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IN THE SUPREME COURT OF THE STATE OF IDAHO 

Docket No. 47577

STATE OF IDAHO,

 Plaintiff-Respondent,

v.

CLINTON HAGGARD,

 Defendant-Appellant.

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Boise, April 2020 Term

Opinion Filed: June 10, 2020

Melanie Gagnepain, Clerk

Appeal from the District Court of the Seventh Judicial District, State of Idaho, 

Bingham County. Darren B. Simpson, District Judge. 

The district court’s decision is reversed and the case remanded with 

instructions.

Swafford Law, PC, Idaho Falls, for Appellant. Trevor L. Castleton argued.

Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. John C. 

McKinney argued.

_____________________________

BURDICK, Chief Justice. 

Clinton Haggard appeals the district court’s decision affirming a magistrate court’s 

judgment of conviction. The magistrate court found Haggard guilty of misdemeanor 

domestic battery in violation of Idaho Code section 18-918(3)(b) after a court trial.

For the reasons below, we reverse the district court’s decision and remand this case with 

instructions to the district court to remand this case to the magistrate court with 

instructions to vacate the judgment of conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

Around midnight on the morning of June 8, 2016, police arrested Haggard and 

charged him with domestic battery in the presence of a child, a violation of Idaho Code 

section 18-918(3)(b). Haggard spent the night in custody and at 7:00 a.m., he signed a 

“Notification of Rights” form. That form admonished him to “initial only those items 
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which you fully understand.” Haggard initialed an item acknowledging that if he pled not 

guilty, he would “have the right to a trial before the Court or a jury of six (6) jurors[.]” At 

the end of the listed items, the form advised Haggard that he should not hesitate to speak 

up if he had “any questions concerning any rights of procedure[,]” and stated: “It is 

essential that you understand.” Haggard signed and dated the document below the 

following pre-printed statement:

By signing this document I acknowledge that I have read the same and that 

I fully understand my rights as indicated and that any questions I may have 

regarding these rights have been answered to my satisfaction.

A few hours later, Haggard’s first appearance occurred in magistrate court. There, 

the magistrate judge advised Haggard of his rights, to which Haggard replied that he 

understood and had no questions. He pleaded not guilty and requested counsel. That same 

day, Haggard filled out a “Statement of Defendant’s Rights: Domestic Assault or Battery 

Cases.” This document also informed Haggard that he had the right to a jury trial. It further 

explained that if he pled not guilty, the court would ask whether he would wish to have a 

trial before a jury or a trial before the judge only. Haggard signed and dated the document 

below the statement: “I have read this document or had it explained to me and have 

received a copy.”

On the day of the scheduled pre-trial conference, Haggard signed a “Pretrial 

Stipulation and Order.” Haggard’s attorney and the prosecutor also signed the document, 

but the magistrate judge did not, despite the document having a place for the judge’s 

signature. The only filled-out portion of the document is the date set for the court trial and 

a checked box next to that date, accompanied by the pre-printed line, appearing in bolded 

text: “AND the right to have this matter heard by jury trial is waived by both parties.”

A court trial took place on September 7, 2016. The magistrate court found Haggard 

guilty of domestic battery without traumatic injury under Idaho Code section 18-918(3)(b),

and sentenced Haggard to 90 days of jail time (with 88 days suspended and 2 days credit)

and 24 months of unsupervised probation. 

Haggard appealed to the district court, arguing that the magistrate court’s failure to 

secure a personal waiver of his right to a jury trial in open court was reversible error. The 

district court ordered that the appeal would proceed with no transcript under Idaho 

Criminal Rule 54.6(b)(1). In October 2017, the district court affirmed the judgment of 
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conviction and dismissed Haggard’s appeal, ruling that Haggard was unable to meet the 

first prong of the fundamental-error standard because he waived his right to a jury trial. 

