(dissenting).
Because I believe there were compelling reasons why the trial *228court should have decided defendant’s guilt or innocence without a jury, I dissent. The question is not whether defendant had an absolute right to waive a jury but whether the trial court exercised its discretion properly in refusing to decide the case without a jury.
The record presents the anomalous Situation of a court’s insisting that defendant’s interests would be better served by a jury trial, while defendant and his counsel protest with equal vigor that defendant’s chance for a fair trial is enhanced by waiving a jury. At the outset, therefore, it would appear that the court was preempting the exclusive function1 of defense counsel in advising what trial tactics would be most beneficial to defendant. I submit that on its face that is a fundamental decision which only the defendant after consulting with counsel should be permitted to make, since it bears directly on the right to an impartial hearing. Had the trial court advanced some compelling reason for refusing to try the case without a jury, the questions presented might be more difficult.
For a full understanding of the issues, it is essential to examine more completely the colloquies between the prosecutor, defense counsel, and the court, referred to in the majority opinion.
On July 7, 1972, defense counsel made the following statement:
“We make these Motions primarily for purposes of protecting Mr. Kilburn’s rights. We feel that the facts of the case, the nature of the victim and the Defendant, color-wise, if that’s the right way to put it, are such that we are of the opinion that John Kilburn would get a far greater substantial share of justice by having the judge himself hear the case, that our primary argument is that we are reluctant to allow a case of this type to go to a jury where we think substantial old prejudices may arise in the jury’s mind without their actually being conscious of those old prejudices being there, and on that basis we have made our Motion. We ask the Court to grant our Motion, in the first instance, for a waiver of a jury trial, and in the alternative to al*229low the case to be transferred or venued to a county of different jurisdiction. Thank you, Your Honor.”
After some preliminary discussion, the prosecutor responded as follows:
“Secondly, Your Honor, if I can consider the matter of a waiver of a jury trial. This is a charge of Murder in the First-Degree. I believe that the sole issue that will be presented to the trier of fact will be the element of premeditation. We will have evidence to present on that point and I think the Defendant will probably present evidence to the contrary. Our Minnesota Supreme Court has indicated in State versus Boyce that in important matters of the kind where it gets to be maybe a close issue of determining whose evidence is the correct one, that maybe the Court makes a mistake in allowing the Defendant to waive a jury. We feel that a jury should decide this issue.
“We feel that we have had experience here in Anoka County in the case not too long ago of State versus Ulferts, in which this Court heard the Rasmussen Hearing therein. A jury was waived and I think this Court will recall that there was quite a hue and cry from the citizenry as to the waiver of a jury and what the final result of that case was. We don’t argue with that final result, Judge, but we feel that, perhaps, the community, the citizenry would have had more confidence in the administration of justice had the same result been returned by a jury” (Italics supplied.)
Later, in the argument to the court, defense counsel concluded with these remarks:
“I would like to just comment for one minute on the County Attorney’s representations with regard to State versus Ulferts. In that very case we were convinced that the prejudice by the death of a police officer at the hands of young and alleged irresponsible drunken people was of such a nature that a jury would become enraged, and on that basis, at least, our position *230was — and I defended James Ulferts — that the best possible decision and the most substantial justice would result from having a judge hear the case because he was not going to be swayed by this public opinion or hue and cry.
“We idon’t think there is any question in this case when you have a black man involved with the death of a white girl that they will not be prejudiced. The same type of enragement or hue and cry may come forward in spite of a jury being under oath, and that’s our reason for asking for a Court trial or having the Court hear the facts and make its decisions with regard to the law; that is, we are convinced that this is the same type of inflammatory case with different facts, but the same type of thinking or philosophy that went into the Ulferts’ decision. As far as we’re concerned a jury is going to look at a situation where Mr. Kilburn is black and a white girl, and the Court full well knows that in that type of circumstances they will in our opinion put out of their mind all of the other things that may or may not have gone on out there on that evening and make their decision on the stero-type black boy-white girl type decision and we think that this would result in substantial prejudice to our client, and that’s the reason we’re prepared at this time to ask the Court and allow the Court to hear the case because we think justice will best be served by not submitting it to a group of people that may be influenced that way, but rather, confine it to the Court, who we feel will not be influenced on that basis. I have nothing further, Your Honor.”
