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People v. Scott (Ill. S.Ct.)

Docket No. 84678-Agenda11-September 1998.

THE PEOPLE OF THE STATEOF ILLINOIS, Appellant, v. JERRY R. SCOTT, Appellee.

Opinion filed April 15,1999.

JUSTICE HEIPLE delivered the opinion of thecourt:

The sole issue for consideration by this court is whethera written waiver alone validly waives a defendant's right to a jury trial.We hold that it does not.

Defendant executed a written jury waiver in his attorney'soffice, which was later filed outside of defendant's presence.Thereafter, on the day of trial and in defendant's presence, the following exchange occurred betweenhis attorney and the trialjudge:

"MR. WILLIAMS [defendant's counsel]:And we would proceed to the bench trial today.

THE COURT: Okay, Defendant filesmotion to dismiss. States Attorney given two weeks to file responsive pleading.Okay, we'll proceed to bench trial, then?

* * *

THE COURT: Okay, appreciate that.,[sic] okay. We will then proceed with the bench trial. Mr. Vaughan, you mayproceed."

Section 103-6 of the Code of Criminal Procedure of 1963(Code) provides that a bench trial may be held if the right to trial byjury is "understandingly waived by defendant in open court." (Emphasis added.) 725ILCS 5/103-6 (West 1992). Section 115-1of the Code further provides that a waiver of jury trial should be in writing. 725 ILCS 5/115-1 (West1992). Reading theseprovisions together, this court recently held that failure to file a written jury waiver does not requirereversal "so long as thedefendant's waiver was made understandingly in accordance with section 103-6 of the Codeof Criminal Procedure." (Emphasisadded.) People v. Tooles, 177 Ill. 2d 462, 468 (1997). Thus, a defendant validly waiveshis right to a jury trial only if made (1)understandingly; and (2) in open court. 725 ILCS 5/103-6 (West 1992).

We have never found a valid jury waiver where thedefendant was not present in open court when a jury waiver, written orotherwise, was at least discussed. The State, however, argues that the references on the day of trialto proceeding with a benchtrial constituted an acknowledgment of the waiver in open court. In People v. Frey, 103Ill. 2d 327, 332 (1984), this court heldthat an accused typically speaks and acts through his attorney, and a jury waiver is valid when "madeby defense counsel indefendant's presence where defendant gave no indication of any objection to the court hearing thecase." Frey, 103 Ill. 2d at 332.However, the court also specifically noted that the defendant in Frey "was present atsome point prior to trial when the jurywaiver was discussed." Frey, 103 Ill. 2d at 333. In the instant case, it is undisputed thatdefendant was never present in opencourt when a jury waiver was discussed.

Additionally, the written jury waiver here stated thatdefendant had "until the last Thursday of December, 1994 to revoke thiswaiver of jury trial." This language creates an inference that the jury waiver was irrevocable after thelast Thursday of December1994. Thus, rather than find defendant's silence to be "acquiescence," as the court did inFrey, we find defendant's silence heremay have been due to his belief that it was too late to revoke his jury waiver. Therefore, we cannotpresume defendant's silenceconstituted a waiver in open court.

Finally, the significance of the references to proceedingwith a bench trial is not as great as the State suggests. The referencesarose in a dialogue between defendant's attorney and the trial judge concerning a motion to dismiss.The trial judge had not ruledon the motion to dismiss as of the date of trial, and defendant's attorney agreed to allow the State twoweeks to present a writtenresponse. From this context, it is clear that defendant's attorney, when stating he would proceed witha bench trial, was merelyindicating that despite the pending motion to dismiss, defendant was ready to proceed. Consequently,the statement was notmeant as an affirmative waiver, but instead as an indication to the court that defendant would proceedwith trial despite thepending motion. Thus, the defendant never acknowledged the written jury waiver in open court,either affirmatively or throughhis silence.

For the reasons stated, we hold that defendant did notvalidly waive his right to a jury trial in open court. Accordingly, thejudgment of the appellate court reversing the judgment of the circuit court of Wayne County andremanding the cause for furtherproceedings (293 Ill. App. 3d 241) is affirmed.

Appellate court judgmentaffirmed.

JUSTICE MILLER, specially concurring:

I concur. I agree with the majority's conclusion that thecircumstances in the present case fail to show that the defendant validlywaived his right to a jury trial. Notably, the jury waiver signed by the defendant stated that it couldnot be revoked after aspecified date. Thus, the defendant's subsequent silence in open court, when both defense counsel andthe trial judge referred tothe impending proceeding as a bench trial, might not have represented acquiescence in the waiver,and instead could have simplybeen the product of the defendant's mistaken belief that he could no longer change his mind anddemand a jury trial. Under thesecircumstances, I agree with the majority that the defendant did not validly waive his right to a jurytrial and that a new trial istherefore warranted.

A different result would be required if the defendant's jurywaiver had not contained a deadline for its revocation and if thedefendant had later, in open court, remained silent when the waiver was mentioned. In that event, thedefendant's silence couldproperly be construed as acquiescence. See People v. Frey, 103 Ill. 2d 327 (1984).Finally, unlike Justice Bilandic and ChiefJustice Freeman, I do not believe that the majority abandons the totality-of-the-circumstances test,as applied in Frey and othercases, in assessing the validity of the present defendant's jury waiver.

JUSTICE BILANDIC, also speciallyconcurring:

I join in the majority's holding that defendant's jury waiverwas not valid and a new trial is warranted. The majority correctlyconcludes that section 103-6 requires, at a minimum, that the defendant be present in open courtwhen the jury waiver isdiscussed. Although adoption of this rule requires a new trial in this case, I believe that, in the longrun, this rule will reduce thelitigation of jury waiver issues in the reviewing courts and the number of reversals necessitated byinvalid waivers.

