Opinion
No. 26808
January 26, 2006
Appeal from the Circuit Court of Dade County, Honorable James R. Bickel, Judge.
Ellen H. Flottman, for Appellant.
Jeremiah W. (Jay) Nixon, Attorney General and Shaun J. Mackelprang, Assistant Attorney General, for Respondent.
Scott D. Baxter ("Appellant") was convicted, following a bench trial, of second degree arson, a violation of Section 259.040, and third degree assault, a violation of Section 565.070, for assaulting Melinda Bennett ("Bennett") and setting fire to her apartment. Appellant received concurrent sentences of six years and fifteen days. On appeal, Appellant asserts the trial court committed plain error in that there is absolutely no basis in the record to determine "with unmistakable clarity" that Appellant had knowingly, intelligently and voluntarily waived his fundamental right to trial by jury, because he did not sign a written waiver nor was he personally examined by the trial court. We reverse.
All references to statutes are to RSMo (2000) unless otherwise indicated.
We begin by recognizing that Appellant made no objection at trial to being tried by the court and failed to file a motion for new trial. Appellant acknowledges this fact, but requests that we grant relief for plain error pursuant to Rules 29.12(b) and 30.20. "[P]lain error review is intended to correct only 'evident, obvious and clear error' that resulted in manifest injustice or miscarriage of justice." State v. Ramirez , 143 S.W.3d 671, 676 (Mo.App.W.D. 2004) (quoting State v. Bozarth , 51 S.W.3d 179, 181 (Mo.App.W.D. 2001). Prejudice exists under the plain error rule where the error complained of impacts the rights of a defendant so substantially that manifest injustice or a miscarriage of justice will result if the error is not corrected. State v. Dillard , 158 S.W.3d 291, 299 (Mo.App.S.D. 2005). Appellant has the burden of showing manifest injustice or miscarriage of justice. State v. Mitchell , 145 S.W.3d 21, 22 (Mo.App.S.D. 2004). Plain error review should be used sparingly and is not a justification to review every point that has not been properly preserved. Id.
All references to rules are to Missouri Rules of Criminal Procedure (2004) unless otherwise indicated.
As Appellant does not challenge the sufficiency of the evidence supporting the conviction, facts stated in this opinion are limited to those necessary for the disposition of the issue. The record reveals that on September 29, 2002, Appellant and acquaintance Brittany Tucker ("Tucker") were "hanging out" at an apartment in Greenfield, Missouri, when Tucker suggested that they go to the apartment of Bennett, a mutual friend, to see if she wanted to "party" with them. Appellant had previously told Tucker that he had confronted Bennett because of his belief that she had "snitched" on him to the police about his involvement in some robberies.
Appellant and Tucker arrived at Bennett's apartment, and after determining that no one was home they let themselves in. As Tucker was retrieving something from the refrigerator, she turned and saw that an air mattress bed had been lit on fire. Appellant was standing next to the bed with a Bic lighter in his hand and was holding what appeared to be a burning sheet. Appellant and Tucker then ran from the apartment.
Ten to fifteen minutes after the fire was reported, Appellant and Tucker approached Bennett as she was standing in front of a bar on the town square. After a discussion, Appellant placed a pocket knife to Bennett's throat and told her that "if he wanted [her] dead, he would have already killed [her]." Appellant was later arrested and charged.
A docket entry dated March 15, 2004, indicated that the case would either be tried before a judge on June 2, 2004, or a jury on June 24, 2004. On June 2, 2004, the case was tried before the trial court. Prior to the presentation of evidence, the following exchange took place:
Prosecuting Attorney: Okay, Your Honor, one other preliminary matter for the record: The agreement in this case was that [Appellant] would waive a jury trial and have a bench trial, upon my reduction of the charge to a class C felony, arson in the second degree. I would ask that [Appellant] acknowledge that on the record, so he cannot later complain that he did not have a jury trial.
The Court: All right, Mr. Hammond, on behalf of the defense, I do understand that there is a waiver of jury trial.
Defense Counsel: Yes, Your Honor.
The Court: All right, thank you.
The court's docket entry from the same date relates that "[Appellant] waives jury [and] announces ready to proceed [with] trial to the court." As related, Appellant was convicted following the bench trial. This appeal followed.
A criminal defendant is guaranteed by the federal and state constitutions the right to have a jury decide the issue of guilt or innocence. U.S. CONST. amend. VI XIV; MO. CONST. art. I, § 22(a); Dillard , 158 S.W.3d at 299. However, the right to a jury trial can be waived, with the assent of the trial court, provided the waiver is voluntarily, knowingly and intelligently made. State v. Sharp , 533 S.W.2d 601, 605 (Mo. banc 1976). With respect to this right, Rule 27.01(a) provides that "[a]ll issues of fact in any criminal case shall be tried by a jury . . . unless trial by jury be waived as provided in this Rule." Rule 27.01(b) requires that "[i]n felony cases such waiver by the defendant shall be made in open court and entered of record." The purpose of this rule is to ensure that the waiver is voluntarily, knowingly and intelligently made. Luster v. State , 10 S.W.3d 205, 211 (Mo.App.W.D. 2000). A criminal defendant's waiver of his right to a trial by jury "must appear from the record with unmistakable clarity." State v. Bibb , 702 S.W.2d 462, 466 (Mo. banc 1985).
On appeal, Appellant contends that "[t]he trial court did not discern in open court whether [A]ppellant knowingly, intelligently and voluntarily waived his fundamental right to a jury trial [and] [t]hese failures violated [his] rights to due process and a trial by jury." We note that Appellant does not allege that his waiver was not knowing, intelligent and voluntary, nor does he allege that he intended to exercise his right to a jury trial despite his attorney's statement to the contrary. Rather, Appellant argues that because the trial court failed to ascertain in open court whether Appellant knowingly, intelligently and voluntarily waived his right to a jury trial, we must reverse his convictions and remand for a new trial. We are constrained to agree.
