Walker v. State, 578 P.2d 1388 (Alaska 1978). · Go Syfert
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Walker v. State, 578 P.2d 1388 (Alaska 1978). Cases Citing This Book View Copy Cite
62 citation events (19 in the last 25 years) across 17 distinct courts.
Strongest positive: Kail Jay Vanderpool v. State of Alaska (alaskactapp, 2025-12-15) · Strongest negative: United States of America Ex Rel. Clinton Burnett v. People of the State of Illinois (ca7, 1980-04-22)
Treatment trajectory · 1978 → 2026 · click a year to view as-of
1978 2002 2026
Top citers, strongest first. 27 distinct citers. How cited ↗
cited Cited "but see" United States of America Ex Rel. Clinton Burnett v. People of the State of Illinois
7th Cir. · 1980 · signal: but see · confidence high
But see Walker v. State, 578 P.2d 1388 (Alaska 1978).
cited Cited "but see" Ciummei v. Commonwealth
Mass. · 1979 · signal: but see · confidence high
But see Walker v. State, 578 P.2d 1388,1390 (Alas. 1978); Short v. Commonwealth, 519 S.W.2d 828, 833 (Ky. 1975).
cited Cited as authority (rule) Kail Jay Vanderpool v. State of Alaska
Alaska Ct. App. · 2025 · confidence medium
I, § 11). 6 Walker v. State, 578 P.2d 1388, 1389-90 (Alaska 1978). 7 Id. 8 Id. 9 Ross v. State, 950 P.2d 587, 590-91 (Alaska App. 1997).
cited Cited as authority (rule) Kail Jay Vanderpool v. State of Alaska
Alaska Ct. App. · 2025 · confidence medium
I, § 11). 6 Walker v. State, 578 P.2d 1388, 1389-90 (Alaska 1978). 7 Id. 8 Id. 9 Ross v. State, 950 P.2d 587, 590-91 (Alaska App. 1997).
discussed Cited as authority (rule) Agnes Martina Tommy v. State of Alaska (2×) also: Cited "see"
Alaska Ct. App. · 2023 · confidence medium
Because we rely on Morgan here, we use the same terminology, although the term “implied waiver” should be understood to mean “forfeiture.” 25 Walker v. State, 578 P.2d 1388, 1389-90 (Alaska 1978); see also Alaska R.
discussed Cited as authority (rule) Hunter Hedrick v. State of Alaska
Alaska Ct. App. · 2020 · confidence medium
And you’re not under the influence of any medication or anything that might affect your decision in deciding to waive a jury trial and have the case presented to me as a bench trial. 5 Walker v. State, 578 P.2d 1388, 1390 (Alaska 1978); see Walunga v. State, 630 P.2d 527, 528 (Alaska 1980) (explaining that Criminal Rule 23(a) “require[s] a personal inquiry by the court to determine whether the defendant’s waiver is voluntary and knowing”). –7– 2676 Mr. Hedrick: Yeah, I — The Court: That’s what you want to do?
discussed Cited as authority (rule) Hutton v. State (2×) also: Cited "see"
Alaska Ct. App. · 2013 · confidence medium
See Baker v. State, 905 P.2d 479, 490 (Alaska App.1995) ("[JJury instructions are not to be viewed in isolation; instead, we must assess the group of instructions as a whole."). . 578 P.2d 1388, 1390 (Alaska 1978). .
discussed Cited as authority (rule) Commonwealth v. Simmons
Ky. · 2013 · confidence medium
State v. Stegall, 124 Wash.2d 719 , 881 P.2d 979 (1994) (holding that the record must demonstrate either the defendant’s personal expression of intent or his informed acquiescence in counsel’s stipulation); State v. Hegg, 410 N.W.2d 152, 155 (N.D.1987) (“Silently proceeding with trial before a six-person jury is not an express and affirmative waiver of one’s constitutional right to a jury of twelve.”); State v. Hewitt, 128 N.H. 557 , 517 A.2d 820, 828 (1986) (“A personal waiver by the defendant, indicating his understanding of the right to a full jury, is required to effectuate the…
discussed Cited as authority (rule) State v. Gore
Conn. · 2008 · confidence medium
