NO. 4-02-0669

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from

		Plaintiff-Appellee,			)	Circuit Court of

		v.						)	Livingston County

ERNEST BRACEY,						)	No. 02CF18

    		Defendant-Appellant.		)

								)	Honorable

								)	Harold J. Frobish,

								)	Judge Presiding.

		JUSTICE MYERSCOUGH delivered the opinion of the court:

		In July 2000, the trial court found defendant, Ernest

Bracey, guilty of aggravated battery (720 ILCS 5/12-4(b)(6) (West

2000)).  In August 2000, the court sentenced defendant to two

years' imprisonment to run consecutive to the sentence he was

then serving.  Defendant appeals, arguing that (1) his rights to

a jury trial and due process of law were violated when the court

proceeded with a bench trial without any indication that he

knowingly, voluntarily, and intelligently waived his right to a

jury trial; and (2) he was not proved guilty beyond a reasonable

doubt.  We affirm.

I. BACKGROUND

		In February 2002, the grand jury indicted defendant for

committing aggravated battery to a correctional institutional

employee who was engaged in the execution of his official duties. 

720 ILCS 5/12-4(b)(6) (West 2000).  On March 6, 2002, defendant

made his first appearance, and the trial court appointed counsel

for defendant.  On March 20, 2002, defendant's counsel informed the court that defendant wished to waive his right to a jury

trial.  The court admonished defendant that he had a right to a

jury trial.  Defendant executed a written jury waiver, and the

court 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 counsel

then stated that he did not wish to present any evidence.  The

court found defendant guilty of aggravated battery and asked

defendant if he had any questions.  Defendant indicated that he

never stated that he did not want to testify.  He wanted to "tell

[his] side of the story."  The court found that it should have

inquired of defendant whether he wanted to testify, vacated its

guilty finding, and set the matter for trial in front of another

judge.

		On July 17, 2002, the trial court called defendant's

case, and the following transpired:

			"THE COURT:  This is [No.] 02-CF-18. 

Mr. Jackson for the State.  Defendant with

Mr. Ahlemeyer.  Cause comes on for bench

trial.  I just verified to be sure that there

was a jury waiver taken, I see that there was

by Judge Frobish back on March 20 of 2002. 

So anything, Mr. Jackson, before we start

with the evidence?

			MR. JACKSON [Assistant State's Attor

ney]:  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 testi

fied that he had been a correctional officer at Pontiac Correc

tional Center (Pontiac) since September 2000.  On November 30,

2000, Deal was escorting an inmate from the library back to his

cell at approximately 12:15 p.m.  Deal always positions the

inmate 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 the

inmate.  As he passed defendant's cell, he was splashed with a

liquid substance that smelled like apple juice.  The substance

hit him in the left arm.  He was somewhat disturbed because he

wanted to determine whether anything harmful was in the sub

stance.  He further testified that he was insulted by the inci

dent, which was something that did not occur on a regular basis. 

Deal concluded that the liquid was directed at the inmate he was

escorting because the majority of the liquid splashed on the

inmate but some of the liquid had also splashed on him.

		Defendant's cell door was perforated steel with holes

approximately an inch in diameter and an eighth of an inch apart

through which defendantinmates can look.  Deal testified that if an

inmate looks out the cell, he can see six or seven cells down and

can see someone walking fairly clearly.  Deal further testified

that defendant said that the liquid was not meant for Deal.

		Jack Libby, a correctional officer at Pontiac, testi

fied that he investigated the incident involving Deal and defen

dant.  Defendant admitted to Libby that defendant struck Deal

with a liquid substance, but he stated that it was an accident. 

Defendant was trying to hit the inmate Deal was escorting.  The

State rested.					

		Defendant testified that he threw some apple juice

through his perforated cell door.  He did not intend to hit Deal. 

Defendant admitted that he thought that the juice might "splash

on [Deal]," but defendant did not know for sure whether it would. 

On cross-examination, defendant admitted that he was aware that

the correctional officer would have been walking pretty close

behind the inmate being escorted.  Defendant also admitted that

he knew that if he threw apple juice through his cell door that

it might hit the correctional officer because of where the

correctional officer would have been in relation to the inmate.

		The defense rested.  After closing arguments, the trial

court found defendant guilty of aggravated battery.  Specifi

cally, the court stated:

		"From the evidence, no question, [defendant]

knew that the officer would be with [the

inmate] as the defendant testified[.] *** 

[A]s the defendant himself said on direct he

thought it might splash on Deal.  But he

really intended-–or not intended-–he wanted to hit [the inmate], but he knew it might splash 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 pass

through his mind.  So I would think given

those facts, a person would be consciously

aware of it, it is going to hit the guy next

to him right behind the inmate and it did."

