People v. Smith

• Decision Date: 19 April 1985
• Docket Number: Nos. 59851,59911,s. 59851
• Citation: 106 Ill.2d 327,478 N.E.2d 357,88 Ill.Dec. 42
• Parties: , 88 Ill.Dec. 42 The PEOPLE of the State of Illinois, Appellant, v. John K. SMITH, Appellee. The PEOPLE of the State of Illinois, Appellee, v. Green FLOWERS, Appellant.
• Court: Illinois Supreme Court

Page 357

478 N.E.2d 357

106 Ill.2d 327, 88 Ill.Dec. 42

The PEOPLE of the State of Illinois, Appellant, v. John K. SMITH, Appellee.

The PEOPLE of the State of Illinois, Appellee, v. Green FLOWERS, Appellant.

Nos. 59851, 59911.

Supreme Court of Illinois.

April 19, 1985.

Rehearing Denied May 31, 1985.

Robert Agostinelli, Deputy Defender, Jean Herigodt, Asst. Defender, for appellee.

Neil F. Hartigan, Atty. Gen., Mark L. Rotert, Asst. Atty. Gen., Chicago, for the People in No. 59911; Richard M. Daley, State's Atty., Cook County, Michael E. Shabat, Joan S. Cherry, Timothy J. Joyce, Asst. State's Attys., Chicago, of counsel.

James J. Doherty, Public Defender of Cook County, Chicago, for Flowers; Karen S. Szpajer, Asst. Public Defender, Chicago, of counsel.

Neil F. Hartigan, Atty. Gen., Mark L. Rotert, Kenneth A. Fedinets, Asst. Attys. Gen., Chicago, for the People in No. 59851; Gary L. Peterlin, State's Atty., LaSalle County, Ottawa, of counsel.

MILLER, Justice:

The issue common to these consolidated appeals is whether the record in each case evinces a valid waiver by the defendant of his right to a jury trial. Following a bench trial in the circuit court of La Salle County, the defendant in cause No. 59851, John K. Smith, was convicted of reckless conduct and sentenced to nine months' imprisonment. The appellate court reversed that judgment and remanded the cause for a new trial (121 Ill.App.3d 542, 77 Ill.Dec. 75, 459 N.E.2d 1171), and we allowed the State's petition for leave to appeal (94 Ill.2d R. 315(a)). In cause No. 59911, the defendant, Green Flowers, was convicted in a bench trial in the circuit court of Cook County of two counts of battery and sentenced to concurrent 90-day terms of imprisonment. The appellate court affirmed that judgment (121 Ill.App.3d 1158, 84 Ill.Dec. 846, 472 N.E.2d 1242 (order under Supreme Court Rule 23 (87 Ill.2d R. 23))), and we allowed the defendant's petition for leave to appeal (94 Ill.2d R. 315(a)). On our own motion we ordered the consolidation of the two appeals for oral argument and for disposition.

The facts of each case may be stated briefly. The record in cause No. 59851 discloses that the defendant, Smith, was charged by information on December 3, 1982, with the offense of reckless conduct; the charge alleged an occurrence in Mendota several months earlier, when the car that Smith was driving struck and injured a child. On December 4 Smith was served with a summons directing him to appear December 7 in the Mendota branch of the circuit court of La Salle County. Defense counsel filed an entry of appearance on December 7. The next item in the record is a notice dated December 21, 1982, informing Smith and his attorney that a bench trial was scheduled in this matter for February 2, 1983. On February 2 the information was dismissed on Smith's motion; after a brief recess, more detailed informations were filed, charging Smith with reckless conduct and reckless driving. The matter then proceeded to a bench trial, and Smith was found guilty of both offenses. A summary of the proceedings held that day appears in the common law record, and it says in part, "Cause comes on for Bench Trial." The trial judge later sentenced Smith to nine months' imprisonment for reckless conduct and vacated the guilty finding for the other offense.

The appellate court reversed that judgment and remanded the cause for a new trial. With one justice dissenting, the appellate court agreed with Smith that the record failed to show that he had waived his right to a jury trial. Given that result, the court did not address the other arguments presented on appeal.

The record in cause No. 59911 discloses that the defendant, Flowers, was charged by complaint February 24, 1983, with two counts of battery, in addition to several other offenses; the charges alleged an occurrence on February 23, 1983, in which Flowers injured two police officers who were trying to arrest him. The first docket entry in the record is for February 24, and it says simply, "MOTION STATE SET FOR 3-3-83 Call 2." Similarly, the docket entry for March 3 says, "MOTION STATE SET FOR 3-10-83"; below that is the word "Final." The next proceeding took place on March 10; a transcript reveals that on that day Flowers pleaded not guilty to the charges, the trial court heard and ruled on Flowers' motion to suppress evidence, and the matter proceeded to trial, without a jury, and sentencing. The court found Flowers guilty of the two charges of battery and sentenced him to concurrent 90-day terms for those offenses. The sole evidence of a jury waiver is provided by entries in the half-sheets indicating the final dispositions of the charges; the entries are dated March 10, 1983. The two convictions bear a stamped legend that says in pertinent part, "TRIAL BY COURT-FINDING OF GUILTY." The other charges bear a stamped legend that says in pertinent part, "PLEA OF NOT GUILTY JURY WAIVED."

