State of Louisiana v. Bengy R. Cooley

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 15-916

STATE OF LOUISIANA

VERSUS

BENGY R. COOLEY

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 80641
HONORABLE JOHN C. FORD, DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell,
and Shannon J. Gremillion, Judges.

CONVICTION AND SENTENCE AFFIRMED.

Asa Allen Skinner
District Attorney, Thirtieth Judicial District Court
Terry Wayne Lambright
Assistant District Attorney
P. O. Box 1188
Leesville, LA 71496-1188
(337) 239-2008
COUNSEL FOR APPELLEE:
State of Louisiana

Jonathan Brown
Attorney at Law
1025 Mill Street
Lake Charles, LA 70601
(337) 564-6990
COUNSEL FOR DEFENDANT/APPELLANT:
Bengy R. Cooley

GREMILLION, Judge.

Defendant, Bengy Cooley, was found guilty of pornography involving

juveniles, a violation of La.R.S. 14:81.1, after a three-day bench trial. He was

sentenced to two years at hard labor, without benefit of probation, parole, or

suspension of sentence. In State v. Cooley, 15-40 (La.App. 3 Cir. 6/3/15), 165

So.3d 1237, we affirmed Defendant‘s conviction and sentence but remanded the

case for an evidentiary hearing as to whether Defendant knowingly and

intelligently waived his right to a jury trial. Following a hearing, the trial court

found Defendant‘s waiver of jury trial was knowing and intelligent.

Defendant now appeals the trial court‘s decision that he knowingly and

intelligently waived his right to a jury trial. We find no merit in Defendant‘s

assignment of error and affirm his conviction and sentence.

JURY-TRIAL WAIVER

In his sole assignment of error, Defendant alleges that the trial court erred in

finding that he entered a knowing and intelligent jury-trial waiver. We review a

trial court‘s finding regarding waiver of a jury trial using the abuse of discretion

standard. State v. A.D.L., 11-1142 (La.App. 3 Cir. 5/2/12), 92 So.3d 989.

Appellate counsel asserts that this court already found that the record was

insufficient to find Defendant knowingly and intelligently waived his right to a

jury trial, and the State failed to offer any evidence at the evidentiary hearing to

overcome the insufficiency. According to appellate counsel, Defendant‘s former

attorneys who testified at the evidentiary hearing ―spoke in general terms about

what they hoped they would have done or what they usually do.‖ Appellate

counsel asserts that the evidence introduced at the evidentiary hearing ―at best,

shows that prior counsel may have advised the defendant of his right to trial by
1

jury.‖ Thus, appellate counsel argues that there was no evidence that Defendant

waived his right to a jury trial ―knowingly, intentionally, or otherwise.‖

In response, the State reiterates its belief that the question of whether

Defendant‘s jury-trial waiver was knowing and intelligent should not be

considered in an error patent review. The State then notes that at his arraignment,

Defendant was advised of his right to a trial by judge or jury. The State further

asserts that Defendant did not raise the jury trial issue until the case was remanded

by this court for an evidentiary hearing, at which the testimonies of Defendant‘s

previous attorneys established that Defendant knowingly and intelligently waived

his right to a jury trial.

Defendant’s Original Appeal

In Defendant‘s first appeal, this court noted that Defendant‘s attorney filed a

Motion to Elect Judge Trial, which was granted by the trial court. We further

noted that the motion was signed only by Defendant‘s attorney, and the record

contained no indication that Defendant knowingly and intelligently waived the

right to a jury trial. Further describing the record, this court stated:

The clerk of court of the district court attested in an affidavit that there
were no minute entries or untranscribed hearings discussing
Defendant‘s waiver of jury trial. The clerk of court also noted in the
affidavit that ―defendant was advised of his right to a judge or jury
trial on February 1, 2011 and May 16, 2011.‖ However, there are no
minute entries or transcripts for February 1, 2011 or May 16, 2011 in
the record or provided by the clerk in the supplemental record. At a
proceeding dated May 13, 2011, the transcript indicates that
Defendant was advised of his right to be tried by a jury in the context
of waiving his right at the guilty plea proceeding, which plea was later
withdrawn. Thus, this matter must be remanded to the trial court for
an evidentiary hearing.

