State v. Julio Morais

March 28, 2019

Supreme Court

No. 2017-122-C.A.
(P1/10-3733A)
State :

v. :

Julio Morais. :

NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island,
250 Benefit Street, Providence, Rhode Island 02903, at Telephone
222-3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court

No. 2017-122-C.A.
(P1/10-3733A)
State :

v. :

Julio Morais. :

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

OPINION

Justice Indeglia, for the Court. After a bench trial in Providence County Superior

Court, the trial justice found the defendant, Julio Morais (defendant), guilty of four counts of

first-degree child molestation sexual assault. On appeal, the defendant argues that the trial

justice erred, pursuant to Rule 23(a) of the Superior Court Rules of Criminal Procedure, when he

accepted a jury-waiver form that the defendant had signed outside the presence of the trial

justice; thus, the defendant contends that the trial justice lacked jurisdiction to conduct a bench

trial. The defendant further contends that his colloquy with the trial justice failed to demonstrate

that the defendant knowingly, intelligently, and voluntarily waived his right to a jury trial.

Finally, the defendant argues that the trial justice did not adequately explain the differences

between a jury trial and a bench trial. For the reasons set forth herein, we affirm the judgment of

conviction.

I

Facts and Travel

In light of the nature of defendant’s appeal now before us, we do not deem it necessary to

discuss the specific and graphic nature of the criminal activity for which defendant stands

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convicted. We simply note that on December 9, 2010, defendant was charged by criminal

indictment with five counts of first-degree child molestation sexual assault, in violation of G.L.

1956 §§ 11-37-8.1 and 11-37-8.2, for alleged incidents involving his stepdaughter. Prior to trial,

defendant signed a jury-waiver form in the cellblock of the Providence County courthouse—the

validity of which is at issue in this appeal. On September 9, 2013, after defendant had signed the

jury-waiver form, the following colloquy transpired between the trial justice and defendant, on

the record, in open court:

“THE COURT: Sir, there is one other thing that we
will do today, before we will begin
the trial. The State has all of or
many of their witnesses all set to go
tomorrow so we won’t be doing
anything today on your trial, except
it is my understanding that you have
made a decision in this case to give
up your right to a jury trial. Is that
correct, sir?

“THE DEFENDANT: That is true.

“THE COURT: Before you do that, sir, I want to
make sure you understand that you
have a constitutional right to have a
trial by jury and that jury would
consist of your fellow citizens here
in the State of Rhode Island. They
come in for jury duty and then we
have a process of selecting them, and
in a criminal case like this we would
have 12 jurors sit right over there in
the jury box and listen to the case
and make a decision as to your guilt
or innocence at the end of the trial
and it is my understanding, sir, you
do not want a jury trial, correct?

“THE DEFENDANT: No, I do not.

“THE COURT: So you are asking that I make the
decision as the Judge at the end of

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the case that I will make the decision
as the judge in this trial as to your
guilt or innocence? Correct, sir?

“THE DEFENDANT: Yes.

“THE COURT: And you are comfortable doing that?

“THE DEFENDANT: Yes.

“THE COURT: And I’m sure you spoke to * * *
your attorney about that and he—

“THE DEFENDANT: Yes.

“THE COURT: And he answered any questions you
may have had about how that process
works?

“THE DEFENDANT: Yes.

“THE COURT: And you understand what you are
doing?

“THE DEFENDANT: Yes.

“THE COURT: You are not confused at all?

“THE DEFENDANT: No.

“THE COURT: All right. Well, this defendant
appears to be articulate and appears
to understand the nature of the right
that he is giving up, and has elected
to proceed to a bench trial with a
decision [that] will be made by the
Judge rather than electing trial by
jury. So, I have a form in front of
me. I’m going to sign it.”

Following a brief discussion regarding other matters, the trial justice stated: “I have signed his

waiver of jury trial. It is a voluntary and knowing waiver[.]”

While the record indicates that the colloquy was between the trial justice and defendant,

we note that, because English is not defendant’s first language, a Creole interpreter was present

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and assisted defendant throughout the above discussion and during the course of trial.1

Moreover, in an affidavit submitted as part of his appeal, defendant attested that his attorney and

the interpreter were present in the cellblock when he signed the jury-waiver form.

