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People v. Zemblidge

OPINION FILED FEBRUARY 19, 1982.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JOHN ZEMBLIDGE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY J. SCOTILLO, Judge, presiding.

JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant was convicted of armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18-2), burglary with intent to commit armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 19-1) and rape (Ill. Rev. Stat. 1975, ch. 38, par. 11-1(a)). He received a six-year sentence for rape and a six-year sentence for armed robbery. On appeal, defendant asserts that the trial court erred (1) when it refused to accept his waiver of a jury trial and (2) when it refused to allow the defense to rehabilitate one of its witnesses after impeachment by the State. The pertinent facts follow.

Prior to trial, defendant moved to suppress testimony concerning a lineup procedure which was denied.

At the trial, the victim testified that she was living on North Richmond on the night of January 15, 1976. She heard a knock and went to investigate, whereupon she observed a black man through the window. He asked for "Roberto" and she told him to go to the front of the building. He returned approximately two minutes later and asked to use the telephone. She told him she did not have a telephone and then she went to dial the police. The apartment door was then broken open by defendant, who was not the same man who previously knocked on the door. Defendant was a tall white person with light curly hair, holding a revolver in his hand. He tore the telephone off the wall and then demanded money. She gave him $10 and he told her to follow him. In the living room, he told her to open her blouse and then pushed her into the bedroom, where he forced her to have sexual intercourse with him. After he left, she went to her landlord's house and called the police.

Approximately two weeks later, she observed defendant and the black man, who had initially knocked on her door, walking down the street. Police were called, and she later attended a lineup where she identified defendant as her assailant.

Defendant's mother testified that on the date in question, defendant came home from work at approximately 8 p.m. and had invited some friends over. She stated that she watched television and talked with defendant and his friends from 10 until 11 p.m.

Lisa Matza also testified for defendant. She stated that she went to defendant's home around 9:10 p.m. on January 15, 1976, and that they watched television and talked. She left his home somewhere between 11:05 and 11:10 p.m. She further testified that after she heard that defendant had been arrested for the January 15 incident, she recalled the party on that date because she had written it down in her datebook, which she still possessed.

Lisa was questioned about the datebook on cross-examination. At that point, the State made a motion to exclude the use of the datebook because it was not provided to the State in pretrial discovery. Defense counsel claimed that he had only become aware of its existence the prior evening and that given the nature of the cross-examination of the witness calling into question the existence of the book and its validity, the defense should be allowed to introduce the book on redirect to rehabilitate their witness. The trial court determined that the datebook was not admissible because it was hearsay and not admissible under any exception.

Defendant also testified on his own behalf denying that he raped or robbed the victim.

After the parties had tendered jury instructions, defendant made a motion to waive the jury. The court denied this motion and instructed the parties to proceed with closing arguments. This appeal followed.

OPINION

Defendant argues that refusal to accept the jury waiver, at the conclusion of all testimony but before closing arguments, was error. We disagree.

The power to waive a jury trial follows the existence of the right to be tried by a jury. (People v. Muniz (1964), 31 Ill.2d 130, 198 N.E.2d 855; People v. Spegal (1955), 5 Ill.2d 211, 125 N.E.2d 468.) Section 115-1 of the Criminal Code (Ill. Rev. Stat. 1979, ch. 38, par. 115-1) mandates the jury trial; however, upon waiver, defendant undoubtedly has the right to a bench trial. (People v. Powell (1981), 95 Ill. App.3d 93, 419 N.E.2d 708.) The real concern in this matter, however, is the timeliness of defendant's waiver.

• 1 Defendant had elected a jury trial, all testimony had been heard and the court had conducted a jury instruction conference. Defendant only attempted to waive the jury at the commencement of final arguments. This motion was objected to by the State and, the court, acknowledging that the evidence had already been presented, ...


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