NO. 4-02-0669

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

JUSTICE MYERSCOUGH delivered the opinion of the court:

In July 2000, the trial court found defendant, ErnestBracey, guilty of aggravated battery (720 ILCS 5/12-4(b)(6) (West2000)). In August 2000, the court sentenced defendant to twoyears' imprisonment to run consecutive to the sentence he wasthen serving. Defendant appeals, arguing that (1) his rights toa jury trial and due process of law were violated when the courtproceeded with a bench trial without any indication that heknowingly, voluntarily, and intelligently waived his right to ajury trial; and (2) he was not proved guilty beyond a reasonabledoubt. We affirm.

I. BACKGROUND

In February 2002, the grand jury indicted defendant forcommitting aggravated battery to a correctional institutionalemployee who was engaged in the execution of his official duties. 720 ILCS 5/12-4(b)(6) (West 2000). On March 6, 2002, defendantmade his first appearance, and the trial court appointed counselfor defendant. On March 20, 2002, defendant's counsel informedthe court that defendant wished to waive his right to a jurytrial. The court admonished defendant that he had a right to ajury trial. Defendant executed a written jury waiver, and thecourt found defendant's waiver to be knowing and voluntary.

In April 2002, the trial court conducted a bench trial. The State presented its evidence and rested. Defense counselthen stated that he did not wish to present any evidence. Thecourt found defendant guilty of aggravated battery and askeddefendant if he had any questions. Defendant indicated that henever stated that he did not want to testify. He wanted to "tell[his] side of the story." The court found that it should haveinquired of defendant whether he wanted to testify, vacated itsguilty finding, and set the matter for trial in front of anotherjudge.

On July 17, 2002, the trial court called defendant'scase, and the following transpired:

"THE COURT: This is [No.] 02-CF-18. Mr. Jackson for the State. Defendant withMr. Ahlemeyer. Cause comes on for benchtrial. I just verified to be sure that therewas a jury waiver taken, I see that there wasby Judge Frobish back on March 20 of 2002. So anything, Mr. Jackson, before we startwith the evidence?

MR. JACKSON [Assistant State's Attorney]: No, [y]our Honor.

THE COURT: Mr. Ahlemeyer?

MR. AHLEMEYER [defense counsel]: No,[y]our Honor."

The State then called its first witness, John Deal. Deal testified that he had been a correctional officer at Pontiac Correctional Center (Pontiac) since September 2000. On November 30,2000, Deal was escorting an inmate from the library back to hiscell at approximately 12:15 p.m. Deal always positions theinmate that he escorts farthest away from the cell. For example,if the door is on the left, he places the inmate on the right,and he usually is approximately 1 1/2 to 2 feet behind theinmate. As he passed defendant's cell, he was splashed with aliquid substance that smelled like apple juice. The substancehit him in the left arm. He was somewhat disturbed because hewanted to determine whether anything harmful was in the substance. He further testified that he was insulted by the incident, which was something that did not occur on a regular basis. Deal concluded that the liquid was directed at the inmate he wasescorting because the majority of the liquid splashed on theinmate but some of the liquid had also splashed on him.

Defendant's cell door was perforated steel with holesapproximately an inch in diameter and an eighth of an inch apartthrough which defendant can look. Deal testified that if aninmate looks out the cell, he can see six or seven cells down andcan see someone walking fairly clearly. Deal further testifiedthat defendant said that the liquid was not meant for Deal.

Jack Libby, a correctional officer at Pontiac, testified that he investigated the incident involving Deal and defendant. Defendant admitted to Libby that defendant struck Dealwith a liquid substance, but he stated that it was an accident. Defendant was trying to hit the inmate Deal was escorting. TheState rested.

Defendant testified that he threw some apple juicethrough his perforated cell door. He did not intend to hit Deal. Defendant admitted that he thought that the juice might "splashon [Deal]," but defendant did not know for sure whether it would. On cross-examination, defendant admitted that he was aware thatthe correctional officer would have been walking pretty closebehind the inmate being escorted. Defendant also admitted thathe knew that if he threw apple juice through his cell door thatit might hit the correctional officer because of where thecorrectional officer would have been in relation to the inmate.

The defense rested. After closing arguments, the trialcourt found defendant guilty of aggravated battery. Specifically, the court stated:

"From the evidence, no question, [defendant]knew that the officer would be with [theinmate] as the defendant testified[.] *** [A]s the defendant himself said on direct hethought it might splash on Deal. But hereally intended--or not intended--he wantedto hit [the inmate], but he knew it mightsplash on Deal. ***

I mean, that is a fact that [defendant]had to be--had to be consciously aware of. Like he even said, it might have splashed. He wasn't even worried about it, didn't passthrough his mind. So I would think giventhose facts, a person would be consciouslyaware of it, it is going to hit the guy nextto him right behind the inmate and it did."

After the sentencing hearing, the trial court sentenced defendantas stated.

This appeal followed.

II. ANALYSIS

Defendant argues that his rights to a jury trial anddue process of law were violated when the trial court proceededwith the second bench trial prior to determining whether he hadknowingly, voluntarily, and intelligently waived his right to ajury trial. Specifically, defendant contends that his jurywaiver at the first bench trial was expended when that trialconcluded and the court vacated its finding of guilt. Defendantargues that the record does not contain a written waiver, aninquiry, or admonishment about his right to a jury trial for hissecond trial. Therefore, his conviction must be reversed. TheState argues defendant forfeited his right to raise this issuebecause he failed to raise this issue in the trial court and in aposttrial motion. The State argues further that the issue is notreviewable under the plain error doctrine because the evidencewas not closely balanced and any error was not of such magnitudethat defendant was denied a fair and impartial trial, and remedying the error is not necessary to preserve the integrity of thejudicial process. The State also argues that defendant validlywaived his right to a jury trial before his retrial.

A. Plain Error Doctrine

The record is clear that defendant raises this issuefor the first time on appeal. Ordinarily, errors not objected toduring trial or raised in the posttrial motion are consideredforfeited. R.A.B., 197 Ill. 2d 358, 362, 757 N.E.2d 887, 890(2001); People v. Enoch, 122 Ill. 2d 176, 190, 522 N.E.2d 1124,1131-32 (1988). The plain error doctrine, however, permitsreview of claimed errors not brought to the attention of thetrial court in two limited circumstances: (1) where the evidenceis closely balanced; or (2) when the errors are of such magnitudethat defendant was denied a fair and impartial trial and remedying the error is necessary to preserve the integrity of thejudicial process. R.A.B., 197 Ill. 2d at 363, 757 N.E.2d at 890-91. Because this case concerns the knowing waiver of the fundamental right to a jury trial, we will consider this issue underthe plain error doctrine. See R.A.B., 197 Ill. 2d at 363, 757N.E.2d at 891 (court considered issue under plain error doctrinebecause the case dealt with the knowing waiver of the fundamentalright to a jury trial).

B. Valid Jury Waiver

The issue in this case involves whether defendantknowingly waived his right to a jury trial. Because the factsare not questioned, the issue is a question of law, and ourreview is de novo. R.A.B., 197 Ill. 2d at 362, 757 N.E.2d at890. Both the United States Constitution and the IllinoisConstitution provide for jury trials in criminal cases. U.S.Const. amends. VI, XIV; Ill. Const. 1970, art. I,