2019 IL App (1st) 161848
Ill. App. Ct.2019Background
- Defendant Elgin Jordan was charged with possession with intent to deliver ~3.6 grams of heroin and proceeded to jury selection in January 2016.
- Voir dire occurred on January 5 and a jury was selected but not yet sworn; jurors were excused until the next day.
- On January 6, before the jurors were sworn, Jordan asked to waive the jury and to proceed pro se; the court refused, citing time spent selecting the jury.
- The case proceeded to a jury trial; evidence included undercover observations, a field interview, recovery of nine small bags testing positive for heroin, and $229 on Jordan; the jury convicted.
- Jordan filed a pro se posttrial motion alleging ineffective assistance; the court conducted a Krankel hearing and found counsel competent; Jordan was sentenced to eight years.
- On appeal Jordan argued (1) the court erred by denying his request to waive the jury before the jury was sworn and (2) the trial court applied the wrong standard at the Krankel inquiry; the appellate court reversed and remanded for a new trial based on the jury-waiver issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant had absolute right to waive a jury after jury selection but before jurors were sworn | Trial began with voir dire, so court had discretion to deny waiver | Trial had not commenced because jury was not sworn; waiver right remained absolute | Court held the trial had not commenced until the jury was sworn; denial of waiver was plain error and reversal required |
| Whether claim forfeited for failing to raise in posttrial motion | Forfeiture applies; claim not preserved | Violation of constitutional right justifies review under plain error doctrine | Court reviewed under second-prong plain error (right to choose bench or jury) and reached merits |
| Whether Rand/Vest establish different start points for "trial" | State relied on Vest (voir dire starts trial) | Defendant relied on Rand (trial starts when jury is impaneled and sworn) | Court followed Rand: bright-line rule that trial (and loss of absolute waiver right) begins when jury is sworn |
| Whether denial of waiver required reversal despite evidence of guilt | State argued retrial unnecessary / harmless | Defendant argued constitutional right violated so reversal required | Court concluded reversal and remand for new trial; double jeopardy does not bar retrial |
Key Cases Cited
- People v. Krankel, 102 Ill.2d 181 (1984) (procedure for addressing pro se ineffective-assistance allegations)
- People v. Bracey, 213 Ill.2d 265 (2004) (violation of right to choose bench or jury can be plain-error)
- People ex rel. Daley v. Joyce, 126 Ill.2d 209 (1989) (discussion of defendant’s right to waive jury trial)
- People v. Rand, 291 Ill. App.3d 431 (1997) (trial deemed commenced and court gains discretion to deny jury waiver once jury is impaneled and sworn)
- People v. Zemblidge, 104 Ill. App.3d 654 (1982) (defendant’s absolute right to waive jury exists before trial begins)
- People v. Vest, 397 Ill. App.3d 289 (2009) (held voir dire may mark trial start for certain procedural contexts; distinguished here)
- People v. Friason, 22 Ill.2d 563 (1961) (for double jeopardy, jeopardy attaches when jury is impaneled and sworn)