The appellate court affirmed the judgment. Finding the record on appeal incomplete, the appellate court concluded that Flowers had failed to present a sufficient basis for resolving his assertion that he had not made a valid waiver of his right to a jury trial.

The State argues at the outset that by not raising the validity of the jury waivers in post-trial motions both defendants have failed to preserve the issue for review. Defendant Flowers did not file a post-trial motion; defendant Smith filed one, but it did not include this issue. Nor was the question raised in either cause at any other time in the trial court. Normally, then, the issue would be deemed waived. (People v. McAdrian (1972), 52 Ill.2d 250, 287 N.E.2d 688.) The waiver rule is one of administrative convenience rather than jurisdiction, however, and we have provided by rule that plain errors affecting substantial rights may be noticed on review though not brought to the trial court's attention (87 Ill.2d R. 615(a)). Without determining that in every case the sufficiency of a jury waiver will warrant review, we shall consider the issue as it is presented in the two causes here, given its importance and the frequency with which it arises. See People v. Rehbein (1978), 74 Ill.2d 435, 439, 24 Ill.Dec. 835, 386 N.E.2d 39.

The right of an accused to a jury trial in a criminal prosecution is guaranteed by the Illinois Constitution. (Ill. Const. 1970, art. I, sec. 8.) Additionally, the defendants here had a similar right under the Federal Constitution (U.S. Const., amends. VI, XIV), for each was tried for a serious offense--one punishable by a term of imprisonment in excess of six months. Codispoti v. Pennsylvania (1974), 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912; Duncan v. Louisiana (1968), 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491.

Consistent with those constitutional requirements, section 103-6 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1983, ch. 38, par. 103-6) provides:

"Waiver of Jury Trial. Every person accused of an offense shall have the right to a trial by jury unless understandingly waived by defendant in open court."

To the same end, our decisions have imposed on the circuit courts the duty of ensuring that a defendant's waiver of his right to a jury trial be made expressly and understandingly. (County of McLean v. Kickapoo Creek, Inc. (1972), 51 Ill.2d 353, 282 N.E.2d 720; People v. Surgeon (1958), 15 Ill.2d 236, 154 N.E.2d 253; People ex rel. Swanson v. Fisher (1930), 340 Ill. 250, 172 N.E. 722.) No set admonition or advice is required before an effective waiver of that right may be made, however. (People v. Frey (1984), 103 Ill.2d 327, 82 Ill.Dec. 661, 469 N.E.2d 195; People v. Murrell (1975), 60 Ill.2d 287, 326 N.E.2d 762; People v. Richardson (1965), 32 Ill.2d 497, 207 N.E.2d 453.) Also, we have recognized the validity of a waiver made by defense counsel in the presence of the defendant and without his objection. Murrell; People v. Sailor (1969), 43 Ill.2d 256, 253 N.E.2d 397.

Review of the validity of a defendant's waiver of his right to a jury trial depends, of course, on the existence of an adequate memorial of the event, if it occurred at all. (People v. Chitwood (1977), 67 Ill.2d 443, 10 Ill.Dec. 565, 367 N.E.2d 1331.) Given the statutory requirement that a jury waiver be made in open court, a suitable report of the proceeding in which the waiver is supposed to have occurred will be an essential part of the record in an appeal that raises the question. The necessary report may take any one of several forms--our rules provide that if a verbatim transcript of a proceeding is not available, a party may submit in its stead a proposed report of proceedings or an agreed statement of facts. (87 Ill.2d Rules 323(c), 323(d), 612(c); People v. Hopping (1975), 60 Ill.2d 246, 326 N.E.2d 395.) Responsibility for preserving and presenting a sufficient record of the asserted error necessarily falls on the party who makes the assertion of error. (People v. Edwards (1978), 74 Ill.2d 1, 23 Ill.Dec. 73, 383 N.E.2d 944; People v. Smith (1969), 42 Ill.2d 479, 248 N.E.2d 68.) Therefore, when an entry in the common law record indicates that a jury waiver has been made, a defendant seeking review of that question should include in the record on appeal a transcript, or suitable substitute for one, of the corresponding proceeding. Only by that means can a court of review determine whether the entry in the record reflects a valid jury waiver. In People v. Oatis (1977), 47 Ill.App.3d 229, 232, 5 Ill.Dec. 618, 361 N.E.2d 1146, the court correctly observed:

"[I]n a criminal case when the common law record shows that the defendant has waived jury trial, on appeal after a bench trial, a defendant claiming error in the jury waiver must cite the specific error that occurred and substantiate that claim by the presentation of a sufficient record. If the claim is that the jury waiver was not made in open court or that it was not understandingly made, the record should be...