Relevant to this appeal, the district court explained how the pre-trial conference was likely 

conducted:

The custom in Bingham County . . . is to hold an informal conference 

between the prosecutor, the defendant, and defense counsel, after which a 

pretrial stipulation and order is signed by the parties and the presiding 

magistrate judge. If issues arise requiring the magistrate’s presence, the 

magistrate is called into the courtroom and matters are placed on the record. 

Haggard timely appealed the district court’s decision to the Court of Appeals. State 

v. Haggard, No. 45592, 2019 WL 4126365 (Idaho Ct. App. Aug. 30, 2019). The Court of 

Appeals reversed, holding that Haggard was able to show fundamental error “because the 

record show[ed] no inquiry into the validity of Haggard’s written jury trial waiver and no 

basis for concluding that the written waiver was knowing, voluntary and intelligent[.]” Id.

at *2. The State timely petitioned for review, which this Court granted. 

II. ISSUE ON APPEAL

Has Haggard shown fundamental error because there was no inquiry by the trial 

court into his jury-trial waiver?

III. STANDARD OF REVIEW

“When reviewing a case on petition for review from the Court of Appeals this 

Court gives due consideration to the decision reached by the Court of Appeals, but directly 

reviews the decision of the trial court.” State v. Chernobieff, 161 Idaho 537, 539, 387 P.3d 

790, 792 (2016) (quoting State v. Lute, 150 Idaho 837, 839, 252 P.3d 1255, 1257 (2011)).

“On appeal of a decision rendered by a district court while acting in its intermediate 

appellate capacity, this Court directly reviews the district court’s decision.” Id. (quoting In 

re Doe, 147 Idaho 243, 248, 207 P.3d 974, 979 (2009)). We review “the trial court 

(magistrate) record to determine whether there is substantial and competent evidence to 

support the magistrate’s findings of fact and whether the magistrate’s conclusions of law 

follow from those findings.” Losser v. Bradstreet, 145 Idaho 670, 672, 183 P.3d 758, 760 

(2008) (quoting Nicholls v. Blaser, 102 Idaho 559, 561, 633 P.2d 1137, 1139 (1981)). And 

“if those findings are so supported and the conclusions follow therefrom and if the district 

court affirmed the magistrate’s decision, we affirm the district court’s decision as a matter 

of procedure.” Id.
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IV. ANALYSIS 

The crux of this appeal is whether Haggard effectively waived his right to a jury trial.

We hold that Haggard’s waiver was ineffective because the magistrate court did not, in 

open court, inquire into whether the waiver was knowing, intelligent, and voluntary. 

As a preliminary matter, the State argues that Haggard failed to preserve 

consideration of the arraignment transcript on appeal because he failed to include it in the 

appellate record for the district court. Haggard’s failure to include the transcript below does 

not require us to ignore it on appeal. The district court on intermediate appeal entered an 

order declaring that the appeal would proceed with no transcript under Idaho Criminal 

Rule 54.6(b)(1). While the order was likely intended to forestall the costly preparation of a

trial transcript, given that Haggard’s argument centered on pre-trial matter, the order

merely says “no transcript” without any other limiting language. Here, Haggard has 

included the transcript in the record on appeal to this Court. On these facts, we will 

consider the transcript despite the district court not having the same opportunity.

Haggard seeks reversal under the fundamental-error doctrine because there was not 

a timely objection to the trial court. To successfully show fundamental error under State v. 

Perry, Haggard must show: 

1. One or more of the defendant’s unwaived constitutional rights was

violated; 

2. The error is clear or obvious, without the need for any additional 

information not contained in the appellate record, including information 

as to whether the failure to object was a tactical decision; and 

3. The error affected the defendant’s substantial rights, meaning (in most 

instances) that it must have affected the outcome of the trial 

proceedings.

