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11/06/92 ROSA LOPEZ v. UNITED STATES

November 6, 1992

ROSA LOPEZ, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. John H. Bayly, Jr., Trial Judge)

Before Steadman, Schwelb and Sullivan, Associate Judges.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: Following a trial by the court sitting without a jury, Rosa Lopez was found guilty of assaulting her supervisor, in violation of D.C. Code § 22-504 (1989). *fn1 On Appeal, her primary contention is that a bench trial was impermissible because she had not effectively waived her right to a jury trial. We remand for further proceedings.

I

On September 17, 1990, the date of the incident which precipitated the charges against her, Ms. Lopez was twenty-four years old. A native of Honduras, she had been living in the United States for a little over a year. According to the Pretrial Service Agency Report, she had five years of education, presumably in Honduras. Ms. Lopez was unable to speak English, and required an interpreter for all court proceedings.

At the time of the alleged assault, Ms. Lopez was engaged in janitorial work at McLean Gardens, an apartment complex in northwest Washington. The prosecution presented evidence tending to show that Ms. Lopez assaulted her supervisor, Teresa Martinez, an older, smaller, and less robust woman, by striking her with an umbrella, choking her, and throwing her into the bushes. Ms. Lopez denied using the umbrella and contended that she had acted in self-defense.

At arraignment, Ms. Lopez demanded a jury trial, and the case was placed on the jury calendar. On the day of trial, however, the following colloquy occurred:

THE COURT: Mr. Pietz [defense counsel], I see that you, your client, as well as the United States Attorney, have all signed a waiver of trial by jury: is that correct?

[DEFENSE COUNSEL]: Yes, your Honor.

THE COURT: I take it you have explained to Miss Lopez that if she waives a jury, I, as the Judge, will not only determine the law but I will find the facts which otherwise would have been done by a jury?

[DEFENSE COUNSEL]: Yes, your Honor. I have explained that to her myself on prior occasions and I've done it through the aid of the official interpreter this morning.

THE COURT: Very well. And it's with that understanding that she's signed the waiver; is that correct?

[DEFENSE COUNSEL]: Yes, your Honor.

THE COURT: It's understood she had a right to have a jury panel separately --

[DEFENSE COUNSEL]: Yes. The interpreter --

THE COURT: -- to decide the facts and return a verdict?

[DEFENSE COUNSEL]: Yes. The interpreter was present with me and everything was explained to the interpreter this morning. And I had earlier explained it to her on other occasions by myself.

THE COURT: May I speak to your -- your client directly? Is that correct, Miss Lopez?

THE DEFENDANT: Yes.

THE COURT: Please be seated.

[DEFENSE COUNSEL]: Yes, thank you.

THE DEPUTY CLERK: I've made the entry, Mr. Pietz.

[DEFENSE COUNSEL]: Thank you very much.

The prosecutor, the defense attorney, Ms. Lopez and the Judge all signed a waiver of jury form in the Spanish language.

Without objection, the case proceeded to trial before the court. After Ms. Lopez was convicted of the assault charge, the Judge suspended imposition of sentence, placed Ms. Lopez on unsupervised probation for three ...


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