Conviction affirmed despite Spanish jury waiver form omissions

September 21, 2015

A Spanish-speaking litigant failed to persuade an appeals court Monday that omissions on a jury trial waiver form merit reversal of his rape conviction.

The Indiana Court of Appeals affirmed a Class B felony conviction in Carlos I. Nunez v. State of Indiana, 53A04-1407-CR-346. “Here, the question is whether a conviction must be set aside because the defendant who was asking to waive the trial by jury did not tell the trial judge that his request was voluntary,” Senior Judge Randall Shepard wrote for the court.

Nunez claimed a jury waiver form in Spanish didn’t contain such a declaration, nor a declaration that jury trial waiver was made knowingly, understandingly and voluntarily. The English language forms contain both of those declarations.

Shepard wrote of the efforts Indiana courts have undertaken to ensure defendants are not surrendering rights because they are misinformed, threatened or misled. The panel found that hadn’t been the case for Nunez.

“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,” Shepard wrote, citing U.S. v. Sammons, 918 F.2d 592, 597 (6th Cir. 1990).

The panel noted that in open court with an interpreter before Monroe Circuit Judge Marc R. Kellams, Nunez was asked whether he signed the waivers, understood he was giving up the right to a jury trial, and that the judge would make the determination about guilt. He replied affirmatively in each case.

“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,” Shepard wrote.




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