150 Idaho 209, 226, 245 P.3d 961, 978 (2010).

A deficient waiver of the jury-trial right is a structural defect, and thus, 

automatically satisfies Perry’s third prong. See State v. Vasquez, 163 Idaho 557, 562–63, 

416 P.3d 108, 113–14 (2018). However, the State argues that Haggard cannot meet Perry’s 

first and second prongs. For the reasons below, we determine: (A) Haggard has met the 

first prong of Perry because there is no evidence that the magistrate judge inquired into his 

jury trial waiver to determine whether it was knowing, voluntary, and intelligent, and (B) 
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that Haggard has met his burden on the second prong because the error is clear from the 

record. 

A. Haggard’s jury-trial waiver was ineffective.

The district court determined that Haggard’s written waiver and his failure to 

include the arraignment transcript supported finding that the jury-trial waiver was 

effective. Haggard argues that his signature on the Pretrial Stipulation Form is insufficient 

to show that his waiver was knowing, voluntary, and intelligent. He also argues that the 

magistrate court’s failure to personally inquire of him, in open court, means his waiver was 

ineffective. In response, the State argues that Haggard’s written waiver is proof, or at least 

creates a presumption, that his waiver was knowing, voluntary, and intelligent. The State 

also argues that this Court’s case law regarding jury-trial waiver has not been extended to 

misdemeanors and that this Court’s decision in State v. Vasquez, 163 Idaho 557, 416 P.3d 

108 (2018) does not compel a finding of fundamental error.

Article I, section 7 of the Idaho Constitution provides a jury-trial right for all 

criminal offenses—felony or misdemeanor—with the exception of infractions. See State v. 

Bennion, 112 Idaho 32, 45, 730 P.2d 952, 965 (1986). In most instances, the Idaho 

Constitution’s jury-trial protections hinge on whether the accused faces incarceration. Id. at

44, 730 P.2d at 964. Haggard was charged with misdemeanor domestic battery in the 

presence of a child in violation of Idaho Code section 18-918(3)(b). A defendant’s first 

conviction under this subsection is subject to a maximum possible sentence of $1,000 and 

six months of incarceration, or both. I.C. § 18-918(3)(c). However, a defendant charged

with domestic battery in the presence of the child faces double the statutory penalties under 

Idaho Code section 18-918(4). Because Haggard’s charge carried the possibility of 

incarceration, it triggered the jury-trial right under Article I, section 7.

When a defendant waives the right to trial by jury and its associated protections, the 

trial court is required to abide by certain procedural guidelines. The Idaho Constitution 

explains how one may waive the right to a jury trial:

The right of trial by jury shall remain inviolate; . . . . A trial by jury may be 

waived in all criminal cases, by the consent of all parties, expressed in 

open court, . . . signified in such manner as may be prescribed by law. . . . 

Idaho Const. art. I, § 7 (emphasis added). This section provides that a jury-trial waiver 

must be (1) expressed in open court and (2) consented to by all parties. Id. How a waiver 
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can be “signified in such manner as may be prescribed by law” is answered by both statute 

and court rule. See Van Vranken v. Fence-Craft, 91 Idaho 742, 745, 430 P.2d 488, 491 

(1967) (“The waiver of [the right to jury trial] cannot be made or enforced unless it appears 

to have been made in conformity with existing statute or rule, and not by implication.”). 

Though neither party cites to the applicable statutes, Idaho has two statutory provisions 

that address waiver of the right to trial by jury: Idaho Code sections 19-19021 and

19-39112

. In addition, this Court promulgated Idaho Criminal Rule 23 to govern how the 

right to a jury trial may be waived: 

(a) Felony Cases. In felony cases issues of fact must be tried by a jury, 

unless, in open court, a trial by jury is waived in writing by the defendant 

and the consent of the prosecutor is expressed and entered in the minutes.

(b) Misdemeanor Cases. In criminal cases not amounting to a felony, issues 

of fact must be tried by a jury, unless a trial by jury is waived by the consent 

of both parties expressed in open court and entered in the minutes.

