State v. MacHia

583 A.2d 556, 155 Vt. 192, 1990 Vt. LEXIS 191

• Court: Supreme Court of Vermont
• Decided: September 21, 1990
• Docket: 87-404
• Status: Published

Opinions

Gibson, J.

Defendant appeals his simple assault conviction following trial by a jury of eleven persons. The issue on appeal is whether defendant effectively stipulated to a jury of eleven persons. We conclude that he did and therefore affirm.

In May of 1986, defendant was arraigned in Franklin District Court on charges of simple assault as the result of an incident in which he struck a police officer. Jury selection took place in May of 1987. Thirteen jurors were seated, providing just one alternate. Realizing that this might mean that defendant would eventually be tried by fewer than twelve jurors, the court asked both counsel, during an on-the-record bench conference out of the hearing of defendant, whether they would agree to proceed with eleven jurors in the event that more than one juror was not able to continue. Both counsel agreed, with defense counsel emphasizing that less than eleven jurors would be unacceptable in any event.

On the first day of trial, the judge stated in open court on the record in the presence of defendant that two jurors were not present and that counsel had agreed to continue with eleven jurors. Specifically, the court announced:

[W]e’ll note for the record that it’s our understanding [that two jurors] are not here. [One] is quite ill this morning, cannot get out of bed. [The other] is not here, and his phone is disconnected.

All right. And the record will reflect that counsel have agreed to go with eleven jurors in the case, and that is what we do have at this particular time.

There is no record of any discussion between either the court and defendant or defense counsel and defendant concerning defendant’s understanding of his rights or desires relating to the number of jurors. Defendant did not object to the decision to go with eleven jurors at the time the decision was announced, or at any time during the trial, or in his motion for a new trial following conviction by the eleven-member jury. Defendant first raises the issue on appeal.

Defendant argues that the Vermont Constitution guarantees him a right' to a jury comprised of twelve members, and that neither his counsel’s on-the-record oral stipulation to an eleven-member jury, nor his silence in the face of the court’s announcement, effectively waived his constitutional right to be tried by a jury of twelve. We disagree.

This Court has never considered the constitutional import of reducing the number of jurors from twelve to eleven. Chapter 1, Article 10 of the Vermont Constitution entitles every person charged with a criminal offense to “a speedy public trial by an impartial jury,” provided that the accused “may in open court or by a writing signed by him and filed with the court, waive his right to a jury trial and submit the issue of his guilt to the determination and judgment of the court without a jury.” Article 10 does not specify the number of jurors required to constitute a jury. On several occasions, this Court, while passing on related issues, has noted that defendants have a constitutional right to be tried by a common-law jury of twelve; however, none of these cases directly concerned the constitutional significance of reducing the jury from twelve to eleven members. See State v. Couture, 146 Vt. 268, 272, 502 A.2d 846, 849 (1985) (jury instructions violated Vermont Constitution by allowing conviction without assuring unanimity regarding essential element of crime); State v. Hirsch, 91 Vt. 330, 338, 100 A. 877, 880 (1917) (municipal court had no power under Municipal Court Act to try criminal case without jury); In re Marron, 60 Vt. 199, 203-04, 12 A. 523, 526 (1888) (statute requiring prisoner convicted in six-juror justice’s court to procure copies of appeal at own expense did not infringe on constitutional right to trial by jury); State v. Peterson, 41 Vt. 504, 522-23 (1869) (provisions of city charter assigning final jurisdiction of certain criminal offenses to justice of the peace without providing for trial by jury violated constitutional right to jury trial).

Unquestionably, the waiver of a defendant’s right to a trial by jury goes to the heart of a defendant’s constitutional rights. Accordingly, in State v. Ibey, 134 Vt. 140, 141, 352 A.2d 691, 692 (1976), we held that, pursuant to Article 10 and V.R.Cr.P. 23(a),¹ a writing signed by the defendant or an oral record made in open court must show that “the defendant personally indicated, understandingly, his desire to waive a trial by jury.” A further indication of how seriously we consider a waiver of the right to a jury trial is our recent decision in State v. Coita, 153 Vt. 18, 20, 568 A.2d 424,425 (1989), where we held that the trial court must affirmatively indicate its consent to such a waiver; silent acquiescence by the court does not suffice. Cf. State v. Conn, 152 Vt. 99, 103, 565 A.2d 246, 248 (1989) (signed written waiver approved by court is sufficient to establish a prima facie effective waiver despite absence of indication on record that defendant’s waiver was knowing and intelligent). Similarly, federal case law interpreting Fed. R. Crim. P. 23(a),² upon which V.R.Cr.P. 23(a) is based, generally requires an express, personal waiver knowingly and intelligently given in strict compliance with the rules. See, e.g., United States v. Garrett, 727 F.2d 1003, 1012-13 (11th Cir. 1984), aff’d, 471 U.S. 773 (1985); United States v. Delgado, 635 F.2d 889, 890 (7th Cir. 1981); United States v. Lockwood, 604 F.2d 7, 8 (5th Cir. 1979) (per curiam).

