 U.S. [269] at 277–278, 63 S.Ct. at 236 [(1942)]. “[W]hether or
not there is an intelligent, competent, self-protecting waiver of jury
trial by an accused must depend upon the unique circumstances of
each case.” Id., 317 U.S. at 278, 63 S.Ct. at 241. The state constitution
and Louisiana criminal procedure also require a criminal defendant’s
waiver of his right to trial by jury to be both knowing and intelligent.
See La. Const. art. I, § 17(a) and La.C.Cr.P. art. 780(A). . . .

. . . In this context, a criminal defendant’s jury waiver is deemed
knowing and intelligent when he understands “that the choice
confronting him is, on the one hand, to be judged by a group of people
from the community, and on the other hand, to have his guilt or
innocence determined by a judge.” United States ex rel. Williams v.
DeRobertis, 715 F.2d 1174, 1180 (7th Cir.1983), cert. denied, 464
U.S. 1072, 104 S.Ct. 982, 79 L.Ed.2d 219 (1984); see also United
States v. Sammons, 918 F.2d 592, 597 (6th Cir.1990); Sowell v.
Bradshaw, 372 F.3d 821, 836 (6th Cir.2004), cert. denied, 544 U.S.
925, 125 S.Ct. 1645, 161 L.Ed.2d 485 (2005). That is all the
defendant needs to know and understand. “Greater proof of knowing
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and intelligent waiver has been neither constitutionally nor
jurisprudentially required.” State v. Johnson, 389 So.2d 1302, 1305.
Thus, the type of information the defendant must possess in order to
make a knowing and intelligent waiver of the right to a jury trial
relates not to matters of strategy, but rather to his knowledge of his
constitutional rights. See United States v. Kelley, 712 F.2d 884, 888
(1st Cir.1983).

....

We hold a criminal defendant’s waiver of his right to trial by
jury is knowing and intelligent when he demonstrates his
understanding that he will proceed to trial before a judge upon that
waiver. Information about the composition of the jury pool and any
outstanding discovery, although of some strategic value, does not
provide the defendant with any greater understanding of the
constitutional right at stake.

At the hearing held on remand, Jan Rowe testified that he represented

Defendant throughout the course of the proceedings. Rowe was questioned

regarding Defendant’s waiver of his right to trial by jury as follows:

Q. When they did find him, did you and he speak about the right to
go in front of a judge or a jury?

A. We did.

Q. And did you advise him that it would be a 12-man jury?

A. I’m sure I did.

Q. And you advised him that 10 of the 12 had to agree?

A. Correct.

Q. He wanted a judge trial?

A. I believe, when I mentioned the choice that he had, I believe he
told me he wanted to think about it. This is my recollection. And I
think maybe – it’s a little speculation, because my memory is vague;
but I believe he called my office and told me that he wanted a judge
trial. And at some point after that, I went to the jail and I talked to
him about it, and he decided that’s what he wanted to do.

Rowe agreed that Defendant did not voice an objection to the bench trial while it

was taking place. When asked if Defendant wavered in his request to be tried by a

judge, Rowe responded: “Not to my recollection.”
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Rowe was asked on cross-examination whether he had an independent

recollection of advising Defendant that ten of twelve jurors must concur to render a

verdict. Rowe responded: “I assume that I discussed that with him because I

know how it works; so, if I’m explaining the option to anyone, I assume that I

explain that to them. But can I vividly remember doing that? No.” There was no

entry in the database of the public defenders’ office indicating that Rowe either

discussed the jury trial waiver or the fact that it was irrevocable with Defendant.

Rowe had no recollection of whether he advised Defendant that a waiver was

irrevocable or whether a judge reviewed the waiver with Defendant.

Rowe testified that, to his recollection, he informed Defendant of his

choices, and Defendant wanted to think about it. A few days later, Defendant

called Rowe and said that he wanted to be tried by a judge. Rowe acknowledged

that there was no language in the motion to waive jury trial that indicated that

Rowe had discussed the jury makeup with Defendant or that a waiver was

irrevocable.

Rowe was questioned by the judge and stated that he told Defendant what

his options were and discussed the number of jurors with him. Rowe testified that

he had no reason to think that Defendant’s decision was not intelligently made.

On re-cross, Rowe admitted that he assumed he discussed the jury makeup with

Defendant because he had done so in more recent cases.

Defendant testified that he and Rowe discussed whether he should elect a

trial by jury or a bench trial. Defendant additionally testified that Rowe said that

he would be tried by a jury of twelve of whom ten must concur to render a verdict.

Defendant testified that he told Rowe that he was leaning toward a bench trial, and

Rowe advised him to go ahead and sign the waiver. Defendant further testified

that Rowe told him that he had until forty-five days before trial to withdraw the
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waiver. Defendant subsequently signed the waiver, thinking that he could

withdraw it at any time up to forty-five days prior to trial. Defendant testified that

about a week later, he was reading law books and discovered a case wherein a

defendant was found guilty of armed robbery during a bench trial. He then called

Rowe and said that he was not comfortable with a bench trial, and that he wanted

to withdraw the waiver. Defendant testified that he had no idea that the judge had

to approve the withdrawal of his waiver. Defendant also testified that the next time

that he spoke to Rowe was after the forty-five days had lapsed, and, at that time,

Rowe informed him that the judge had denied the request to withdraw the waiver.

