Colorado’s second-highest court has concluded an El Paso County judge mistakenly found a defendant had relinquished his constitutional right to a jury trial, when the man had never, in fact, explicitly agreed to do so.

A three-judge panel for the Court of Appeals reversed the felony assault and sexual assault convictions of Stacey Joe Yarbrough, whose “bench trial” before District Court Judge Michael McHenry took place in 2020. McHenry believed Yarbrough did not want a trial by jury based on the defense attorney’s statements and a single, cryptic comment Yarbrough made personally.

That was not enough, in the Court of Appeals’ view, to establish Yarbrough had given up his right to a jury trial voluntarily, knowingly and intelligently.

“It is undisputed that the court never asked Yarbrough himself whether he wished to waive his right to a jury trial and that Yarbrough never affirmatively stated in open court that he wished to do so,” wrote Judge David H. Yun in the panel’s Aug. 25 opinion.

Police arrested Yarbrough in July 2019 and he appeared at a hearing before McHenry in November of that year. Yarbrough asked whether he could go to trial sooner than March 30, 2020, to which the judge responded he could not guarantee that date, but it was “the most realistic.”

“OK. I’m going to trial anyway,” Yarbrough responded. McHenry asked him to repeat himself.

“I don’t need 12 in the box,” said Yarbrough.

The defense attorney interjected, telling the judge Yarbrough “is not requesting a jury trial for this case.” McHenry indicated he would let the case continue as a jury trial for the time being.

Three months later, McHenry inquired whether the defense still wanted a bench trial, but a different attorney was representing Yarbrough and said they had “no notes to that effect.” It was not until February 2020, at a hearing where Yarbrough was not present, that his defense lawyer confirmed Yarbrough “still wants to proceed forward with bench trial.”

McHenry subsequently convicted Yarbrough at trial and sentenced him to 16 years to life in prison.

On appeal, Yarbrough contended he never personally waived his right to a trial by jury, a guarantee found in the U.S. and Colorado constitutions.

Under Colorado’s rules of criminal procedure, criminal defendants may relinquish that right and have their trial before a judge alone. However, judges “shall not proceed” with a bench trial unless they determine a defendant is acting voluntarily, understands the differences between a jury trial and a bench trial, and comprehends the consequences of their decision.

The Court of Appeals found it undisputed that Yarbrough’s only statement about a jury trial was his November 2019 comment that he did not “need 12 in the box.” It was also clear that McHenry had not followed the procedural rules and confirmed Yarbrough himself actually wanted to forgo a trial by jury.

“Thus, nothing in the record supports a conclusion that Yarbrough personally waived his right to a jury trial. Accordingly, we are compelled to reverse the judgment of conviction and remand for a new trial,” Yun concluded.

The case is People v. Yarbrough.