Talton v. State

324 Ga.App. 9

749 S.E.2d 18

TALTON

v.The STATE.

No. A13A1223.

Court of Appeals of Georgia.

Sept. 25, 2013.

Leslie Roche' Lowry, for Appellant.

Paul L. Howard Jr. and Arthur Conley Walton, for Appellee.

RAY, Judge.

Bryan Talton was charged in a 13–count criminal indictment, and after a bench trial, he was convicted of two counts of statutory rape (OCGA § 16–6–3), four counts of child molestation (OCGA § 16–6–4(a)), and three counts of aggravated child molestation (OCGA § 16–6–4(c)).¹ He appeals from his conviction and sentence, and from the denial of his motions for new trial, alleging that he did not knowingly, voluntarily, and intelligently waive his right to a jury trial, and that he received ineffective assistance of counsel. For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence shows that Talton committed the above-named offenses against three girls. The evidence shows, inter alia, that Talton touched A.B.'s private parts with his penis, fingers and mouth; penetrated her vagina such that she bled; and forced her to perform oral sex on him. These crimes occurred when A.B. was in kindergarten until she was in seventh grade, while he was living in her home and in a relationship with her mother. He threatened to hurt or kill her if she told anyone. The evidence also shows that when A.B.'s first cousin, J.W., was nine years old, Talton, inter alia, touched J.W.'s private parts with his penis or hand. He threatened to hurt her if she told anyone. Additionally, the evidence shows, inter alia, that when A.B.'s half-sister, whose initials also are A.B., was 11 or 12 years old, Talton put his mouth on her private parts and penetrated her vagina with his penis. Talton does not challenge the sufficiency of the evidence.

Talton went to trial on January 27, 2009. At that time, Talton's attorney told the court that, against his advice, Talton wanted a bench trial. Talton told the court that he understood he had an absolute right to a jury trial, and knew that if he waived that right, the trial court would hear and rule on the evidence presented. After opening statements and before any witnesses were sworn, however, the State said that it would not consent to a bench trial and insisted on a jury trial. Talton indicated, through his lawyer, that he still wanted a bench trial, but the trial court continued the case.

The bench trial resumed on March 9, 2009, wherein Talton's trial counsel again stated that he had advised his client to have a jury trial, but that Talton insisted on a bench trial. Talton confirmed this to the trial court. Talton stated that he had discussed his decision with his trial counsel, that he understood that the trial judge would listen to witnesses and to his own testimony, and that the trial judge would decide his guilt or innocence, as well as his sentence. The State then told the court that it would not object to Talton waiving his right to a jury trial because he had been fully informed of all his rights. The bench trial proceeded.

1. Now, after his conviction, Talton argues that he did not knowingly, voluntarily, and intelligently waive his right to a jury trial. He argues that there is no evidence establishing that he knew the difference between a jury trial and a bench trial. He argues that he did not understand that there would be a process of jury selection, that the State did not present any extrinsic evidence at the motion for new trial hearing, and that the State has not otherwise met its burden of proving a knowing, voluntary, and intelligent waiver.

A criminal defendant must personally and intelligently participate in the waiver of the constitutional right to a trial by jury. When the purported waiver of this right is questioned, the State bears the burden of showing that the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.

(Citation omitted.) Whitaker v. State, 256 Ga.App. 436, 439(2), 568 S.E.2d 594 (2002). Further, “[t]he question of whether a defendant is capable or incapable of making a knowing and intelligent waiver of his rights is to be answered by the trial judge and will be accepted by this [C]ourt unless such determination is clearly erroneous.” (Citation and punctuation omitted.) Id. “In Georgia, it is well-settled that the ‘clearly erroneous' standard for reviewing findings of fact is equivalent to the highly deferential ‘any evidence’ test.” (Citations omitted.) Reed v. State, 291 Ga. 10, 13(3), 727 S.E.2d 112 (2012).

