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Jury waiver signed in courthouse cell valid.

Byline: Barry Bridges

A defendant is not required to sign a written jury waiver form in open court in the presence of a trial judge, the Rhode Island Supreme Court has determined.

The case of first impression examined the contours of Rule 23(a) of the Superior Court Rules of Criminal Procedure, which dictates that "[c]ases required to be tried by jury shall be so tried unless the defendant in open court waives a jury trial in writing with the approval of the court."

The defendant, who signed a jury waiver form in a courthouse jail cell, relied on the rule's language in appealing his conviction for child molestation. He argued that the written waiver was not signed in "open court" and was therefore invalid, divesting the trial judge of jurisdiction to conduct a bench trial.

But the Supreme Court disagreed with that interpretation.

"Rule 23(a) and our case law interpreting the rule simply mandate that, in addition to the requirement that a waiver be made in open court through a discussion with the judge, the waiver must be put in writing prior to the start of a bench trial," Justice Gilbert V. Indeglia wrote on behalf of the unanimous court. Nothing in the rule requires a defendant to sign and execute the written waiver form in the presence of the trial justice, he added.

The 16-page decision is State v. Morais, Lawyers Weekly No. 60-027-19. The full text of the ruling can be found here.


"[W]e have never proclaimed a bright line rule or even suggestions delineating requirements of a colloquy between a trial justice and a defendant regarding the differences between a jury trial and a non-jury trial."

Justice Gilbert V. Indeglia


Responding to the holding, Attorney General Peter F. Neronha said that in affirming the conviction and rejecting the defendant's argument, "the Supreme Court simply applied the plain language of Rule 23(a) requiring a jury waiver to be signed by the defendant, the goal of which is to ensure that a defendant makes a knowing, intelligent and voluntary waiver of his or her rights.

"Nothing prevents the defendant from signing the waiver in the courtroom," Neronha continued. "The court just didn't agree with the defendant that the rule required it."

The defendant was represented on appeal by public defender Lara E. Montecalvo, who did not respond to a request for comments prior to press time.

Jail cell signature

In December 2010, defendant Julio Morais was indicted on five counts of first-degree child molestation sexual assault stemming from alleged incidents involving his stepdaughter.

Prior to trial, he signed a jury waiver form in the cellblock of the Licht courthouse with his attorney and Creole interpreter present.

After questioning the defendant during a waiver colloquy, Superior Court Judge Daniel A. Procaccini stated in open court that Morais "appears to understand the nature of the right that he is giving up" and found the waiver to be "voluntary and knowing." The bench trial commenced the next day.

Procaccini ultimately found the defendant guilty on four of the counts and handed down four concurrent 50-year sentences, with 35 years to serve and 15 years suspended with probation.

Morais appealed, arguing that Procaccini's acceptance of the waiver form signed outside his presence contravened Rule 23(a)'s "open court" requirement. Morais also contended that the colloquy was inadequate to establish his knowing, intelligent and voluntary waiver of a jury and that the differences between a jury and bench trial were not adequately explained to him.

Written waiver

The Supreme Court concluded that the jury waiver was consistent with the requirements of Rule 23(a) and therefore upheld the conviction.

"The sole purpose in requiring the approval of the court and mandating that the waiver be made in open court is to assure that the defendant who waives a jury trial does so intelligently and with full knowledge of the consequences of his waiver," Indeglia wrote.

In disagreeing with the defendant's stance, the justices examined Rule 23(a) through the "plain and obvious meaning" canon of construction. Further, as the question of whether a waiver must be signed in court was one of first impression in Rhode Island, they also looked to other jurisdictions for guidance.

The court found the defendant's reliance on cases construing a provision of the New York Constitution and a similar corresponding statute to be misplaced, in that they require that a jury waiver be made "by a written instrument signed by the defendant in person in open court."

That provision was "glaringly different" from Rule 23(a) and therefore inapplicable, Indeglia wrote.

On the other hand, the court found more persuasive the approach of Ohio courts in interpreting that state's statutory equivalent of Rhode Island's rule. Its statute reads, in relevant part, that a "waiver of trial by jury must be made in open court after the defendant has been arraigned and has had an opportunity to consult with counsel."

Ohio courts have interpreted "in open court" to mean orally and on the record, Indeglia wrote, citing a case from Ohio's Court of Appeals establishing that its requirement is satisfied "when [a] defendant signs a written waiver outside of the courtroom and the court reaffirms this waiver in open court."

"We opine that Ohio's framework is a more similar counterpart to our Rule 23(a) than the New York framework, and we therefore reach a similar holding as the Ohio courts," Indeglia wrote in the instant case.

And, in light of the fact that Procaccini confirmed Morais' decision to waive his right to a jury trial on the record in open court during the colloquy, and then approved and signed the written waiver form that had been previously executed, the Supreme Court found the dictates of Rule 23(a)'s written waiver requirement to be satisfied.

However, in an opinion footnote, Indeglia dispensed some practical advice.

"[W]e would note that the better practice may be for an attorney, and an interpreter if applicable, to discuss the waiver with a defendant outside of court, and that a defendant thereafter sign the waiver form during the proceeding in open court," he said. "We make clear, however, that Rule 23(a) does not mandate this procedure."

'Knowing, intelligent, voluntary'

Moreover, the court was not persuaded by the defendant's argument that even if the requirements of a written waiver were satisfied, he could not have intelligently waived his right to a jury considering his inability to speak English, his lack of education, and his unfamiliarity with the criminal justice system.

Reiterating that the "substantive right to invoke a bench trial belongs to the defendant and is subject only to the procedural requirement that a trial justice determine that the defendant understands and accepts the consequences of executing a waiver," Indeglia took a closer look at the exchange during the colloquy.

His findings from a review of the record indicated that Morais responded affirmatively to Procaccini's inquiries on whether he had spoken with his attorney; on whether his attorney had answered questions he had about the process; and on whether the defendant understood what he was doing. Further, the defendant answered in the negative when Procaccini asked him if he was confused in any way.

Morais also attested that both his attorney and the interpreter were present in the cellblock when he signed the waiver form.

"[W]e are confident that the trial justice's colloquy with defendant, in open court, provided adequate information for the trial justice to determine that defendant's waiver was knowing, intelligent, and voluntary, without delving into the specifics of defendant's level of education, language capabilities, or criminal history," Indeglia wrote.

Finally, the court was not moved by the defendant's assertion that the colloquy lacked certain "essential factors" regarding the jury trial process since "most jurisdictions" require waivers to demonstrate three elements: that the accused is informed that the jury will be chosen from the members of the community, that the verdict must be unanimous, and that the defendant will be allowed to participate in the selection of the jury panel.

"[W]e have never proclaimed a bright line rule or even suggestions delineating requirements of a colloquy between a trial justice and a defendant regarding the differences between a jury trial and a non-jury trial," Indeglia wrote.

With the record reflecting that Procaccini explained the defendant's right to have a jury of 12 of his fellow Rhode Island citizens, that a selection process would take place, and that the jurors would make a decision regarding his guilt or innocence, and with the defendant declaring on the record his unequivocal desire to waive his right to a jury trial, the Supreme Court was satisfied that his waiver was knowing, intelligent and voluntary.

CASE: State v. Morais, Lawyers Weekly No. 60-027-19

COURT: Rhode Island Supreme Court

ISSUE: Under Superior Court Criminal Rule 23(a), is a defendant required to sign a jury waiver form in the presence of a trial judge?


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Author:Bridges, Barry
Publication:Rhode Island Lawyers Weekly
Date:Apr 11, 2019
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