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Docket No. 97664-Agenda 17-September 2004.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ERNEST BRACEY, Appellant.

Opinion filed December 2, 2004.
 

CHIEF JUSTICE McMORROW delivered the opinion of thecourt:

The single issue presented in this appeal is whether defendant'sfundamental right to a jury trial was violated when the circuit court,relying on a jury waiver executed by defendant in conjunction with hisfirst trial, retried defendant on a charge of aggravated battery in abench trial without first ascertaining whether, for his new trial,defendant knowingly and voluntarily waived his right to a jury trial.For reasons that follow, we reverse defendant's conviction foraggravated battery and remand for a new trial.

BACKGROUND

On November 30, 2000, defendant, Ernest Bracey, while aninmate at Pontiac Correctional Center, threw a cup of juice at anotherinmate as that inmate was being escorted past defendant's cell by acorrectional officer. Some of the juice splashed onto the arm of thecorrectional officer. Based on this incident, defendant was indicted ona charge of aggravated battery, i.e., that he knowingly made physicalcontact of an insulting or provoking nature with a correctional officerengaged in the execution of his official duties, in violation of section12-4(b)(6) of the Criminal Code of 1961 (720 ILCS 5/12-4(b)(6)(West 2000)).

On March 20, 2002, defendant appeared before Judge Frobish inthe circuit court of Livingston County. Defendant executed a writtenjury waiver and the court, after duly admonishing defendant of hisright to a jury trial, accepted the waiver, ruling that defendantknowingly and voluntarily waived his right to a jury trial. A bench trialwas then held on April 25, 2002. The defense presented no evidenceand defendant was found guilty of aggravated battery. After asentencing date was selected, the court asked defendant if he hadanything he wished to say. In reply, defendant asked why he had notbeen given an opportunity to speak during trial. Upon further inquiryby the court, it became clear that defendant had wanted to testify onhis own behalf. Defense counsel admitted that he had not spoken todefendant that day about whether defendant wanted to testify. Thetrial court also acknowledged its own error in failing to independentlyinquire whether defendant wished to testify. Accordingly, the courtruled that defendant had not knowingly and voluntarily waived hisright to testify. The court vacated its judgment and granted defendanta new trial. Explaining this to defendant, the court stated:

"[M]y finding here is vacated. You are going to get anotherchance with another judge. And at that time if you want totestify, you will be able to testify. So this other judge won'tknow anything about the case."

During a discussion on scheduling the new trial date, the courtclerk announced, "We are changing the date of the bench trial."

On July 17, 2002, defendant appeared before Judge Frank for hisnew trial. When Judge Frank called defendant's case, he made thefollowing opening remarks:

"Cause comes on for bench trial. I just verified to be sure thatthere was a jury waiver taken, and I see that there was byJudge Frobish back on March 20 of 2002. So anything,[prosecutor], before we start with the evidence?"

Neither the prosecutor, nor defense counsel, raised anypreliminary matters. Defendant's second bench trial commenced. Afterhearing all of the evidence, the circuit court found defendant guilty ofaggravated battery and subsequently sentenced defendant to two yearsimprisonment, to be served consecutively to the sentence defendantwas already serving.

Defendant appealed his conviction to the appellate court. Heargued, for the first time, that his March 20, 2002, jury waiver,executed prior to his first trial, was not a valid jury waiver withrespect to his second trial and that the circuit court erred when, priorto his second trial, it failed to ascertain whether he wished to waivethat right. In a split decision, the appellate court affirmed defendant'sconviction. 345 Ill. App. 3d 314. Two justices found that the waiverof a jury trial was made with defendant's knowledge and consentbecause he never sought to withdraw his earlier written waiver and"silently acquiesced in the court's and counsel's statements [regardingthe earlier jury waiver] made in his presence on the day of trial."Justice Knecht dissented, holding that defendant's reassertion of a jurywaiver should not be inferred because our justice system requires adefendant to "affirmatively and knowingly waive his right to a jurytrial."

We granted defendant's petition for leave to appeal. 177 Ill. 2dR. 315.

ANALYSIS

The right to a trial by jury is a fundamental right guaranteed byour federal and state constitutions. In People ex rel. Daley v. Joyce,126 Ill. 2d 209, 212-13 (1988), we discussed the right to trial by jury,stating, "We are dealing here with one of the most revered of all rightsacquired by a people to protect themselves from the arbitrary use ofpower by the State."

A defendant may, of course, waive the right to a jury trial, butany such waiver, to be valid, must be knowingly and understandinglymade. 725 ILCS 5/103-6 (West 2002) ("Every person accused of anoffense shall have the right to a trial by jury unless ***understandingly waived by defendant in open court"); In re R.A.B.,197 Ill. 2d 358, 364 (2001); People v. Frey, 103 Ill. 2d 327, 332(1984). Whether a jury waiver is valid cannot be determined byapplication of a precise formula, but rather turns on the particularfacts and circumstances of each case. In re R.A.B., 197 Ill. 2d at 364;Frey, 103 Ill. 2d at 332. A written waiver, as required by section115-1 of the Code of Criminal Procedure of 1963 ("All prosecutions*** shall be tried by the court and a jury unless the defendant waivesa jury trial in writing" (emphasis added) (725 ILCS 5/115-1 (West2002))), is one means by which a defendant's intent may beestablished. However, adherence to this provision, whilerecommended, is not always dispositive of a valid waiver. See Peoplev. Scott, 186 Ill. 2d 283 (1999). Nor is the lack of a written waiverfatal, if it can be ascertained that the defendant understandinglywaived his right to a jury trial. See People v. Tooles, 177 Ill. 2d 462(1997). For a waiver to be effective, the court need not impart todefendant any set admonition or advice. People v. Smith, 106 Ill. 2d327, 334 (1985). Generally, a jury waiver is valid if it is made bydefense counsel in defendant's presence in open court, without anobjection by defendant. See People v. Murrell, 60 Ill. 2d 287 (1975);People v. Sailor, 43 Ill. 2d 256 (1969). However, as noted by thiscourt in People v. Scott, 186 Ill. 2d 283, 285 (1999), "We have neverfound a valid jury waiver where the defendant was not present in opencourt when a jury waiver, written or otherwise, was at leastdiscussed."

