Stipulation to Prior Convictions is Waiver of Right to Jury Trial that Requires Defendant’s Personal Waiver.

State v. Kuhlmann, Minn.Ct.App., 4/6/2010.  Mr. Kuhlmann apparently twice assaulted his fiancée while at home, then went for a drive.  The cops pulled him over for impaired driving.  At trial on the resulting felony domestic assaults and driving while impaired, Mr. Kuhlmann’s attorney told the trial court that Mr. Kuhlmann would stipulate to the respective predicate prior convictions.  Mr. Kuhlmann personally acknowledged these predicate convictions, but the trial court did not obtain his personal, informed waiver of his right to a jury trial on these conviction-based elements of the offenses.

The appellate court reviews this claimed error under a plain error analysis because defense counsel did not object; indeed it was counsel’s idea.  So, the appellate court asks whether there was error, whether the error was plain, and whether the error affected substantial rights.  If the answer to all those questions is, yes, then the final question is whether the error seriously affects the fairness and integrity of judicial proceedings.  Mr. Kuhlmann gets the answers that he needs on the first three questions, but not the all important final one.

The appellate court concludes that the trial court’s failure to obtain Mr. Kuhlmann’s personal waiver of his jury trial right was both error and plain error.  The appellate court read the rules.  Criminal rule 26.01 requires a defendant personally to waive a jury trial right orally in court or in writing; his counsel cannot waive the right for him. 

Appellate counsel argued that this denial of a jury trial was a “structural error” that required an automatic reversal for a new trial.  Not so fast.  The appellate court distinguishes between complete waivers of a jury trial – a bench trial, a full stipulated facts trial, or a Lothenbach trial – from a partial waiver of a jury trial by stipulating to an offense element.  It then skips over the “substantial rights” determination all together by just assuming that the error did affect substantial rights.  It doesn’t matter, however because none of this affected the fairness and integrity of the trial. 

First, Mr. Kuhlmann still got a jury determination of guilt or innocence.  Moreover, the stipulation seemingly worked to his benefit because the jury did not know the nitty gritty of the predicate convictions.  Mr. Kuhlmann could go back and make a personal waiver, have another trial and likely get the same verdicts.  Or, he could go back, let the jury hear about his predicate convictions and likely get the same verdicts.  Either way there’s nothing to be gained by a reversal and new trial.