In denying the motion to waive a jury, the court stated, among other things, as follows:
“In line with State versus Boyce I’m inclined to agree with the County Attorney that in this situation I think the interest of the Defendant would best be served by a jury trial. The Court will deny the Motion to waive a jury.”
It is unfortunate, to say the least, that the prosecutor invited the court to shirk its duty by reminding the court of the adverse *231public reaction to the court’s acquittal of the defendant in State v. Ulferts, tried in the same district without a jury. For the prosecutor to inject the suggestion that the “hue and cry from the citizenry” is to determine whether a defendant is entitled to be heard by an impartial judge, in my opinion taints the subsequent proceedings, however conscientious the judge may have been. The reliance by the court and prosecutor on State v. Boyce1 as authority for requiring a jury trial is misplaced. That case had been tried fairly by an impartial judge free from error, as we said, but the question of guilt was extremely close, and in the interests of justice we remanded for a new trial. Our suggestion that the second trial be conducted with a jury had nothing to do with the merits of our decision. It was a casual afterthought prompted by our concern that even the most conscientious judge may suffer from a subconscious reluctance to overrule or second-guess a colleague on the same court who has heard the same evidence. It was to avert that possibility and out of an abundance of caution to guarantee the defendant a trial completely free from any such influence that we suggested he consider a jury trial on the remand.
At the commencement of the trial in the instant case, defendant again renewed his motion to waive a jury and it was again denied. At that time the court repeated his reliance on the Boyce case by stating:
“The Court appreciates Counsel’s position and the position of the Defendant on that particular matter. However, in1 line with the reasoning in State versus Boyce, it appears that the Supreme Court feels the interests of the Defendant are best served by a trial to a jury. The Court appreciates in that case there was an alleged defense of self-defense, which isn’t present in this case, apparently.”
*232For the reasons I have indicated, it seems apparent that the trial court was misled by our random remark in the Boyce case which the court construed to be a decision that “the interests of the Defendant are best served by a trial to a jury.”
Thereafter defense counsel made a final plea to waive a jury by arguing to the court:
“* * * [W]e feel, of course, to the contrary, that the case is of such a nature with the ethnic background of the parties that substantial prejudice will exist, whether or not we’re able to show it or not, and that we don’t feel that this prejudice would exist were the matter heard by the Court alone.”
In response, the court stated:
“* * * [T] hat feeling is not concurred in by the Court. I don’t feel there will be prejudice in this case and every effort will be bent in that regard to avoid it.”
Notwithstanding the protestations of the trial court that the jurors were not prejudiced, the court immediately questioned the propriety of defense counsel interrogating the jurors on that issue, stating as its reason:
“This is a difficult question because certainly it’s going to be difficult at best to obtain any admission from a prospective juror that they are in fact prejudiced against colored people.”
As an alternative, the court proposed a question which would excuse any juror who would be influenced for or against a defendant who was black.
This is a classic case where, in my judgment, prejudice against a defendant, whatever his race, color, or ethnic background, is inevitable. The killing of a 15-year-old white girl by an adult black in the course of a sexual encounter is the most inflammatory and volatile set of circumstances imaginable. In my opinion, it is one which requires the judiciary to utilize every legitimate safeguard against the “hue and cry” of an aroused citizenry. In all of Anoka County, the record indicates there are only a hand*233ful of blacks. To me it is wholly unrealistic to believe that the trial court’s decision to have a jury trial was in the best interests of this defendant. The only issue was the degree of homicide of which defendant was guilty. In the absence of the court’s articulating any purpose for a jury trial other than his belief “that the Supreme Court feels the interests of the Defendant are best served by a trial to a jury,” I submit that it was the court’s duty to try the matter without a jury.
In dealing with the critically important issues of this case, we are, for practical purposes, writing on a clean slate. Gaulke v. State, 289 Minn. 354, 360, 184 N. W. 2d 599, 603 (1971), sustained the denial of a trial without a jury because the question was not raised until the postconviction proceedings. There, however, by way of dictum, we did stress the principle that in determining the issue of granting a jury trial, the court was obliged to exercise sound discretion.
“We do think that a trial court should not withhold approval of defendant’s application for waiver merely because the case is disagreeable.”