After the sentencing hearing, the trial court sentenced defendant

as stated.

		This appeal followed.

II. ANALYSIS

		Defendant argues that his rights to a jury trial and

due process of law were violated when the trial court proceeded

with the second bench trial prior to determining whether he had

knowingly, voluntarily, and intelligently waived his right to a

jury trial.  Specifically, defendant contends that his jury

waiver at the first bench trial was expended when that trial

concluded and the court vacated its finding of guilt.  Defendant

argues that the record does not contain a written waiver, an

inquiry, or admonishment about his right to a jury trial for his

second trial.  Therefore, his conviction must be reversed.  The

State argues defendant forfeited his right to raise this issue

because he failed to raise this issue in the trial court and in a

posttrial motion.  The State argues further that the issue is not reviewable under the plain error doctrine because the evidence

was not closely balanced and any error was not of such magnitude

that defendant was denied a fair and impartial trial, and remedy

ing the error is not necessary to preserve the integrity of the

judicial process.  The State also argues that defendant validly

waived his right to a jury trial before his retrial.

A. Plain Error Doctrine

		The record is clear that defendant raises this issue

for the first time on appeal.  Ordinarily, errors not objected to

during trial or raised in the posttrial motion are considered

forfeited.  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, permits

review of claimed errors not brought to the attention of the

trial court in two limited circumstances: (1) where the evidence

is closely balanced; or (2) when the errors are of such magnitude

that defendant was denied a fair and impartial trial and remedy

ing the error is necessary to preserve the integrity of the

judicial 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 funda

mental right to a jury trial, we will consider this issue under

the plain error doctrine.  See R.A.B., 197 Ill. 2d at 363, 757 N.E.2d at 891 (court considered issue under plain error doctrine

because the case dealt with the knowing waiver of the fundamental

right to a jury trial).

B. Valid Jury Waiver

		The issue in this case involves whether defendant

knowingly waived his right to a jury trial.  Because the facts

are not questioned, the issue is a question of law, and our

review is de novo.  R.A.B., 197 Ill. 2d at 362, 757 N.E.2d at 890.  Both the United States Constitution and the Illinois

Constitution provide for jury trials in criminal cases.  U.S. Const. amends. VI, XIV; Ill. Const. 1970, art. I, §§8, 13.  The

decision whether to waive a jury trial ultimately belongs to the

defendant.  People v. Segoviano, 189 Ill. 2d 228, 240, 725 N.E.2d 1275, 1280-81 (2000).

		To be a valid jury waiver, it must be knowingly and

understandingly made.  R.A.B., 197 Ill. 2d at 364, 757 N.E.2d at 891.  A determination of whether a jury waiver is valid cannot

rest on any precise formula but depends on the facts and circum

stances of each particular case.  R.A.B., 197 Ill. 2d at 364, 757 N.E.2d at 891.  No specific admonition or advice is required

before an effective jury waiver may be made.  R.A.B., 197 Ill. 2d at 364, 757 N.E.2d at 891.

		Before defendant'shis first trial, the court admonished

himdefendant regarding his right to a jury trial and the following collo

quy occurred:

			"THE COURT:  *** This case comes on for

a pre[]trial.  The posture of the case, Mr.

Ahlemeyer, is what?

			MR. AHLEMEYER [defense counsel]:  I believe we are going to waive jury, [y]our

[h]onor.

			THE COURT:  All right.  [Defendant], a

waiver of right to jury trial is presented to

you there.  You do have a right to a jury

trial and the State would have to convince 12

jurors you are guilty beyond a reasonable

doubt.  If you execute that jury waiver, then

you won't have a jury trial and the State

will have to convince me beyond a reasonable

doubt that you are guilty of the offense

charged which is alleged to be aggravated

battery.  So if you want a bench trial, then

we would like you to sign that it is your

decision.

			All right.  Show that [defendant] has

executed a written jury waiver.  [Defendant]

do you waive your right to a jury trial and

consent to a bench trial?

			THE DEFENDANT:  Yes, sir.

			THE COURT:  All right. I find the waiver

to be knowingly and voluntarily accom

plished."

The record demonstrates that defendant orally waived his right

and executed a written jury waiver in open court.  The State,

defense counsel, and defendant were present at the second trial.  In July 2002, at the beginning of the second trial, the trial

court specifically addressed the jury waiver issue as previously

quoted.  The State and defense counsel informed the court that

nothing further need be addressed.  Further, defendant was

present at and participated in the second trial, and the court

and counsel intended for the matter to proceed to a bench trial. 