Whether defendant knowingly and understandingly waived hisfundamental right to a jury trial when he was retried on the charge ofaggravated battery is the issue in the case at bar. Because the facts ofthis case are not in dispute, the question is a legal one and our reviewis de novo. In re R.A.B., 197 Ill. 2d 358 (2001). We note, too, that inthis case, as in In re R.A.B., defendant's failure to question the validityof the jury waiver in the circuit court, either by objection or in aposttrial motion, does not mean that he has forfeited the alleged erroron review. See In re R.A.B., 197 Ill. 2d at 362-63. Whether adefendant's fundamental right to a jury trial has been violated is amatter that may be considered under the plain error rule. In re R.A.B.,197 Ill. 2d at 363. See also People v. Owens, 336 Ill. App. 3d 807(2002); People v. Williamson, 311 Ill. App. 3d 54, 57 (1999).

In the case at bar, it is undisputed that defendant executed awritten jury waiver and, in addition, was admonished with regard tohis right to a jury trial. This took place, however, on March 20, 2002,prior to his first bench trial before Judge Frobish. The question hereis whether the admonishments received and the written jury waivergiven in conjunction with defendant's first trial, considered in light ofdefendant's acquiescence to a second bench trial, are enough to showthat defendant knowingly and understandingly waived his right to ajury trial when he was retried on the charge of aggravated batterybefore Judge Frank. We find that the evidence does not support afinding that defendant knowingly consented to a jury waiver at hisretrial.

The written waiver and admonishments which occurred on March20, 2002, were no longer of any effect once defendant's first trialterminated. In People v. Mixon, 271 Ill. App. 3d 999, 1002 (1994),our appellate court noted, "[t]he importance of the right to a jury trialas it relates to retrials was recognized very early in Illinois." QuotingTown of Carthage v. Buckner, 8 Ill. App. 152, 154 (1880), the Mixoncourt held that the well-established rule is that " 'a waiver of a jury onone trial, is expended by that trial.' " Mixon, 271 Ill. App. 3d at 1002.See also People v. Schwartz, 3 Ill. 2d 520, 524 (1954) (a defendant'sjury waiver is "set aside" by a remand for a new trial de novo); Peoplev. Johnson, 222 Ill. App. 248 (1921) (trial court erred in conductinga second trial as a bench trial because the written waiver executedbefore the first trial expired after that trial had ended and a new trialwas awarded); United States v. Lee, 539 F.2d 606 (6th Cir. 1976) (theright to a jury trial is a fundamental right and a waiver should not bepresumed to include second trial); Burnham v. North Chicago St. Ry.Co., 88 F. 627, 629 (7th Cir. 1898) (the waiver of the "high andsacred constitutional right" of trial by jury should be strictly construedin favor of the preservation of the right).

In light of such strong and well-settled precedent, we arecompelled to conclude that the circuit court's ruling on March 20,2002, that defendant knowingly and understandingly waived his rightto a jury trial, which was based on the written waiver and oralstatements made by defendant in open court that day, is of littleevidentiary value and no legal effect with regard to the issue ofwhether defendant knowledgeably consented to give up his right totrial by jury at his new trial. The question, then, is whether statementsmade in defendant's presence prior to his second trial provide asufficient basis for finding that defendant knowingly and voluntarilywaived his right to a jury at his retrial. Again, we find the evidenceinsufficient to support such a finding.

It is clear from the record that when Judge Frobish vacated hisjudgment after defendant's first bench trial, he assumed that retrialwould also be a bench trial. Nothing in the record indicates thatdefendant was ever advised that upon retrial he would again have thechoice to be tried by a jury. To the contrary, everything in the recordindicates that defendant was led to believe that his jury waiver,executed on March 20, 2002, obligated him to a bench trial onceagain. Judge Frobish told defendant that he was "going to get anotherchance with another judge." The discussion that followed the vacatureof the judgment after defendant's first trial shows that the new trialwas automatically scheduled for a new bench trial.

The record shows that defendant did not appear in court againuntil he appeared before Judge Frank for his new trial. At that time,Judge Frank never ascertained whether defendant intended to waivehis right to a jury trial. Instead, the court simply relied upon the factthat the March 20, 2002, written waiver was in the record-againleading defendant to believe that his earlier choice to forgo a jury trialwas still binding on him.

Given the fact that defendant's written waiver was no longereffective and given the fact that, prior to defendant's second trial,defense counsel made no statements in defendant's presence indicatingthat defendant was electing, once again, to give up his right to trial byjury, defendant's silent acquiescence to a second bench trial isinsufficient to support a finding that he knowingly and voluntarilyrelinquished his fundamental right to trial by jury. For this reason,defendant's conviction must be reversed.

CONCLUSION

The judgments of the appellate and circuit courts are reversedand the cause remanded to the circuit court for further proceedings.

Reversed and remanded.