Ed. 2d 125 (1983); Walker v. State, 578 P.2d 1388, 1389-90 (Alaska 1978); People v. Ernst, 8 Cal. 4th 441, 448 , 881 P.2d 298 , 34 Cal. Rptr. 2d 238 (1994); People v. Holmes, 54 Cal. 2d 442, 443-44 , 353 P.2d 583 , 5 Cal. Rptr. 871 (1960); Rice v. People, 193 Colo. 270, 271-72 , 272 n.2, 565 P.2d 940 (1977); State v. Upton, 658 So. 2d 86, 88 (Fla. 1995); Balbosa v. State, 275 Ga. 574, 575 , 571 S.E.2d 368 (2002); Allison v. State, 288 Ga. App. 482, 485-90 , 654 S.E.2d 628 (2007); State v. Young, 73 Haw. 217, 219-22 , 830 P.2d 512 (1992); State v. Swan, 108 Idaho 963, 964-66 , 703 P.2d 727 (App…
cited Cited as authority (rule) IJ v. State
Alaska Ct. App. · 2008 · confidence medium
NOTES [1] See AS 11.71.040(a)(2) and (d). [2] See Walker v. State, 578 P.2d 1388, 1390 (Alaska 1978). [1] 487 P.2d 27 (Alaska 1971). [2] Id. at 32-33 . [3] Id. at 35 . [4] Id. at 35 & n. 48.
discussed Cited as authority (rule) State v. Baker
Ariz. Ct. App. · 2007 · confidence medium
See United States v. Robertson, 45 F.3d 1423, 1432 (10th Cir.1995) (finding waiver signed by attorney invalid for waiver of jury trial right because nothing in the record showed that defendant personally understood her right and reviewing court could not determine whether the waiver was knowing, voluntary, and intelligent); Walker v. State, 578 P.2d 1388, 1390 (Alaska 1978) (stating that without an inquiry an appellate court cannot determine from the record whether the waiver was accepted and failure to do so was error per se).
discussed Cited as authority (rule) Powell v. State (2×)
Md. · 2006 · confidence medium
See Boyd v. United States, 586 A.2d 670, 675-76 (D.C.1991) ("The general rule is that a personal and fundamental right will be deemed waived only if there is [a] record [of] evidence demonstrating intentional relinquishment or abandonment of a known right or privilege"); State v. Anderson, 249 Wis.2d 586 , 638 N.W.2d 301, 306 (2002) ("The waiver cannot be based on circumstantial evidence or reasonable inferences"); Walker v. State, 578 P.2d 1388, 1391 (Alaska 1978) ("The duty of the trial court to address the defendant personally on waiver of a jury of twelve extends to a duty to inquire wheth…
cited Cited as authority (rule) Mute v. State
Alaska Ct. App. · 1998 · confidence medium
See e.g., Dolchok v. State, 689 P.2d 277 , 286 (Alaska 1982); Walker v. State, 578 P.2d 1388, 1389-91 (Alaska 1978); McGlauflin v. State, 857 P.2d 366, 368-69 (Alaska App.1993).
discussed Cited as authority (rule) State v. Stegall (2×)
Wash. · 1994 · confidence medium
See, e.g., People v. Ames, 52 Cal. App. 3d 389, 392 , 124 Cal. Rptr. 894, 896 (1975) (same constitutional requirements for a waiver of jury trial are applicable to a trial by a lesser number under the state constitution); State v. Hood, 242 Kan. 115 , 744 P.2d 816 (1987) (the right to waive a 12-person jury belongs to the defendant personally and not to counsel; record indicated the defendant understood his waiver); Walker v. State, 578 P.2d 1388, 1390 (Alaska 1978) (Alaska Constitution guarantees a right to a 12-person jury and requires a personal waiver; counsel’s pretrial waiver is not bi…
discussed Cited as authority (rule) Tony Lynn Davis v. Ron Champion and Attorney General for the State of Oklahoma
10th Cir. · 1994 · confidence medium
See, e.g., State v. Roland, 807 P.2d 705, 707 (Kan.App.1991); State v. Lutz, 760 P.2d 249, 251 (Or.1988); State v. Reid, 747 P.2d 560, 563 (Ariz.1987); Walker v. Alaska, 578 P.2d 1388, 1390 (Alaska 1978).
cited Cited as authority (rule) McGlauflin v. State
Alaska Ct. App. · 1993 · confidence medium
Walker v. State, 578 P.2d 1388, 1390 (Alaska 1978).