Id. at 1239-40.

2

Evidentiary Hearing

At the evidentiary hearing held when the case was remanded, the trial court

asked Defendant if he had raised the issue of a knowing and intelligent jury-trial

waiver in any trial proceeding or on appeal. Defendant responded, ―Yes, [y]our

[h]onor, but not in the court system.‖ According to Defendant, he raised the issue

with now-Judge Sharon Wilson, one of his attorneys at the time.

The State called Judge Wilson to testify at the hearing. Judge Wilson

testified that she represented Defendant in his trial for possession of juvenile

pornography. When asked how it came to be that Defendant was tried by a bench

trial, Judge Wilson replied, ―We waived his right to a jury trial. I filed a motion to

waive his right to a jury trial.‖ Judge Wilson identified the motion she filed in the

trial court as well as her signature on the motion. When asked if she had any

discussions with Defendant prior to filing the motion to waive jury trial, Judge

Wilson responded as follows:

A: Yes.

Q: And it was specifically about waiving the jury trial?

A: It would have been in discussions about various things, yeah. It
wouldn‘t have been a separate discussion about waiving a jury trial, it
would have been included with other things.

Q: Would you have filed this motion if you had not discussed with
him the waiver of the jury trial?

A: No, I would not have filed it without talking to him.

Q: And would you have filed that if you didn‘t believe that he
understood and wanted to have a bench trial versus a jury trial?

A: I think I understand what you‘ve asked me. No, I would not
have filed it over any objection from him if that‘s the question.

Q: That‘s correct. You wouldn‘t have filed that if he‘d objected in
any fashion to this, correct?
3

A: That is correct.

Judge Wilson then testified that she had been practicing law for twenty-three

years, seventeen of which were as a prosecutor. Judge Wilson opened her criminal

defense practice in June 2009. When asked if she understood that a defendant has

a right to a jury trial if he chooses, Judge Wilson stated that she understood that.

When asked if Defendant ever stated that he wanted a jury trial, Judge Wilson

responded:

A: He never said either way, he - - he‘s not an animated person in the
sense that he initiates discussions. He‘s more of a listener when you
talk to him. When we had the discussion about waiving, my memory
of the discussion is that he told me that he had had a discussion, I
think, with Ms. Lisa Nelson and, maybe, Tony Tillman about that
possibility when I brought it up.

Q: But your appreciation was that he was - - he wanted a bench
trial in this particular case?

A: My appreciation is that I gave him the benefit of my thoughts
and he did not object.

Q: And the benefit of your thought was to request a bench trial,
correct?

A: Yes, sir.

Q: Did you have any discussions with Ms. Nelson or Mr. Tillman
in reference to that recommendation?

A: I had no discussions with Ms. Nelson; Mr. Tillman and I have a
friendship and I do remember having a friendly conversation with him
about that he thought in these sorts of cases that‘s probably the best
course of action and we discussed Bengy. But, not specifically about
him waiving, just that‘s a better course of action.

Judge Wilson also testified Defendant was never absent during the trial,

wherein she mentioned the fact that the defense had waived a jury trial. Finally,

Judge Wilson testified she would not have filed a Motion to Elect Judge Trial if

she had any doubt Defendant wanted a bench trial.

4

On cross-examination, Judge Wilson acknowledged the motion to elect

judge trial was not signed by Defendant even though it should have been. Judge

Wilson also agreed that the normal process is for a judge to have a colloquy with a

defendant as to whether the jury-trial waiver is knowing and intelligent.

When Judge Wilson was examined by the trial court, the following colloquy

took place:

BY THE COURT:

Q: Judge, did you - - did you advise your client at the time of his
Constitutional Right to a trial by jury and that that was his choice to
make?