Defendant further testified that the judge never went over the waiver with him and

that no judge informed him that the waiver was irrevocable.

When asked why he did not tell the judge that he wanted a jury trial,

Defendant stated: “Because Mr. Rowe begged and – pretty much begged me not to

say anything unless I was asked to speak by the judge.” Defendant was asked why

he did not complain about the lack of a jury trial at the sentencing hearing, and he

testified: “Well, when Mr. Rowe informed me that the waiver was denied by the

judge of having the trial, I figured that was set in stone. I mean, I don’t know how

that works. I thought that was a done deal and over with.”

The trial court found that the waiver of the right to trial by jury was made

knowingly and intelligently and stated the following:

[F]irst because Mr. Rowe, who is an experienced trial defense lawyer,
has testified that he discussed fully and apprized Mr. Thompson of all
of his options -- discussed fully the situation with Mr. Thompson and
apprized him of all of his options and said that it was up to him.

. . . In accordance with the defendant’s decision, he filed the motion in
May, just before -- apparently just before the deadline, five days, at
most, before the deadline; and the trial was held as a bench trial in
accordance with the defendant’s wishes.

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That timing makes me not find -- makes me find that the
defendant’s testimony today is not credible, because he indicated that
he did not want to sign the waiver but that he signed it, and it was
submitted and filed by Mr. Rowe long before the deadline and long
before he had the right to change his mind.

I think that he may -- to give him the benefit of the doubt, he
may have been mistaken, because I recall that he clearly said -- in
fact, he said it more than once -- Mr. Rowe kept saying, you have
until 45 days before to make this decision. Well, I think what Mr.
Rowe was doing at that point is telling him the 45 days was upon
them and that he needed to make that decision, and he did, and he
made it at the last minute.

Secondly -- or, thirdly, I find nothing in the law that would
indicate specifically that the Court must conduct a hearing to
determine whether the waiver is knowing and intelligent, certainly not
at the time it’s filed 45 days before trial.

....

It’s very difficult to go back and prove that something was done
knowingly and intelligently. I can do it at the time. In this particular
case, all I have is Mr. Rowe’s testimony, Mr. Thompson’s testimony,
and the record. I choose to believe Mr. Rowe and the record.

In brief to this court, Defendant paraphrases pertinent testimony as follows:

(1) Mr. Rowe: I didn’t tell Mr. Thompson, or don’t recall telling Mr.
Thompson, that his waiver of a jury trial was irrevocable.

(2) Mr. Thompson: Mr. Rowe told me I should sign the waiver
because I could always change my mind up to 45 days before trial. So
I signed it [on May 19, 2011 - more than 45 days before trial. O.R.
130]. Then I told him – “about a week after he came and I signed the
waiver” [i.e., after May 24, 2011, the date of the Motion and Order,
but before the 45-day mark of May 30, 2011] – that I wanted to
change my mind. Mr. Rowe came to see me the following week and
now said it was up to the judge. Later he told me the judge denied the
withdrawal of the waiver.

Defendant questions what basis the trial court had for determining that he was

telling the truth about the jury composition and voting requirements but not about

whether he was told about the judge having to approve a withdrawal of the waiver.

Defendant contends that assumptions are insufficient to carry a burden of

proof. In support of this claim, Defendant cites Caridas v. Dahl, 311 So.2d 551

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(La.App. 4 Cir. 1975), a suit on a promissory note. Therein, the assumption of a

plaintiff who claimed that he made a payment, but had no records to support his

claim, was ruled insufficient to meet his burden of proof. Defendant notes that the

State has the burden of proof and that Rowe’s assumption with no independent

recollection would be insufficient to prove that he explained that ten of twelve

jurors must concur to render a verdict without Defendant’s corroborating

testimony. Further, Rowe’s lack of recollection about whether he told Defendant

that he could withdraw his waiver was insufficient to prove that he explained this

to Defendant when Defendant distinctly recalls that Rowe did not do so.

Defendant cites State v. James, 99-1047 (La.App. 5 Cir. 1/25/00), 751 So.2d

419, in support of his argument. Therein, the fifth circuit stated the following:

[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.

Id. at 422-23.

Defendant asserts that the issue in the case at bar is not whether he signed a

waiver but whether Rowe adequately explained to him what he needed to know in

order to make a knowing and intelligent decision to sign the waiver.

Defendant testified that he and Rowe did discuss whether Defendant should

elect a trial by jury or a bench trial. Additionally, Rowe said that he thought

Defendant would be tried by a jury of twelve of whom ten must concur to render a

verdict. Defendant testified that he told Rowe that he was leaning toward a bench

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trial and signed the waiver. Approximately a week later, Defendant changed his

mind and wanted to withdraw his waiver.

Defendant’s testimony is sufficient to find that he was informed of and

understood the choice to be judged by a group of people from the community or to

have his guilt or innocence determined by a judge. Based on the supreme court’s

ruling in Bazile, we find that Defendant knowingly and intelligently waived his

right to trial by jury. Accordingly, this assignment of error lacks merit, and we

affirm both the trial court’s ruling and Defendant’s conviction.

DECREE

The ruling of the trial court finding that Defendant knowingly and

intelligently waived his right to trial by jury is affirmed, and Defendant’s

conviction is affirmed for that reason.

AFFIRMED.

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