People v. Carr

2021 IL App (1st) 190446-U

Opinion

2021 IL App (1st) 190446-U

SIXTH DIVISION April 30, 2021

No. 1-19-0446

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ ) Appeal from the THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of ) Cook County. Plaintiff-Appellee, ) ) No. 17 DV 77751 v. ) ) Honorable COREY CARR, ) Yolande M. Bourgeois and ) Caroline Kate Moreland, Defendant-Appellant. ) Judges presiding.

PRESIDING JUSTICE MIKVA delivered the judgment of the court. Justices Connors and Oden Johnson concurred in the judgment.

ORDER

¶1 Held: Defendant’s conviction for domestic battery is affirmed. We reject his claim that he did not knowingly and voluntarily waive his right to a jury trial.

¶2 Following a bench trial, defendant Corey Carr was convicted of domestic battery (720

ILCS 5/12-3.2(a)(1) (West 2016)) and sentenced to six days in prison and 18 months of conditional

discharge. On appeal, Mr. Carr argues that he did not knowingly and voluntarily waive his right to

a jury trial because the trial court provided inadequate admonitions. We affirm. No. 1-19-0446

¶3 I. BACKGROUND

¶4 Mr. Carr was charged by misdemeanor complaint with domestic battery of his wife, Andria

Barner-Carr.

¶5 On December 20, 2017, with Mr. Carr present, defense counsel requested the case be set

for a bench trial. The court confirmed the date requested and asked, “is that for bench or for jury?”

Defense counsel responded, “Bench, Judge.”

¶6 On the date of trial, June 7, 2018, the following colloquy occurred:

“THE COURT: Do you understand you have a right to a jury trial?

[MR. CARR]: I do.

THE COURT: Do you understand what a jury trial is?

THE COURT: I have in my hand a jury waiver, is that your signature?

[MR. CARR]: It is.

THE COURT: Did you read that or was it explained to you before you signed it?

[MR. CARR]: Yes.

THE COURT: Do you understand you’re giving up your right to a jury trial when

you give me that piece of paper?

[MR. CARR]: Yes.”

¶7 The written jury waiver is not included in the record on appeal.

¶8 At trial, Ms. Barner-Carr testified that on November 21, 2017, she and Mr. Carr lived with

their two daughters in Chicago. That day, Ms. Barner-Carr and Mr. Carr returned home from a

“heated” meeting with a divorce attorney. Mr. Carr followed Ms. Barner-Carr through the house,

pushed her, and “yanked” her phone from her hand. As they struggled for the phone, Mr. Carr

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dragged her and slammed her to the floor, causing her to hit her head on the refrigerator. The State

published footage of the incident from a security camera in the home. Ms. Barner-Carr sustained

bruises on her arm, legs, and back, and identified her injuries in photographs. A police officer who

responded to the scene testified that Ms. Barner-Carr was distraught, and her phone was broken.

Mr. Carr testified that he and Ms. Barner-Carr “tussl[ed]” over the phone, and agreed the video

showed him pushing her, but denied chasing her. The court found Mr. Carr guilty, and the cause

immediately proceeded to sentencing.

¶9 When asked if it had anything in aggravation, the State noted that Mr. Carr had no

publishable background. In mitigation, defense counsel argued that Mr. Carr was 43 years old, had

been employed for 21 years in customer service for the Chicago Transit Authority, completed 2

years of college, and was getting services for “mental and physical health issues.” Mr. Carr

declined to speak in allocution. The court sentenced Mr. Carr to 60 days in prison followed by 18

months of conditional discharge, and domestic violence counseling.

¶ 10 Mr. Carr filed timely motions for a new trial and to reconsider his sentence. The court

denied the motion for a new trial, but reduced Mr. Carr’s sentence to six days of time served, still

followed by 18 months of conditional discharge.

¶ 11 II. JURISDICTION

¶ 12 Mr. Carr was sentenced on February 20, 2019, and timely filed his notice of appeal on

February 26, 2019. We have jurisdiction pursuant to article VI, section 6, of the Illinois

Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rules 603 (eff. Feb. 6, 2013)

and 606 (eff. Dec. 11, 2014), governing appeals from final judgments in criminal cases.

¶ 13 III. ANALYSIS

¶ 14 Mr. Carr’s argument on appeal is that the trial court’s admonitions did not adequately

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ensure that he knowingly and voluntarily waived his right to a jury trial. Mr. Carr argues that the

trial court did not ask whether the waiver resulted from threats or promises, or explain (1) how

many people were on a jury; (2) who the jurors would be or how they would be selected; (3) that

during a jury trial, he could cross-examine the State’s witnesses and present his own witnesses and

evidence; (4) that a jury’s guilty verdict must be unanimous; or (5) the difference between a bench

and jury trial. On this basis, he contends the waiver was not valid.

¶ 15 Mr. Carr acknowledges that he did not preserve this issue for review by challenging the

validity of his waiver below. See People v. Cregan, 2014 IL 113600, ¶ 15 (“To preserve an issue

for review, a party ordinarily must raise it at trial and in a written posttrial motion.”). However, he

requests we review the issue for plain error.

¶ 16 Under the plain-error doctrine, we will address a forfeited claim if a clear or obvious error

occurred and (1) “the evidence is so closely balanced that the error alone threatened to tip the

scales of justice against the defendant, regardless of the seriousness of the error,” or (2) the error

was “so serious that it affected the fairness of the defendant’s trial and challenged the integrity of

the judicial process, regardless of the closeness of the evidence.” (Internal quotation marks

omitted.) People v. Harvey, 2018 IL 122325, ¶ 15. The first consideration is whether a clear or

obvious error occurred. Id.