A: I said to the prosecutor it would be nice to have the benefit of
my files. I don‘t - - I honestly don‘t remember everything that I‘ve
said to Bengy. Under oath, I can say I hope that I did, you know, but
without being able to look at my notes and reflect on conversations
that I‘ve - - I‘ve had many, many, meetings with him. I can‘t say yes
I did, I hope that I would have and I think that I probably did.

Q: Was there - - did you make any objections on the record or did
your client at the time, Mr. Cooley, make any objections on the record
concerning, hey, we want a jury trial, not a judge trial, once it actually
proceeded?

A: No, he - - I never had a time in representing Bengy Cooley
where he questioned my judgment. So, no, he‘s never done that, he
was a cooperative client and I think he valued the things that I said to
him. It‘s just - - the first question you asked me without my notes, I
don‘t know exactly what I said.

....

Q: At any time prior to the trial or during the trial, did Mr. Cooley
ever - - the defendant and your client, did he ever say I want a trial by
jury?

A: During the trial itself?

Q: Yes, or before?

A: Okay, during the trial, no. Before the trial I remember him
saying he thought a jury would be beneficial, regular people, and my
answer to that question was probably to talk strategy with him.
5

Q: Okay. Were you his attorney when he was arraigned or was
that Ms. Nelson?

A: At the time of arraignment it would have been Ms. Nelson.

Q: Okay and did you ever have a conversation - - when we arraign
someone here I say you have so many days and you get with your
lawyer, talk about whether you want a trial by judge or by jury. Did
you actually ever have that conversation with Mr. Cooley concerning
jury trial, judge trial, strategy? I think you‘ve alluded to it.

A: Yeah. We had and that‘s - - I alluded to it with the prosecutor‘s
questions. Our conversations weren‘t like we‘re having a
conversation about this . . .

Q: Yeah.

A: . . . it would have been part - - all a part of a conversation about
a lot of different things at one time.

Q: Okay. Now, did anyone make a promise to him in anything in
order to get him - - did you promise him or did the Judge or the DA or
anybody promise him anything in order for him not to have a trial by a
jury which he‘s entitled to under the Constitution?

A: No, sir.

Q: Okay. Did you likewise in your conversations with him - - did
you likewise go over the fact that it wouldn‘t be a jury deciding his - -
the entire case, it would be a judge alone? From your memory, if you
don‘t remember, you just . . .

A: Right. I mean, he knew a jury wasn‘t sitting in the box.

Q: Yes.

A: So, I don‘t remember saying it like that. I mean, I‘m sure I said
something similar.

Q: Okay and did - - did anyone in your knowledge force, coerce, or
threaten him in order to get him to waive his right to trial by jury?

A: No.

On another re-direct by the State, Judge Wilson reiterated that she would not

have filed the motion to waive jury trial if she had any doubt that Defendant was

willing and wanting to waive a jury.
6

Lisa Nelson, an attorney appointed to represent Defendant in 2011, testified

that she represented Defendant at his arraignment. Ms. Nelson read the

arraignment minutes, which stated that Defendant was informed of his right to trial

by judge or jury. When asked if she had any discussions with Defendant about

waiving a jury trial, Ms. Nelson responded as follows:

A: Yes.

Q: And did Mr. Cooley wish to have a jury trial or a bench trial at
the time you were representing him?

A: Mr. Cooley and I had talked on several occasions prior to the
plea which was later withdrawn about the possibility of entering into a
waiver. Talked about the pros and cons of it because of the nature of
the case. I had suggested that that might not be a bad idea for him and
we had had probably two or three discussions. He had indicated to me
that that was something that he was interested in doing and I can‘t
recall why we - - why it hadn‘t gotten done prior to the plea and then
he informed me after we entered the plea that he wanted to withdraw
his plea because he wanted to go to trial and he did, in fact, want to
have a trial by a judge.

The State then asked Ms. Nelson to look at a motion to withdraw plea of

guilty that was filed on July 28, 2011, and contained Ms. Nelson‘s signature.

