IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 18, 2002

STATE OF TENNESSEE v. KENNETH MAURICE VAUGHN

Direct Appeal from the Criminal Court for Davidson County

No. 2001-C-1405 Steve R. Dozier, Judge

No. M2001-03091-CCA-R3-CD - Filed January 15, 2003

Defendant, Kenneth Maurice Vaughn, appeals his convictions in the Davidson County Criminal

Court for vandalism and aggravated criminal trespass. At his arraignment, Defendant entered a pro

se plea of not guilty. During a hearing on several pretrial motions, at which Defendant proceeded

pro se, Defendant signed a written waiver of his right to a trial by jury. After Defendant waived his

right to a jury trial, the trial court appointed counsel to represent Defendant and scheduled a bench

trial. Following a bench trial, Defendant was convicted as charged, and he received an effective

sentence of eleven months and twenty-nine days for each charge, to be served consecutively. In this

appeal as of right, Defendant argues that the trial court erred in accepting his jury waiver because he

signed the waiver without the assistance of counsel. We conclude that Defendant was not

unconstitutionally denied the right to counsel and that he made a valid waiver of his right to a jury

trial. We affirm the judgment of the trial court.

Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Criminal Court is Affirmed

THOMAS T. WOODALL,J., delivered the opinion of the court, in which JAMES CURWOOD WITT,JR.,

and ROBERT W. WEDEMEYER, JJ., joined.

Ross E. Alderman, District Public Defender; C. Dawn Deaner, Assistant Public Defender; and J.

MichaelEngle,Assistant Public Defender, Nashville, Tennessee, for the appellant, Kenneth Maurice

Vaughn.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;

Victor S. Johnson, III, District Attorney General; and Sarah N. Davis, Assistant District Attorney

General; and Kristen K. Shea, Assistant District Attorney General; and Christopher R. Buford,

Assistant District Attorney General, for the appellee, State of Tennessee.
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OPINION

Factual Background

On the afternoon of December 29, 2000, Defendant arrived at the home of his former

girlfriend, Stacy Lynn Guesnier, whom he had dated for four years and with whom he had been

living until July 27, 2000. Defendant had left behind some personal belongings at Ms. Guesnier’s

apartment, and he still visited Ms. Guesnier often, but he no longer possessed keys to her apartment.

When Defendant arrived at the apartment, he began pounding on the door. Ms. Guesnier told a

friend who was visiting her at the time to tell Defendant that she was not home. Defendant

continued to pound on the door. He then kicked down the door and entered the apartment. Ms.

Guesnier attempted to hide in the hallway, but she realized that Defendant had seen her, and she got

up to call the police. When Defendant entered the apartment, he went straight back to the bedroom

and began “rummaging” around, looking for his address book. Ms. Gusenier sat on the couch and

talked on the phone with the police. Defendant left the apartment, and the police arrived shortly

thereafter. Defendant returned to the apartment to speak with the police, and he was arrested. The

damage to Ms. Guesnier’s door cost $400 to repair.

On July 20, 2001, Defendant was indicted by the Davidson County Grand Jury and charged

with vandalism and aggravated criminal trespass. On August 10, 2001, the trial court set

Defendant’s bond at $10,000 with the condition that Defendant be placed on electronic monitoring.

The State filed a motion to revoke, increase, or alter Defendant’s bail, alleging that Defendant

violated the electronic monitoring conditions. On August 30, 2001, the trial court conducted a

hearing on the State’s motion. Finding that Defendant failed to pay his electronic monitoring fees

and that he tested positive for marijuana use, the trial court revoked Defendant’s bond and increased

it to $76,000.