Thereafter, the matter proceeded to a bench trial, which ran from September 10, 2013,

until September 18, 2013. The trial justice ultimately found defendant guilty of four counts of

first-degree child molestation sexual assault and sentenced him, on November 18, 2013, to four

concurrent fifty-year sentences, with thirty-five years to serve at the Adult Correctional

Institutions and fifteen years suspended, with probation.2 On November 19, 2013, defendant

filed a timely notice of appeal. On appeal, defendant challenges the trial justice’s jurisdiction to

preside over his bench trial on the basis that defendant signed his jury-waiver form outside of the

presence of the trial justice and also alleges that the trial justice’s colloquy with defendant was

inadequate to establish a knowing, intelligent, and voluntary waiver of his right to a jury trial.3

On November 28, 2017, this Court granted defendant’s request—uncontested by the

state—to “remand the * * * case to the Superior Court for the purpose of conducting a brief

hearing to determine where [defendant] signed the jury waiver form * * * and further, to hold

[defendant’s] appeal in abeyance until the trial justice makes that determination.” The trial

justice held a hearing for that purpose on January 19, 2018. During that hearing, after

1
At the outset of the proceedings on September 9, 2013, the trial justice stated: “I want the
record to reflect that throughout this trial we have this interpreter assisting the defendant so he
can fully understand the nature of these proceedings obviously with the assistance of that
interpreter. So she will be seated with [defense counsel] and the defendant throughout the trial.”
2
Prior to trial, the state dismissed count five pursuant to Rule 48(a) of the Superior Court Rules
of Criminal Procedure.
3
The defendant’s privately-retained trial counsel filed the timely notice of appeal; however, the
trial transcript was not ordered at that time, and therefore the appeal was not docketed in this
Court. In the summer of 2016, defendant contacted the Office of the Public Defender. After the
office interviewed defendant and found him to be financially eligible, it ordered the trial
transcript. The defendant’s appeal was docketed in this Court on March 29, 2017.

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acknowledging his lack of recall regarding the specific series of events of the 2013 trial, the trial

justice explained the following on the record:

“I can say that when we reach that point in a case, what typically
happens in almost every case that I can recall is I take the bench
when the defendant is already in the courtroom with defense
counsel. I am handed the waiver of jury trial forms. I then review
that form with the defendant, in particular verifying that he did in
fact sign it, that he did in fact discuss it to whatever extent he
needed to with his attorney. I hold the form up and say is that your
signature, and sometimes have a brief colloquy. So, I’m satisfied
that he understands that he is giving up the right to have the case
tried in front of a group of his fellow citizens from the State and
that I would be the fact finder and decider of the case in a jury
waived trial. I do that consistently, but obviously that process
from beginning to end does not focus and has never focused on
where the document was actually signed.

“So, I agree that there is nothing in the colloquy in this case that
indicates where the form was signed, and it is not a question I
typically ask. So, in this case I cannot say whether the form was
signed in the courtroom, in another location such as the cell block,
I really have no independent recollection of where the form was
signed that was reviewed with the defendant.”

Thereafter, defendant’s case was returned to this Court for full briefing and argument.

In challenging the trial justice’s jurisdiction over his trial, defendant contends that “he

signed the jury waiver form—drafted in a language that he does not speak or read—while being

held under lock and key in the Licht Courthouse cellblock.” Thus, he argues that his written

waiver was invalid under Rule 23(a)’s open-court requirement. Further, defendant avers that,

even if the written requirement was satisfied, the trial justice’s colloquy with defendant was

inadequate because the trial justice erred in not considering certain factors in making his

determination on defendant’s knowing, intelligent, and voluntary waiver and the trial justice did

not address certain distinctions between a jury trial and a bench trial. On the other hand, the state

argues that the written waiver requirement of Rule 23(a) was met because defendant

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acknowledged in a sworn affidavit that he had executed the waiver prior to trial. In addition, the

state posits that the trial justice adequately ensured that defendant’s waiver of a jury trial was

knowing, intelligent, and voluntary.