According to Ms. Nelson, the motion stated that ―upon reflection defendant would

prefer to go to trial and that issue to be determined by a judge.‖ Ms. Nelson added,

that course of action was at Defendant‘s direction.‖ When asked if she would have

put that language in the motion if it had not been Defendant‘s desire, Ms. Nelson

responded negatively. The following colloquy then took place between Ms.

Nelson and the prosecutor:

Q: Ms. Nelson, as to your understanding you would not have filed
and put that language in this document and file[d] it with the Court if
you had been [sic] not had the understanding that that‘s what he
wanted?

A: No, Mr. Cooley contacted me and was very specific as to what
he wanted and I don‘t regularly file motions to withdraw pleas, so . . .
7

Q: I‘m going to back up just a minute to how did you get involved
in this case?

A: I was appointed, I have been employed by the Public
Defender‘s Office and prior to that the Indigent Defender Board and I
have been in that capacity since 1993.

....

Q: So, you‘re well familiar with the defendant‘s right to a jury trial
in the State of Louisiana?

A: Yes.

....

Q: And who is the Chief Public Defender in Vernon Parish?

A: Tony Tillman.

Q: And is Mr. Tillman aware of Mr. Cooley‘s case and the
charges?

....

A: I am aware from personal knowledge because I was present
with conversations when Mr. Tillman was there with Mr. Cooley.
Prior to Mr. Cooley entering his plea Mr. Cooley had a lot of
questions and Mr. Tillman as my boss, head of the Public Defender‘s
Office, he also reviewed the photos and the evidence that they had
against Mr. Cooley and he did, in fact, discuss that with him. I was
there at the meeting, so prior to the plea we both discussed those
issues with him. After the plea, in addition to the call that I had from
Mr. Cooley, I also had a call from Mr. Tillman who said that he had
received an additional call from Mr. Cooley with the same
information that he wanted to withdraw his plea or that he had come
by his office, I‘m sorry, and he had told him that.

....

Q: Ms. Nelson, when you were present with Mr. Tillman and Mr.
Cooley was there a discussion in reference to the defendant‘s right to
a jury trial?

A: We - - Mr. Tillman was present when we went through the
rights form with Mr. Cooley.

....

8

Q: Let me - - let me - - I don‘t mean to cut you off, but let me
direct you with regard to that. I‘m just simply asking that you were
there and Mr. Tillman was there, Mr. Cooley was there, did you have
discussions at that time in reference to Mr. Cooley‘s right to a jury
trial?

A: We went through the rights form and we explained those to
him, so that is on the rights form . . .

Q: Yes . . .

A: That was one of the things that we discussed.

Q: Yes . . .

A: I don‘t know that we went into a great deal of detail but we did
talk about it.

Q: So, your answer is yes?

A: Yes.

Q: Okay. As part of that discussion did you discuss having a
bench trial instead of a jury trial?

A: At that discussion, that particular discussion, we were talking
about the plea and, so, we were mostly going through then the rights
and responsibilities because there was a plea. It was after the plea that
Mr. Cooley contacted me and that I was told the other information
about contact that was made. But at that time it was just basic you
understand this, you know, the form that we do. Because we assumed
it was going to be resolved with the plea at that point.

Q: You did, in fact, have discussions with him in reference to the
waiver of the jury trial?

A: If I remember correctly and I guess this is just because of me
and the way we do things, the nature of the case being what it was,
child pornography, I‘m pretty sure that I discussed that with Mr.
Cooley the first time he came to my office. That‘s pretty standard for
me to talk to a defendant in a case where a child is a victim and it was
a sexual offense that that‘s something that they might want to consider
for down the road and talk to them about that and, you know, plant
that seed, so to speak. And, then I do recall talking to Mr. Cooley
about that prior to the hearing. In fact, I remember him even asking
me at one point about signing what we needed to do [sic] to do that
and it just never got done because it got up to the plea and we got it
resolved.