On August 22, 2001, Defendant filed three pro se motions, including a “Motion for

Appointment of Counsel for Consultation.” Defendant was arraigned on August 29, 2001. At his

arraignment, Defendant requested a hearing on his pretrial motions, but the trial court declined to

hear the motions until a later date. Defendant entered a pro se plea of not guilty. On September 5,

2001, the trial court heard Defendant’s pretrial motions. At the hearing, Defendant stated to the trial

court that he wanted his case to be resolved as quickly as possible. The trial court asked Defendant

whether he wished to proceed with a jury or waive his right to a jury. Defendant responded,

“whichever’s more convenient, whichever’s gonna be more speedy, sir. I am fully prepared for

trial.” The trial court then presented Defendant with a jury trial waiver form, which he signed. The

form that Defendant signed reads as follows:

Pursuant to the authority granted by Rule 23, Tenn. Rules of Criminal Procedure, a

motion has been made by the defendant to waive a trail [sic] by jurty [sic], which

motion the court is pleased to grant.
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The defendant makes oath in due frorm [sic] that he/she has been advised by counsel

of the constitutional right of every defendant to a trail [sic] by jury, but through this

motion, concurred in by the district attorney general and counsel for the defense,

[desires] to waive said privilege.

The form bears the signatures of Defendant, the prosecutor, and the trial court. When the

trial court presented Defendant with the jury waiver form, the court explained to Defendant, “[t]his

is a Waiver of Jury Trial. And we can set this next week. . . . So, if you want to waive the jury, then

you can sign that document right there; and we can try to get this case expedited.” Defendant signed

the waiver, and the trial court then appointed counsel to represent Defendant and scheduled his trial

to begin nine days later. Following a bench trial, Defendant was convicted of both counts and

sentenced to eleven months and twenty-nine days for each count, to be served consecutively.

Defendant was ordered to serve seventy-five percent of his sentence in confinement.

On appeal, Defendant argues that the trial court erred in accepting the written waiver of his

right to a jury trial and that he did not execute such waiver knowingly because he was

unconstitutionally denied the right to counsel at the time of signing the waiver. We conclude that

the written waiver is valid pursuant to Rule 23 of the Tennessee Rules of Criminal Procedure.

Furthermore, Defendant, being later represented by counsel, failed to move to withdraw his jury

waiver prior to the start of his trial. The waiver indicates that Defendant was advised “by counsel”

of his constitutional right to a jury trial. While it is clear that he had no attorney of record

representing him in court at the time he executed the waiver, it is equally clear that the waiver sets

forth his constitutional right to a trial by jury.

Right to Counsel

The Sixth Amendment to the United States Constitution and article I, § 9 of the Tennessee

Constitution both guarantee the right to the assistance of counsel at trial and at “‘critical stages’ of

the proceedings ‘where counsel’s absence might derogate from the accused’s right to a fair trial.’”

State v. Martin, 950 S.W.2d 20, 25 (Tenn. 1997) (quoting United States v. Wade, 388 U.S. 218, 87

S. Ct. 1926, 18 L. Ed. 2d 1149 (1967)). Tennessee Rule of Criminal Procedure 44(a) reiterates a

defendant's right to have “assigned counsel in all matters necessary to the defense and at every stage

of the proceedings, unless the defendant executes a written waiver.” Tenn. R. Crim. P. 44(a).

Defendant was not denied his right to counsel at trial. As the trial court noted in its order

denying Defendant’s motion for new trial, “the defendant was represented by counsel at the trial and

was only without counsel for the purpose of waiving his right to a jury trial.” Defendant contends,

however, that because he waived his right to a jury trial without the assistance of counsel, the written

waiver is invalid. We agree that a defendant’s waiver of a jury trial is indeed a “critical stage” in the

proceedings at which a Defendant is constitutionally entitled to have counsel present unless he

voluntarily and intelligently waives that right. We also recognize that Defendant was not advised

by the trial court of his right to have counsel present at those proceedings, and the record is void of

any voluntary and intelligent waiver by Defendant of his right to counsel. We conclude, however,
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that the absence of counsel at the September 5, 2001, hearing, during which Defendant waived his

right to a trial by jury, does not invalidate the waiver in this case.

