☢ test - Í

Marot v. State, 259 Ga.App. 19, 576 S.E.2d 33 (December 18, 2002). Defendant’s convictions for minor traffic offenses reversed; “a valid waiver of right to trial by jury cannot be found on the sole ground that defendant failed to request one.” Accord, Yancey v. State , 295 Ga.App. 649, 673 S.E.2d 22 (January 23, 2009) (Defendant’s conviction for loitering reversed; record fails to show valid waiver of counsel or jury trial.). Balbosa v. State, 275 Ga. 574, 571 S.E.2d 368 (October 15, 2002). Aggravated assault and related convictions reversed. Record must show that defendant personally (not his attorney) made a “knowing, intelligent and voluntary waiver” of his right to trial by jury. “[T]he trial court should have conducted a colloquy with Balbosa himself.” “[H]armless error analysis cannot be applied to a jury trial waiver.” Court also has duty to conduct colloquy on waiver of right to counsel, Middleton v. State , 254 Ga.App. 648, 563 S.E.2d 543 (2002), but not waiver of right to call witnesses, Reynolds v. State , 267 Ga.App. 148, 598 S.E.2d 868 (April 21, 2004). Distinguished, Feaster v. State , 283 Ga.App. 417, 641 S.E.2d 635 (February 2, 2007) (record showed that both defense counsel and trial court discussed waiver of jury trial with defendant). Accord, Guise v. State , 303 Ga.App. 791, 694 S.E.2d 378 (April 16, 2010); Overcash v. State , 322 Ga.App. 372, 745 S.E.2d 286 (June 20, 2013) (speeding conviction reversed; checkmark on form requesting nonjury trial wasn’t shown to have been made by defendant); Budeanu v. State , 325 Ga.App. 177, 751 S.E.2d 924 (November 22, 2013). Ahn v. State, 255 Ga.App. 547, 565 S.E.2d 823 (May 15, 2002). DUI and related convictions affirmed. Defendant initially demanded a jury trial. The State gave notice of, and the trial court ruled admissible, a prior similar transaction. Defendant, fearing admission of the similar transaction would prejudice a jury, withdrew his jury trial demand and requested and received a bench trial. At bench trial, the State rested its case without introducing the similar transaction. Defendant claimed he was tricked into waiving his right to a jury trial. Held, the State has “no obligation to introduce every piece of evidence at its disposal” and, by not introducing the similar transaction, the State actually complied with Defendant’s desire not to have it introduced. “As the architect of his own fate, Dr. Ahn can hardly be heard to complain.” Odum v. State, 255 Ga.App. 70, 564 S.E.2d 490 (April 15, 2002). Reckless driving and speeding convictions in Atlanta City Court affirmed; record was adequate to show knowing and voluntary waiver of jury trial by defendant. “The record shows that the defendant ‘checked’ and placed his initials opposite statements by which he plead not guilty and indicated that he did so ‘knowingly and willfully waiving [his] right to a jury trial.’ These actions appeared over his signature, the signature of trial defense counsel, and that of the prosecutor. Although the defendant’s waiver of his right to a jury trial was not obtained in open court, such waiver was not required; neither was it required to conform to any approved format. Wooten v. State , 162 Ga.App. 719, 720, 293 S.E.2d 11 (1982). Further, we presume regularity in court proceedings, Vaughan v. Buice , 253 Ga. 540, 322 S.E.2d 282 (1984), and [t]he Sixth Amendment relies on the legal profession’s maintenance of standards sufficient to justify the law’s presumption that counsel will fulfill the role in the adversary process that the Amendment envisions.” Accord, Gardner v. State , 261 Ga.App. 425, 582 S.E.2d 566 (May 30, 2003); Whitaker v. State , 286 Ga.App. 143, 648 S.E.2d 396 (May 23, 2007) (defense counsel’s testimony at hearing on motion for new trial, that he discussed waiver of jury trial with defendant and defendant agreed to the strategy, was sufficient to support trial court’s finding of waiver). Compare Overcash v. State , 322 Ga.App. 372, 745 S.E.2d 286 (June 20, 2013) (speeding conviction reversed; no evidence that defendant personally checked the form requesting a nonjury trial). Nolan v. State, 255 Ga.App. 63, 564 S.E.2d 464 (April 12, 2002). Suspended license and related convictions remanded for consideration of whether jury waiver in Atlanta City Court was knowing and voluntary. “When a defense lawyer answers on behalf of his client,” consenting to a bench trial and waiving jury trial, “we have found that it constitutes an incomplete record, which fails to demonstrate the defendant’s participation in the waiver process.” Jackson v. State, 253 Ga.App. 559, 560 S.E.2d 62 (February 1, 2002). Convictions for misdemeanor battery and false imprisonment reversed. The court inquired whether the defendant wanted a bench or jury trial. The transcript then said “The defendant and his counsel confer,” whereupon counsel asked for a bench trial. After being convicted at bench trial, defendant appealed, saying he didn’t personally waive his right to a jury trial. Held, on appeal the state has the burden of showing that the defendant intelligently and knowingly waived the right to a jury trial. Preferably, this may be done by a showing on the record that the defendant was cognizant of the right being waived, and personally participated in the process; or it may be done “by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made” (such as the testimony of counsel that the defendant was aware of the right and made or agreed with the decision to waive jury trial). Mere participation in a bench trial, however, is insufficient. See Georgia Superior Courts Criminal Benchbook §§ 11.21 and 11.22 for questions to ask defendant to verify consent to bench trial/voluntary and personal waiver of jury trial.