9

On re-direct, the State again asked Ms. Nelson about her plans to file a

waiver of jury trial if the trial court granted Defendant‘s motion to withdraw his

guilty plea:

Q: You had filed the motion to withdraw on July 28 th, of 2011. If
the Court had granted that motion to withdraw the plea you had your
waiver of the jury trial ready to be filed, is that correct?

A: Well, I was going - - I didn‘t have one printed up in the record.
I have my standard form that - - yeah, but I would have filed it
immediately.

Q: You would - - you would have - - you had planned and would
have filed that at that point?

A: That was the plan. If the plea was withdrawn then that was
what the plan was.

Q: And you wouldn‘t have that in mind unless you‘d had a full
discussion with Mr. Cooley in reference to the waiver of the jury trial?

A: We had discussions.

The State then questioned Ms. Nelson about the Waiver of Constitutional

Rights and Plea of Guilty form signed by Defendant. Ms. Nelson identified the

form and explained that it was adjusted to reflect the fact that Defendant entered a

no contest plea. According to Ms. Nelson, the form stated that the first right

waived by Defendant was his right to be tried by a jury or ―at [his] election to be

tried by a judge.‖ When asked if she had any question that Defendant knew he had

a right to a jury trial in this case, Ms. Nelson responded, ―I don‘t have any question

that I believe he did, yes.‖

The trial judge then asked Ms. Nelson some questions, resulting in the

following colloquy:

Q: Did anyone - - did you, in your representation of the defendant,
did you go over his Constitutional Right to have his case decided by a
judge, but more specifically, a jury? Do you remember doing that?

10

A: Yes, Judge, we certainly did that. I did that when we did the
plea form but we had discussed that prior to that about, you know,
having - - having a judge trial versus having a jury trial.

Q: And were there any - - when in your discussions were there
any promises made that would - - for him to waive the right to trial by
jury to get him to have a judge trial?

A: No, sir, it was my recommendation when I first mentioned it to
him because of the nature of the charge and because of just, you
know, the experiences that I have had. But - - but there was nothing
at that time that any assurances or promises made, no.

Q: Did he ever object and say, no, I want a trial by jury, not by a
judge, that you can recall?

A: I don‘t recall, no . . .

Q: Okay.

A: . . . that he ever said no.

Q: Did you advise him or did you have a discussion with him that
it would be a judge alone deciding his case and not a jury of his peers?

A: Yes.

Q: Okay and did at that time did you - - did you believe that he
understood the difference between having a jury trial and a judge
trial?

A: Yes.

Q: Okay. Did anyone force, coerce, or threaten him in order to get
him to waive and choose a trial by judge versus a trial by jury?

A: No, Your Honor. In fact, I think he was the one who initiated
the contact with me after the plea was entered.

Q: So, just - - for clarification there is on the Waiver of
Constitutional Rights when the plea was taken there is a line on there
that you went over earlier with Mr. Lambright, the prosecutor, that
says you have the right to choose a trial by judge or by jury.

A: Right.

Q: The arraignment, likewise, that was - - said you have the right
to trial by judge or by jury, you‘ve got to talk to your lawyer, do it
within 15 days. So basically . . .
11

A: And, Judge, I don‘t remember Mr. Cooley‘s arraignment but I
know that is our standard practice.

Q: Okay and both - - you also saw him sign that form, I believe
you testified, that was his signature . . .

A: Yes.

Q: . . . on the Waiver of Constitutional Rights? Okay. And then
you filed that motion to withdraw the plea and said, hey, he wants a
trial by judge and you were instructed to do that by Mr. Cooley?

A: Yes.