II

Standard of Review

“When interpreting statutes and court rules, we apply a de novo standard of review.”

State v. Goncalves, 941 A.2d 842, 847 (R.I. 2008) (quoting State v. Brown, 898 A.2d 69, 76 (R.I.

2006)). “In construing statutes or court rules, it is a fundamental principle of our jurisprudence

that ‘when the language of a rule is clear and unambiguous, this Court must give the words of the

rule their plain and ordinary meanings.’” Cashman Equipment Corporation, Inc. v. Cardi

Corporation, Inc., 139 A.3d 379, 382 (R.I. 2016) (brackets omitted) (quoting State v. Brown, 88

A.3d 1101, 1110 (R.I. 2014)). “If we ‘find the statute or rule to be unambiguous, we simply

apply the plain meaning and our interpretive task is done.’” Id. (brackets omitted) (quoting Shine

v. Moreau, 119 A.3d 1, 9 (R.I. 2015)).

III

Discussion

As we have explained, “Rhode Island law is well settled that a criminally accused

defendant has an absolute right to waive a trial by jury if the waiver is knowing, intelligent, and

voluntary.” State v. Moran, 605 A.2d 494, 496 (R.I. 1992); see G.L. 1956 § 12-17-3; Super. R.

Crim. P. 23(a); but see Singer v. United States, 380 U.S. 24, 26 (1965) (holding that there is no

federal constitutional right to a jury-waived trial). “This substantive right to invoke a bench trial

belongs to the defendant and is subject only to the procedural requirement that a trial justice

determine that the defendant understands and accepts the consequences of executing a waiver[,]”

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pursuant to Rule 23 of the Superior Court Rules of Criminal Procedure. Moran, 605 A.2d at 496.

Rule 23(a) provides that “[c]ases required to be tried by jury shall be so tried unless the

defendant in open court waives a jury trial in writing with the approval of the court.”

The defendant avers that the language of Rule 23(a) requires that the waiver form be

signed in the presence of the trial justice and that a defendant’s understanding of his waiver be

placed on the record in open court. The defendant cites to our opinions in State v. DiStefano,

593 A.2d 1351 (R.I. 1991), and State v. Paull, 739 A.2d 661 (R.I. 1999), in support of his

position that his jury-trial waiver was void. In DiStefano, the defendants voluntarily waived their

rights to a jury trial, orally, in open court; however, the defendants did not, and were not asked

to, put their waivers in writing. DiStefano, 593 A.2d at 1352. Accordingly, this Court held on

appeal that the defendants had not properly waived a trial by jury because a written waiver was

required pursuant to Rule 23(a). Id. In Paull, the defendant orally waived his right to a jury trial

in open court prior to a one-day bench trial at which the trial justice found the defendant guilty.

Paull, 739 A.2d at 661. Following his conviction, the defendant signed a jury-trial waiver form

while he awaited transportation to the ACI. Id. Again, we held that the defendant’s waiver did

not abide by the standards of Rule 23(a) and that his waiver was therefore invalid. Id. at 662.

We did not hold in those cases, however, that a defendant must sign and execute a written

waiver in open court before the trial justice. Accordingly, because it is undisputed—as

evidenced by defendant’s affidavit—that defendant signed the jury-waiver form prior to the

commencement of his bench trial, and because a waiver colloquy took place in open court on the

record, our opinions in DiStefano and Paull are factually distinguishable from the facts of the

case now before us.

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We next consider the language of Rule 23(a) in light of our rules of statutory and court

rule interpretation. In DiStefano, we explained that “an examination of decisions from other

jurisdictions reveals that criminal rules of court pertaining to jury waiver are often strictly

construed.” DiStefano, 593 A.2d at 1352. Moreover, we held that “it is well[]settled that when a

statute is free from ambiguity and expresses a clear and definite meaning, we must impart to the

words contained therein their plain and obvious meaning.” Id. “Consequently because a rule of

court has the full force and effect of law we must accord the rule the same principles of

construction” as a statute. Id.