discussed Cited as authority (rule) State v. MacHia (2×)
Vt. · 1990 · signal: cf. · confidence medium
Cir. 1973) (per curiam); see also State v. Reid, 155 Ariz. 399, 402 , 747 P.2d 560, 563 (1987) (waiver sufficient where record showed counsel conferred with defendant, defendant was in court when counsel stipulated to continue with eleven jurors, and defendant did not allege not discussing matter with counsel); People v. Waters, 641 P.2d 292, 293-94 (Colo. Ct. App. 1981) (waiver sufficient where counsel consulted defendant and defendant voiced no objection to counsel’s statement); cf. Walker v. State, 578 P.2d 1388, 1389-90 (Alaska 1978) (Alaska Constitution’s explicit provision for twelve…
discussed Cited as authority (rule) O'DONNELL v. Municipality of Anchorage (2×)
Alaska Ct. App. · 1982 · confidence medium
Waiver cannot be presumed. [Footnotes omitted.] 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).
cited Cited as authority (rule) Land v. Municipality of Anchorage
Alaska Ct. App. · 1982 · confidence medium
Walker v. State, 578 P.2d at 1389-90 (footnotes omitted).
discussed Cited as authority (rule) Dolchok v. State (2×)
Alaska · 1982 · confidence medium
We have emphasized that “[t]rial by jury is a fundamental right accorded criminal defendants, and, as such, it requires a knowing and intelligent waiver for relinquishment.” Walker v. State, 578 P.2d 1388, 1389 (Alaska 1978) (footnotes omitted).
cited Cited as authority (rule) Ciummei v. Amaral
D. Mass. · 1980 · confidence medium
In Walker v. State, 578 P.2d 1388, 1390 (Alaska 1978), it is unclear whether the court based its requirement of a colloquy on state or federal constitutional law or both.
discussed Cited as authority (rule) Countess v. State (2×)
Md. · 1979 · confidence medium
E.g., Walker v. State, 578 P.2d 1388, 1389-90 (Alas. 1978); People v. Holmes, 5 Cal.Rptr. 871, 872-73 , 353 P.2d 583, 584 (1960); Hawkins v. United States, 385 A.2d 744, 746 (D.C. 1978).
cited Cited "see" I. J. v. State
Alaska Ct. App. · 2008 · signal: see · confidence high
See Walker v. State, 578 P.2d 1388, 1390 (Alaska 1978).
cited Cited "see" McCarlo v. State
Alaska Ct. App. · 1984 · signal: see · confidence high
See Walker v. State, 578 P.2d 1388 (Alaska 1978).
discussed Cited "see" Erick v. State (2×)
Alaska Ct. App. · 1982 · signal: see · confidence high
See Walker v. State, 578 P.2d 1388, 1390 (Alaska 1978).
discussed Cited "see" Scott v. Robertson (2×)
Alaska · 1978 · signal: see · confidence high
See Walker v. State, 578 P.2d 1388 , (Alaska 1978); Alexander v. City of Anchorage, 490 P.2d 910, 913 (Alaska 1971); Baker v. City of Fairbanks, 471 P.2d 386, 401-02 (Alaska 1970). [26] See Shepherd v. Bering Sea Originals, 578 P.2d 587 , (Alaska 1978); State v. Baker, 393 P.2d 893, 896-97 (Alaska 1964). [27] Courts which have decided to admit prior criminal convictions have split on whether to admit them as prima facie evidence or as conclusive.
cited Cited "see, e.g." State v. Swan
Idaho Ct. App. · 1985 · signal: see also · confidence low
See also, Walker v. State, 578 P.2d 1388 (Alaska, 1978). (emphasis added).
Retrieving the full opinion text from the archive…
Maurice Felix WALKER, Appellant,
v.
STATE of Alaska, Appellee
3322.
Alaska Supreme Court.
May 26, 1978.
578 P.2d 1388
Alan Beiswenger, Asst. Public Defender, Bethel, Sue Ellen Tatter, Asst. Public Defender, Brian Shortell, Public Defender, Anchorage and Robert Adelman, Anchorage, of counsel, for appellant., Victor C. Krumm, Dist. Atty., Bethel and Avrum M. Gross, Atty. Gen., Juneau, for appellee.
Boochever, Rabi-Nowitz, Connor, Burke, Matthews.
Cited by 45 opinions  |  Published