I.C.R. 23 (emphasis added).

These procedural components are intertwined with the substantive requirements 

that the waiver be knowing, intelligent, and voluntary. Vasquez, 163 Idaho at 562, 416 P.3d 

at 113 (“[I]t is axiomatic that the failure to obtain a defendant’s personal, knowing and 

voluntary waiver of her right to jury trial is a clear violation of a constitutional right.”). “A 

defendant’s right to be tried by a jury of her peers is a fundamental tenet of constitutional 

law, both in our nation and in this state.” Id. “Failing to make [findings that the waiver was 

“knowing, intelligent, and voluntary”] as to the defendant personally establishes a 

structural defect in the proceedings.” Id. at 563, 416 P.3d at 114. 

This Court explained how a defendant must personally waive the jury-trial right in 

Vasquez, 163 Idaho at 557, 416 P.3d at 108. There, the defendant pled not guilty to a felony 

intimidating-a-witness charge and was set to have a jury trial. Id. at 559, 416 P.3d at 110. 

However, the day before trial, defense counsel and the prosecutor informed the district 

 1 Idaho Code section 19-1902 provides:

Issues of fact must be tried by jury, unless a trial by jury be waived in criminal cases by the 

consent of both parties expressed in open court and entered in the minutes. . . . .

2 Under Chapter 39 “Proceedings in the Magistrate’s Division of the District Court,” the Code provides:

A trial by jury may be waived by the consent of both parties expressed in open court and 

entered in the docket. . . . 

I.C. § 19-3911.
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court that they intended to waive the defendant’s right to a jury trial and stipulate to a court 

trial. Id. The court confirmed this stipulation on the record on the day of trial while the 

defendant was present, but the court never inquired whether she agreed with the 

stipulation. Id. Following the court’s finding of guilt, she appealed. Id.

This Court reversed, holding that “failure to obtain a personal waiver of jury trial 

from the defendant, either orally or in writing in open court is a structural defect, which 

constitutes fundamental error.” Id. at 564, 416 P.3d at 115. This Court explained that 

“failure to obtain a defendant’s personal, knowing and voluntary waiver of her right to jury 

trial is a clear violation of a constitutional right[.]” Id. at 562, 416 P.3d at 113. The 

defendant also showed “clear error” because the district court’s procedure contravened 

Idaho Criminal Rule 23(a). Id. This Court emphasized that “the trial court did not discuss 

with [the defendant] her right to trial by jury, nor did [the defendant] offer any indication

that she waived her right in a knowing, voluntary manner.” Id. This failure amounted to 

structural error, obviating the defendant’s need to show that the error affected the outcome: 

[I]n criminal cases trial courts must obtain a defendant’s consent to waive 

the right to jury trial, not just from counsel, but from the defendant herself. 

Further, such waiver must be knowing, intelligent and voluntary. Failing to 

make these findings as to the defendant personally establishes a structural 

defect in the proceedings.

Id. at 563, 416 P.3d at 114 (citations omitted).

Because the due-process requirements for waiving a right are proportional to the 

constitutional protection surrendered, a general presumption exists against the waiver of 

constitutional rights. See State v. Thurlow, 85 Idaho 96, 103, 375 P.2d 996, 1000 (1962). 

That said, a written waiver carries significant weight in determining whether the waiver 

was knowing, voluntary, and intelligent. For instance, when the State seeks to admit an 

interview taken in alleged violation of a defendant’s Miranda rights, an express written 

waiver is strong evidence of voluntary waiver, even though it is not conclusive. State v. 

Mitchell, 104 Idaho 493, 497, 660 P.2d 1336, 1340 (1983). Likewise, a defendant’s prior 

experience with the criminal-justice system is a factor considered when determining

whether the right was adequately waived. State v. Bainbridge, 108 Idaho 273, 276, 698 

P.2d 335, 338 (1985).