After Defendant informed the trial court of his decision not to testify at the

evidentiary hearing, the trial court accepted arguments from both the State and

Defendant. The trial court then issued the following ruling, determining that

Defendant knowingly and intelligently waived his right to a jury trial:

BY THE COURT:
Okay, I find that there was a knowingly and intelligently - - the
defendant knowingly and intelligently waived his right to a trial by
jury. This comes from looking at all the evidence including the
testimony of the two attorneys, one of them being a judge now. The
record will indicate as well as the testimony that there was - - the
defendant - - at his arraignment was notified to choose a trial by judge
or by jury. And, that shows that he‘s aware of the issue on his plea
form, on the Waiver of Constitutional Rights, that he signed in May of
2011 specifically on there was an issue about waiving the right to a
trial by jury or judge alone. So, he went over in those rights - - the
attorney testified that they were went over [sic], that he understood
those rights, that he signed that form. So, he‘s aware of those rights,
he‘s - - and, so, he knowingly and intelligently waived those rights.
Likewise, in the colloquy with the judge in May of 2011 there was - -
the judge, likewise, went over the right to a trial by judge or jury. So,
it‘s not like the defendant has never heard of the issue before. We
know on the record or in forms in 2011, by May of 2011, it‘s been
addressed three separate times and there was testimony by his attorney
at the time, Ms. Nelson, that they had conversations about that. And,
so, also, there was no objection through all of these proceedings that
we‘ve been through, there‘s no objection by the defendant until today
in court concerning his waiver of his right to a trial by jury. We‘re
here today because the Third Circuit on an errors patent [sic] and sent
it back down for an evidentiary hearing. But, for the record, this is the
first time the defendant‘s ever raised this. He sat through a trial, he
never objected to it. His attorneys never objected to it. The attorneys
12

testified that they - - at least one of them testified that they were
instructed to file the motion to withdraw the plea and wanted to have a
judge alone. That same thing her boss communicated that, but due to
Mr. Cooley contacting his office, both testified they never would have
filed. [sic] Both attorneys testified they never would have filed this if
the defendant had not knowingly and intelligently made that decision
and that he understood it. And, there was testimony today by Lisa
Nelson, his first attorney, and not Mrs. Wilson, Judge Wilson, and
both alluded to the fact that Tony Tillman had discussed this issue
with him. Whether it was going over the plea form or - - and that the
best course of action was to have a trial by judge. So, we did have
two lawyers testify to that today and there was the – - even though the
third lawyer did not testify and was not subpoenaed to testify, but the
testimony came out on the stand that, you know, Judge Wilson had a
conversation with Tony Tillman and that was the best course of
action. And, Ms. Nelson had testified that he was over there and they
were discussing the rights form and the plea was taken - - before the
plea was taken. And, also, for the record, during the trial Judge
Wilson objected to the - - to publishing photos by the State of
Louisiana and basically said why do we need to do this. You - - the
jury‘s been waived, you can look at this in your chambers. So,
considering the testimony of what the record holds of the numerous
occasions in which the defendant was notified of the right to a trial by
judge or by jury, the fact that there was two motions filed, even
though he did not sign either one of those, but based upon his
attorneys at the time testimony [sic] and the totality of that testimony
then I‘m going to find that the defendant knowingly and intelligently
waived his right to a trial by jury.

As noted by this court in the original appeal, the record contains no minute

entry or transcript wherein Defendant informed the court that he wanted a judge

trial over a jury trial. Additionally, the written waiver of jury trial filed by

Defendant‘s attorney was not signed by Defendant. Thus, the record is devoid of a

personal waiver by Defendant. In State v. Spurlock, 15-1173, pp. 1-2 (La.

9/25/15), 175 So.3d 955, 955-56 (citations omitted), the supreme court found a

personal waiver was not necessary as long as the defendant‘s decision was

knowingly and intelligently made:

It is preferred but not statutorily required for the defendant to waive
his right to a jury trial personally. Defense counsel may waive the
right on his client‘s behalf, provided that the defendant‘s decision to
do so was made knowingly and intelligently. The defendant‘s jury
13

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.‖ The defendant‘s prior
criminal history may be considered in determining whether the
defendant knowingly and intelligently waived his right to a jury trial.

