Opinion No. 38A
from the District Court of the Sixth Judicial District, State
of Idaho, Power County. Hon. Stephen S. Dunn, District Judge.
of conviction, vacated and case remanded.
D. Fredericksen, State Appellate Public Defender; Justin M.
Curtis, Deputy Appellate Public Defender, Boise, for
Lawrence G. Wasden, Attorney General; Jessica M. Lorello,
Deputy Attorney General, Boise, for respondent.
AMENDED OPINION THE COURT'S PRIOR OPINION DATED
July 3, 2017, IS HEREBY AMENDED
Perez Vasquez appeals from the judgment of conviction
following a bench trial where she was found guilty of one
count of intimidating a witness, in violation of Idaho Code
§ 18-2604(3). Vasquez argues she was deprived of her
state and federal constitutional right to a jury trial
because although her trial counsel waived her right to a jury
trial, Vasquez never personally waived such right, either
orally or in writing. We vacate the judgment of conviction
and remand the case for further proceedings consistent with
AND PROCEDURAL BACKGROUND
2009, D.P. made allegations of sexual abuse against her
paternal uncle, but later recanted those allegations.
D.P.'s father, paternal uncle, and Vasquez are all
siblings. In 2012, D.P. disclosed additional acts of sexual
abuse by the same uncle. Because of the new allegations,
police officers again investigated the 2009 allegations.
During the course of the 2012 investigation, the officers
obtained evidence that Vasquez coached D.P. in 2009 regarding
what to say during the recantation. As a result, Vasquez was
charged with intimidating a witness.
initially pleaded not guilty and the case was set for trial.
After a failed attempt at mediation, trial was reset. The day
before trial, Vasquez's counsel and the prosecutor
informed the district court they intended to waive the right
to a jury trial and stipulate to a bench trial. On the day of
trial, the following exchange occurred:
Court: Yesterday I was advised by the counsel for parties,
both the state and the defendant, that they had stipulated to
waive a jury and try this case to the court. Is that right,
Mr. Peterson: Yes, Your Honor.
Court: Mr. Souza?
Mr. Souza: Yes, sir.
Court: All right. So the record will reflect that agreement.
Vasquez was present during this exchange, she was never asked
by the court whether she personally agreed to waive her right
to a jury trial. Following the bench trial, Vasquez was
convicted of felony intimidating a witness. The district
court imposed a unified sentence of four years, with two
years determinate, and placed Vasquez on probation. Vasquez
timely appealed. On appeal, Vasquez argues that the failure
of the district court to specifically ask Vasquez and obtain
her waiver of her right to a jury trial constituted a
structural defect in the proceedings, mandating that her
conviction be vacated.
recognize the Idaho Supreme Court's opinion in State
v. Umphenour, 160 Idaho 503, 376 P.3d 707 (2016).
However, because the Supreme Court found that the proceedings
in the district court constituted a guilty plea rather than a
bench trial, it did not address whether the waiver of the
right to a jury trial is a right personal to the defendant
and consequently, can be waived only by the defendant.
Id. at 507, 376 P.3d 710. Because the issue was not
squarely presented, the Supreme Court specifically declined
to address the issue of what constitutes a valid waiver of
the right to a jury trial:
In holding that [Umphenour's] waiver of the right to a
jury trial could be fairly inferred, we are only referring to
a waiver of that right in connection with a guilty plea. We
express no opinion as to whether it would have been ...