00-1563 State v. Anderson

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Further, recognizing that a jury trial involves a fundamental right, we mandate the use of a personal colloquy in every case where a criminal defendant seeks to waive his or her right to a jury trial.

“We hold that the circuit court must hold an evidentiary hearing on whether the waiver of the right to a jury trial was knowing, intelligent, and voluntary. The per se rule of requiring a new trial, based on Livingston, does not apply here because Anderson’s written waiver was a personal affirmative step to waive his right to a jury trial. The evidentiary hearing procedure we adopt is already followed to determine whether a defendant’s plea was knowing, intelligent and voluntary; [citation] and to determine whether a defendant knowingly, intelligently, and voluntarily waived his right to counsel; [citation]. Accordingly, as the circuit court did not conduct a personal colloquy in this case, it must now hold an evidentiary hearing to determine whether Anderson knowingly, intelligently, and voluntarily waived his right to a jury trial. …

“The State has the burden of overcoming the presumption of nonwaiver, and is required to prove by clear and convincing evidence that Anderson’s jury trial waiver was knowing, intelligent, and voluntary. See id. at 207. If the State is able to satisfy its burden, the conviction will stand. If the State is unable to establish by clear and convincing evidence that the defendant knowingly, intelligently, and voluntarily waived his right to a jury trial, the defendant is entitled to a new trial. …

“We reject Anderson’s argument that his jury trial waiver is invalid because the record lacks the required approval of the court and consent by the State. The court approved Anderson’s jury trial waiver by accepting the waiver on the record, scheduling a bench trial, and subsequently conducting a bench trial in this case. The State also consented to Anderson’s jury trial waiver by participating in a bench trial without voicing any objection.”

Reversed and remanded.

DISSENTING OPINION: Prosser, J. “In my view, this court ought to follow Wis. Stat. sec. 972.02(1) by giving a presumption of validity to a jury waiver “in writing” or a jury waiver “by statement in open court.” I agree with the proposition that a colloquy to determine whether the waiver is knowing, intelligent, and voluntary is desirable and should be encouraged. But a defendant who waives the right to trial by jury “in writing” or “by statement in open court” while benefiting from the assistance of counsel – and then has a bench trial – should be required to make a prima facie showing that his or her waiver was not knowing, intelligent, and voluntary before he or she is entitled to a hearing. …

“The totality of facts and circumstances in this case leaves no doubt that Tyran Anderson’s waiver of a jury trial was knowing, intelligent, and voluntary. Hence, no additional hearing is required. The circuit court’s findings should be affirmed.”

Court of Appeals; Crooks, J.

Attorneys:

For Appellant: Michael K. Gould, Madison

For Respondent: Gregory M. Weber, James E. Doyle, Madison