☢ test - Í

the beginning of her trial, the trial court asked Oliver's counsel if she was waiving her right to a jury trial and counsel—in Oliver's presence—responded affirmatively. Furthermore, although Oliver's trial counsel testified at the motion-for-new- trial hearing that she did not have a specific recollection of discussing waiving a jury trial with Oliver, she indicated that it was her usual practice to do so. Additionally, Oliver's trial counsel stated that she routinely discusses trial strategy with her clients and testified in some detail regarding the fact she thought a bench trial would be a better tactic in Oliver's situation because a judge—as opposed to a jury—would be more amenable to a defense based on Oliver's mental health issues. Oliver did not testify during the motion-for-new-trial hearing and presented no evidence contradicting her counsel's testimony. Accordingly, given Oliver's signature on the waiver of jury trial and the extrinsic evidence in the form of Oliver's trial counsel's testimony regarding the fact that she routinely discusses such waiver and trial strategy issues with her clients, we cannot conclude that the trial court was clearly erroneous in finding that Oliver knowingly and intelligently waived her right to a jury trial. Seitman [ v. State, 320 Ga.App. 646, 646-648, 740 S.E.2d 368 (2013)] holding that defendant's signature on a waiver of right to jury trial and her counsel's testimony that he discussed waiver with her supported trial court's conclusion that defendant knowingly and intelligently waived her right to a jury trial); Jackson v. State, 257 Ga.App. 715, 717(4), 572 S.E.2d 60 (2002) (holding that defendant's signature on waiver of jury trial form supported trial court's finding that defendant knowingly waived his right to a jury trial). Compare Balbosa [ v. State, 275 Ga. 574, 575(1), 571 S.E.2d 368 (2002)] (holding that State failed to establish that defendant knowingly and intelligently waived his right to jury trial when the record showed only oral waiver by counsel in appellant's presence).” Budeanu v. State, 325 Ga.App. 177, 751 S.E.2d 924 (November 22, 2013). Convictions for attempted enticement of children reversed based on failure to obtain defendant’s knowing and voluntary waiver of jury trial. Defendant signed no waiver and trial court conducted no colloquy with defendant, only counsel. “Although Budeanu voiced no objection at this point, his failure to object to a bench trial shows, at most, only that such waiver was voluntary, not that it was also knowing and intelligent,” citing Jones v. State, 294 Ga.App. 169, 170(1), 670 S.E.2d 104 (2008), and Balbosa v. State, 275 Ga. 574, 575(1), 571 S.E.2d 368 (2002) (“when trial counsel waives the right to a jury trial in defendant's presence, it shows only that waiver was voluntary”). “The record is devoid of any testimony from trial counsel indicating that Budeanu understood that he had a right to a jury trial and made a conscious choice to waive that right. Cf. Jones, supra, 294 Ga.App. at 170(1), 670 S.E.2d 104 (having discussions with trial counsel are, alone, insufficient to establish that defendant knowingly and intelligently waived right to jury trial). … In the absence of a written waiver, colloquy with the trial court, or any extrinsic evidence of a waiver, the State failed to meet its burden of proving that Budeanu knowingly and intelligently waived his right to a jury trial.” Green v. State, 323 Ga.App. 832, 748 S.E.2d 479 (September 11, 2013). DUI conviction reversed; record failed to show that defendant knowingly and intelligently waived right to jury trial and consented to bench trial. “Here, the record does not contain a colloquy showing that the trial court asked Green sufficient questions on the record to ensure that his waiver of his right to a jury trial was knowing, voluntary, and intelligent. The record also contains no writing signed by Green demonstrating his waiver of his right.” Fact that defendant was represented by “a very capable attorney” “shows, at most, only that such waiver was voluntary, but it does not establish that the waiver was knowing and intelligent. … [N]otwithstanding trial counsel's competence, the decision to waive the right to a jury trial rested with Green, not trial counsel.” And trial court’s habit of advising defendants at arraignment of the right to a jury trial is unavailing, as “it was unclear whether a formal arraignment took place in this case, and the record does not reveal that one occurred. Even if an arraignment took place, the trial court's statement was insufficient to establish a valid waiver because it offered no details of the colloquy habitually conducted at arraignments ‘to make certain that the defendant is proceeding with a bench trial freely, voluntarily, and intelligently.’ (Punctuation omitted.) Allison [ v. State, 288 Ga.App. 482, 490(2), 654 S.E.2d 628(b) (2007)] (trial court's affidavit that in all criminal cases it ensured a defendant freely, voluntarily, and intelligently waived his right to a jury trial was insufficient because affidavit lacked specific details about the steps taken by trial court).” Accord, Williams v. State , A15A1973, ___ Ga.App. ___, ___ S.E.2d ___, 2016 WL 1177089 (March 28, 2016). Birdette v. State, 324 Ga.App. 246, 748 S.E.2d 472 (September 10, 2013). Rape conviction affirmed; trial court properly found that defendant, though mentally retarded, “knowingly, intelligently, and voluntarily waive his right to a jury trial.” “‘A trial court may be authorized to find that an individual is capable of waiving his rights even though there is evidence to the effect that he is moderately retarded.’ (Citation and punctuation omitted.) Fife v. State, 306 Ga.App. 425, 428(2) (702 S.E.2d 454) (2010) (finding no clear error in trial court's determination that appellant knowingly and voluntarily waived Miranda rights).” “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

Made with FlippingBook Ebook Creator