Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Peoria County,
the Hon. Donald C. Courson, Judge, presiding.
JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Following a bench trial in the circuit court of Peoria County defendant, Brian J. Frey, was convicted of driving while under the influence of intoxicating liquor (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11-501) and sentenced to one year's probation conditioned upon periodic imprisonment at the Peoria County Work Release Center. A divided appellate court ordered a new trial on the ground that defendant did not knowingly waive his right to a trial by jury. (117 Ill. App.3d 582.) We allowed the State's petition for leave to appeal (87 Ill.2d R. 315(a)).
Defendant was originally indicted on two counts of reckless homicide stemming from an automobile accident on March 6, 1981. The indictment alleged that defendant caused the deaths of the pregnant Connie I. Updike and her 22-week-old fetus by recklessly driving his vehicle into the Updike vehicle while under the influence of intoxicating liquor. Defendant pleaded not guilty to the charges, and a jury trial was scheduled for May 11, 1981. Due to numerous continuances, however, no trial commenced until March 18, 1982.
On October 8, 1981, the court entered an order, approved by defense counsel, stating that "the defendant's attorney indicates the defendant will waive a jury trial in this case," and continued the case to November 19 at 9:30 for "Bench trial." Subsequent orders entered in the case also indicated a bench-trial status. On October 20, 1981, defense counsel filed a motion stating: "2. