Sep 21 2015, 8:37 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Noah T. Williams Gregory F. Zoeller
Monroe County Public Defender Agency Attorney General of Indiana
Bloomington, Indiana
Brian Reitz
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Carlos I. Nunez, September 21, 2015
Appellant-Defendant, Court of Appeals Case No.
53A04-1407-CR-346
v. Appeal from the Monroe Circuit
Court.
The Honorable Marc R. Kellams,
State of Indiana, Judge.
Appellee-Plaintiff. Cause No. 53C02-1212-FB-1173
Shepard, Senior Judge
[1] By both law and practice, American courts have long been especially concerned
that criminal defendants not give up various rights by virtue of being misled or
uninformed or threatened. Here, the question is whether a conviction must be
set aside because the defendant who was asking to waive trial by jury did not
tell the trial judge that his request was voluntary.
Court of Appeals of Indiana | Opinion 53A04-1407-CR-346 | September 21, 2015 Page 1 of 9
Facts and Procedural History
[2] In December 2012, the State charged appellant Carlos I. Nunez with rape as a
class B felony. Ind. Code § 35-42-4-1 (1998). Nunez subsequently filed a
verified waiver of jury trial, and the trial court accepted the waiver after a
hearing in which Nunez participated. Following a bench trial, the court found
Nunez guilty as charged and sentenced him to ten years.
Issue
[3] Nunez presents the issue on appeal this way: whether the trial court wrongly
accepted his waiver because it was not voluntary and intelligent.
Discussion and Decision
I. Were There Omissions in Spanish Waiver Form?
[4] In seeking to waive jury, Nunez signed two waiver forms — one in English and
one in Spanish. Nunez’s appeal rests on a claim that the Spanish version was
incomplete.
[5] The English version informed Nunez that (1) he had a right to a jury trial, (2)
the jury would consist of six or twelve members, (3) the jury would listen to the
evidence, the arguments, and the instructions, and the verdict would have to be
unanimous, (4) if the waiver was accepted, the court would make a
determination as to his guilt without the use of a jury, and (5) his guilt would be
determined beyond a reasonable doubt by the judge alone. The form also
declared that (6) no one made any promises of special treatment or leniency, or
Court of Appeals of Indiana | Opinion 53A04-1407-CR-346 | September 21, 2015 Page 2 of 9
made threats to coerce him to waive his right to a jury trial, (7) the waiver was
made freely, knowingly, understandingly, and voluntarily, and (8) he was
affirming, under the penalties for perjury, that the representations in the waiver
were true. Nunez and his counsel both signed the waiver. They each signed
the Spanish version as well.
[6] Subsequently, in open court with an interpreter present, the court questioned
Nunez about the waiver. In the course of this discussion, Judge Kellams asked
Nunez if he had signed the waivers and if he understood that he was giving up
the right to a jury trial. Nunez, through the interpreter, responded in the
affirmative. The court also asked if Nunez had any questions about the fact
that the trial would be conducted by the judge and the judge would make the
determination about guilt. Nunez said he did not. The court determined the
waiver was adequate.
[7] The Spanish version of the written waiver appears to mirror the English
version, and Nunez apparently accepts that it covers the various explanations
about jury trials and bench trials. But Nunez says the Spanish waiver lacks two
provisions that are present in the English version: (1) a declaration that no
promises or threats coerced him to waive his right to a jury trial, and (2) a
declaration that the waiver was being made knowingly, understandingly, and
voluntarily.
[8] Assuring justice under circumstances where some language barrier exists that
might affect the interests of a participant with limited English proficiency is a
Court of Appeals of Indiana | Opinion 53A04-1407-CR-346 | September 21, 2015 Page 3 of 9
matter of commitment and substantial effort for Indiana’s judiciary. As Justice
Rucker wrote recently, “For the last decade the State of Indiana has endeavored
to create a more comprehensive and centralized interpreter program that
ensures competent interpreter services in order to improve the quality of
language access for LEP [Limited English Proficiency] litigants.” Ponce v. State,
1
9 N.E.3d 1265, 1269 (Ind. 2014). Speaking for a unanimous court, he
emphasized the need for careful attention to language issues “lest we run the
risk of diminishing our system of justice by infringing upon the defendant’s
rights of due process.” Id.
[9] Proceedings in the trial court pursuant to a writ in aid of appellate jurisdiction
have produced debates about where the Spanish form came from and the like,
1
Justice Rucker described several aspects of Indiana’s efforts:
The Indiana Court Interpreter Program is a statewide court interpreter system, which
includes a code of ethics for interpreters and sets specific certification standards. See Ind.
Jud. Branch Div. of State Ct. Admin., Court Interpreter Certification Program. About the
Program, Introduction, http://www.in.gov/judiciary/interpreter/2384.htm [hereinafter
“Certification Program”]: see also Randall T. Shepard, Access to Justice for People Who Do Not
Speak English, 40 Ind. L. Rev. 643, 652–57 (2007) (explaining “Indiana’s Initiatives on
Interpreter Needs”). At present, in conjunction with the National Center for State Courts
Consortium, Indiana’s certification program includes 22 different languages. See
Certification Program, Get Certified. However, interpreter services are needed in even
more languages; but certification is not currently available. Consequently, our supreme
court is considering the efforts of other jurisdictions that employ a process by which
interpreters may be classified as “qualified” to conduct simultaneous, in-court, oral
interpretation or written translation even though they have not undergone the
requirements for court “certification.”
Ponce, 9 N.E.3d 1269 n.2.
Court of Appeals of Indiana | Opinion 53A04-1407-CR-346 | September 21, 2015 Page 4 of 9
but no dispute about whether the Spanish version signed by Nunez omitted the
material he has identified. We take it to be so.
II. Examining Waivers of Jury
[10] The right to trial by jury, guaranteed by both the state and federal constitutions,
is a bedrock of our criminal justice system. Although this right may be waived,
Indiana stipulates that waiver may occur only when the defendant personally
waives and only when the record reflects that action in writing or in open court.
Kellems v. State, 849 N.E.2d 1110 (Ind. 2006). These requirements ensure that
the waiver is knowing, intelligent, and voluntary, with sufficient awareness of
the surrounding circumstances and the consequences. Id.
[11] The federal courts follow analogous practices. Trial by jury may be waived as
long as four conditions are met: (1) the waiver is in writing, (2) the government
consents, (3) the court accepts the waiver, and (4) the waiver is made
voluntarily, knowingly, and intelligently. United States v. Duarte-Higareda, 113
F.3d 1000, 1002 (9th Cir. 1997). As for the fourth requirement, defendants
should be informed that (1) twelve members of the community compose a jury,
(2) the defendant may take part in jury selection, (3) a jury verdict must be
unanimous, and (4) the court alone decides guilt or innocence if the defendant
waives a jury trial. Id. In addition, the court should question the defendant to
ascertain that the defendant understands the benefits and burdens of a jury trial
and its waiver, especially where the record indicates a special disadvantage or
disability bearing upon the defendant’s understanding of the waiver. Id.
Court of Appeals of Indiana | Opinion 53A04-1407-CR-346 | September 21, 2015 Page 5 of 9
[12] So, what happens when a person convicted after a bench trial seeks to set aside
2
the conviction on grounds that such procedures were inadequate? In light of
the fact that a person convicted by trial or plea is no longer presumed innocent,
Williams v. State, 273 Ind. 547, 549-50, 406 N.E.2d 241, 243 (1980), the
prevailing rule is that he bears the burden of establishing grounds on which the
conviction should be set aside.
[13] There is but one exception to this general rule. It is an important but narrow
exception applicable to guilty pleas under collateral attack. There, when the
convicted challenger can show that the record is silent about whether he knew
he was giving up three critical rights – trial by jury, facing the accusers, and the
right against self-incrimination – the challenger prevails. Boykin v. Alabama, 395
U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). “Presuming waiver from a
silent record is impermissible,” Justice Douglas wrote for the Court. Id. at 242.
This rule was later described as necessary to ensure that the decision to plead
was voluntary and intelligent and not the product of ignorance, terror, or
deception. See Brady v. U.S., 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747
3
(1970).
2
It but states the obvious that whether a party can ask for a bench trial and then seek relief on direct appeal
because the court granted the request is a non-trivial question. The State has elected not to challenge the
availability on appeal of the instant issue.
3
While some members of the Court later argued that the Boykin list was not exhaustive, they did not prevail.