The determination of whether a jury waiver was made

e understandab

ingly turns on the facts and circumstances of each particular

case.  People v. Tooles, 177 Ill. 2d 462, 469, 687 N.E.2d 48, 51 (1997).  While the better practice would have been for the trial

court to specifically address defendant and confirm that defen

dant desired to waive jury trial, we find no error here.  Consid

ering the facts that the earlier jury waiver was discussed in

defendant's presence and defendant silently acquiesced in the

court's and counsel's statements made in his presence on the day

of trial, we conclude that the jury waiver was made with defen

dant's knowledge and consent.

		Further, upon reviewing the court's comments and

counsels' responses, we conclude that defendant's attorney, in

defendant's presence and in open court, in effect reasserted his

jury waiver.  See People v. Frey, 103 Ill. 2d 327, 332, 469 N.E.2d 195, 197 (1984) (where the supreme court held that an

accused typically speaks and acts through his attorney, and a

jury waiver is valid when made by defense counsel in defendant's

presence where defendant gave no indication of any objection to

the court hearing the case).

		By contrast, in People v. Johnson, 222 Ill. App. 248 (1921), where the defendant was charged with larceny and, by

agreement, the case was submitted to the court.  After a trial,

the court found the defendant guilty and sentenced him.  The

defendant moved to vacate the judgment.  The following day, the

court vacated the judgment and, on the defendant's motion,

granted a new trial.  Immediately thereafter, the defendant was

again arraigned.  The case was submitted to the same judge for

trial without a jury, and the defendant was represented by

counsel.  After hearing testimony, the court found the defendant

guilty and sentenced him.  The defendant appealed, arguing, in

part, that the court should not have entered judgment after the

second bench trial because the defendant had not executed a new

written jury waiver.  The appellate court agreed.  The court

noted that the transcript of the second proceeding did not

disclose that the defendant signed or gave a new written jury

waiver and, therefore, concluded that the judgment of the second trial could not stand because "it does not appear that the

defendant executed 'a formal waiver in writing' of a trial by

jury."  Johnson, 222 Ill. App. at 251.  The court went on to state:  "We think that the previous written waiver executed by

[the defendant] prior to commencement of the first trial was

exhausted after that trial had been had and a new trial awarded. 

Johnson, 222 Ill. App. at 251.  In contrast to the present case, nothing in Johnson indicated that a jury waiver was discussed in open court in the defendant's presence prior to the commencement of the second trial.  In the present case, the record clearly

indicates that the jury waiver was discussed in defendant's

presence, and the parties informed the court that no other issues

needed to be addressed before the second trial.

		Similarly, People v. Watson, 246 Ill. App. 3d 548, 616 N.E.2d 649 (1993), is distinguishable.  In Watson, at a pretrial hearing, where the defendant was not present, defense counsel

indicated to the trial court that the defendant wanted a bench

trial, but noted that the defendant's jury waiver would have to

be obtained prior to trial.  The court agreed that it would be

necessary to obtain the defendant's jury waiver prior to trial. 

The case later proceeded to a bench trial after which the court

found the defendant guilty.  The defendant appealed, arguing that

his convictions should be reversed and the cause remanded for a

new trial because the record failed to show that he knowingly

waived his right to a jury trial.  The appellate court agreed,

reversed, and remanded, reasoning as follows:

		"Vague references to a bench trial at the

rescheduling conferences were not sufficient

to constitute a valid jury waiver, especially

in light of the fact that the record is de

void of evidence suggesting that the defen

dant was ever apprised of his right to a jury

trial.  Under these circumstances, we are

unable to say that the defendant waived his

right to a jury trial."  Watson, 246 Ill. App. 3d at 549, 616 N.E.2d at 649.  

In the present case, however, the record contains more than

simply a "vague" reference to a bench trial at a rescheduling

conference where the defendant was not present and no mention of

a jury waiver was made at the time of trial.

		In People v. Scott, 186 Ill. 2d 283, 283, 710 N.E.2d 833, 834 (1999), the supreme court held that the defendant did

not validly waive his right to a jury trial in open court.  The defendant there executed a written jury waiver in his attorney's

office, which was later filed outside of defendant's presence. 

The jury waiver stated that  the defendant had "until the last

Thursday of December [] 1994 to revoke this waiver of jury trial." 