On the other hand, a stipulation to a jury of fewer than twelve persons is not treated as the equivalent of a jury waiver. Indeed, V:R.Cr.P. 23 has separate provisions for the waiver of a jury trial and a stipulation to a smaller jury panel. Compare V.R.Cr.P. 23(a) with 23(b). Moreover, the stipulation to a jury with fewer than twelve members under V.R.Cr.P. 23(b)³ is not limited to offenses not punishable by death or state imprisonment, as is the waiver of a jury trial under Rule 23(a).⁴

Case law interpreting Fed. R. Crim. P. 23(b) offers further indication of the disparate treatment between a jury waiver and a stipulation to a reduced jury. Although Fed. R. Crim. P. 23(b) provides that a stipulation to a jury of fewer than twelve persons must be in writing,⁵ that requirement is not strictly enforced. The federal courts are divided on whether an accused is required personally to stipulate to a reduced jury, but none of the circuits insist on a written stipulation. See United States v. Spiegel, 604 F.2d 961, 965 (5th Cir. 1979), cert. denied, 446 U.S. 935 (1980) (discusses differing treatment by various circuits); Hudson v. State, 250 Ga. 479, 483 n.7, 299 S.E.2d 531, 535 n.7 (1983) (same). According to some courts, an oral stipulation in open court is sufficient only if, at a minimum, the record shows that the defendant gave express, personal consent or was consulted by counsel. See United States v. Reyes, 603 F.2d 69, 71 (9th Cir. 1979); United States v. Taylor, 498 F.2d 390, 391-92 (6th Cir. 1974) (per curiam); United States v. Ricks, 475 F.2d 1326, 1328 (D.C. Cir. 1973) (per curiam); see also State v. Reid, 155 Ariz. 399, 402, 747 P.2d 560, 563 (1987) (waiver sufficient where record showed counsel conferred with defendant, defendant was in court when counsel stipulated to continue with eleven jurors, and defendant did not allege not discussing matter with counsel); People v. Waters, 641 P.2d 292, 293-94 (Colo. Ct. App. 1981) (waiver sufficient where counsel consulted defendant and defendant voiced no objection to counsel’s statement); cf. Walker v. State, 578 P.2d 1388, 1389-90 (Alaska 1978) (Alaska Constitution’s explicit provision for twelve jurors requires that waiver be express and personal); State v. Hood, 242 Kan. 115, 125, 744 P.2d 816, 823-24 (1987) (defendant may personally waive right to twelve-member jury even when against advice of counsel).

Many courts, however, do not require defendant’s express, personal stipulation when defense counsel agrees to a jury of less than twelve in defendant’s presence and absent defendant’s objection. See, e.g., United States v. Illinois, 619 F.2d 668, 671-73 (7th Cir.), cert. denied, 449 U.S. 880 (1980) (defendant’s presence in court presumed though not explicit in record); Williams v. United States, 332 F.2d 36, 39 (7th Cir. 1964), cert. denied, 379 U.S. 976 (1965) (express stipulation not required where defendant was present when counsel orally agreed to stipulation in open court); Horne v. United States, 264 F.2d 40, 41, 43 (5th Cir.), cert. denied, 360 U.S. 934 (1959) (same); State v. Ciniglio, 57 N.J. Super. 399, 404, 154 A.2d 845, 848 (1959) (same). Other cases stand for the proposition that the decision to allow trial by an eleven-member jury is of a procedural and tactical, rather than of a constitutional, nature, and defense counsel can stipulate to a reduced jury even though the record does not show that the defendant personally and intelligently assented to the stipulation. See United States v. Spiegel, 604 F.2d at 965 n.9; United States v. Roby, 592 F.2d 406, 408 (8th Cir.) (per curiam), cert. denied, 442 U.S. 944 (1979); cf. Hudson v. State, 250 Ga. at 483-84, 299 S.E.2d at 535 (defendant acquiesced in his counsel’s stipulation to eleven-member jury by not objecting at trial). This approach is buttressed by the United States Supreme Court decision in Williams v. Florida, 399 U.S. 78, 100 (1970), where the Court held that the federal constitution does not require twelve jurors for conviction. Regarding the role of a jury and the significance of the jury having twelve members, the Court stated:

[T]he 12-man requirement cannot be regarded as an indispensable component of the Sixth Amendment.

The purpose of the jury trial... is to prevent oppression by the Government. . . . Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group’s determination of guilt or innocence. The performance of this role is not a function of the particular number of the body that makes up the jury.

Id.

Further evidence that the stipulation to an eleven-member jury does not constitutionally rise to the level of a waiver of a jury trial is found in the 1983 amendment to Fed. R. Crim. P. 23(b). The federal courts have held that that amendment, which gives the trial court the discretion, once the jury retires, to excuse a juror for just cause and allow a verdict by a jury of eleven even absent the consent of the defendant, does not violate the defendant’s constitutional right to a jury trial. United States v. Armijo, 834 F.2d 132, 134 (8th Cir. 1987), cert. denied, 485 U.S. 990-91 (1988); United States v. Smith, 789 F.2d 196, 204-05 (3d Cir.), cert. denied, 479 U.S. 1017 (1986); United States v. Gambino, 788 F.2d 938, 949 (3d Cir.), cert. denied, 479 U.S. 825 (1986); United States v. Stratton, 779 F.2d 820, 830-35 (2d Cir. 1985), cert. denied, 476 U.S. 1162 (1986).