Lead Opinion

OPINION

Before BOOCHEVER, C. J., and RABI-NOWITZ, CONNOR, BURKE and MATTHEWS, JJ. [*1389] BOOCHEVER, Chief Justice.

Appellant Maurice Felix Walker was convicted of larceny in a dwelling[1] upon the guilty verdict of a six-person jury. We reverse and remand for a new trial on the ground that the record does not disclose a knowing, voluntary and personal waiver by the accused of his right to a twelve-person jury-

The sixth amendment to the United States Constitution guarantees the right to a jury trial:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury .

The Alaska Constitution secures a similar right and fixes the number of jurors at twelve:

Rights of accused. In all criminal prosecutions, the accused shall have the right to a speedy and public trial, by an impartial jury of twelve, except that the legislature may provide for a jury of not more than twelve nor less than six in courts not of record.[2]

Trial by jury is a fundamental right accorded criminal defendants,[3] and, as such, it requires a knowing and intelligent waiver for relinquishment.[4] Waiver cannot be presumed.[5]

In the present case, the following exchange transpired between the court and respective counsel:

THE COURT: Would you call first 12 jurors, please.
THE CLERK: Six.
THE COURT: Six, that’s right. Counsel, will you stipulate for the record to a 6 man jury?
MR. KRUMM: Yes, we do, Your Honor.
THE COURT: Mr. Angstman . . . do you agree to a 6 man jury on behalf of the defendant?
MR. ANGSTMAN: Yes, we do, Your Honor.
THE COURT: Very well. And does the state stipulate to a 6 man jury?
MR. KRUMM: The state does, Your Honor.
THE COURT: Very well. Call 6 jurors.

In Lanier v. State, 486 P.2d 981, 988 (Alaska 1971), the authority of an attorney to waive his client’s constitutional rights was discussed. We stated:

We hold that an attorney’s waiver of his client’s constitutional rights will be binding on the client — subject to established limitations — when it occurs during the trial and results from decisions made during the trial. Conversely, an attorney’s waiver of his client’s constitutional rights without his client’s consent will not be binding on the client if the waiver occurs before or after the trial or is the result of a decision made during the pretrial period, (footnotes omitted)

Here, the waiver occurred during the pretrial period, and thus was not binding on the client.

We believe that waiver of the right to trial by a jury of twelve persons requires that the court personally address the defendant, and that failure to do so is error[*1390] per se.[6] The United States Supreme Court has stated:

Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact-finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant, (emphasis added)[7]

The Alaska Constitution secures the right to a twelve-person jury, and we hold that personal waiver of a constitutionally-guaranteed jury is required under the United States and Alaska Constitutions.[8]

Our holding that personal waiver is constitutionally mandated finds support in decisions interpreting the Federal Rules of Criminal Procedure. Rule 23(b) provides:

Jury of Less Than Twelve. Juries shall be of 12 but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12.

Because Rule 23(b) is essentially identical with Alaska’s Criminal Rule 23(b),[9] we may look to federal decisions for guidance.

The requirement of a written stipulation is to provide “the best record evidence of the express consent of a defendant.”[10] While oral consent may be substituted for written, the defendant must personally express his waiver.

An assertion by defense counsel that the defendant has consented is less reliable evidence, even when coupled with the inference of acquiescence drawn from defendant’s failure to protest. Such an assertion is insufficient to show that the defendant’s consent, if indeed it was given, was given with the requisite degree of understanding.[11]

The duty of the trial court to address the defendant personally on waiver of a jury of twelve extends to a duty to inquire whether the waiver is voluntary and knowing. Without such an inquiry, this court cannot determine from the record whether the waiver was properly accepted.[12] Failure to do so is error per se.[13]

[*1391] We do not reach the other issues raised by Walker.[14]

REVERSED AND REMANDED.

1

AS 11.20.150 provides:

Larceny in building or vessel. A person who commits the crime of larceny in a dwelling house, banking house, office, store, shop, or warehouse, or in a ship, steamboat, or other vessel, or who breaks and enters in the night or daytime a church, courthouse, meeting house, town house, college, academy, or other building erected or used for public uses, and commits the crime of larceny in it, is punishable by imprisonment in the penitentiary for not less than one nor more than seven years.
2

Art. I, sec. 11, Alaska Constitution. The superior court for the State of Alaska in which Walker was tried is a court of record, AS 22.-10.050.

