People v. Gersch

• Decision Date: 22 March 1990
• Docket Number: No. 68199,68199
• Citation: 553 N.E.2d 281,142 Ill.Dec. 767,135 Ill.2d 384
• Parties: , 142 Ill.Dec. 767, 58 USLW 2650 The PEOPLE of the State of Illinois, Appellee, v. William F. GERSCH, Appellant.
• Court: Illinois Supreme Court

Page 281

553 N.E.2d 281

135 Ill.2d 384, 142 Ill.Dec. 767, 58

USLW 2650

The PEOPLE of the State of Illinois, Appellee, v. William F. GERSCH, Appellant.

No. 68199.

Supreme Court of Illinois.

March 22, 1990.

[135 Ill.2d 386] [142 Ill.Dec. 768] Frederick F. Cohn, Chicago, for appellant.

Cecil A. Partee, State's Atty., Chicago (Inge Fryklund, Marie Quinlivan Czech and William D. Carroll, Asst. State's Attys., of counsel), for people.

Justice STAMOS delivered the opinion of the court:

Defendant, William F. Gersch, was indicted for the murder of his wife, Gwendolyn Gersch. Prior to trial, defendant expressly waived his right to a jury and requested a bench trial. The State opposed defendant's request and asserted its statutory right to a jury trial under section 115-1 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1987, ch. 38, par. 115-1). The trial court granted the State's motion for a trial by jury. Following the trial in the circuit court of Cook County, the jury found defendant guilty of murder (Ill.Rev.Stat.1985, ch. 38, par. 9-1) and guilty of concealing a homicidal death (Ill.Rev.Stat.1985, ch. 38, par. 9-3.1). The court sentenced defendant to concurrent terms of imprisonment--23 years for murder and three years for concealment of a homicidal death.

While defendant's case was pending on review, this court held section 115-1 unconstitutional in People ex rel. Daley v. Joyce (1988), 126 Ill.2d 209, 127 Ill.Dec. 791, 533 N.E.2d 873. After defendant had filed an appeal in the appellate court, this court assumed jurisdiction over the cause by granting the State's motion pursuant to Supreme Court Rule 302(b) (107 Ill.2d R. 302(b)).

FACTS

Defendant fatally shot his wife on the evening of February 27, 1987. Defendant testified at trial that his marriage had long been plagued by what he characterized as his wife's incessant nagging. He also stated that while he had never struck his wife, she would often aggravate him by hitting him in the head during their many arguments.

Defendant testified that on the night of February 27, 1987, his wife was haranguing him regarding his inability to find meaningful employment, their family problems, and his drinking. When defendant told her to stop nagging, she threw a hairbrush at him, striking him in the head. He threw it back. She then grabbed the brush and used it to strike defendant in the face. As she came at him a second time, defendant testified, he started to "see spots," "lost control," reached for a nearby gun, and shot her. The State presented evidence that showed Mrs. Gersch sustained three gunshot wounds.

Defendant disposed of the body by leaving it beside a desolate road. The next day, he reported his wife missing. The authorities, however, had already found the body. When confronted with the evidence, defendant confessed to shooting his wife.

Prior to the trial, defense counsel had notified the State that defendant might present an insanity defense. This defense was based on a psychologist's opinion that the defendant was legally insane at the time of the shooting. At this same time, defendant asserted his wish to waive his right to a jury trial. The trial court denied defendant's request for a bench trial when the State demanded a jury trial under section 115-1 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1987, ch. 38, par. 115-1) (section 115-1). In arguments before this court, defense counsel explained that defendant sensed that a jury would not be sympathetic to his trial strategy. Therefore, he withdrew his affirmative defense of insanity.

The jury found defendant guilty of murder (Ill.Rev.Stat.1985, ch. 38, par. 9-1) and concealing a homicidal death (Ill.Rev.Stat.1985, ch. 38, par. 9-3.1). On October 14, 1988, following the denial of defendant's post-trial motions and a hearing in aggravation and mitigation, the trial court sentenced defendant to 23 years' imprisonment for murder and three years' imprisonment for concealing a homicidal death, both sentences to run concurrently.

THE JOYCE

DECISION

In People ex rel. Daley v. Joyce (1988), 126 Ill.2d 209, 222, 127 Ill.Dec. 791, 533 N.E.2d 873, we held that section 115-1 was unconstitutional. Section 115-1 provided the State with the right to a jury in certain criminal trials. See Ill.Rev.Stat.1987, ch. 38, par. 115-1 (including first degree murder, Class X felonies, criminal sexual assault, and felony violations of two statutes designed to prohibit the sale and use of illicit drugs).

Joyce consolidated several cases which involved defendants situated similarly to defendant in the case at bar. Each Joyce defendant had been indicted for a drug-related offense and had submitted jury waivers. The State indicated that it would not waive a trial by jury. The trial judge, however, deviated from the express language of section 115-1 and denied the State's request for a jury trial. The State then petitioned this court to compel the judge to expunge the orders which allowed the defendants' jury waivers. Joyce, 126 Ill.2d at 211, 127 Ill.Dec. 791, 533 N.E.2d 873.