We have recognized that where the record is devoid of any reference to a jury waiver, "[d]enying Appellant's claim of error . . . would be the equivalent of totally ignoring Rule 27.01(b)." State v. Rulo , 976 S.W.2d 650, 653 (Mo.App.S.D. 1998). In State v. Hamilton , 8 S.W.3d 132, 134 (Mo.App.S.D. 1999), we reversed the judgment of conviction and ordered a new trial, where "[t]he record on appeal [did] not reveal defendant's waiver of a jury trial in open court or any entry of record disclosing his waiver of a jury trial." It is clear that a complete "failure to fulfill the requirements of Rule 27.01(b) that a waiver of trial by jury shall be made in open court and entered of record warrants a reversal of defendant's sentence and a remand for a new trial under plain error review." State v. Cooper , 108 S.W.3d 101, 106 (Mo.App.E.D. 2003).
In Mitchell , 145 S.W.3d at 23, defense counsel submitted a letter to the trial court indicating that defendant had waived his right to a jury trial. This letter was signed by defense counsel, but not by defendant. Id. The letter was entered into record and filed with the court. Id. at 23. Defendant, in that case, alleged that the letter was inadequate on its face to waive his right to a jury trial because there was no waiver of the right in open court, and there was no waiver attributed to the defendant in the record. Id. at 24. We held that there was no basis in the record to determine that the defendant knowingly, intelligently and voluntarily waived his right to a trial by jury, and reversed the judgment and remanded for a new trial. Id. at 25.
It must be noted that failure to strictly comply with Rule 27.01(b) will not always warrant reversal. In State v. Hatton , 918 S.W.2d 790, 795 (Mo. banc 1996), the Supreme Court of Missouri stated the following: "Assuming for argument's sake that the trial court should have conducted a more thorough examination to determine [Appellant]'s understanding of his waiver of his right to a trial by jury, it does not follow that the trial court's failure to do so necessarily results in a reversal of his conviction."
In Hatton , at the commencement of the trial, the defendant's attorney stated to the judge that defendant was "waiving jury." 918 S.W.2d at 795. The Court noted that the defendant was present when this statement was made, and offered no objection at that time or any other time. Id. The Court then held that because defendant had admitted to the conduct on which the charges were based, there was no concern that the waiver of the jury trial resulted in prejudice. Id.
Similarly, in State v. Seibert , 103 S.W.3d 295, 298 (Mo.App. S.D. 2003), defense counsel announced after voir dire and opening statements, that "the defense would waive jury trial on behalf of [defendant]." The defendant was present and made no objection. Id. At trial, the court took judicial notice of defendant's testimony from an earlier trial involving the same offenses. Id. at 299. In that testimony, defendant admitted to being involved in the conduct on which the charges were based. Id. The court held that "[t]hese circumstances, like those in Hatton , remove any concern about the waiver of the jury trial resulting in prejudice to [d]efendant." Id.
In the instant case, the prosecuting attorney acknowledged before the trial court that Appellant had agreed to waive his right to a jury trial in exchange for a reduction in the charges. The trial court then asked Appellant's counsel whether Appellant had in fact waived his right to a jury trial. Appellant's counsel replied "Yes, Your Honor." Appellant was present when this announcement was made. A docket entry confirms those proceedings. This case is not like those where the record is devoid of any reference to a jury waiver, nor is it like Hatton or Seibert , where the defendant admitted to being involved in the conduct on which the charges are based. This case presents us with the issue left undecided in Hatton : whether a defendant must be granted plain error relief, when (1) defendant's counsel waives the right to a jury trial on defendant's behalf in open court; (2) defendant is not examined by the trial court regarding his understanding of that right; (3) defendant does not object to proceeding to trial before a judge; but (4) defendant denies any involvement in the conduct on which the charges are based. We find plain error lies in such a situation.
"[T]he purpose of [Rule 27.01] is to ensure that the defendant's waiver is not allowed until the trial court is satisfied that the waiver is knowingly, voluntarily and intelligently made." Luster , 10 S.W.3d at 211. In the present case, we are unable to ascertain from the record that Appellant was advised of his right to a jury trial and that he knowingly, voluntarily and intelligently waived that right. When asked whether Appellant had waived his right to a jury trial, Appellant's counsel merely replied "Yes, Your Honor." While this exchange took place in open court, there is nothing in the record to evidence that Appellant was ever advised of his right to a jury trial, the effects of waiving that right, or any affirmative statement by Appellant regarding a waiver. "Although acquiescence, under certain circumstances, can constitute a waiver of a fundamental right, acquiescence cannot be presumed, and every reasonable presumption against waiver should be indulged by the court." Id.
Additionally, Appellant testified at trial that he had no involvement with setting fire to Bennett's apartment. This is important because, even where "[Appellant's] evidence may appear implausible, a jury would have been free to believe it and acquit him." Rulo , 976 S.W.2d at 652. "Where [the] right [to a jury trial] is altogether denied, the State cannot contend that the deprivation was harmless because the evidence established the defendant's guilt; the error in such a case is that the wrong entity judged the defendant guilty." Rose v. Clark , 478 U.S. 570, 578, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460, 471 (1986).
This court concludes that Appellant's point warrants plain error review, and that the trial court committed error that resulted in manifest injustice. The judgment of conviction is reversed for the reason that the record fails to reflect a knowing waiver of jury trial by Appellant. See Hamilton , 8 S.W.3d at 137. The case is remanded for a new trial.
Bates, C.J., and Barney, J., — concur.