Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF DUNKLIN COUNTY Honorable Robert N.
Stephen P. Sokoloff, Prosecuting Attorney of Dunklin County.
Lynch, P.J., Rahmeyer, J., and Scott, J.
Whitaker appeals his bench-trial conviction for forcible
rape, charging plain error in the court's finding that he
waived his right to jury trial as part of a polygraph
agreement with the prosecutor. Because the record does not
demonstrate with unmistakable clarity that Whitaker waived
this right, we reverse and remand. State v. Bibb, 702 S.W.2d 462,
466 (Mo. banc 1985); State v. Freeman, 189 S.W.3d
605, 609 (Mo.App. 2006).
could waive trial by jury - and be held to that waiver - if
he did so knowingly, intelligently, and voluntarily. See
State v. Baxter, 204 S.W.3d 650, 653 (Mo. banc 2006).
Constitutionally "the waiver must appear in the record
with 'unmistakable clarity.'" Id.
(quoting Bibb, 702 S.W.2d at 466; also citing Rule
27.01(b)). Absent an
unmistakably-clear waiver, it is said that Whitaker "is
entitled to a remand for a new trial under plain error
review" in this felony case. Freeman, 189
S.W.3d at 609; see also State v. Beam, 334 S.W.3d
699, 704 (Mo.App. 2011).
practice thus called for the trial court to question Whitaker
personally on the record to ensure that he understood his
jury-trial right, understood what would be lost by a waiver,
had discussed the issue with defense counsel, and voluntarily
intended to waive the right. Baxter, 204 S.W.3d at
655. Then Whitaker would "have no grounds [now] to
contend that his waiver was ineffective." Id.
never happened, which initially was not the court's
fault. When the prosecutor announced at an August 2013
hearing that "a polygraph agreement" had been
reached, no mention was made of a jury waiver and no writing
was offered to the court. The court was advised only that
Whitaker (who had been in jail two years in lieu of a $500,
000 cash-only bond), should be fitted with a GPS tracker that
Friday, then released from jail for a week, with a polygraph
scheduled the following Wednesday and Whitaker returning to
jail the next day. Having been told only this, the court
questioned Whitaker only to assure that he understood his
one-week release and when to return to jail.
later (January 22, 2014), the prosecution did not object,
complain, or allege waiver when the defense asked for a jury
setting and the court scheduled the case for a jury
trial. Not until three more months had
passed (April 9, 2014) did the state demand a bench trial,
charging for the first time of record that Whitaker "had
waived jury trial in connection with the polygraph
agreement." The court set the issue for a future
hearing, then heard argument twice, on June 19 and 25, 2014.
Defense counsel argued that Whitaker signed the polygraph
agreement, but changed his mind, did not take the scheduled
test, and thus should still get a jury trial.
Whitaker attended all these hearings and two later ones where
the jury-trial issue was revisited, the court never
questioned him personally on the record per Baxter,
204 S.W.3d at 655, in ruling that Whitaker had waived his
right to jury trial. Thus we must decide whether the record
otherwise demonstrates with unmistakable clarity a
knowing, voluntary, and intelligent jury waiver applicable to
this case. Id. at 654. For several reasons, we
cannot conclude that it does.
as noted, the prosecution did not object or claim waiver
when, long after the polygraph agreement and Whitaker's
change of heart, the defense asked for a jury-trial date and
the court scheduled a jury trial. An assistant prosecutor
handled that hearing, but he had some prior experience with
the case. At any rate, it seems impossible that the
prosecution would acquiesce in this request for and
scheduling of a jury trial had an unmistakably-clear waiver
been of record or even just in the state's own file.
leaves, of relevant record, only a polygraph agreement that
fails to move the needle toward unmistakable clarity in these
circumstances. Having reproduced that agreement in the
appendix, we need offer just a few observations:
1. The state could and certainly should have emphasized and
clarified its waiver provisions if, as it appears, it planned
to notify the court only if and after a dispute arose, a
tactic inimical to timely and effective Baxter
best-practice questioning so "the defendant will have no
grounds later to contend that his waiver was
ineffective." Id. at 655.
2. The state did not, but easily could have made it patently
clear that Whitaker was waiving a jury irrevocably, upon
signature, no matter what, or in any comparable terms if that
truly was the state's intent. When shunning the benefit
of a Baxter best-practice inquiry, the state needed
to draw or edit its form document to carry its
unmistakable-clarity burden alone, if necessary.
3. The state arguably foresaw that Whitaker might not take
the test (#2, "in the event that Defendant shall submit
to such polygraph examination …."), but did not
expressly provide for jury waiver in that circumstance.
state's waiver argument from this agreement may be a
reasonable one, or even the best of several reasonable
document interpretations, but the constitutional standard is
"unmistakable clarity." Id. at 653. Absent
Baxter best-practice questioning, this
record is not unmistakably clear as to jury waiver, so we