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State v. Morrison9/6/2005
to trial by jury provided the waiver is voluntarily, knowingly and intelligently made. State v. Sharp, 533 S.W.2d 601, 605 (Mo. banc 1976) . In felony cases, the waiver must be made in open court and must be apparent from the record with unmistakable clarity. Mitchell, 145 S.W.3d at 23; Rule 27.01(b).
The record reveals Morrison made a statement in open court that he understood he had a right to a jury trial and he was waiving that right. Although he contends the waiver resulted from the denial of his motion in limine, we note the court's pretrial ruling was preliminary and subject to change during the course trial. See State v. Purlee, 839 S.W.2d 584, 592 (Mo. banc 1992). Given the interlocutory nature of the ruling, Morrison had no reasonable grounds to rely upon it as a firm decision in determining whether to waive his right to a jury trial. The trial court did nothing to mislead or compel Morrison to take any action. Morrison may have considered the possibility that a judge might be less influenced by the racial comment than a jury, but that does not prove he was coerced by the court's pretrial refusal to exclude the evidence. Regardless of whether the evidence was admissible, Morrison was given a full and fair opportunity to decide whether he wanted his case heard by a judge or jury. We find no indication in the record that the non-binding evidentiary ruling had any effect on the voluntarines s of the waiver.
Morrison is not entitled to plain error review, as he failed to establish any facial error in the trial court's acceptance of his jury trial waiver. Point III is denied.
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