In arguing for reversal of the appellate court, the Stateurges us to find that, based on the circumstances of this case, defendantknowingly and understandingly waived his right to a trial by jury. The State cannot avoid section103-6's explicit requirementthat the defendant waive a jury "in open court." The State therefore asserts that the trial judge'smention of a "bench trial" indefendant's presence was sufficient to constitute defendant's waiver of a jury "in open court," whenconsidered in light of theother circumstances present in this case. In essence, the State asks us to define the "in open court"requirement so broadly that itmay be gleaned from any number of circumstances. The problem with the State's approach is that itgives no clear guidance tothe trial courts on this matter. Exactly what is required in any given case to comply with section103-6 is not defined. Without aclear requirement for the trial courts, however, reviewing courts would be faced with numerousassertions of invalid waivers. Incontrast, the simple requirement which the majority has adopted here-that the defendant, at aminimum, be present in open courtwhen the jury waiver is discussed-provides the trial courts with a clearly defined minimum standardfor this situation. Thatrequirement was not satisfied in this case, and a new trial is therefore warranted. In light of themajority's holding, however, Itrust that this situation will not arise with any frequency in the future and judicial economy will, inthe end, be served. This courthas previously acknowledged the efficacy of a clear rule on this issue:

" 'It takes but a few moments of a trial judge's timeto directly elicit from a defendant a response indicating that he understandsthat he is entitled to a jury trial, that he understands what a jury trial is, and whether or not he wishesto be tried by a jury or bythe court without a jury. This simple procedure incorporated in the record will reduce the countlesscontentions raised in thereviewing courts about jury waivers.' " People v. Chitwood, 67 Ill. 2d 443,448-49 (1977), quoting People v. Bell, 104 Ill. App.2d 479, 482 (1969).

CHIEF JUSTICE FREEMAN, dissenting:

I dissent.

The majority holds that a written waiver alonedoes not waive a defendant's right to a jury trial. Slip op. at 1. I certainly agreewith that statement as a general legal principle; the proposition is quite established. See,e.g., People v. Stokes, 281 Ill. App. 3d972, 978 (1996); People v. Steiger, 208 Ill. App. 3d 979, 982 (1991); People v.Lewis, 89 Ill. App. 3d 840, 844 (1980).However, it cannot be the holding in this case because it does not fit the facts hereinpresented. The State expressly contends:

"The People do not suggest that it is the written waiver alone that creates theknowing and understanding waiver of theright to a jury. It is the written waiver in conjunction with the Defendant's silentacquiescence in court when his attorneyagreed to the bench trial." (Emphasis added.)

The majorityopinion overlooks the totality of the circumstances in this case. A defendant waives the right to a jurytrial only ifmade understandingly in open court. 725 ILCS 5/103-6 (West 1992). "That determination cannot reston any precise formulaand necessarily turns on the facts and circumstances of each particular case." People v.Frey, 103 Ill. 2d 327, 332 (1984) (andcases cited therein).

In this case, defendant: (1) signed a clear and detailedwritten jury waiver (293 Ill. App. 3d at 243-44), and (2) was in court andfailed to object when his defense counsel indicated that he was prepared to proceed with a bench trial."Recognizing that theaccused typically speaks and acts through his attorney, we have given effect to jury waivers made bydefense counsel indefendant's presence where defendant gave no indication of any objection to the court hearing thecase." Frey, 103 Ill. 2d at 332(collecting cases); accord People v. Smith, 106 Ill. 2d 327, 334 (1985). Courts haveheld that a defense counsel's singleaffirmative statement either that defendant waives a jury (e.g., People v.Murrell, 60 Ill. 2d 287, 290 (1975); People v. Sailor, 43Ill. 2d 256, 260 (1969)) or requests a bench trial (e.g., People v. Pozdoll,230 Ill. App. 3d 887, 892 (1992); People v. Tucker,183 Ill. App. 3d 333, 334-35 (1989); People v. Burton, 121 Ill. App. 3d 182, 183-84(1984)) constituted a valid jury waiver sincedefendant was in the courtroom and failed to object. Frey, 103 Ill. 2d at332.

Also, the record shows that defendant is notunsophisticated or uneducated. Defendant was 53 years old at the time of his arrest.He had completed two years of high school and had taken GED classes. He had police training andfor two years was a deputyfor the emergency services and disaster agency in Wayne County. Further, defendant had twoprevious DUI convictions. This factindicates that he has some knowledge of the justice system generally and of this type of caseparticularly. Thus, based on the factsand circumstances of this case, I believe that defendant's jury waiver was knowingly andunderstandingly made.

Whether a defendant understandingly waived a jury trialis best determined based on all of the unique circumstances of thatparticular case. Courts have long required a totality-of-the-circumstances test (e.g.,Adams v. United States ex rel. McCann, 317U.S. 269, 278, 87 L. Ed. 268, 274, 63 S. Ct. 236, 241 (1942)), which was codified in section 103-6of the Code of CriminalProcedure of 1963. 725 ILCS Ann. 5/103-6, Committee Comments-1963, at 197 (Smith-Hurd 1992)("This paragraph codifies*** the case decisions"). Justice Bilandic's special concurrence correctly describes the majorityopinion as adopting a newinterpretation of section 103-6, which replaces the totality-of-the-circumstances test.

In this case, I would hold that defendant understandinglywaived a jury trial, and I would affirm the judgment of the circuit court.Accordingly, I dissent.