Birdette v. State

748 S.E.2d 472, 324 Ga. App. 246, 2013 Fulton County D. Rep. 2903, 2013 WL 4799155, 2013 Ga. App. LEXIS 757
CourtCourt of Appeals of Georgia
DecidedSeptember 10, 2013
DocketA13A1430
StatusPublished

This text of 748 S.E.2d 472 (Birdette v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Birdette v. State, 748 S.E.2d 472, 324 Ga. App. 246, 2013 Fulton County D. Rep. 2903, 2013 WL 4799155, 2013 Ga. App. LEXIS 757 (Ga. Ct. App. 2013).

Opinions

Miller, Judge.

Following a bench trial, Lorenzo Birdette was convicted of rape (OCGA § 16-6-1 (a) (1)).1 Birdette now appeals from the denial of his [247]*247motion for new trial, arguing that he did not knowingly, intelligently, and voluntarily waive his right to a jury trial. We discern no error and affirm.

We will affirm a trial court’s decision that an appellant has validly waived his right to a jury trial unless the decision is clearly erroneous. Jacobs v. State, 299 Ga. App. 368, 370 (1) (683 SE2d 64) (2009).

The record shows that prior to opening statements at the bench trial, the trial judge conducted the following colloquy with Birdette:

COURT: Mr. Birdette, I want to make sure you understand that we’re doing this as a bench trial, meaning that I’m going to sit as a jury would and make the decisions about the facts as well as the law. You and [trial counsel] have talked about that?
DEFENDANT: Yes.
COURT: And that’s what you want to do?
DEFENDANT: Yes, ma’am.
COURT: All right. We’ll proceed then with the bench trial.
[PROSECUTOR]: So just to be clear, Mr. Birdette is expressly waiving his right to a jury trial.
COURT: You are giving up your right to a jury trial.
DEFENDANT: Yes, ma’am.

At the bench trial, Dr. Guy Jordan, an expert in clinical psychology, testified as a witness for the defense. Dr. Jordan conducted a six-hour psychological evaluation of Birdette in June 2007 pursuant to the trial court’s order requiring that Birdette be evaluated to determine his competency to stand trial and his ability to recognize his behavior as criminal at the time of the alleged offense. Dr. Jordan’s intelligence and educational achievement testing showed that Birdette had a full-scale IQ of 52, which falls in the range of mild mental retardation, he read at a first-grade level, and his math skills were at a beginning second-grade level. Dr. Jordan estimated that Birdette had a mental age of about 13 or 14. Nevertheless, with regard to Birdette’s competency to stand trial, Dr. Jordan concluded that Birdette had an appropriate understanding of the charges against him; was able to communicate adequately information about his life history and the circumstances that brought him to the present situation; and was able to communicate well enough to be considered legally competent. Dr. Jordan cautioned, however, that certain information might need to be read and explained to Birdette. In his written report, Dr. Jordan stated that in view of Birdette’s limited [248]*248educational achievement,

any information provided to [Birdette] through the legal system must be done orally as he has no ability to read information or understand it. This limits his competency to information that can be explained to him orally with [Birdette] appropriately summarizing the information to ensure that he understands the concepts presented to him.

At the hearing on the motion for new trial, Birdette’s trial counsel testified that he explained to Birdette the differences between a jury trial and a bench trial on several occasions. In particular, he explained that “a jury trial is putting 12 people in a box, a bench trial is just a judge,” and at a bench trial, “the judge would handle all of it, listen to both the evidence and make the decision and do the sentencing.” Trial counsel stated that he and Birdette discussed the advantages and disadvantages of a bench trial and a jury trial, that he advised Birdette that a bench trial presented a “better chance of some kind of success,” and that Birdette “agreed that we should go forward with a bench trial.”

At the motion for new trial hearing, Birdette testified that his trial counsel told him prior to trial that “[the trial judge] had got me a doctor” and “[i]t would come out better if [the trial judge] look at the case and [the trial judge] go by what the doctor is saying[.]” When asked whether he discussed with his trial counsel whether to have a bench trial or jury trial, Birdette responded that his trial counsel told him that “[the trial judge] going to be there, and it’s going to be a couple more people” and stated that “I’d be ok with [Dr.] Jordan doing what he had to do, and with [the trial judge] hooking me up with a doctor and—it would be good for me to go in front of [the trial judge].” Birdette stated that he did not understand at the time that his trial counsel was advising him to have a bench trial as opposed to a jury trial and did not understand the difference between the two. Birdette explained, however, that he knew what a jury was because his mother told him it consisted of “free-world” or “outside” people. Birdette further testified that if he had known he was not going to have a jury on the day of the bench trial, he would not have gone forward. When asked if, during his colloquy with the trial judge, he understood that he would not have a jury decide his guilt or innocence, Birdette testified:

Well, I know that [trial counsel] said that [the trial judge] was going to do that, but I was going off what [trial counsel] said was the best thing to do. Now, myself, it was up to me, [249]*249I wouldn’t have did that. . . . But since I’m trying to be cool and nice and trying to do the right thing, I went along with what [trial counsel] said.

On cross-examination, Birdette conceded that his trial counsel discussed with him what a jury trial was and whether a jury trial or bench trial would be better; that trial counsel recommended a bench trial; and that he told the trial judge he wanted a bench trial based on his trial counsel’s advice.

In his sole enumeration of error, Birdette argues that he did not knowingly, intelligently, and voluntarily waive his right to a jury trial. We reject this contention.

A defendant’s right to a jury trial is a fundamental constitutional right that the defendant must personally, knowingly, voluntarily, and intelligently choose to waive. Watson v. State, 274 Ga. 689, 691 (2) (558 SE2d 704) (2002).

When the purported waiver of this right is questioned, the State bears the burden of showing that the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.

(Citation and punctuation omitted.) Seitman v. State, 320 Ga. App. 646 (740 SE2d 368) (2013).

The record here shows that the trial judge conducted a colloquy with Birdette during which she explained that in a bench trial she would “sit as a jury ... and make decisions about the facts as well as the law” and Birdette affirmed that he had discussed the issue with his trial counsel and was giving up his right to a jury trial. Birdette nevertheless contends that given his mental limitations, the trial judge should have provided a more extensive explanation of the consequences of a jury trial waiver and required Birdette to repeat what she had explained, as Dr. Jordan recommended.

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Related

McCormick v. State
476 S.E.2d 271 (Court of Appeals of Georgia, 1996)
Fleming v. State
638 S.E.2d 769 (Court of Appeals of Georgia, 2006)
Edwards v. State
645 S.E.2d 699 (Court of Appeals of Georgia, 2007)
Watson v. State
558 S.E.2d 704 (Supreme Court of Georgia, 2002)
Jacobs v. State
683 S.E.2d 64 (Court of Appeals of Georgia, 2009)
Jones v. State
690 S.E.2d 460 (Court of Appeals of Georgia, 2010)
Davis v. State
653 S.E.2d 107 (Court of Appeals of Georgia, 2007)
Fife v. State
702 S.E.2d 454 (Court of Appeals of Georgia, 2010)
Seitman v. State
740 S.E.2d 368 (Court of Appeals of Georgia, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
748 S.E.2d 472, 324 Ga. App. 246, 2013 Fulton County D. Rep. 2903, 2013 WL 4799155, 2013 Ga. App. LEXIS 757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/birdette-v-state-gactapp-2013.