Scott, 186 Ill. 2d at 285, 710 N.E.2d at 834.  Sometime after, on the day of trial and in the defendant's presence, the defendant's

counsel informed the court that "'we would proceed to the bench

trial today.'"  The court stated "'Okay, appreciate that., [sic] okay.  We will then proceed with the bench trial.  [Prosecutor],

you may proceed.'"  Scott, 186 Ill. 2d at 284, 710 N.E.2d at 833.

		The supreme court acknowledged its holding in Frey that an accused typically speaks and acts through his attorney and a

jury waiver is valid when made by defense counsel in defendant's

presence where defendant has given no indication of objection to

the court hearing the case.  Scott, 186 Ill. 2d at 285, 710 N.E.2d at 834, citing Frey, 103 Ill. 2d at 332, 469 N.E.2d at 197.  However, the supreme court in Scott found that it was undisputed that the defendant was never present in open court when a jury waiver was discussed.  The court also found that the 

defendant's silence on the day of trial did not amount to an

"'acquiescence,'" on the issue but, rather, his silence "may have

been due to his belief that it was too late to revoke his jury

waiver," given the language of the waiver.  Scott, 186 Ill. 2d at 285, 710 N.E.2d at 834.  The supreme court noted that the refer

ences to proceeding with a bench trial were made during a discus

sion concerning a motion to dismiss and were merely the defen

dant's attorney informing the court that despite the pending

motion to dismiss, defendant was ready to proceed.  Scott, 186 Ill. 2d  at 285-86, 710 N.E.2d at 834.  The court found, there

fore, that defendant never acknowledged the written jury waiver

in open court, either affirmatively or through his silence. 

Scott, 186 Ill. 2d at 286, 710 N.E.2d at 834.

		In contrast, in the present case, defendant was present

in open court when he executed his jury waiver.  In addition,

defendant was also present in open court on July 17, 2002, when

the trial court acknowledged the jury waiver in defendant's file

and when the court and the attorneys discussed proceeding with

the bench trial.  Defendant never objected or informed the court

that he wanted to withdraw his jury waiver.

		Defendant contends that his silence could reasonably

have been due to his belief that he could not revoke his jury

waiver from the first trial, and that he was only entitled to a

new bench trial, not a new trial by jury because of the trial

court's comments at the first trial.  We disagree.  After review ing the comments in context, we conclude that they further

support the inference that defendant intended to and did know

ingly and voluntarily waive his right to jury trial. 

			"[THE COURT]:  "You are going to get

another chance with another judge.  And at

that time if you want to testify, you will be

able to testify.  So this other judge won't

know anything about the case.

			***

			*** You will be brought back to the

courthouse and you will appear before Judge

Charles Frank.

			Do you have any question, [defendant]?

			THE DEFENDANT:  No."

Moreover, defendant was certainly present in open court when the

jury waiver was discussed--specifically, when he executed it and

prior to the beginning of his second trial.  Defendant was not

one who did not understand the system or was shy when he dis

agreed with what was taking place.  In fact, defendant's objec

tion about not being able to testify in the first trial enabled

him to have a second trial.  

		Plaintiff relies on People v. Mixon, 271 Ill. App. 3d 999, 649 N.E.2d 441 (1994), in support of his argument.  We find

Mixon distinguishable.  In Mixon, the defendant filed a waiver of his right to have a jury trial.  The trial court conducted a

bench trial and found the defendant guilty of four counts of unlawful delivery.  The defendant filed a posttrial motion, which

the court granted and ordered a new trial.  The defendant then

filed a  motion to withdraw his jury trial waiver.  The court

denied this motion, indicating that "it would not exercise its

discretion in a manner that would allow defendant to use the

first trial as a 'test' run."  Mixon, 271 Ill. App. 3d at 1001, 649 N.E.2d at 442.  The appellate court reversed, finding that

the defendant's waiver applied only to the first trial, and the

right of trial by jury remained available to the defendant for

the second trial.  Mixon, 271 Ill. App. 3d at 1003, 649 N.E.2d at 443-44.  

		Unlike Mixon, defendant here did not attempt to with draw his jury waiver, an action that would clearly demonstrate he

did not wish to waive his right to a jury trial.  Rather, defen

dant's conduct demonstrated that he intended for his case to be

heard by the judge and not the jury.  Under the circumstances

here, the record demonstrates that defendant was aware of his

right to a jury trial and was present just prior to trial when

the jury waiver was discussed.  We conclude, therefore, that the

jury waiver was made with defendant's knowledge and consent.