Neely v. Pennsylvania, 411 U.S. 954, 93 S. Ct. 1934, 36 L. Ed. 2d 416 (1973) (Douglas, J., dissenting, with
whom Stewart and Marshall, JJ., concur) (asserting that the right to be proven guilty beyond a reasonable
Court of Appeals of Indiana | Opinion 53A04-1407-CR-346 | September 21, 2015 Page 6 of 9
[14] Aside from the Boykin exception applicable to guilty pleas, the U.S. Supreme
Court and federal circuits apply the general rule on burden of proof, including
with respect to claims about waiver of jury:
If the result of the adjudicatory process is not to be set at naught,
it is not asking too much that the burden of showing essential
unfairness be sustained by him who claims such injustice and
seeks to have the result set aside, and that it be sustained not as a
matter of speculation but as a demonstrable reality.
Adams v. U.S. ex rel. McCann, 317 U.S. 269, 281, 63 S. Ct. 236, 87 L. Ed. 268
(1942). As the Sixth Circuit said more recently, “Although we will not presume
waiver from a silent record, the burden of demonstrating that a waiver of jury
trial was not valid lies with the defendant who waived it.” Sowell v. Bradshaw,
372 F.3d 821, 832 (6th Cir. 2004), cert. denied, 544 U.S. 925, 125 S. Ct. 1645, 161
L. Ed. 2d 485 (2005). This accords with the Seventh Circuit’s declaration that a
defendant who “understood that the choice confronting him was, on the one
hand, to be judged by a group of people from the community, and on the other
hand, to have his guilt or innocence determined by a judge” has knowingly and
intelligently waived his right to trial by jury. U.S. ex rel. Williams v. DeRobertis,
715 F.2d 1174 (7th Cir. 1983), cert. denied, 464 U.S. 1072, 104 S. Ct. 982, 79 L.
Ed. 2d 219 (1984).
doubt is a Boykin right); Johnson v. Ohio, 419 U.S. 924, 95 S. Ct. 200, 42 L. Ed. 2d 158 (1974) (Douglas, J.,
dissenting, with whom Brennan and Marshall, JJ., concur) (asserting that speedy trial is a Boykin right).
Court of Appeals of Indiana | Opinion 53A04-1407-CR-346 | September 21, 2015 Page 7 of 9
[15] At the heart of the voluntary and intelligent requirement, of course, is concern
that a defendant might waive jury out of ignorance or as a result of coercion or
deception. In this case, the straightforward claim is that Nunez did not
affirmatively tell the trial court that his decision to waive was voluntary and
intelligent. Like the Sixth Circuit, we conclude that an appellant unable to
point to actual evidence of some miscarriage like ignorance or coercion cannot
prevail on direct appeal. See U.S. v. Sammons, 918 F.2d 592, 597 (6th Cir. 1990).
III. Protecting Defendants from Coercion or Ignorance
[16] Indiana has long been solicitous of claims about coercion or ignorance and
provided a mechanism by which they can be made. Although there has been a
presumption that one who pleaded guilty, for example, had done so voluntarily
and intelligently, Indiana courts did not hesitate to set aside convictions when it
appeared that a defendant pleaded guilty through coercion or misapprehension
of the nature of the proceedings.
[17] Several generations before the U.S. Supreme Court held that states were
required to provide an avenue for such claims, Indiana resurrected the ancient
common law writ of coram nobis as a vehicle by which to provide relief to
defendants whose rights had been violated. See, e.g., Sanders v. State, 85 Ind. 318
(1882) (prisoner whose plea is induced by fear of a lynch mob entitled to
withdraw his plea and have a trial); Myers v. State, 115 Ind. 554, 18 N.E. 42
(1888) (plea induced by false promises rendered to a defendant acting without
legal representation should be set aside). Having provided a way to correct
Court of Appeals of Indiana | Opinion 53A04-1407-CR-346 | September 21, 2015 Page 8 of 9
manifest injustice imposed in earlier proceedings, Indiana courts have
nevertheless felt the tug of the competing values in play during such processes:
(1) the need to vindicate federal and state rights by correcting errors, and (2) the
need to bring proceedings to a rest, especially where the passage of time reduces
the possibility that a new trial will be reliable. Note, Habeas Corpus and Coram
Nobis in Indiana, 26 Ind. L.J. 529 (1951).
[18] If there is actually any evidence that Nunez’s waiver was the product of
coercion or improper inducements, Indiana courts are open to receive it.
Conclusion
[19] For the reasons stated, we affirm the trial court.
[20] Affirmed.
[21] Kirsch, J., and Crone, J., concur.
Court of Appeals of Indiana | Opinion 53A04-1407-CR-346 | September 21, 2015 Page 9 of 9