3

Taylor v. Louisiana, 419 U.S. 522, 526-27, 95 S.Ct. 692, 695-96, 42 L.Ed.2d 690, 696 (1975); Duncan v. Louisiana, 391 U.S. 145, 153-54, 88 S.Ct. 1444, 1449-50, 20 L.Ed.2d 491, 498 (1968); State v. Browder, 486 P.2d 925, 937 (Alaska 1971); Baker v. City of Fairbanks, 471 P.2d 386, 396, 401 (Alaska 1970).

4

Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938); Tarnef v. State, 512 P.2d 923, 934-35 (Alaska 1973).

5

Id.

6

See Patton v. United States, 281 U.S. 276, 286, 312, 50 S.Ct. 253, 254, 263, 74 L.Ed. 854, 857, 870 (1930).

8

; Although the United States Supreme Court has held since Patton v. United States, supra Note 6, that the federal constitution does not require that juries of twelve be available to criminal defendants, Williams v. Florida, 399 U.S. 78, 86-87, 90 S.Ct. 1893, 1898-99, 26 L.Ed.2d 446, 452-53 (1970), its holding in Pat-ion that personal waiver is necessary before a defendant may abandon a constitutionally-guaranteed jury was not overruled by Williams. We hold that a similar waiver is required under the Alaska Constitution.

9

Alaska Criminal Rule 23(b) provides:

Jury of Less Than Twelve. Juries shall be of 12 persons but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12.
10

United States v. Virginia Erection Corp., 335 F.2d 868, 871 (4th Cir. 1964) (emphasis in original).

11

United States v. Taylor, 498 F.2d 390, 392 (6th Cir. 1974); United States v. Guertero-Peralta, 446 F.2d 876, 877 (9th Cir. 1971) (footnote omitted). But see, United States v. Smith, 523 F.2d 788, 791-92 (5th Cir. 1975).

12

Cf., United States v. David, 167 U.S.App.D.C. 117, 511 F.2d 355, 362 (1975) [retrial ordered where record insufficient to establish voluntary and intelligent waiver of trial by jury under F.R.Crim.P. 23(a)], We believe the same standard applies to waivers under Alaska Criminal Rule 23(a) and (b).

13

The state has confessed error on the particular facts of this case stating:

The State of Alaska, acting by and through District Attorney Victor C. Krumm, confesses constitutional error on the issue of defendant’s waiver of a twelve-person jury. A review of the record and consideration of appellant’s brief and authorities cited therein convince the State that this conviction should be reversed on the basis that his constitutional right to a jury trial by twelve citizens was violated.
As pointed out by the defendant, the record is very sparse — almost nonexistent, actually — as to the reasons for going with a six person jury instead of the usual twelve. There were, of course, several reasons behind the court’s decision to seek a jury trial with[*1391] less than twelve jurors, but a silent record is not justifiable.
The State believes that there was a violation of both the letter and intent of Criminal Rule 23(b) in this case. The defendant should have been personally addressed by the court. United States v. Guerrero-Peralta, 446 F.2d 876 (9th Cir. 1971). The right to a trial by twelve is guaranteed by Article I, Section 11, of the Alaska Constitution, and although Criminal Rule 23(b) provides for a trial with less than this number, the right is so basic that any waiver should be express, unequivocal, intelligent and voluntary. Horne v. United States, 264 F.2d 40, cert, den. 360 U.S. 934, 79 S.Ct. 1460, 3 L.Ed.2d 1549.
Though there was no intention to violate the defendant’s constitutional rights, and even though the defense attorney specifically agreed to a six person jury on behalf of his client (Tr. 34), the effect upon the defendant was constitutionally harmful.
The State does not reach the issue of whether failure to personally address the defendant was error per se. The State confesses error solely upon the facts in this case.
14

We do not rely on the particularities of this case, including Walker’s hearing impairment since we have adopted an error per se approach.

Concurrence

MATTHEWS, Justice,

concurring.

I would reverse without opinion based on the State’s confession of error because I believe the question presented should not be resolved for future cases without a truly adversary presentation.