Appeal from the Circuit Court of Kane County. No. 08-CM-6707 Honorable Robert J. Morrow, Judge, Presiding.
The opinion of the court was delivered by: Justice Schostok
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Bowman and Birkett concurred in the judgment and opinion.
The defendant, Robert Hernandez, appeals from his convictions on two counts of obstructing a peace officer (720 ILCS 5/31-1(a) (West 2008)). He asserts that he did not waive his right to a jury trial on those charges, although, before the State charged him with obstruction, he did execute a written jury waiver as to two counts of domestic battery (720 ILCS 5/12-3.1(a)(1), (a)(2) (West 2008)). We hold that the written jury waiver executed when he was facing only the domestic battery charges did not cover the later-added charges. We further hold that the defendant's silence as his bench trial commenced cannot be construed as a waiver by acquiescence of his right to a jury trial on the obstruction charges. We therefore vacate the defendant's convictions and remand the matter.
The record does not contain transcripts of any of the proceedings. However, the parties have filed an agreed statement of facts (as permitted under Illinois Supreme Court Rule 323(d) (eff. Dec. 13, 2005)) that describes in outline the significant events of the case. We draw on that statement for facts not contained in the common-law record.
On October 23, 2008, the State filed a complaint against the defendant, charging him with two counts of domestic battery. The victim in both counts was the defendant's housemate, Samantha Yeakel. On November 13, 2008, according to the agreed statement, the defendant waived his right to a jury trial by "reading and signing a written waiver in open court."
On February 11, 2009, the State filed a motion seeking leave to amend the complaint to include two counts of obstructing a peace officer. The first new count alleged that the defendant ran up the stairs of his house when officers came to arrest him; the second alleged that he held an infant so as to make it difficult for the officers to take him into custody. The record does not reflect any discussions in the defendant's presence regarding whether a bench trial should or would occur on the new charges.
On April 7, 2009, the trial court heard argument on the State's motion to amend. At that point, a different judge was presiding over the case than the judge before whom the defendant executed the written jury waiver on November 13, 2008. Defense counsel objected on the ground that it was too late to amend the complaint to include new offenses, because the new charges were subject to compulsory joinder. The trial court granted the motion and permitted the new charges to be added. The bench trial was held the same day. The State called as witnesses two police officers, who testified to the following events. The officers, who were in uniform, answered a call concerning a domestic dispute at the residence shared by the defendant and Yeakel and entered it with Yeakel's permission. When they ordered the defendant to come downstairs he refused and ran into a bedroom. The officers pursued and found him "holding his infant child in his outstretched arms." The officers ordered him to put the infant down. The defendant complied after the third repetition of the order, and the officers took him into custody.
The court entered a directed finding in favor of the defendant on the two domestic battery counts, but found him guilty on the two obstruction counts. The defendant filed a posttrial motion in which he asserted, among other things, that the State's addition of the obstruction charges came too late under the compulsory joinder rules. However, he did not raise the issue of the lack of a jury waiver on the obstruction charges. After sentencing, and a timely post-sentencing motion that the court granted in part, the defendant appealed.
On appeal, the defendant contends that the obstruction charges were outside the scope of the jury waiver and that his convictions for obstruction, which were obtained in a bench trial, are therefore reversible as plain error. The State argues that, because the November 13, 2008, jury waiver was not withdrawn, it applied to the later-filed charges. At oral argument before this court, the State also implied that the defendant demonstrated his consent to the bench trial on the obstruction charges by not objecting when it occurred. The State does not contest the defendant's assertion that proceeding with a bench trial when the defendant has not waived the right to a jury is reversible plain error.
"The right to a trial by jury is a fundamental right guaranteed by our federal and state constitutions." People v. Bracey, 213 Ill. 2d 265, 269 (2004). Under section 103-6 of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-6 (West 2008)), subject to exceptions not relevant here, "[e]very person accused of an offense shall have the right to a trial by jury unless *** [it is] understandingly waived by defendant in open court." The validity of a jury waiver turns on the particular facts and circumstances of the case. Bracey, 213 Ill. 2d at 269. Although the trial court is not required to provide a defendant with any particular admonishment or information regarding the constitutional right to a jury trial, it has a duty to ensure that any waiver of that right is made expressly and understandingly. People v. Rincon, 387 Ill. App. 3d 708, 717 (2008). Regardless of whether the defendant executed a written jury waiver, the record must show that the defendant understandingly relinquished the right to a jury trial. Bracey, 213 Ill. 2d at 270. Our supreme court has never recognized a waiver as valid " 'where the defendant was not present in open court when a jury waiver, written or otherwise, was at least discussed.' " Id. (quoting People v. Scott, 186 Ill. 2d 283, 285 (1999)).
The State first argues that the defendant's written jury waiver became effective when executed on November 13 and remained in effect from that point forward, thereby encompassing the obstruction charges added later. We disagree. "Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748 (1970). Common sense says that a person must be at least generally aware of the charges he or she faces before he or she can knowingly and intelligently decide whether guilt for those charges should be determined by a jury or a judge. Here, the only charges facing the defendant on the date he signed the jury waiver were two counts of domestic battery. There is no suggestion in the record that, at the time of the waiver, ...