¶ 17 The right to a jury trial is guaranteed by both our federal and state constitutions. U.S.

Const., amends. VI, XIV; Ill. Const. 1970, art. I, §§ 8, 13. A waiver of the right is valid only if

made knowingly and voluntarily. People v. Bannister, 232 Ill. 2d 52, 65 (2008); see also 725 ILCS

5/103-6 (West 2016) (right to jury must be “understandingly waived by [the] defendant in open

court”). The trial court must therefore ensure that the waiver is valid, but there is no established

formula or procedure the court must follow, and the validity of a waiver depends on the facts and

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circumstance of each case. Bannister, 232 Ill. 2d at 66. “[A] trial court need not give any specific

admonition or advice for a defendant to make an effective jury waiver.” Id. The defendant must

understand that the facts of his case will be determined by the judge and not a jury. Id. at 69.

Although not dispositive, the presence of a written waiver weighs in favor of finding the waiver to

be knowing, intelligent, and voluntary. People v. Parker, 2016 IL App (1st) 141597, ¶ 50. The

defendant bears the burden of establishing his waiver was invalid, an issue we review de novo.

People v. West, 2017 IL App (1st) 143632, ¶ 10.

¶ 18 In this case, we find no clear or obvious error in the trial court’s acceptance of Mr. Carr’s

jury waiver. During pretrial proceedings, in Mr. Carr’s presence, counsel requested the case be set

for a bench trial, and Mr. Carr did not object. Immediately before trial, the court asked Mr. Carr

whether he understood that he had a right to a jury trial, whether he understood what a jury trial

was, whether he signed the written jury waiver, whether he read the written waiver or had it

explained to him, and whether he understood that he was giving up his right to a jury trial. Mr.

Carr responded affirmatively to each inquiry.

¶ 19 The admonishments in this case are similar to those in People v. Clay, 363 Ill. App. 3d 780

(2006). In that case, defense counsel indicated that the defendant wished for a bench trial and the

defendant executed a written jury waiver. Clay, 363 Ill. App. 3d at 791. The court asked the

defendant if she knew what a jury trial was and she responded affirmatively. Id. The court then

stated that she had the right to a jury trial and asked if she was giving that right up, and she again

responded affirmatively. Id. On appeal, we found that she knowingly waived her right to a jury

trial because she was represented by counsel, indicated she understood the meaning of a jury trial,

stated she was giving up that right, and signed and tendered a jury waiver. Id.; see also Parker,

2016 IL App (1st) 141597, ¶¶ 44, 53 (finding no error where trial court told the defendant that

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signing a jury waiver would give up his right to jury trial and asked the defendant whether he knew

what a jury trial was, and the defendant responded, “Yes.”).

¶ 20 Mr. Carr notes that, in People v. Tooles, 177 Ill. 2d 462 (1997), our supreme court upheld

a set of jury waivers where the trial courts variously explained the differences between bench and

jury trials, ensured the waivers were not made under threat or promise, and confirmed that the

defendants had discussed the waiver with counsel. Tooles, 177 Ill. 2d at 469-73. However, the

court did not make any admonishments mandatory, recognizing that “no set admonition or advice

is required” and that the determination is made on the facts and circumstances of each case. Id. at

469; see also Parker, 2016 IL App (1st) 141597, ¶ 50 (noting that Tooles did not require any certain

admonishments and the defendants in Tooles did not sign written jury waivers). As these cases

make clear, the fact that the trial court here did not detail the difference between a bench trial and

a jury trial or specifically ask about threats or promises does not render Mr. Carr’s waiver invalid.

See also Bannister, 232 Ill. 2d at 66 (validity of a waiver depends on circumstances of each case

and no specific admonishment is necessary to ensure a waiver’s validity).

¶ 21 While Mr. Carr argues that he had no prior experience with the criminal justice system,

this is not a prerequisite to a knowing waiver. Notably, Mr. Carr’s education included two years

of college, and this experience is also relevant. See People v. Frey, 103 Ill. 2d 327, 333 (1984)

(affirming a jury waiver where the defendant exhibited “intelligence, experience and considerable

education”).

¶ 22 Further, Mr. Carr was represented throughout the proceedings by counsel, who made the

initial request that the case be set for a bench trial in Mr. Carr’s presence. See West, 2017 IL App

(1st) 143632, ¶ 10 (“A jury waiver is generally valid where defense counsel waives that right in

open court and the defendant does not object to the waiver.”). This makes Mr. Carr’s case different

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than People v. Sebag, 110 Ill. App. 3d 821 (1982), in which the trial court did not ask the pro se

defendant whether he understood what a jury trial was and merely informed him that he was

entitled to a jury trial and if he waived a jury trial, could not later reinstate it. Sebag, 110 Ill. App.

3d at 829; see also Clay, 363 Ill. App. 3d at 791-92 (distinguishing Sebag where the defendant was

represented by counsel, acknowledged she understood the meaning of a jury trial, and executed a

written waiver).

¶ 23 Lastly, we note that Mr. Carr’s written jury waiver is not in the record on appeal. Any

doubts arising from its absence will be construed against him, as it is the appellant’s burden to

provide a sufficiently complete record; absent that, we presume “the trial court’s judgment

conforms to the law and has a sufficient factual basis.” People v. Carrion, 2020 IL App (1st)

171001, ¶ 34.

¶ 24 In short, Mr. Carr has not established that his jury waiver was invalid. Because we find no

error regarding the waiver, we can find no plain error.

¶ 25 IV. CONCLUSION

¶ 26 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 27 Affirmed.

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