Because this is an issue of first impression for this Court, defendant refers us to a

provision of the New York Constitution and a corresponding state statutory provision governing

jury-trial waivers in support of his argument that his waiver was invalid because he did not sign

the waiver form in open court in the presence of the trial justice. The New York Constitution

requires that a jury waiver be made “by a written instrument signed by the defendant in person in

open court before and with the approval of a judge or justice of a court having jurisdiction to try

the offense.” New York Const. Art. 1, § 2 (emphasis added); see N.Y. Crim. Proc. Law §

320.10(2) (“Such waiver must be in writing and must be signed by the defendant in person in

open court in the presence of the court, and with the approval of the court.”). The defendant

refers us to a New York appellate court case that has interpreted these constitutional and

statutory requisites to require a defendant to sign his or her waiver in writing in open court

before the trial justice in order to give up his or her right to a jury trial. See People v. Davidson,

525 N.Y.S.2d 855, 856-57 (N.Y. App. Div. 1988). In Davidson, the court concluded that the

record lacked evidence establishing that the defendant had executed the jury-waiver form in

“open court” and further reasoned that the record was devoid of anything which would allow the

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court to conclude that the defendant’s waiver “was ‘made knowingly and understandingly, based

on an intelligent, informed judgment[.]’” Id. at 857 (internal citations omitted).

In reading the plain language of New York’s constitutional and statutory counterpart to

our Rule 23(a), we are unconvinced by defendant’s suggestion that we should follow the

interpretations by courts applying the New York framework. It is clear that the language of the

New York Constitution and statute is glaringly different from the requirements of Rule 23(a).

Unlike the New York statutory language—providing that the waiver must be “signed by the

defendant in person in open court in the presence of the court”—Rule 23(a) and our caselaw

interpreting the rule simply mandate that, in addition to the requirement that a waiver be made in

open court through a discussion with the judge, the waiver must be put in writing prior to the

start of a bench trial. The plain language of Rule 23(a) does not require that a defendant must

sign and execute the written waiver form in the presence of the trial justice.

On the other hand, in arguing that defendant’s jury-trial waiver here satisfied Rule 23(a),

the state refers us to Ohio’s statutory equivalent, which reads, in part:

“In all criminal cases pending in courts of record in this state, the
defendant may waive a trial by jury and be tried by the court
without a jury. Such waiver by a defendant, shall be in writing,
signed by the defendant, and filed in said cause and made a part of
the record thereof. * * *
“Such waiver of trial by jury must be made in open court after the
defendant has been arraigned and has had opportunity to consult
with counsel.” Ohio Rev. Code Ann. § 2945.05.

The Ohio appellate courts have interpreted the phrase “in open court” to mean orally and on the

record.4 In State v. Burnside, 930 N.E.2d 372 (Ohio Ct. App. 2010), the Court of Appeals of

4
The defendant also refers us to Ohio law and cites to State v. Pless, 658 N.E.2d 766 (Ohio
1996). However, in that case, the Ohio Supreme Court did not address whether the waiver must
be signed in the presence of the judge; rather, the court simply ruled based upon the fact that a
written waiver was never filed. Id. at 768-69. As noted in our discussion herein, defendant in the

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Ohio stated that the “open court” requirement was satisfied as long as there is “some evidence in

the record of the proceedings that the defendant acknowledged the waiver to the trial court while

in the presence of counsel, if any.” Burnside, 930 N.E.2d at 377. In reaching its conclusion, the

court referred to holdings by both the Court of Appeals of Ohio and the Supreme Court of Ohio

that the waiver requirements of the applicable rule of criminal procedure and “[§] 2945.05 are

satisfied when [a] defendant signs a written waiver outside of the courtroom and the court

reaffirms this waiver in open court.” Id. at 378 (internal citation omitted); see also State v.

