Appeal from the Circuit Court of McLean County; the Hon.
Joseph H. Kelley, Judge, presiding.
JUSTICE MILLER DELIVERED THE OPINION OF THE COURT:
The defendant, Joseph Eades, was convicted in a bench trial of criminal damage to property for vandalizing some handicap parking signs owned by the town of Normal. He was placed on probation for one year, with 90 days' periodic imprisonment in the county jail, and ordered to pay restitution of $131.76 to the town of Normal and a $750 fine. On appeal the defendant argues that the record fails to show that he made a knowing waiver in open court of his right to a jury trial, that the State failed to prove his guilt beyond a reasonable doubt, and that the trial court imposed the financial conditions of the probation order without first determining his ability to pay them. We affirm.
The record contains only two references to the defendant's waiver of his right to a jury trial. One is a form that expresses the defendant's intentions to plead not guilty to the charge and to waive a jury trial; it bears the defendant's signature and is dated December 3, 1982, and file stamped December 9, 1982. The other reference is contained in a docket entry for December 6, 1982, which says, "Jury waiver filed," and goes on to give the date scheduled for the defendant's bench trial. The defendant was represented by counsel throughout this period and also at trial.
• 1 The defendant argues that these references in the record are insufficient to show that he made a valid waiver of this right. Section 103-6 of the Code of Criminal Procedure of 1963 says, "Every person accused of an offense shall have the right to a trial by jury unless understandingly waived by defendant in open court." (Ill. Rev. Stat. 1981, ch. 38, par. 103-6.) Compliance with the statute cannot be found in or inferred from a silent and otherwise complete record. (People v. Ceaser (1974), 17 Ill. App.3d 650, 307 N.E.2d 753.) The defendant cites People v. Clay (1974), 19 Ill. App.3d 296, 311 N.E.2d 384, and People v. Gaston (1971), 132 Ill. App.2d 900, 270 N.E.2d 846, for the proposition that a jury waiver form signed by a defendant is no improvement on a silent record, that the form does not by itself show compliance with section 103-6.
The State argues that the defendant has waived this issue because he did not raise it in his post-trial motion. We choose instead to treat it on its merits, for any error in this regard is arguably an exception to the waiver rule.
In People v. Oatis (1977), 47 Ill. App.3d 229, 361 N.E.2d 1146, this court held that a defendant's waiver of his right to a jury trial was established by a signed waiver appearing in a record that did not contain the transcripts of any pretrial proceedings. The defendant was basing his attack on the jury waiver on the insufficiency of the record, and the court observed that it was the duty of the defendant, as the party bringing the appeal, to supply the reviewing court with an adequate and complete record. The court then said:
"Accordingly, we determine that in a criminal case when the common law record shows that the defendant has waived jury trial, on appeal after a bench trial, a defendant claiming error in the jury waiver must cite the specific error that occurred and substantiate that claim by the presentation of a sufficient record. If the claim is that the jury waiver was not made in open court or that it was not understandingly made, the record should be sufficient to cover all proceedings which involved the waiver." (47 Ill. App.3d 229, 232, 361 N.E.2d 1146, 1148.)
The circumstances and argument here are similar. The defendant argues only the inadequacy of the record — that it fails to show his waiver of the right to a jury trial. The record contains transcripts only of the trial and of the sentencing hearing; the only memorials of the pretrial proceedings are contained in the common law record, with its docket entries and filed documents. As Oatis suggests, we must distinguish between an incomplete record, such as the one here, and a complete record, which was present in both Clay and Gaston. In each of those cases the appellate court had before it a transcript of the court proceeding in which the defendant was believed to have waived his right to a jury trial, and the failure to satisfy section 103-6 was evident from the transcript.
The record here is incomplete. It contains no transcript or report of any pretrial proceeding. Thus, we have nothing before us except the signed jury waiver form to show whether the defendant, in open court, understandingly waived his right to a jury trial, and nothing in the record contradicts the validity of the form. Under the circumstances here, the signed form alone establishes the defendant's valid waiver. Oatis.
• 2 The defendant also argues that the State failed to prove his guilt for the offense beyond a reasonable doubt. Specifically, the defendant questions the identification of him by the State's eyewitness and asserts the defense of alibi that he and some friends testified to at trial.
Robert Keith, who witnessed part of the occurrence, testified in the State's behalf. On the night of the offense, August 28-29, 1982, Keith was serving as a watchman at the Tent of Flowers in Normal. The Tent of Flowers, as its name suggests, was an outdoor tent covering a display of flowers. Keith was there that evening guarding the inventory. He testified that around 10 or 11 p.m. he heard a metallic scraping sound; he looked across the street toward the First National Bank of Normal and saw a handicap parking sign lying on the pavement and a group of between seven and ten persons gathered around another sign. Keith identified the defendant as the larger of two persons that were rocking the sign back and forth. The defendant was wearing blue jeans and a black tee shirt, which Keith knew bore the words "Jack Daniel's" because he had seen the shirt at closer range several minutes earlier, when the defendant arrived. The post of the sign broke, and it was discarded next to the other one. The group then gradually dispersed.
Keith testified that he walked across the street to Garcia's Restaurant and telephoned the police, who arrived several minutes later. As Keith described to an officer what he had seen, the defendant walked by; in response to the officer's question, Keith identified the defendant as one of the persons that had broken the sign.
Keith acknowledged at trial that several years before this incident his car and the defendant's car were in a collision, which Keith blamed on the defendant. Keith said that he has never been compensated for the damage to his car.
Ralph Ebert, a police officer for the town of Normal, testified that he was sent to the area at 12:24 a.m. on August 29, 1982, in response to Keith's telephoned report. Keith described to him a big, bearded man wearing a tee shirt with the words "Jack Daniel's" on it. The defendant, who was nearby, matched this description. Ebert also testified that he found two handicap parking signs lying on the sidewalk in front of the bank; the ...