In these proceedings, the defendant was aware prior to the
instant criminal charges of his due process entitlements as they related
to a choice to have his guilt or innocence determined by a judge or a
jury of his peers. Among other criminal matters, the defendant has
past experience as an accused in the trial of a criminal prosecution
where he was found guilty by a jury. In the instant case, the trial
record and defense counsel‘s hearing testimony, which was not found
to lack credibility, reflect defense counsel, after consulting with the
defendant, waived the defendant‘s right to a jury trial in open court in
the presence of the defendant. Weeks later, the defendant proceeded
to a bench trial without raising an objection to the absence of a jury.
Under the given facts, the defendant‘s waiver of a jury trial was
knowing and intelligent.

Although the present case is distinguishable from Spurlock since the present

record does not indicate Defendant had a prior criminal history, the present case is

similar to Spurlock since the evidentiary hearing testimony indicates that the

written waiver of jury trial filed by Judge Wilson was filed after Defendant had

been consulted about the waiver. Additionally, as in Spurlock, the present

Defendant proceeded to a bench trial without raising an objection to the absence of

a jury.

We disagree with appellate counsel‘s argument that no new evidence was

introduced at the evidentiary hearing regarding Defendant‘s waiver of his jury trial.

The evidentiary hearing yielded the following evidence regarding Defendant‘s

knowledge of his right to a jury trial and his desire to waive that right. According

to the testimony of Ms. Nelson, Defendant was advised of his right to a jury trial at

his arraignment and at his no contest plea. When Defendant told Ms. Nelson that

he wanted to withdraw his no contest plea, he also told her that he wanted a judge

14

trial. Ms. Nelson followed Defendant‘s desire and filed a motion to withdraw plea,

stating that Defendant wanted to proceed to a judge trial. Ms. Nelson also testified

that she and Defendant had discussions regarding a waiver of jury trial, and Ms.

Nelson testified that she, without a doubt, believed Defendant knew he had a right

to a jury trial. When asked specifically by the trial court if she discussed with

Defendant the fact that it would be a judge alone deciding his case instead of a jury

of his peers, Ms. Nelson replied, ―Yes.‖ Ms. Nelson also replied affirmatively

when the trial judge specifically asked her if she believed Defendant understood

the difference between having a jury trial and a judge trial.

Judge Wilson, the attorney representing Defendant when the written motion

to waive jury trial was filed, testified that she would not have filed the motion

without talking to Defendant and would not have filed the motion over

Defendant‘s objection. Additionally, Judge Wilson testified that she would not

have filed the motion if she had any doubt that Defendant wanted a bench trial.

Furthermore, Defendant proceeded to a bench trial and appeal without any

objection to a bench trial and offered no specific testimony at the evidentiary

hearing that his waiver was invalid.

The present case is similar to other cases where the court has found the

record supports a knowing and intelligent waiver despite the lack of a personal

waiver by a defendant. In State v. A.D.L., 11-1142 (La.App. 3 Cir. 5/2/12), 92

So.3d 989, as in the present case, this court conditionally affirmed A.D.L.‘s

conviction on appeal and remanded the matter to the trial court for an evidentiary

hearing to determine whether A.D.L. validly waived his right to a jury trial. After

the evidentiary hearing, the trial judge found A.D.L. knowingly and intelligently

waived his right to a jury trial, and A.D.L. once again sought review in this court.
15

Reviewing the trial court‘s determination, we noted that A.D.L. (like Defendant in

the present case) refused to testify at the evidentiary hearing. A.D.L.‘s attorney,

Edward Lopez, testified at the evidentiary hearing that he made the decision that

A.D.L. would be better off being tried by a judge. Mr. Lopez recalled discussing

the matter with A.D.L., whom he believed was intelligent and able to comprehend

the general nature of the matter he was facing. Mr. Lopez testified that ―‗[he]

would have probably strongly suggested that [A.D.L.] listen to what [his] thoughts

were.‘‖ Id. at 997. Mr. Lopez believed A.D.L. had made a knowing and

intelligent decision to follow his advice to elect a judge trial.

