A state appeals court on Wednesday put tighter strictures on judges honoring criminal defendants’ waivers of jury trials.
In a precedential ruling, the Appellate Division held that there should be an in-depth colloquy to make certain the waiver is knowing and voluntary, and that a waiver form should be signed in all cases.
The 2-1 decision in State v. Blann, A-0097-11, means a new trial for an Atlantic City man convicted of robbery after a bench trial that he requested.
Atlantic County Superior Court Judge Michael Donio twice discussed John Blann’s wish for a bench trial.
At a pretrial conference, Blann’s lawyer, Assistant Deputy Public Defender Anthony Previti, said: “Mr. Blann has advised me that he is willing to waive his right to a jury trial in this matter. Judge, I have completed the pretrial memorandum. Mr. Blann has initialed it and the prosecutor has signed it as well.”
Donio: “All right. And you wish to have a bench trial to the Court?”
Blann: “Yes, sir. Yes, sir.”
A month later, just before trial was to begin, the following exchange occurred:
Donio: “All right. I understand that, [counsel], you discussed this matter with your client and he hereby has waived a jury.”
Previti: “That’s correct, Judge.”
Donio: “All right. Is that correct, sir?”
Blann: “Yes, sir.”
Donio: “All right. Call the first witness.”
Blann was found guilty on two counts of first-degree robbery and one count of second-degree robbery.
Appellate Division Judges Allison Accurso and Marie Simonelli were not convinced the quoted colloquies were sufficient to confer jurisdiction on the court to try Blann without a jury.
“There is nothing in this record from which we can conclude that Blann’s waiver was voluntary and knowing,” Accurso wrote. “The trial judge engaged in no colloquy with defendant to ascertain his understanding of his constitutional right to a jury trial and whether his request to waive that right was knowing and voluntary, and made no findings to that effect on the record.”
In addition, there was no signed jury waiver form as required by Rule 1:8-1(a), which made it more difficult for the majority to conclude that Blann’s waiver was knowing, voluntarily and competently made, Accurso said.
Appellate Division Judge Joseph Lisa dissented, saying that under State v. Paolino, 110 N.J. Super. 284 (App. Div. 1970), a signed waiver is not an absolute requirement. He found Donio’s colloquy was thorough enough.
“[D]efendant, represented by counsel at all relevant times, affirmatively and personally advised the court, upon the advice of counsel, that he wished to waive a jury trial,” Lisa said. “He did so after being fully informed of the seriousness of the crime for which he was to be tried and the very severe sentencing exposure he faced.”
Lisa went further and crafted a proposed new waiver form that he said should be considered by the Supreme Court’s Criminal Practice Committee. It would replace the more cursory form now used.
Blann’s lawyer on the appeal, Assistant Deputy Public Defender Laura Lasota, says the ruling emphasizes the need for judges to ensure that defendants fully understand what rights they are waiving when they ask for a bench trial.
“The court is saying that it is imperative for trial courts to engage in a thorough on-the-record colloquy, and that there should be a signed waiver,” Lasota says.
Assistant Atlantic County Prosecutor Renee Kelleher, who represented the state, did not return a telephone call.
Because the appeals court was divided in its ruling, the state may directly appeal to the Supreme Court.