Here, despite Talton's argument that the State presented no extrinsic evidence of the voluntariness of his plea, the record is by no means silent. Whitaker, supra. Prior to opening statements, Talton, in response to questions from the trial court, stated that he understood he had an absolute right to a jury trial and that if he waived that right, the trial court would hear and rule on the evidence presented. He also testified that his waiver was voluntary, that he had not been pressured, and that his lawyer advised him against a bench trial. Then, at the later date on which the bench trial actually took place, Talton stated in response to the court's questions that he wanted to proceed without a jury, that he was not threatened or coerced into that decision, that he was not taking any medications and had not been prescribed medication that he failed to take, that he was not under a doctor's or mental health professional's care, and that he was not under the influence of alcohol. He stated that the private attorney he hired had advised him to proceed to a jury trial, but that he did not wish to, although he understood he had an absolute right to a jury trial. He explained his decision was due to his fear of “the reactions of a jury, the mind-set, the possibilities of them being put in that exact role and/or knowing someone in that role as well as, you know, in essence of the allegations themselves, I myself would personally prefer a bench trial.” When the trial court asked, regarding his decision to proceed with a bench trial, “This is the same choice that you made six weeks or two months ago when we started this? ... You haven't wavered on this issue? You have not changed your mind?” Talton responded, “No, Ma'am, your honor.” He also stated that he had talked about the bench trial versus jury trial with his trial counsel, and that he understood that the trial judge would listen to witnesses and to Talton's own testimony, and would decide his guilt or innocence, and his sentence.

We have determined that “[a] defendant's consent need not be in a particular, ritualistic form. Since form is unimportant, the only real issue is whether appellant intelligently agreed to a trial without a jury.” (Citation and punctuation omitted.) Brown v. State, 277 Ga. 573, 574(2), 592 S.E.2d 666 (2004). In instances where the information given to, and elicited from, a defendant was similar to that in the instant case, i.e. the testimony showed that the defendant had discussed a bench trial with counsel, had not been threatened or coerced to waive his right to a jury trial, was not under the influence of drugs or alcohol, and was voluntarily choosing a bench trial, the defendant's waiver of his rights was valid. Turnbull v. State, 317 Ga.App. 719, 726–727(2)(c), 732 S.E.2d 786 (2012) (defendant's waiver was knowing and voluntary, and counsel was not ineffective, where trial court received oral assurances from defendant that he wanted a bench trial, had discussed this with counsel, had not been threatened or coerced, was not under the influence of drugs, and was making a voluntary decision). Accord Watson v. State, 274 Ga. 689, 690–691(2), 558 S.E.2d 704 (2002) (waiver of rights upheld where defendant told trial court on the record that he wished to waive jury trial and proceed with bench trial, and where defendant's counsel stated that he had discussed with defendant whether to proceed with bench trial versus jury trial).²

Talton, citing Ealey v. State, 310 Ga.App. 893, 714 S.E.2d 424 (2011), also argues that his decision was not voluntary because the trial court “heavily advocated in favor of proceeding without a jury,” thus influencing his choice. At the initial trial date, when the State objected to proceeding with a bench trial after Talton requested such, the trial court, after learning the victims' ages, asked the prosecutor if he wanted to “spare them a jury trial” and also said, after pointing out that a number of jurors would be disqualified because of personal experiences with molestation, that “it may be more efficient to proceed without a jury if Mr. Talton is waiving his right to a jury. And not requiring the girls to testify in front of a jury is, I think, really in their best interest.” (Emphasis supplied.)

Ealey is distinguishable from the instant case. In Ealey, the defendant first stated that he wanted a bench trial, but after listening to the lawyers and the court discuss evidentiary stipulations, he changed his mind, telling the court that he had not understood his attorney before and that he wanted a jury trial. Id. at 894–895, 714 S.E.2d 424. The trial court told the defendant that if he chose a stipulated bench trial instead, the court would give him a fine and the minimum sentences for his crimes and grant him a supersedeas bond to allow him to leave jail pending appeal. Id. at 895–896, 714 S.E.2d 424. The court also reminded him that if he went before a jury, it would take up the court's time and that the court could assign him any sentence—up to and including the maximum—and “stated that it needed an answer ‘in 30 seconds.’ ”...