Here, there is some evidence that Haggard’s waiver was knowing, intelligent, and 

voluntary. For example, Haggard’s signature on the Pre-Trial Stipulation raises the 
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presumption that it was voluntary. Likewise, there are multiple sources of evidence 

suggesting that his waiver was knowing and intelligent. For one, Haggard signed and 

initialed two separate forms that apprised him of his rights. In addition, the district court’s 

dialogue with Haggard at his arraignment revealed that Haggard had some experience and 

savvy with the criminal justice system. Haggard pleaded not guilty, asked for counsel, and 

stated that he had no questions concerning his rights.

But while this evidence shows some general knowledge or familiarity with court 

procedures, it does not alter Idaho’s constitutional requirement that the waiver and the 

parties’ consent be “expressed in open court”:

This Court has recognized that “where a . . . constitutional provision is 

plain, clear, and unambiguous, it ‘speaks for itself and must be given the 

interpretation the language clearly implies.’” This Court reviews the 

provision’s language as a whole, considering the meaning of each word, so 

as not to render any word superfluous or redundant. Thus, the starting point 

in this Court’s interpretation of the relevant constitutional . . . provisions is 

the plain language

Coeur D’Alene Tribe v. Denney, 161 Idaho 508, 518, 387 P.3d 761, 771 (2015) (citations 

omitted). The plain meaning of the phrase “in open court” requires that the waiver be made 

on the record before a judge while court is in session:

open court (15c) 

1. A court that is in session, presided over by a judge, attended by the 

parties and their attorneys, and engaged in judicial business. 

• Open court usu. refers to a proceeding in which formal entries are 

made on the record. The term is distinguished from a court that is 

hearing evidence in camera or from a judge that is exercising merely 

magisterial powers. 

2. A court session that the public is free to attend. 

• Most state constitutions have open-court provisions guaranteeing the 

public’s right to attend trials.

Black’s Law Dictionary (11th ed. 2019).

To argue that the written waiver suffices, the State ignores the language from 

Article I, section 7 of the Idaho Constitution and relies solely on the disjunctive “orally or

in writing” statement in Vasquez. However, in so doing, the State fails to explain the “in 

open court” qualifier that directly follows that language. See 163 Idaho at 564, 416 P.3d at 

115. Vasquez’s recitation of the “orally or in writing” language stems from the Court of 
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Appeals’ decision in State v. Swan, which contemplated a court-conducted inquiry. 108 

Idaho 963, 966, 703 P.2d 727, 730 (Ct. App. 1985) (“A requirement that the Court 

personally address the defendant will not constitute an undue burden on the courts where 

this very important right is at issue.”); Vasquez, 163 Idaho at 562, 416 P.3d at 113. State v. 

Swan quoted the disjunctive language from the American Bar Association Standards for 

Criminal Justice, Vol. III., Ch. 15, Trial by Jury, Section 1.2(b) (1980). The current version

of the ABA Standards explains that its terms outline the methods by which a court may 

ensure that a jury trial waiver is sufficient in the absence of constitutional or statutory 

guidance. See American Bar Association Standards for Criminal Justice, Vol. III., Ch. 15, 

The Right to Trial by Jury, Section 1.1 p. 123 (1996).

Here, Haggard’s waiver was neither signed nor confirmed “in open court.” While 

the Pretrial Stipulation and Order contained an express waiver and displayed the parties 

consent, there is no evidence of any court-conducted inquiry into that waiver. The 

stipulation was agreed to at Haggard’s pretrial conference, where the parties met and 

conferred in the courtroom, outside the presence of the judge. As a result, they were never 

“in open court,” because the waiver did not occur in a hearing presided over by a judge

attended by the parties and their attorneys. The parties could very easily have called the 

magistrate judge in to confirm the written waiver on the record. See State v. Morais, 203 

A.3d 1150, 1156 (R.I. 2019). They also could have easily complied with the open-court 

requirement on the day the bench trial began by confirming that Haggard wished to 

proceed without a jury. However, they did not do this.