The instant case concerns neither Fed. R. Crim. P. 23(b) nor the excuse of a juror after the jury retires to deliberate; nonetheless, the recent amendment to Rule 23(b), along with the cited decisions allowing a court to accept an eleven-member jury verdict without the defendant’s consent, are further corroboration that the stipulation to an eleven-member jury is not considered to be at the very core of the federal constitutional right to a jury trial. In Stratton, the Second Circuit noted that the available empirical data indicate that “a decrease in jury size of only one person may have only the most minute effect. Whatever disadvantage to the defendant may occur from reducing the jury size from twelve to eleven is of insufficient proportion to give him a constitutional right to a jury of twelve .. . .” 779 F.2d at 834-35 (citing Williams v. Florida, 399 U.S. at 101) (footnote omitted).

Of course, our decision in the instant matter is based on our determination of whether a defense counsel’s stipulation to an eleven-member jury violates defendant’s right to a jury trial under the Vermont Constitution. Defendant urges us to analogize the instant case to State v. Prime, 137 Vt. 340, 342-43, 403 A.2d 270, 272 (1979), where we held that a defendant’s right to a jury free from the taint of any suspicion of extraneous influences could only be waived by defendant’s personal, knowing and intelligent waiver. On the other hand, the State urges us to invoke State v. Bailey, 144 Vt. 86, 103, 475 A.2d 1045, 1055 (1984), in which we held that “[t]he right to jury sequestration, absent an allegation of taint or bias, is not so compelling as to require a personal, affirmative waiver by defendant himself.” We further stated in Bailey that an express, personal waiver of a counseled defendant is not required for strategic and tactical decisions, even those with constitutional implications. Id.

We believe that the present ease, though not identical, is more analogous to Bailey than Prime. The right to an unbiased jury unquestionably goes to the heart of the right to a jury trial. Indeed, Chapter 1, Article 10 of the Vermont Constitution expressly guarantees the right to an “impartial” jury. The Vermont Constitution, however, is silent with regard to the number of jurors required to comprise an impartial jury, and there is no suggestion of any bias or suspicion of taint in the instant case.

We do not mean to intimate that the Vermont Constitution permits less than twelve jurors absent the defendant’s stipulation; rather, we believe that the decision to stipulate to an eleven-person jury is a “tactical” or “strategic” one that can be made by counsel with the defendant’s implied consent. Here, ’defense counsel’s on-the-record oral stipulation to an eleven-member jury, confirmed in defendant’s presence, did not deprive defendant of his constitutional right to trial by jury. See Hudson v. State, 250 Ga. at 483-84, 299 S.E.2d at 535. Further, in light of the foregoing discussion, the trial court’s failure to obtain the parties’ written stipulation to an eleven-member jury, as required by Rule 23(b), was harmless error. See V.R.Cr.P. 52(a) (any error not affecting defendant’s substantial rights shall be disregarded).

Affirmed.

1 Rule 23(a) provides: “The defendant may in a signed writing or in open court, with the consent of the prosecuting attorney and the court entered of record, waive a jury trial in offenses not punishable by death or imprisonment in the state prison.”

2 Fed. R. Crim. P. 23(a) provides: “Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.”

3 Rule 23(b) provides: “The parties may stipulate in writing that the jury shall consist of any number less than twelve with the approval of the court.”

4 We cannot agree with the Reporter’s Notes to Rule 23, which suggest that the Vermont Constitution requires that the phrase “not punishable by death or imprisonment in the state prison” be read into Rule 23(b). First, we note that Chapter I, Article 10 now precludes waivers of jury trials only when the offense is punishable by death; the language regarding state imprisonment was dropped in a 1974 constitutional amendment. More pertinent to our discussion here, the statement in the Reporter’s Notes is based on the conclusion that a stipulation to a jury of less than twelve is pro tanto a waiver of a jury trial because Vermont cases have held that the Vermont Constitution guarantees a twelve-member jury. As we noted earlier, however, no Vermont case has directly addressed the constitutional significance of reducing a jury from twelve to eleven members. In any event, to the extent that prior cases may be construed as precluding defense counsel from stipulating on the record to an eleven-member jury, they are overruled.

5 Until 1983, Fed. R. Crim. P. 23(b) provided:

Juries shall be of 12 but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12 or that a valid verdict may be returned by a jury of less than 12 should the court find it necessary to excuse one or more jurors for any just cause after trial commences.

In 1983, the following sentence was added to Rule 23(b): “Even absent such stipulation, if the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict, in the discretion of the court a valid verdict may be returned by the remaining 11 jurors.”