State v. Baxter

• Decision Date: 07 November 2006
• Docket Number: No. SC 87535.,SC 87535.
• Citation: 204 S.W.3d 650
• Parties: STATE of Missouri, Respondent, v. Scott D. BAXTER, Appellant.
• Court: Missouri Supreme Court

204 S.W.3d 650

STATE of Missouri, Respondent, v. Scott D. BAXTER, Appellant.

No. SC 87535.

Supreme Court of Missouri, En Banc.

November 7, 2006.

Ellen H. Flottman, Office of Public Defender, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, for Respondent.

MICHAEL A. WOLFF, Chief Justice.

Scott Baxter challenges his convictions for second-degree arson and third-degree assault on the basis that the record does not reflect that he knowingly, voluntarily, and intelligently waived his right to a jury trial. Although the record does not reflect that Baxter personally stated his waiver in open court—a practice that is recommended for a jury trial waiver—the record clearly indicates that he waived the right.

Preliminary Discussion

Because Baxter does not allege that there was insufficient evidence to support his conviction, it is not necessary to recite the facts of the offense here, other than noting that Baxter contended at trial that someone else set the fire.

Baxter was charged, as a prior offender, with first-degree arson, a class B felony, and with first-degree assault, a class C misdemeanor. Before the scheduled trial began, the following exchange took place in open court:

[Prosecutor]: Okay, Your Honor, one other preliminary matter for the record: The agreement in this case was that Mr. Baxter 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 Mr. Baxter acknowledge that on the record, so he cannot later complain that he did not have a jury trial.

THE COURT: All right, Mr. Hammond [defense attorney], on behalf of the defense, I do understand that there is a waiver of jury trial.

Mr. HAMMOND: Yes, Your Honor.

THE COURT: All right, thank you.

This decision was confirmed by a docket entry. Baxter was present while this exchange took place and said nothing. The court did not question Baxter personally about the nature of the right to jury trial or whether Baxter had discussed the right with his attorney.

The court then heard the evidence and found Baxter guilty of second-degree arson and third-degree assault. At sentencing, Baxter, when asked, expressed dissatisfaction with his trial counsel on two issues, neither involving the denial of a jury trial.

On appeal, Baxter's sole contention is that the waiver of a jury trial does not appear on the record with "unmistakable clarity." Following opinion in the court of appeals, this Court granted transfer. Mo. Const. art. V, sec. 10.

The judgment of the circuit court is affirmed.

Standard of Review

Baxter concedes that he did not object at trial or at sentencing and did not raise this issue in a motion for a new trial. Constitutional claims must be made at the first opportunity. State v. Hatton, 918 S.W.2d 790, 795 (Mo. banc 1996). Where the claim was not properly raised, however, this Court has discretion to review for plain error "when the court finds that manifest injustice or miscarriage of justice has resulted[.]" Rule 30.20; Deck v. State, 68 S.W.3d 418, 424 (Mo. banc 2002). "[U]nder Missouri law, plain error can serve as the basis for granting a new trial on direct appeal only if the error was outcome determinative[.]" Deck, 68 S.W.3d at 427. Manifest injustice is determined by the facts and circumstances of the case, and the defendant bears the burden of establishing manifest injustice. State v. Mayes, 63 S.W.3d 615, 624 (Mo. banc 2001).

Right to Jury Trial

The right to jury trial is guaranteed in serious criminal cases by the United States and Missouri Constitutions. U.S. Const Amends. VI and XIV; Mo. Const., art. I, secs. 18(a) and 22(a); Duncan v. Louisiana, 391 U.S. 145, 157-58, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). This right may be waived by the defendant with the consent of the trial court. Mo. Const., art. I, sec. 22(a). Rule 27.01(b) states:

The defendant may, with the assent of the court, waive a trial by jury and submit the trial of any criminal case to the court, whose findings shall have the force and effect of the verdict of a jury. In felony cases such waiver by the defendant shall be made in open court and entered of record.

Under the constitution and Rule 27.01(b) the waiver must appear in the record with "unmistakable clarity." State v. Bibb, 702 S.W.2d 462, 466 (Mo. banc 1985). Baxter argues that this standard is satisfied only where the trial court personally examines the defendant on the record about whether the defendant understands the right. The rule does not contain this requirement, but only requires that a waiver be made in "open court." The right to jury trial is a fundamental right, however, Duncan, 391 U.S. at 154, 88 S.Ct. 1444, and the waiver of a jury trial must be knowing, voluntary, and intelligent. State v. Sharp, 533 S.W.2d 601, 605 (Mo. banc 1976). The issue is, therefore, whether a waiver meeting the requirements of Rule 27.01(b), but not including a personal examination by the judge, satisfies the constitutional requirements.

Baxter cites multiple cases where Missouri courts have reversed a defendant's conviction because the waiver did not appear with "unmistakable clarity" on the record. Those cases are distinguishable. In State v. Freeman, 189 S.W.3d 605 (Mo. App.2006), and State v. Rulo, 976 S.W.2d 650 (Mo.App.1998), there was no statement at all on the record from defense counsel or anyone else stating that the defendant had waived the right to jury trial. In Bibb, the judge questioned the defendant in detail about his desire to waive jury trial. But when the judge and defense counsel agreed that the defendant could later request a jury trial on punishment, "the burden erroneously shifted to [the defendant] to request a jury." 702 S.W.2d at 466. In State v. Mitchell, 145 S.W.3d 21 (Mo.App.2004), the waiver was not made in open court, but rather was stated in a letter from defense counsel to the trial judge. In Sharp, manifest injustice was found where defense counsel incorrectly informed the defendant that he would be able to withdraw the waiver and have a jury trial if the judge declined to grant probation. 533 S.W.2d at 605-06. In Luster v. State, 10 S.W.3d 205 (Mo.App.2000), the defendant alleged that his trial counsel was ineffective because he did not inform him that it was his decision to waive the right. Luster also alleged that he did not want to waive jury trial and that he would not have done so if given the choice. Id. at 211.

Although some cases have found that failure to examine the defendant on the record was plain error, "it does not follow that the trial court's failure to do so necessarily results in a reversal of [the] conviction." State v. Hatton, 918 S.W.2d 790, 795 (Mo. banc 1996). Defense counsel in Hatton stated, on the record, that the defendant was "waiving jury". Id. While "[a]ssuming for argument's sake that the trial court should have conducted a more thorough examination," this Court declined to find plain error because the defendant's admissions to selling drugs "were sufficient to remove any concern that the waiver of the jury trial resulted in prejudice[.]" Id. The Court also noted that the defendant was present and did not object when the waiver was announced in court and that he never argued that he intended to exercise his right to a jury trial. Id. The same result was reached in State v. Seibert, 103 S.W.3d 295 (Mo.App.2003), where defense counsel stated, in defendant's presence, that the defense would waive jury trial, defendant admitted the underlying conduct, and defendant did not allege that he waived the right involuntarily. Similarly, in State v. Ramirez, 143 S.W.3d 671 (Mo.App.2004), the court rejected a claim that the trial court was required to discuss the specifics of the waiver on the record with the defendant. The defendant stated in court that he wished to waive the right to jury trial and defense counsel stated that he had discussed the waiver with the defendant. Id. at 675. The court found no plain error because the waiver was made in open court and entered in the record and because defendant never complained prior to appeal about the lack of jury trial. Id. at 675-77.

The Jury Trial Was Effectively Waived

Hatton and Seibert differ from this case because the defendants in those cases admitted to committing the...