Tango, 53 N.E.3d 961, 968 (Ohio Ct. App. 2015) (rejecting the defendant’s argument that his

jury-trial waiver was invalid where he discussed and signed the waiver form with counsel prior

to his court hearing, because the trial judge had engaged in a verbal colloquy with the defendant

on the record to confirm his desire to waive a jury trial); State v. Strickland, 918 N.E.2d 170, 174

(Ohio Ct. App. 2009) (holding that “it is not necessary that the written waiver be signed in open

court to be valid”; rather, “as long as the signed writing has been made a part of the record and

the waiver is reaffirmed in open court, the procedural requirements of [Ohio’s jury-trial waiver

statute and corresponding rule of criminal procedure] are satisfied”).

We held in DiStefano that “[t]he purpose of requiring a defendant to execute a written

waiver is both to ensure that the defendant is aware of the importance and the significance of the

right he or she is waiving and to provide evidence of the defendant’s consent.” DiStefano, 593

A.2d at 1352. “The sole purpose in requiring the approval of the court and mandating that the

waiver be made in open court is to assure that the defendant who waives a jury trial does so

intelligently and with full knowledge of the consequences of his waiver.” State v. Cruz, 517 A.2d

237, 243 (R.I. 1986).

case at bar signed a waiver form, and the form was made part of the record. Consequently, we
find that Pless is also inapplicable to the facts of this case.

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We opine that Ohio’s framework is a more similar counterpart to our Rule 23(a) than the

New York framework, and we therefore reach a similar holding as the Ohio courts. During the

colloquy on the record, the trial justice in the present case confirmed defendant’s decision to

waive his right to a jury trial on the record, in open court, and the trial justice approved and

signed the written jury-waiver form that had been executed by defendant. Accordingly, we are

satisfied that the written waiver met the requirement of Rule 23(a), and we proceed to consider

whether defendant knowingly, intelligently, and voluntarily waived his right to a jury trial.5

According to defendant, notwithstanding the open-court issue, his jury-trial waiver was

invalid based on the colloquy between him and the trial justice. Specifically, defendant

highlights his inability to speak English, his lack of education, and his unfamiliarity with the

criminal justice system in support of his argument that he could not have intelligently waived his

right to a jury trial. Further, defendant argues that the trial justice erred in conducting the

discussion with him because the trial justice did not inform defendant of certain information

regarding the jury-trial process.

We begin with defendant’s contention that the trial justice failed to consider his personal

background. As set out above, in Moran, we explained that the “substantive right to invoke a

bench trial belongs to the defendant and is subject only to the procedural requirement that a trial

justice determine that the defendant understands and accepts the consequences of executing a

waiver.” Moran, 605 A.2d at 496. In that case, in an open-court colloquy, the trial justice

questioned the defendant concerning his “long-time mental infirmity and his understanding of

5
While we hold that the written-waiver requirement was satisfied under the facts before us and
pursuant to the language of Rule 23(a), we would note that the better practice may be for an
attorney, and an interpreter if applicable, to discuss the waiver with a defendant outside of court,
and that a defendant thereafter sign the waiver form during the proceeding in open court. We
make clear, however, that Rule 23(a) does not mandate this procedure. It is our holding that a
written waiver signed prior to the start of a bench trial satisfies the requirements of Rule 23(a).

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the rights relinquished in exercising a waiver.” Id. at 497. The trial justice ultimately denied the

defendant’s request to waive a jury trial, basing her decision on the defendant’s apparent

misunderstanding of appellate procedure, his psychiatric history, the public interest in protecting

the defendant from waiving a fundamental right, and the public interest in an insanity defense.

Id. On certiorari, this Court held that the record revealed that the defendant understood the

difference between bench and jury trials and had “articulately responded to all questions, and

only in the last exchange did [the defendant] indicate a misunderstanding of appellate

procedure.” Id. Further, we held that the trial justice erred in considering “any factors other than

whether [the] defendant’s decision is made in a knowing, intelligent, and voluntary manner.” Id.

