James O'Donnell was issued a citation for selling liquor to an intoxicated person in violation of Anchorage Municipal Code (AMC) 8.05.010(A).
The municipality has conceded that "the record is devoid of a specific waiver" by O'Donnell of his right to a jury trial. Indeed, the record is also devoid of any statement by O'Donnell's trial counsel purporting to waive his client's right to a jury trial. Under these circumstances, we conclude
As the Alaska Supreme Court held in Walker v. State, 578 P.2d at 1389:
In Walker, the court held that the express waiver by an attorney of his client's right to a twelve-person jury was inadequate; it was held that the trial court must personally address the defendant to secure waiver of his right to jury trial and "that failure to do so is error per se." Id. at 1389-90 (footnote omitted). The court in Walker recognized, moreover, that sound policy mandates rejection of attempts by attorneys to waive their clients' right to jury trial. Thus, quoting from United States v. Taylor, 498 F.2d 390, 392 (6th Cir.1974), the court in Walker emphasized the necessity of obtaining a waiver personally from the accused:
Walker v. State, 578 P.2d at 1390 (footnote omitted).
The absence of an express waiver notwithstanding, the municipality has advanced a three-pronged argument against reversal in this case.
The municipality contends that this case should be distinguished from Walker because it is a misdemeanor. We find this contention to be without merit. In Baker v. City of Fairbanks, 471 P.2d 386 (Alaska 1970), our supreme court held that the right to trial by jury is a fundamental one under article I, section 11 of the Alaska Constitution, even in misdemeanor prosecutions. The court's subsequent decision in Walker was premised upon the fundamentality of the right to a jury trial, and it is significant that the decision in Walker specifically relied upon Baker v. City of Fairbanks to underscore the importance of the right to a jury trial. Walker v. State, 578 P.2d at 1389 n. 3. Baker, of course, involved a misdemeanor prosecution. Furthermore, the Alaska Supreme Court gave no indication that its holding in Walker was meant to be grudgingly applied. To the contrary, the court specifically noted that the per se rule of reversible error it adopted was not based upon any circumstances peculiar to the facts of the case before it. Id. at 1391 n. 14.
The municipality also contends that waiver of a jury trial may be inferred through O'Donnell's acquiescence to his attorney's waiver of the right. In support of this argument, the municipality cites a number of cases from other jurisdictions in which a defendant's apparent acquiescence in his attorney's express waiver of the right to jury trial has been found sufficient. Even assuming such a conclusion is not foreclosed by the per se rule adopted in Walker, it is
The municipality's third argument can be disposed of in a similar manner. At some point prior to trial, O'Donnell's counsel filed a document, apparently signed by O'Donnell, which was entitled "Authority to Enter Plea"; this document stated:
The municipality maintains that in light of this document it was unnecessary for the trial court to address O'Donnell personally in order to obtain his waiver, since O'Donnell had, in effect, given written authority to his attorney to waive a jury trial on his behalf. As we have stated, however, there is nothing in the record to indicate that O'Donnell's trial counsel expressly waived the right to a jury trial on behalf of his client; accordingly, even if O'Donnell's trial attorney had properly been given the authority to waive O'Donnell's right to a jury trial, there is no basis upon which we could conclude that he exercised that authority.
For the foregoing reasons, we conclude that O'Donnell's conviction must be REVERSED and that this case must be REMANDED for retrial.
In the present case, the provisions of District Court Criminal Rule I have been violated, not only by the lack of an express waiver by O'Donnell in open court, but also by the district court's failure to make any notation as to waiver in the record of the proceedings.
We also reject O'Donnell's assertion that the term "visibly intoxicated" as used in AMC 8.05.010(A) is unconstitutionally vague and overbroad. We believe that a limiting instruction adopting a definition of "visibly intoxicated" that is substantially in accord with the definition of a "drunken person" set out in AS 04.21.080(7) would be appropriate under the facts presented in this case and would resolve any potential problems of vagueness or overbreadth. See Summers v. Anchorage, 589 P.2d 863 (Alaska 1979); Larson v. State, 564 P.2d 365, 371-74 (Alaska 1977).