The State cites an opinion by the United States Supreme Court in which the Court held that

a defendant may voluntarily and knowingly waive his right to a jury trial without the assistance of

counsel. “There is nothing in the Constitution to prevent an accused from choosing to have his fate

tried before a judge without a jury even though, in deciding what is best for him, he follows the

guidance of his own wisdom and not that of a lawyer.” Adams v. United States ex rel. McCann, 317

U.S. 269, 275, 63 S. Ct. 236, 240, 87 L. Ed. 268, 273 (1942). The defendant in that case, however,

had refused appointed counsel and insisted on representing himself. Id., 317 U.S. at 270, 63 S. Ct.

at 237, 87 L. Ed. at 270. Defendant in this case filed a motion for the appointment of counsel, which

was not heard and granted until after he waived a jury in writing.

 While Defendant was nevertheless entitled to the assistance of counsel at those proceedings,

during which he waived his right to a jury, the trial court was responding to Defendant’s own request

for a speedy trial. Furthermore, even if the trial court erred by allowing Defendant to proceed pro

se at those proceedings and Defendant was unconstitutionally denied the benefit of counsel,

Defendant had sufficient time with the assistance of counsel during which to move the trial court to

withdraw his waiver of a jury trial if he objected to trial court’s actions. Defendant’s argument, that

he was denied the assistance of counsel and that his waiver of a jury trial was invalidly executed,

should have been asserted in a motion to withdraw his waiver prior to the commencement of his trial.

A defendant should not be allowed to take advantage of the errors which he induced the trial court

to commit or which were the natural consequences of his neglect. State v. Garland, 617 S.W.2d 176,

186 (Tenn. Crim. App. 1981). Defendant insisted on a speedy trial, and only now after his

convictions and sentencing, does he complain of having been denied the right to have a jury hear his

case.

Although Defendant included the issue in his motion for new trial, he did not argue at the

hearing on the motion that he was unconstitutionally denied the right to the assistance of counsel or

the right to be tried by a jury. Furthermore, at the hearing on the motion for new trial, Defendant

failed to offer any proof that he did not understand the nature or consequences of his waiver or that

the absence of counsel at those proceedings prejudiced him.

Right to Jury Trial

Article I, § 6 of our state constitution guarantees the right to a trial by jury. As noted by our

supreme court, “Of course, it is the prerogative of every criminal defendant to waive his right to trial

by jury.” State v. Bobo, 814 S.W.2d 353, 359 (Tenn. 1991). Should a defendant elect to waive that

right, however, the waiver must be made in accordance with the constitutional safeguards and

applicable statutes and rules of criminal procedure. Id. Rule 23 of the Tennessee Rules of Criminal

Procedure provides that “[i]n all criminal cases except small offenses, trial shall be by jury unless

the defendant waives a jury trial in writing with the approval of the court and the consent of the

district attorney general.”
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In State v. Ellis, 953 S.W.2d 216, 221-22 (Tenn. Crim. App. 1997), this Court held that a

defendant must personally waive the right to a jury trial in open court for the record and that his

lawyer cannot do it in his stead. (Emphasis in original). Formal compliance with Rule 23 demands

only that a written waiver is executed by the defendant. This Court recognized that a written waiver

in compliance with Rule 23 is valid. We noted that in the absence of a written waiver, it is preferred

practice for the trial court to “inform the defendant of his right to a trial by jury, the nature of the

right, and the consequences of waiving it.”

Specifically, the court should advise the defendant that (1) he is entitled to have

twelve members of the community decide his innocence or guilt of the offense(s)

charged; (2) the defendant may take part in jury selection; (3) jury verdicts must be

unanimous; and (4) the court alone decides guilt or innocence if the defendant waives

a jury trial.

Id.

Although the trial court did not perform this colloquy with the defendant in this case, a valid

written waiver, signed by Defendant and consented to by the prosecutor and the trial court, was

executed in satisfaction of the requirements of Rule 23 of the Tennessee Rules of Criminal

Procedure. We conclude that Defendant voluntarily relinquished his right to a jury trial.

CONCLUSION

After a careful review of the entire record, we affirm the judgment of the trial court.

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THOMAS T. WOODALL, JUDGE