This court noted that Mr. Lopez testified as to the substance of at least one

specific conversation he had with A.D.L. regarding a jury trial waiver and testified

that there was a second conversation at the courthouse. Mr. Lopez testified at the

evidentiary hearing that he ―‗surely‘‖ told A.D.L. that he had a right to a trial by

jury. Id. Mr. Lopez ―sort of‖ recalled one meeting in his office during which he

discussed the jury trial waiver with A.D.L. Id. Mr. Lopez also believed he would

have talked to A.D.L. prior to the time he informed the trial court that A.D.L. was

waiving a jury trial. This court noted that, although A.D.L. was not in the room

when Mr. Lopez advised the trial judge of the waiver, A.D.L. was in the

courthouse at that time. Upholding the trial court‘s determination that A.D.L.

entered a knowing and intelligent waiver, this court stated the following:

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 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
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impingement on the fundamental due process of law. Finally,
whereas the issue of whether Defendant waived the right to a jury trial
was an issue of fact and not law, we cannot say that the hearing judge
abused his considerable discretion.

Id. at 1001 (citation omitted).

As in A.D.L., in the present case there is nothing to refute Ms. Nelson‘s

testimony that Defendant told her he wanted a judge trial, nothing to refute Ms.

Nelson‘s testimony that she discussed the waiver of jury trial with Defendant and

had no doubt that he knew he had a right to a jury trial, and nothing to refute Ms.

Nelson‘s testimony that she believed Defendant understood the difference between

a jury trial and a judge trial. Furthermore, Defendant proceeded to a bench trial

without objection.

The fifth circuit has also addressed the situation where there is no personal

waiver of a jury trial in State v. Singleton, 07-321 (La.App. 5 Cir. 10/30/07), 971

So.2d 396, writ denied, 09-2021 (La. 8/18/10), 42 So.3d 391. As in the present

case, Singleton‘s attorney filed a written motion to waive jury trial but failed to

have Singleton sign the motion. Unlike the present case, however, Singleton

testified at the evidentiary hearing. Although Singleton admitted that his attorney

told him a bench trial would be best, Singleton denied telling his attorney to file

the written waiver. Despite Singleton‘s lack of signature on the written motion and

despite Singleton‘s testimony at the evidentiary hearing, the fifth circuit found the

testimonies elicited at the evidentiary hearing showed a valid waiver:

At the evidentiary hearing, defendant acknowledged at least one
telephone conversation with defense counsel where his counsel
explained the benefit of a bench trial rather than a jury trial.
Defendant said that when his defense counsel told him this, defendant
responded that he was the lawyer and knew what he was talking
about. At the evidentiary hearing, however, defendant explained to
the judge he found out after trial that it was better to have a jury trial

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because ten out of twelve people render a verdict instead of the one
judge. . . .

Mr. Folse [Singleton‘s attorney] testified at the hearing that
they had discussed in depth his choice between a bench trial and a
jury trial on several occasions. Although Mr. Folse could not explain
why defendant failed to sign the motion, he testified that defendant
was fully aware that he would file a Motion to Waive a Jury Trial and
was in agreement. Mr. Folse also recalled defendant deciding to
waive his right to a jury trial after the trial court expressed what it
thought might be in defendant‘s best interest.

In addition, although not on the record, the trial court recalled
defendant specifically telling defense counsel that he wanted a bench
trial.

The evidence produced at the evidentiary hearing makes the
present case distinguishable from other cases in which this Court has
reversed convictions based on insufficient evidence of a valid jury
trial waiver.

Id. at 399 (citation omitted) (footnote omitted).

As in Singleton, there was testimony at the evidentiary hearing in the present

case that Defendant was informed of his right to a jury trial and was aware that his

attorney intended to waive jury trial. Thus, as in the jurisprudence cited above,

the present trial court did not abuse its discretion in determining that Defendant

knowingly and intelligently waived his right to a jury trial.

DECREE

Defendant‘s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
RULE 2-16.3, UNIFORM RULES—COURTS OF APPEAL.

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