APPEAL from the Circuit Court of Madison County; the Hon.
HORACE L. CALVO and the Hon. PAUL J. O'NEILL, Judges, presiding.
MR. JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:
Appellant, Steven Whitehead, pleaded guilty to aggravated battery and two counts of burglary. Pursuant to plea negotiations, he was sentenced to probation. Subsequently the State filed a petition to revoke probation based on four misdemeanor violations and he was found guilty of contributing to the delinquency of a minor and resisting arrest after a bench trial. Based on these convictions, appellant's probation was revoked, and he was sentenced to 3 1/2 years' imprisonment on the underlying felonies and 6 months on the misdemeanor convictions, all sentences to be served concurrently. He appeals from both his misdemeanor convictions and from the revocation of his probation contending that he never waived his right to a jury trial on the misdemeanor charges. We affirm the judgments consolidated for appeal.
On November 30, 1979, appellant filed his brief in this court, raising only the jury waiver issue. On December 28, 1979, the State filed a motion in the trial court to amend or supplement the record. At the motion hearing, Keith Jensen, the assistant State's Attorney who prosecuted the misdemeanor charges, testified that defendant and his counsel, Mr. Leonard Berg, conferred for approximately one-half hour prior to trial when Mr. Berg stated that defendant was going to waive his right to a jury trial. Mr. Jensen further testified that the court asked if defendant wanted to waive a jury and Mr. Berg in defendant's presence stated that defendant did. Mr. Jensen thought that the court also specifically asked defendant if he wished to waive his right to a jury trial and defendant concurred in the statement of his counsel. A reporter was not available when the foregoing occurred.
The Honorable P.J. O'Neill, presiding judge at defendant's trial, testified that when defendant made his initial appearance he requested a jury trial. Later Mr. Berg informed him that defendant would waive a jury trial and requested a setting for a bench trial. Judge O'Neill stated that he did not remember what transpired when the case was called for trial, although it was his habit to always ask the defendant in open court if he wished to waive the jury before he proceeded with a bench trial. The defendant did not object to having a bench trial at any time.
Mr. Berg testified that he had an extensive conversation with defendant and thereafter asked Judge O'Neill to set the case for a bench trial. Defendant was not with him when he made the request, and Mr. Berg said he believed that no jury waiver occurred in open court.
Michael Donohoo, Judge O'Neill's bailiff, testified that he remembered Judge O'Neill stating earlier in the day defendant had waived a jury trial. Mr. Donohoo believed that Judge O'Neill was one of the most meticulous judges in admonishing defendants of their rights.
Finally, defendant testified that he did not recall waiving his right to a jury trial or Mr. Berg waiving that right in his presence. He thought the court stated the name and number of the case and called it for a non-jury trial.
The trial court entered the following order following the motion hearing:
"The only witness with a clear, present recollection surrounding the events when the defendant is alleged to have waived trial by jury on causes number 79-ECM-391 and 79-ECM-392 is Keith Jensen, Assistant State's Attorney. Mr. Jensen testified that he had a clear recollection and was positive that the right to trial by jury was waived in open court in the presence of the defendant by his attorney, Leonard Berg.
No other witness had a clear recollection of the events surrounding the claimed waiver. However, Associate Judge P.J. O'Neill testified, without objection, that it was his habit to always ask defendants if they waived their right to trial by jury before commencing a hearing. The defendant at no time objected to a bench trial in that proceeding. The trial took place in Courtroom No. 15, a very small courtroom, approximately 12' x 15'. The trial was a bench trial, and no jurors were present during the proceeding.
Based on all the testimony heard this date, the Court finds by a preponderance of the evidence that the defendant, Steven Whitehead, did waive a jury in these causes."
On February 11, 1980, the State made a motion in this court to supplement the record with the transcript of the motion hearing and with the court's order. Over defendant's objection, this court granted the State's motion.
The State argues that the record now reflects that defendant waived a trial by jury in open court through his attorney because a waiver of a jury trial made by defense counsel in open court and in the presence of defendant is a knowing and valid waiver that binds the defendant. (People v. Murrell (1975), 60 Ill.2d 287, 326 N.E.2d 762.) Defendant responds that the trial court's finding that only Mr. Jensen had a clear memory is incorrect as defendant testified to the best of his knowledge that he did not waive a trial by jury.
As a preliminary matter, we must determine whether the State's amendment of the record was proper. Supreme Court Rule 329 (Ill. Rev. Stat. 1979, ch. 110A, par. 329) states:
"The record on appeal shall be taken as true and correct unless shown to be otherwise and corrected in a manner permitted by this rule. Material omissions or inaccuracies or improper authentication may be corrected by stipulation of the parties or by the trial court, either before or after the record is transmitted to the reviewing court, or by the reviewing court. Any controversy as to whether the record accurately discloses what occurred in the trial court shall be submitted to and settled by that court and the record made to conform to the truth. If the record is insufficient to present fully and fairly the ...