### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs S eptem

ber 18, 200 2
STATE OF TENN ESSEE v. KENNETH M AURICE VAU GHN Direct Appeal from the Criminal Court for Davidson County No. 2001-C-1405 Steve R. Dozier, Judge

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

Defend ant, Kenneth Maurice Vaughn, appeals his convictions in the Davidson County Criminal Courtfor vandalism and

aggravated cr

iminal trespass. At his arraignment, Defenda nt entered a pro se plea of no t g ui lt y. During a hearing on seve ral pretrial motions, at which Defendant proceeded pro se , Defendant sig ned a wr itten wai ver of hi s right to a trial by jury . After D efenda

nt waived his right to a jury trial, the

trial court appointed counsel to represent Defenda nt and scheduled a bench trial. Following a bench trial, Defenda nt was convicted as charged, a nd he re ceiv ed an effective sentence of eleven months and twenty -nine days for eachcharge, to be ser

ved cons ecutively. In thi s appeal as of

right, Defendant argue s that the trial court erred in accepting his jury

waiver because he signed the waiver without the assistance of counsel. We conc lu de that Defendant was not unconstit utionally denied the right to counsel and that he made a va lid waiver of his right

to ajury trial. We a

ffirm the judgmen t of the tr ial cour t. Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Criminal Court is Affirmed
T HOMAS T. W OODA LL , J., delivered the opinion of the court, in whichJ AMES C URWOOD W ITT , J R ., and R OBER T W. W EDEMEYER , JJ., joined.
Ross E. Alderman, District Public Defender; C. Dawn Deane r, A ssist ant

Publ ic D efe nde r; a nd J. Michael Engle, Assistan t Public Defender, Nashville, Tennessee, for the a ppellant, Kenneth Maurice Vaughn.
Paul G. Summers, Attorney Gene ral and Reporter; Kim R. Helper, As sistant At torney Genera l; Victor S. Johnson, III , District Attorney Gene ral; and Sarah N. Davis, Assistant Distri c t Attorney Genera l; and Kristen K. S hea, A ssistant District Attorney Gener al; and Christopher R. Buford, Assistant District Attorney Gene ral, for the appellee, State of Tennessee

.-2- OPINION
Factua l Background
On the afternoon of December 29, 2000, De fen da nt arrived at the home of his former girlfriend, Stacy L

ynn Guesnier, w

hom he had dated for four y ear s and with whom he had been living until July 27, 2000. Defendant had left behind some personal belongings at Ms. Guesnier ’s apartme nt, and he still visited Ms. Guesnier often, but he no long er posse ssed key s to her apa rtment. When Defendant arrived at the apartment, he b egan pounding on the door. Ms. Guesnier told a friendwho was visiting her at the time to tell Defendant that she was not home. Defend ant continued to pound on the door. He then kicked down the door and entere d the apa rtment. Ms

. Guesnier attempted to hide in the hallway, but she realizedthat Defendant had seen her, and she g ot up to call the police. When Defendant entered the apartment, he went straig ht back to the bedroom and began “rummaging ” around, looking for his address book. Ms. Gusenier sat on the couch and talked on the phon e with the police. D efenda

nt left the apartme nt, and the

police a rrived s hortly thereafter. Defend ant retu rned tothe apar

tment to spe ak with

the police, and he was arrested. The damage to Ms. Guesnier’s door cost $400 to repair

. On July 20, 2001, Def

endant w as indicted by

the David son County

Grand Jury and cha

rged withvandalism and aggravate d criminal trespass. On August 10, 2 001, the tr ia l court set Defendant’s bond at $10,00 0 with the co ndit ion t hat De fendan t be pl aced on elect ronic moni torin g. The State filed a motion to revoke, incr ease, or alter Defendant’s ba il, 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 D efendant’s bond and increased it to $76,000.
On August 22, 2001, Defen dant filed t hree pro se motions, including a “Motion for Appointmentof Counsel for Consultation.” Defendant was arraigned on Augu st 29, 2001 . At his arraig nment, Defend ant requ ested a h earing on his pre

trial moti ons, b ut the tria l court declined to hear the motions until a later date. Defendant entered a pro se plea of no t g ui lt y. On September 5, 2001, the trial

court he ard Def

endant’ s pretria

l motions. At the hearing, Defendant stated to the tria l court that he wa

nted his case to be resolved as quickly as possible. The trial court asked Defendant whether he wished to proceed with a ju ry or wa ive his right to a jury. D efendant responded, “whic hever’s mor e convenient, whichever’s gonna be more speedy , sir. I am fully prepared for trial.” The trial court then presented Defend ant with a

jury trial wa iver for m, which he signed. The form that Defend ant signed read s as follow s:
Pursuant to the authority gr

anted 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 c ourt is ple ased to g rant.-3-

The defendant makes oath in due frorm [sic] that he/she has been advised by counsel of the constitutional right of every defenda nt to a tra il [sic] by jury , but throu gh this motion, concurr

ed in by th e district attorney g eneral and counsel for the defense , [desires] to waive said privilege.
The form bear s the s igna

ture s of D efendant , the

pros ecut or, a nd the tria l cou rt. Whe n the trial court presented Defendant with the jury waiver form, the court

explained

to Defendant, “[t]hi s is a Waiver

of Jury Trial. And we ca

n 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 repr esent Defendant and scheduled his trial to begin nine day s later. Fol l owing a bench trial, Defendant wa s convicted of both counts and sentenced to eleven months and twenty- nine d ays for ea ch co un t, to be se rv ed co ns ec ut iv el y. Defend ant was o

