This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (1998).




State of Minnesota,



Lawrence Edward Gorman,


Filed March 2, 1999


Anderson, Judge

Ramsey County District Court

File No. K9973242

Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Susan E. Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)

John M. Stuart, State Public Defender, D. Adrian Bryan, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Anderson, Presiding Judge, Kalitowski, Judge, and Shumaker, Judge.



Appellant Lawrence Edward Gorman challenges his conviction and sentence for felony assault, arguing that there was an invalid waiver of his right to a jury trial. Because we find no error on the part of the district court or in appellant's waiver, we affirm.


This case arises from appellant's conviction for fifth-degree felony assault under Minn. Stat. § 609.224, subd. 4(b) (1998). The charge was based on appellant's two previous assault convictions within the three years immediately preceding the present charge. See id. Appellant waived his right to a jury trial and agreed to a bench trial on stipulated facts. Appellant was found guilty and sentenced to 30 months' incarceration.


The waiver of a constitutional right requires the review of the district court's findings of fact for clear error. Cf. State v. Miller, 573 N.W.2d 661, 672 (Minn. 1998) (reviewing waiver of Miranda rights). But the analysis of such waiver requires this court to make an independent subjective determination. Cf. id. (reviewing aspect of voluntary waiver of Miranda rights).

We begin with the constitutional right to trial by jury, set forth in both United States and Minnesota Constitutions. U.S. Const. art. III, § 2, cl. 3, and amend. VI; Minn. Const. art. I, §§ 4 and 6. The right to waive a jury trial is statutory, not constitutional, and a claim that such a right was denied may be asserted on direct appeal. See State v. Hoskins, 292 Minn. 111, 117, 193 N.W.2d 802, 808 (Minn. 1972).

Appellant argues that his waiver of a jury trial was invalid. Minn. R. Crim. P. 26.01 provides that waiver of the right to a jury trial must be either in writing or oral and on the record, "after being advised by the court of the right to trial by jury and after having had an opportunity to consult with counsel." Minn. R. Crim. P. 26.01, subd. 1(2)(a). Appellant waived a jury trial and presented his case to the court on stipulated facts. See State v. Lothenbach, 296 N.W.2d 854, 858 (Minn. 1980).

However, rule 26.01, subdivision 2, requires that before proceeding on stipulated facts, the defendant "shall acknowledge and waive the rights to testify at trial, to have the prosecution witnesses testify in open court in the defendant's presence, to question those prosecution witnesses, and to require any favorable witnesses to testify for the defense in court." This waiver also must be in writing or orally on the record. Id.

Appellant argues that, because the waiver of his right to a jury trial was invalid, the case could not be submitted for a bench trial on stipulated facts. In Lothenbach, the supreme court concluded that a defendant does not waive the right to appeal Fourth Amendment issues despite stipulating to facts. 296 N.W.2d at 858. Lothenbach preserves a defendant's right to appeal the inadmissibility of evidence, as long as the defendant has conditioned the fact stipulation on such an objection. Appellant's argument is that the waiver of his rights did not include a formal acknowledgement of each right inherent in a jury trial, such as the right to testify and to have the state present its witnesses.

Minnesota case law has formalized a general approach to the waiver of a jury trial, comparable with the waiver of other constitutional rights. The supreme court requires the waiver of a jury trial to be knowing, intelligent and voluntary. State v. Pietraszewski, 283 N.W.2d 887, 890 (Minn. 1979); accord State v. Ross, 472 N.W.2d 651, 653 (Minn. 1991). "The trial court must be satisfied that `the defendant was informed of his rights and that the waiver was voluntary.'" Ross, 472 N.W.2d at 653 (quoting Pietraszewski, 283 N.W.2d at 890).

Appellant argues that the district court did not formalistically request appellant to concede each right. The supreme court has explained that the purpose of the trial court's inquiry, or "colloquy," into a defendant's waiver is to learn whether the defendant understands the basic elements of a jury trial. Ross, 472 N.W.2d at 654 (noting defendant's familiarity with judicial system based on previous convictions) (citations omitted). But the supreme court has noted that a defendant need not have "`exhaustive knowledge of all the doctrinal subtleties of Sixth Amendment jurisprudence.'" Id. (quoting United States ex rel. Williams v. DeRobertis, 715 F.2d 1174, 1179-80 (7th Cir. 1983)).

Furthermore, the supreme court has refused to reverse for invalid waiver, despite a trial court's failure to question a defendant thoroughly in open court as to his awareness of the right to a jury trial and that he had conferred with an attorney about the consequences of waiver. Pietraszewski, 283 N.W.2d at 890. Instead, the supreme court looked to the totality of the circumstances, relying on evidence that sufficiently demonstrated the defendant's waiver was voluntary and intelligent. Such waiver included numerous contacts between defendant and the court, a hearing on custodial conditions, and comments on defendant's ability to express himself and participate in the proceedings. Id.; cf. State v. Krejci, 458 N.W.2d 407, 412 (Minn. 1990) (despite the trial court's failure to make comprehensive examination of defendant's waiver, record clearly demonstrated that defendant understood consequences of proceeding pro se, including letters to court and interaction with 12 different judges).

The totality of the circumstances in the present case demonstrates that appellant made a knowing, intelligent, and voluntary waiver of his constitutional right to a trial by jury. Appellant has substantial experience with the criminal justice system. Previously, appellant served time in prison and, at the time of trial, was awaiting sentencing on another charge. Between both the present case and the assault charge tried a few months before this case, appellant waived his right to a jury trial, to testify, and to present and cross-examine witnesses.

We conclude that the trial court complied with the knowing and voluntary waiver requirement of Minn. R. Crim. P. 26.01, subd. 2. Appellant agreed on the record to allow the district court to decide his case and understood how the judge would make his decision. Furthermore, appellant admitted that he had discussed with his attorney what happens at a jury trial and what his rights would have been, and that he was willing to forego those rights. Appellant has failed to demonstrate that he did not understand the basic elements of a jury trial. On these facts, we are unwilling to find an invalid waiver.