having waived his right to jury trial as to the charges now although he did waive his right to a jury trial as to domestic battery charges the obstructing charges were filed some months later when this court when this case was set for all argument the court order of the parties to be prepared to discuss two things people do for a one hundred eighty four supreme court case and and the motion for a new trial obviously violent in the charge on which he was convicted and that's the one on which the prosecutor testified so that's the fact it makes for a different than this case we don't have anything like that there is no evidence here there's no indication the record here unlike from that this defendant was ever waived his right pending when he signed a waiver let me guess this the court in this case and retain the defendant's motion to the motion regarding what the defense counsel are was an improper did it doesn't it doesn't say much but there has to be something doesn't people versions young in other cases stand for the proposition that were the reason a written jury waiver taken set aside from the fact the fact that truth charges  the same profit just isn't phrased where the court said to allow the defendant to gamble on the outcome of the case in front of the judge in front of the court and then later ron come back and say no i really wanted to jury trial well yes there is it refers to the jury waiver of that happened in november it says the jury having been waived in november it does not say that there's any discussion now now if it happened employment in the private sector in chicago and regrettably he could not be here today i hope that i do his argument justice the court specifically asked mr libby and me to be prepared to discuss people v with a couple of charges she waived his jury trial and signed a written waiver a later additional charges were added and then later in trial to occur the difference between the for a case and the instant case apparently had a much more developed record it's a lot easier for us to discern what the facts of the plain case are because it appears there was almost more of a record player in the instant matter there is a common law record it's fairly pithy and it's not as complete a common law records are that i've received in some appeals and the minute orders themselves mine are filled with abbreviations and initials so sometimes we have to discern what they say and then there's no record of proceedings at all there an agreed statement of facts that was prepared by either the assistant state's attorney or the public defender one or the other and they both signed off on it and i believe that that would have probably been prepared pursuant to supreme court rule three twenty three which provides that the appellant will provide a record to the court generally in the form of the common law record and a record of proceedings but if no transcript is available perhaps no court reporters where there are no recording was being made the parties  submit a bystanders report and i believe that's under three twenty three so c and the agreed statement of facts is under supreme court rule three twenty three d but i could be off by one such paragraph or the other they're right next to each other in supreme court rule three twenty three so there isn't any question that the parties were within their authority to agree to a statement of facts the fact does remain however that the burden is always on the appellant whoever he or she may be to provide a sufficiently complete record for this court to review by its very nature and appeal requires a sufficiently complete record it doesn't mean that every single job until that occurred in the trial court has to be presented but certainly whatever the controversy is  provide a sufficient record so there is a sufficient factual basis for the unique court to consider the contentions in arguments being raised and in the absence in the absence of a record the the reviewing court has a couple of presumptions that it has to make and one is that any factual rulings by the trial court had a sufficient factual basis also that the trial court did not abuse its discretion and that it acted in conformity with the law and any doubts as to the general raised because of the incompleteness of the record should be resolved in favor of the trial court doing its job properly address correct that's absolutely correct your honor and driving over here this morning actually when i was preparing for my argument the other day i thought that's probably a question that's going to be asked why didn't we brace it and  the short simple fact of the matter is mr clinger who prepared the brief i don't think he knew he could argue that this is the first breach that he ever prepared and i'm frankly as his mentor and supervisor in the metro and supervisor of the other folks in our program i don't have the opportunity in advance to always sit down and review all the records from start to finish so your honour's correct this is an issue that should have been raised by was it nevertheless is an appropriate issue for the court to consider i i offer to contentions on the one hand from the people's perspective we submit that there is and then among the beer and then a moment over the record here for the court to discern that the alternatively if as you are going through the record with your fine tooth comb and really trying to decide what do we have in front of us that shows us that the defendant waived his jury trial knowingly and understandingly you don't know the telephone calls and the drafts that might have gone back and forth between the parties bystanders purport i think traditionally at least the ones that i've seen have been fairly fairly complete is this is that in the form of of raising an issue as to the trial court not properly get my shame him as to his appeal rights for example degree statement of facts is silent on that i think the court if there were the issue in front of the court today you would have no choice but to presume that the trial court acted in conformance with the law and that it did adequately adequately had much the defendant of his appeal rights or if the issue has something to do with the trial court doing something it does indicate that the defense counsel objected to the motion to a man the motion to amend was submitted on february eleventh two thousand and nine and i have the bench trial date which was april seventh two thousand and nine to five counsel argued charges are you saying it was married yes it's it would appear to be based on the record that's in front of us and that's really what the frey case is all about it was there the supreme court said there's a sufficient record for us because every jury wafer is going to turn whether it's valid or not it's going to turn on a careful examination of the facts and circumstances of the individual case very very minimal record and instead a court can infer from the fact that the defendant did sign a jury waiver now it's interesting it's important to remember there is case law that says the presence of a written jury waiver is not argument that we made in our brief was exactly that the motion to amend the complaint to add the two obstruction of peace officer charges was filed on february eleventh and copies were sent to the public defender t represented the defendant about that same time and it was noticed off for in the bench trial date april seventh later a year and a half the bench trial date that was when apparently the public defender argued against the motion to him and he certainly knew about it and nobody said anything i don't know whether they did or they didn't i can't represent to you that nobody said anything about the jury and we are we are in the stance where the palace has the job of presenting a complete revolution to the states taking the position that the original jury waiver plus the other facts the motion absolutely your honor and and what we find when we talk this way all of us we keep coming back around full circle to the bottom line that the record is woefully incomplete and in that particular instance tha defendant i think that probably we don't be safe in saying that it's the trial judge's job to do that and we don't know what this trial judge said or didn't say the record is utterly silent as to that she may have said a few words about it and some of the cases that have held the jury way for was valid really short and sweet do you wish to have a jury trial or not i wish to have a bench trial your honor and in some cases depending upon the facts that's and off to be a jury wa included in there either there's no details included about the sentencing there is no details included about his admonition of his appeal rights or anything is ever before this is work no it's not  facts didn't come until show why you have twenty ten and if you read supreme court rules three twenty three those kinds of things bystanders appoints an agreed statement of facts ordinarily supposed to be in the record within thirty days so you know someone judge morrow said at the trial we don't know if he said oh i see judge someone so took a jury waiver back on doesn't such date is it still your desire to have one we don't know whether he said that or not and certainly that would be a good full circle around to what we don't know because it's not in the record that's where the court's question asking us to brief choices o'bryant since our office did not previously but brief it that's probably the most that's probably the most reasonable approach to take to these particular facts and i think oh it's not a legal argument at all certainly just a shot stocks point earlier about if the young defendant had clearly been given the opportunity if we could see in the record in prying into everybody and know exactly what they talked about and he sat there and chatted with his public defender what do you want to go to a jury unless i really don't think you want to because you were holding a baby out as the shield i defy you not to but that's just hypothesizing we don't know what was  record that the was a way for the second time around now here the lack of a waiver is much clearer than it was even in prison because over there he was being retried on the very same charges that he coming out of the record which is crouch and a possibility that something else might or might happen that's beyond phelps that's the situation here and if there were such a possibility ok if points if that were