In its analysis in Joyce, this court first noted that the right to a trial by jury is guaranteed by both the Federal and State Constitutions. However, this court also observed that Federal constitutional law permits a statute that requires consent by the government to a jury waiver. (Joyce, 126 Ill.2d at 213, 127 Ill.Dec. 791, 533 N.E.2d 873, citing Singer v. United States (1965), 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (upholding Federal Rule of Criminal Procedure 23(a), which is similar to section 115-1).) The court therefore determined that section 115-1 would survive an attack based upon Federal constitutional principles.

Despite this, the court did not limit its analysis of section 115-1 to Federal constitutional law. If the language of our State constitution, or the debates or committee reports from the constitutional convention, indicates that a provision of our constitution is intended to be construed differently from similar provisions of the Federal Constitution, then this court should not be limited by the construction placed on the Federal constitutional provisions. ( Joyce, 126 Ill.2d at 213, 127 Ill.Dec. 791, 533 N.E.2d 873.) The court carefully analyzed the provisions of our State constitution dealing with the right to a jury trial. It also examined the history of those provisions, along with all the information which might lead it to ascertain the intent of the drafters of the constitution, including the debates and committee reports as well as the common law interpretation of the right to a jury trial as embodied in decisions of this court which the debates reveal the drafters intended to adopt as constitutional principles. (See Joyce, 126 Ill.2d at 213-22, 127 Ill.Dec. 791, 533 N.E.2d 873.) Basing its decision solely on Illinois constitutional principles, the court held that section 115-1 was unconstitutional and that only a defendant has a right to a jury trial. Joyce, 126 Ill.2d at 222, 127 Ill.Dec. 791, 533 N.E.2d 873.

ANALYSIS

The crux of defendant's argument on appeal to this court is that he was denied his constitutional right to a bench trial. The issue before us, therefore, is whether we should retroactively apply the decision in Joyce, which held section 115-1 unconstitutional, to defendant's convictions.

In People v. Manuel (1983), 94 Ill.2d 242, 244-45, 68 Ill.Dec. 506, 446 N.E.2d 240, which neither party in the case at bar cited to us, this court stated that "[w]hen a statute is held unconstitutional in its entirety, it is void ab initio." In other words, " '[a]n invalid law is no law at all.' " (Van Driel Drug Store, Inc. v. Mahin (1970), 47 Ill.2d 378, 381, 265 N.E.2d 659, quoting People ex rel. Barrett v. Sbarbaro (1944), 386 Ill. 581, 590, 54 N.E.2d 559; see generally 16 Am.Jur.2d Constitutional Law § 256 (1979).) The effect of enacting an unconstitutional amendment to a statute is to leave the law in force as it was before the adoption of the amendment. Mahin, 47 Ill.2d at 381, 265 N.E.2d 659; Sbarbaro, 386 Ill. at 590, 54 N.E.2d 559.

Prior to its July 1987 amendment effective date, section 115-1 stated that "[a]ll prosecutions except on a plea of guilty or guilty but mentally ill shall be tried by the court and a jury or the court when a jury is waived by the defendant in open court." (Ill.Rev.Stat.1985, ch. 38, par. 115-1.) This version of section 115-1 would withstand scrutiny under the sections of the Illinois Constitution that deal with the right to a jury trial, because the express language of the statute gives the defendant the right to waive a jury, while giving no such parallel right to the State. (See Joyce, 126 Ill.2d at 213-22, 126 Ill.Dec. 791, 533 N.E.2d 873.) The preamendment version of section 115-1 would also have been valid under the common law in effect at the time the 1970 Illinois Constitution was adopted, which this court determined the framers of the constitution intended to adopt as the meaning of the phrase "[t]he right of trial by jury as heretofore enjoyed shall remain inviolate," found in article I, section 13, of the Illinois Constitution. Ill. Const.1970, art. I, § 13; see Joyce, 126 Ill.2d at 215-19, 126 Ill.Dec. 791, 533 N.E.2d 873.

In 1986, the General Assembly began to amend section 115-1. The first of these amendments, effected by section 6 of the Privacy of Child Victims of Criminal Sexual Offenses Act, required trial by jury in cases involving felony violations of two statutes designed to prohibit the sale and use of illicit drugs, unless both the State and the defendant waived the jury. (Pub. Act 84-1428, § 6, eff. July 1, 1987.) The second amendment, effected by section 1 of "An Act to amend Section 115-1 * * *," added first degree murder, criminal sexual assault, and Class X felonies to the list of offenses where a defendant, on trial, could not waive a jury without the State's assent. Pub.Act 85-463, § 1, eff. Jan. 1, 1988.

Thus,...