rdered to serve seventy -five pe rcent of his sente nce in co nfineme

nt.
On appeal, Defendant arg ues that the trial court er

red in accept ing the w ritten wa iver of h is right to a jury trial and that he did not execute such waiver knowingly because he was unconstit utionally denied th e right to coun sel a

t the t ime of sign ing t he wa iver . Weconclude that the written waiver is valid pursuant to Rule 23 of the Tennessee Rules of Criminal Procedure. Furth ermore, Defend ant, being later repres ented by

counsel, failed to

move to wit

hdraw hi s ju r y waiver prior to the start of his trial. The waiver indicate s that Def

endant w as advised “by

counsel” of his constitutional right to a jury trial. While it is clear t hat he had n o attorney of r ecord representing him in court at the time he executed the waiver, it is equally clear th at the wa

iver sets fo rt h h is co ns ti tu ti on al ri gh t t o a tr ia l b y ju ry. Right to Counsel
The Si xt h Am end men t t o t he U ni ted St ate s C ons ti tu ti on a nd a rti cle 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 absenc e might d eroga te from the accused’s right to a fair trial.’” State v. Martin , 950 S.W.2d 20, 25 (Tenn. 1997) (quot ing United States v. Wade , 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (19 67)). Tenness ee Rule o f Criminal Procedu re 44(a ) reiter ates a defend ant's right to have “assigned counsel in all matters necess ary to the defens e and at every stage of the proceedings, unless the defenda nt 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 defenda nt was represented

by counsel at the trial and was only without co

unsel for the purpo se of wa

iving hisright to

a jury trial.” D efenda

nt contends, however, that because he waived his right to a jury trial withoutthe assistance of counsel, the written waiver is invalid. We agree that a d efenda nt’s waiv er of a j ury

trial is indeed a “critical stage”in the procee dings at whi ch a Defendant is constitutionally entitled to have counsel present unless he voluntar ily and intelligently wa

ives that right. We

also recognize that Defendant was not advised by the trial court of his right to have counsel present at those proc eedings, and the record is void of any voluntar y a nd intellig ent waive

r by Defend ant of hisright to counsel. We conclude, however,-4-

that the absence of counsel

at the September

5, 2001, he aring, during w hich Def endant w aived his right to a trial by

jury, does not invalidate the wa iver 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 knowing ly waive his right to a

jury trial without the assistance of counsel. “There

is nothing

in the Const

itution to pr

event an accuse d from choosing to have his f

ate tried before a judge with out a j ury even th ough, i n deci ding w hat is best for him, he follows the guidanceof

his own wisdom and not that of a lawye r.” 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 no t heard and gran ted un til a fter h e waiv ed a ju ry in writ ing.
While Defendant was nevertheless entitled to the assistanc e of coun sel at thos e proce edings, during which he waived his right to a jury , the tria

l court wa s respond

ing to De fendant ’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 Defe ndant was unconstitutionally denied the be nefit of couns e l, Defendant

had suff icient time

withthe assist

ance of counsel d uring w hich to move the t

rial cou rt to withdraw his waiver o f a jury trial if he objected to trial court’s actions. Defendant’s a rgument, that he wa s d en ie d t he as si st an ce of co un se l a nd th at hi s w ai ve r o f a ju ry t r ial was invalidly executed, should have been asserted in a motion to withdraw his waiver prior to the commenc ement of

his trial. A defenda

nt should not be allowed to take advantage of the e rrors which he induced the trial court to commit or which were the natural consequence s of his neglect. State v. Garland , 617 S.W.2d 176, 186 (Tenn. Crim. App. 1981). Defendant insisted on a s pe ed y t rial, an d only now afte

r his convictions and sente

ncing, does he c omplain of having been de nied the r ight tohave a

jury hear his case. Alth ough Defendant included the issue in his motion for new trial, he did not argue at the hearing on the motion that he was unconstit utionally denied th e right to the assistance of counsel or the right to be tried by

a ju ry. Fur

thermore, at the hearing on the motion for new tr ial, Defendant failedto offer any

proof that

he did not understand the nature or consequences of his waiver or that the abse nce of c ounsel at

those pro ceeding s prejudi ced 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 preroga tive 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 waiv er must be made in a

ccorda nce with t

he constitutio n al safeguards and applica ble statutes and rules of criminal procedure. Id

. Rule 23 of the TennesseeRules of Criminal Procedure providesthat “[i]n a ll crimina l cases e xcept small

offense s, trial shall be by jury unless the defendant waives a jury trial in writing with the ap prov al of the court and the consent of the district attorney g eneral.”-5-

In State v. E

llis , 953 S.W.2d 216, 221-22 (Tenn. Crim. App. 1997), thi s Court hel d that a defendant must personall

y waive the

right t o a jury

trial in op en court

for the r ecord a nd 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 prefe rred 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 wa iving it.” Sp ec if ic al ly, the court should advise the defendant that (1) he is entitled to h av e twelve members o f the com munity decide h is innoce nce or g uilt of the offense (s) charged; (2) the

defenda nt may take par t in jury selectio n; (3) jur

y ve rdicts mus tbe unanimous ; and (4) the court alone decides g uilt or innocence if the defendant waives a jury trial.
Id

. Alth ough 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 tr

ial court, was executed i n satisfa

ction of th

e requir ements of

Rule 23 of

the Tennessee Rules of Crimin a l Procedu re. We co nclude th at Defe ndant volu

ntarily relinquis hed his ri ght to a j ury trial.
CONCLUSION
After a caref ul review of the e

ntire re cord, we

affirm t he judg ment of the

trial cou rt.

___________________________________ THOMAS T. WOODALL , JUDGE