People v. Scott
| Decision Date | 26 November 1997 |
| Docket Number | No. 5-95-0574,5-95-0574 |
| Citation | 687 N.E.2d 1151,227 Ill.Dec. 669,293 Ill.App.3d 241 |
| Parties | , 227 Ill.Dec. 669 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jerry R. SCOTT, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Daniel M. Kirwan, Deputy Defender, Larry R. Wells, Assistant Defender, Office of the State Appellate Defender, Mt. Vernon, for Defendant-Appellant.
Kevin Kakac, State's Attorney, Fairfield, Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Rebecca Sanders, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Mt. Vernon, for Plaintiff-Appellee.
After a bench trial, the defendant, Jerry R. Scott, was found guilty of driving under the influence of alcohol. Defendant was sentenced to two years' probation. On appeal, defendant argues that his conviction must be reversed because he did not waive his right to a jury trial in open court, where the only purported waiver was a document submitted to the court outside his presence and where neither the defendant nor his attorney was addressed upon the right of a trial by jury or the waiver of that right in defendant's presence.
In Illinois, there are two statutes that govern a criminal defendant's rights to receive or waive a trial by jury. Section 103-6 of the Code of Criminal Procedure of 1963 (Code) provides, in relevant part:
"Every person accused of an offense shall have the right to a trial by jury unless (i) understandingly waived by defendant in open court * * *." 725 ILCS 5/103-6(i) (West 1992).
Section 115-1 of the Code provides for the method by which a defendant may waive his right to a jury trial.
The State initially contends that defendant has waived the issue for appeal by failing to make any objection at trial and by failing to file any posttrial motion. Our supreme court recently addressed waiver where the issue is whether the failure to secure a written jury waiver was reversible error. Our supreme court held that the waiver rule is one of administrative convenience and is not jurisdictional. People v. Tooles, 177 Ill.2d 462, 465, 227 Ill.Dec. 125, 126, 681 N.E.2d 48, 49 (1997). Our supreme court declined to rule that in every case the failure to secure a written jury waiver warrants review under the plain error rule. Tooles, 177 Ill.2d at 465, 227 Ill.Dec. at 126, 681 N.E.2d at 49. In Tooles, the supreme court noted that section 115-1's written jury waiver requirement does not impact a defendant's constitutional right to choose whether to have a jury trial, but the writing requirement merely memorializes the decision to exercise this right. Tooles, 177 Ill.2d at 466, 227 Ill.Dec. at 127, 681 N.E.2d at 50. In the case at bar, this court is considering whether that right was knowingly and understandingly waived. Defendant cannot waive the admonishment of his right to a jury trial if he has not been advised in open court as to that right. A lack of a knowingly and understandingly entered waiver of a jury trial has constitutional ramifications. We will consider the merits of the issue. See People v. Mueller, 281 Ill.App.3d 1, 3, 217 Ill.Dec. 246, 248, 666 N.E.2d 915, 917 (1996).
The following document, filed on December 29, 1994, is contained in the record on appeal.
JERRY R. SCOTT
DEFENDANT
WAIVER OF JURY TRIAL
Now comes Jerry R. Scott and states:
1. I am of legal age and under no legal disability.
2. I am not under the influence of any legal or illegal drugs[ ] or alcoholic beverages at this time.
3. I am aware of my right to a jury trial in this cause.
4. After consultation with my court appointed attorney I have decided to waive my right to jury trial[ ] and have this matter decided in a bench trial.
5. This waiver is executed on December 15, 1994, in the office of David M. Williams, Attorney at Law, Fairfield, Illinois.
6. Attorney Williams has advised me that I have until the last Thursday of December[ ] 1994 to revoke this waiver of jury trial; on that date Attorney Williams intends to present this waiver to the judge.
7. I am fully aware of the legal consequences of this waiver.
Further I say not.
Dated: 12 15 94
/s/ Jerry R. Scott
/s/ Jerry R. Scott
Executed before me this 15th day of December, 1994.
/s/ David M. Williams
/s/ David M. Williams"
On the same date the jury waiver was filed, the docket entry reads: "D.W. and S.A. present; jury setting of 1-9-95 vacated w/o objection[,] on file jury waiver".
On January 3, 1995, when the record indicates that defendant was not in open court, defense counsel stated:
Prior to the presentation of evidence at defendant's bench trial, the following colloquy occurred:
Section 103-6 of the Code is plain on its face and contains two requirements for a valid waiver: (1) that it be in open court and (2) that it be understandingly made. People v. Williams, 125 Ill.App.3d 284, 286, 80 Ill.Dec. 698, 699, 465 N.E.2d 1044, 1045 (1984). A jury waiver, to be valid, must be knowingly and understandingly made. People v. Frey, 103 Ill.2d 327, 332, 82 Ill.Dec. 661, 663, 469 N.E.2d 195, 197 (1984). That determination cannot rest on any precise formula and necessarily turns on the facts and circumstances of each particular case. Frey, 103 Ill.2d at 332, 82 Ill.Dec. at 663, 469 N.E.2d at 197. In the case at bar, the jury waiver was filed outside of open court. The record on appeal does not reflect that "jury trial" was ever mentioned while defendant was present in open court. Even where the waiver had been filed outside of open court, there was more than adequate opportunity at the commencement of the bench trial to confirm it according to statute. Williams, 125 Ill.App.3d at 287, 80 Ill.Dec. at 700, 465 N.E.2d at 1046. Further, the record here is silent as to whether defendant was aware that proceeding to a bench trial meant foregoing a jury trial. The record shows that although defendant may have been signed a jury waiver in his attorney's presence, there is no evidence that he made a knowing and understanding jury waiver. See People v. Hall, 221 Ill.App.3d 864, 867, 164 Ill.Dec. 500, 502, 583 N.E.2d 54, 56 (1991). Defendant's case was up before the court, but the record never indicates whether defendant was ever personally admonished of his right to a jury trial. See Hall, 221 Ill.App.3d at 867, 164 Ill.Dec. at 502, 583 N.E.2d at 56. Neither Tooles nor Mueller, which dealt with the issue of the requirement of written jury waivers, change the requirement that a knowing and understanding waiver of jury trial occur in open court. This court is unaware of an opinion by our supreme court in which waiver has been found by defendant's mere presence in court while a discussion occurs...
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