C. Sufficiency of the Evidence

		Defendant argues that the State failed to prove beyond

a reasonable doubt that he knowingly or intentionally made

physical contact of an insulting or provoking nature with a

correctional officer.  Specifically, defendant contends that the

evidence does not demonstrate that when he threw the juice at the inmate, defendant was "practically certain" that the juice would

splash on the correctional officer.  Defendant further contends

that "getting accidentally splashed on the arm with a few drops

of juice is not the 'insulting or proving physical contact'

required by the aggravated battery statute."  We disagree.

		The relevant question here is whether, after viewing

the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.  People v. Cox, 195 Ill. 2d 378, 387, 748 N.E.2d 166, 172 (2001).  Battery occurs when a

person "knowingly without legal justification and by any means

*** (2) makes physical contact of an insulting or provoking

nature with an individual."  720 ILCS 5/12-3(a)(2) (West 2000). 

In the present case, defendant was charged with aggravated

battery because he had committed battery upon a correctional

officer engaged in his official duties.  See 720 ILCS 5/12-

4(b)(6) (West 2000).

		Defendant threw a liquid substance out his cell door,

some of which splashed on Deal.  Deal testified that he was

insulted by the incident and disturbed because he was not sure if

the substance contained anything harmful.  Defendant admitted

that he knew that there was a chance the liquid would hit Deal. 

We conclude that defendant's conduct could easily reach "physical

contact of an insulting or provoking nature" (720 ILCS 5/12-

3(a)(2) (West 2000)), and it was committed upon a correctional

officer engaged in his official duties (720 ILCS 5/12-4(b)(6) (West 2000)).

		The present case is analogous to People v. Walker, 291 Ill. App. 3d 597, 602, 683 N.E.2d 1296, 1299-1300 (1997), where

an inmate threw a liquid substance out of his cell at a correc

tional officer and a nurse.  The substance hit both.  Walker, 291 Ill. App. 3d at 602, 683 N.E.2d at 1300.  This court concluded

that the throwing of urine, or water, onto another under those

circumstances amounted to "'physical contact of an insulting or

provoking nature.'"  Walker, 291 Ill. App. 3d at 603-04, 683 N.E.2d at 1301, quoting 720 ILCS 5/12-3(a)(2) (West 1994); see

People v. Peck, 602260 Ill. App. 3d 812, 813-14, 633 N.E.2d 222, 223-24 (1994) (there, this court held that spitting in the face

of a police officer amounted to aggravated battery, noting that

section 12-3(a)(2) defined battery as physical contact "by any

means" that is sufficiently "insulting or provoking" (720 ILCS

5/12-3(a)(2)(West 2000))).

		Although we can envision contexts in which throwing

apple juice might not constitute insulting or provoking behavior,

defendant's throwing apple juice from the inside of his cell onto

an unsuspecting correctional officer, who was not sure the nature

of the substance or whether it contained anything harmful,

clearly amounts to a insulting or provoking contact, and defen

dant was practically certain the correctional officer would be

hit with the substance, as well as the targeted inmate.

III. CONCLUSION

		For the foregoing reasons, we affirm the trial court's judgment.

		Affirmed.

		STEIGMANN, J., concurs.

		KNECHT, P.J., dissents.

		PRESIDING JUSTICE KNECHT, dissenting:

		I respectfully dissent.  The cases cited and discussed

by the majority are interesting, but they simply do not address

the issue present here.  A defendant need not withdraw a jury

waiver that no longer exists.  It should not be inferred the

defendant waived a jury or reasserted his jury waiver.

		Defendant's waiver of jury applied to his first trial. 

His fundamental right to a jury trial was once again on the

table.  Our system requires a defendant to be admonished, to be

inquired of, and then to affirmatively and knowingly waive his

right to a jury trial.

		Perhaps this defendant has frustrated the system.  His

first guilty finding was vacated because he asserted he wanted to

"tell his side of the story," and the trial court had not in

quired of him whether he wanted to testify.  At his second bench

trial, he testified but was convicted.

		Now, he asserts what may be a tactical ploy.  If we

start anew, it is possible he will waive jury and be found guilty

a third time.  It is arguably a waste of resources to reverse and

remand.  Perhaps defendant knew what was going on and now seeks

to take advantage of errors in the record. 

		Instead of surmising what defendant may be doing or may

have known, I prefer to focus on what the prosecutor, the defense

attorney, and the judge are presumed and required to know—a defendant should be properly admonished, and the court should

then determine if any affirmative waiver—not inferences from what has happened before—is a knowing, voluntary, and intelli gent waiver.  The process failed.  To reverse and remand is not

to reward defendant but to honor a clear and fundamental right

and a clear and simple process.