The open-court requirement presents the procedure to comply with Vasquez’s 

requirement that the trial court find that the defendant’s waiver was knowing, intelligent, 

and voluntary. The State is correct that, unlike Vasquez (where there was no evidence—oral 

or in writing—that suggested that the defendant personally waived her right to a jury trial), 

Haggard’s signature appears on the Pre-Trial Stipulation. Thus, the record contains 

evidence of a “personal waiver of jury trial from the defendant” done “in writing.” But this 

signature, on its own, fails to meet the “knowing, intelligent, and voluntary” standard in 

the absence of some sort of inquiry and finding by the trial court. Vasquez dictates that the 

Court must make findings on whether the defendant’s waiver was knowing, intelligent, and 
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voluntary even when it is personally given. Vasquez, 163 Idaho at 563, 416 P.3d at 114 

(citations omitted). 

Because the waiver was not “expressed in open court,” the magistrate court never 

had the opportunity to inquire whether the waiver was knowing, intelligent, and voluntary. 

The open-court requirement ensures a record will be made to establish whether there was 

an adequate waiver. The failure to observe it “simply create[s] fertile ground for an appeal 

and for post-conviction relief.” State v. Umphenour, 160 Idaho 503, 507, 376 P.3d 707, 711 

(2016). Given the record before us, there is insufficient evidence to show that the waiver 

was knowing, voluntary, and intelligent in the absence of such findings. Thus, Haggard has 

shown an ineffective waiver of his jury-trial right and meets Perry’s first prong.

B. Haggard has also met his burden under Perry’s second prong because 

the error is clear from the record. 

Meeting Perry’s second prong requires that the defendant demonstrate that 

constitutional error was clear or obvious from the record. State v. Perry, 150 Idaho 209, 

226, 245 P.3d 961, 978 (2010). The State contends that Haggard cannot meet this burden 

by arguing that the case law on this point was not fully developed until State v. Vasquez. 

This argument misunderstands Perry’s second prong. This Court reemphasized in State v. 

Miller that the focus is whether the record clearly shows error, which includes asking 

whether the decision was tactical:

This means the record must contain evidence of the error and the record 

must also contain evidence as to whether or not trial counsel made a tactical 

decision in failing to object. If the record does not contain evidence 

regarding whether counsel’s decision was strategic, the claim is factual in 

nature and thus more appropriately addressed via a petition for postconviction relief.

165 Idaho 115, 119, 443 P.3d 129, 133 (2019). 

In this case, the decision to waive the right to a jury trial is personal to the 

defendant, so it matters not that there might be tactical considerations which may lead an 

attorney to advise his client to forgo a jury trial. As this Court explained in Vasquez, a 

record which shows that the court and the parties contravened the requirements of Idaho 

Criminal Rule 23(a) constituted clear and obvious error. Implicit in Vasquez’s holding is 

the recognition that failure to follow the procedural requirements that ensure that the 
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defendant personally waived the right in a knowing, intelligent, and voluntary manner 

obviates any need to determine whether there were any tactical considerations.

The Idaho Constitution requires the defendant’s waiver to the “expressed in open 

court” and Idaho Criminal Rule 23 reinforces that requirement. So while Vazquez shored 

up any doubts about a faulty jury-trial waiver’s impact on the fundamental-error analysis, 

the law pertaining to properly waiving the right to trial by jury was established by the 

framers of the Idaho Constitution long before Vasquez was decided. 

V. CONCLUSION

As explained above, Haggard has carried his burden to show fundamental error

because his jury-trial waiver was ineffective. Accordingly, we reverse the district court’s 

decision and remand this case with instructions to the district court to remand this case to 

the magistrate court with instructions to vacate the judgment of conviction. 

Justices BRODY, BEVAN, STEGNER, and MOELLER CONCUR.