In Gaulke, we cited with approval People v. Spegal, 5 Ill. 2d 211, 221, 125 N. E. 2d 468, 473, 51 A. L. R. 2d 1337, 1345 (1955); People v. Duchin, 12 N. Y. 2d 351, 239 N. Y. S. 2d 670, 190 N. E. 2d 17 (1963); and People ex rel. Rohrlich v. Follette, 20 N. Y. 2d 297, 282 N. Y. S. 2d 729, 229 N. E. 2d 419 (1967). The Spegal ¡decision, written by Mr. Justice Schaefer, reversed a judgment of conviction because the trial court failed to grant defendant’s petition for a trial without a jury. The Duchin and Follette cases in New York, under constitutional and statutory provisions similar to our own, adopted the rule that those provisions are designed for the benefit of the defendant and that—
“* * * the requirement of judicial approval is designed to insure that the defendant’s waiver is a knowing and intelligent one and that the discretion of the Trial Judge to deny a defend*234ant’s request to waive a jury trial is limited to those cases in which some ‘compelling ground arising out of the attainment of the ends of justice’ requires that the request be denied.” 20 N. Y. 2d 300, 282 N. Y. S. 2d 731, 229 N. E. 2d 421.
Singer v. United States, 380 U. S. 24, 37, 85 S. Ct. 783, 791, 13 L. ed. 2d 630, 639, recognizes that—
“* * * there might be some circumstances where a defendant’s reasons for wanting to be tried by a judge alone are so compelling that the Government’s insistence on trial by jury would result in the denial to a defendant of an impartial trial.”
In that case, however, the only reason given by defendant for waiving a jury trial was to save time. Here, however, the reasons cure compelling.
Neither Minn. Const, art. 1, § 4, nor Minn. St. 631.01, attaches any conditions to the defendant’s right to waive a jury.2 We have prospectively adopted Rule 26.01, Rules of Criminal Procedure, *235permitting the waiver of a jury trial with the court’s approval. With that rule I do not quarrel. I would, however, apply the dictum in Gaulke to which reference has been made, and follow the principles enunciated by the New York court in the Duchin and Follette cases and the rule adopted in A. B. A. Standards for Criminal Justice, Fair Trial and Free Press (Approved Draft, 1968) § 3.3, as follows:
“In those jurisdictions in which the defendant does not have an absolute right to waive a jury in a criminal case, it is recommended that the defendant be permitted to waive whenever it is determined that (1) the waiver has been knowingly and voluntarily made, and (2) there is reason to believe that, as a result of the dissemination of potentially prejudicial material, the waiver is required to increase the likelihood of a fair trial.”
The comment to A. B. A. Standards for Criminal Justice, Trial by Jury (Approved Draft, 1968) § 1.2(a), states in part (p. 36):
“Allowing the court to require a jury trial would enable the judge to shirk his duty and avoid the responsibility of deciding serious criminal cases. In cases which have received much publicity and have aroused the community, the judge may require a jury trial in order to avoid criticism, but it is in just such cases that the need for trial before an impartial judge is especially great. The protection of the court is far less important them the protection of the defendant.” (Italics supplied.)
In the instant case the defendant’s showing that potentially prejudicial material had been disseminated was not strong. Nevertheless, in my opinion, and in accordance with the philosophy of the A. B. A. comment, I would hold that the defendant’s decision to waive a jury was well-founded and consequently should govern where the court has assigned no valid countervailing reasons to justify its refusal to waive the jury. Accordingly, I would remand for a new trial.
State v. Boyce, 284 Minn. 242, 170 N. W. 2d 104 (1969).
Minn. Const, art. 1, § 4, provides: “The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy. A jury trial may be waived by the parties in all cases in the manner prescribed by law; and the legislature may provide that the agreement of five-sixths of a jury in a civil action or proceeding, after not less than six hours’ deliberation, is a sufficient verdict.”
Minn. St. 631.01 provides: “An issue of fact arises upon a plea of not guilty, or upon a plea of former conviction or acquittal of the same offense. Except where defendant waives a jury trial, every issue of fact shall be tried by a jury of the county in which the indictment was found or information filed, unless the action shall have been removed by order of court as provided in sections 627.01 to 627.04. If the defendant shall waive a jury trial, such waiver shall be in writing signed by him in open court after he has been arraigned and has had opportunity to consult with counsel and shall be filed with the clerk. Such waiver may be withdrawn by the defendant at any time before the 'commencement of the trial. If the charge against the accused be a misdemeanor, the trial may be had in the absence of the defendant, if he shall appear by counsel; but, if it be for a felony or gross misdemeanor, he shall be personally present.”