Here, we note that, during the colloquy, defendant responded affirmatively to the trial

justice’s inquiries as to whether defendant had spoken with his attorney, whether his attorney had

answered any questions defendant had about the process, and whether defendant understood

what he was doing. Finally, we highlight that defendant answered, “No” when the trial justice

asked him, “You are not confused at all?” Relying on Moran, we are confident that, in the

matter before us, the trial justice’s colloquy with defendant, in open court, provided adequate

information for the trial justice to determine that defendant’s waiver was knowing, intelligent,

and voluntary, without delving into the specifics of defendant’s level of education, language

capabilities, or criminal history.

The defendant also avers that the trial justice’s colloquy with defendant—explaining the

differences between a jury trial and a bench trial—and his responses to the judge’s inquiries

lacked certain essential factors. Specifically, citing to United States v. Martin, 704 F.2d 267 (6th

Cir. 1983), and Ciummei v. Commonwealth, 392 N.E.2d 1186 (Mass. 1979), defendant contends

that “most jurisdictions require that such waivers demonstrate at least three elements: that the

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accused is informed that his or her jury will be chosen from the members of the community, that

their verdict must be unanimous, and that the defendant will be allowed to participate in the

selection of the jury panel.” Indeed, federal caselaw suggests that “[a]t a minimum, a defendant

should be informed that a jury is composed of 12 members of the community, he may participate

in the selection of jurors, the verdict of the jury must be unanimous, and that a judge alone will

decide guilt or innocence should he waive his jury trial right.” Martin, 704 F.2d at 274-75.

The Massachusetts Supreme Judicial Court announced a similar suggestion in Ciummei,

where the court stated that it did

“not intend to create a rigid pattern but note that * * * the judge
might state that the jury consists of members of the community,
that the defendant may participate in their selection, that the
verdict of the jury must be unanimous, that they decide guilt or
innocence while the judge makes rulings of law in the course of the
trial, instructs the jury on the law, and imposes sentence in case of
guilt; and that, where a jury is waived, the judge alone decides
guilt or innocence in accordance with the facts and the law.”
Ciummei, 392 N.E.2d at 1189-90.
Further, the court suggested that “[t]he judge should make sure that [a] defendant has conferred

with his counsel about the waiver, and that he has not been pressured or cajoled and is not

intoxicated or otherwise rendered incapable of rational judgment.” Id. at 1190. In contrast to the

Massachusetts Supreme Judicial Court, however, we have never proclaimed a bright line rule or

even suggestions delineating requirements for a colloquy between a trial justice and a defendant

regarding the differences between a jury trial and a non-jury trial.

We are satisfied here that the trial justice adequately explained the jury-selection process

to the defendant and that the trial justice’s colloquy with the defendant satisfied the requirements

of Rule 23(a). The record reflects that the trial justice explained the defendant’s right to have a

jury of twelve of his fellow Rhode Island citizens, that a selection process would take place, and

that the jurors would make a decision regarding his guilt or innocence. Thereafter, defendant

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declared, on the record, his unequivocal desire to waive his right to a jury trial. The trial justice

went on to explain his role as the decisionmaker in a bench trial. The defendant responded in the

affirmative to the trial justice’s inquiries about whether he was comfortable with a bench trial,

whether the defendant had the opportunity to speak with his attorney about waiving his right, and

whether his attorney had answered any questions he may have about the process. Finally, the

defendant confirmed that he understood what he was doing and that he was not at all confused.

In light of this exchange in open court, we are satisfied that the defendant made a knowing,

intelligent, and voluntary waiver of his right to a jury trial.

IV

Conclusion

For the reasons stated herein, we affirm the judgment of conviction. The record shall be

returned to the Superior Court.

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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

SUPREME COURT – CLERK’S OFFICE

OPINION COVER SHEET

Title of Case State v. Julio Morais.
No. 2017-122-C.A.
Case Number
(P1/10-3733A)
Date Opinion Filed March 28, 2019
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia JJ.
Written By Associate Justice Gilbert V. Indeglia

Source of Appeal Providence County Superior Court

Judicial Officer From Lower Court Associate Justice Daniel A. Procaccini
For State:

Lauren S. Zurier
Department of the Attorney General
Attorney(s) on Appeal
For Defendant:

Lara E. Montecalvo
Office of the Public Defender

SU-CMS-02A (revised June 2016)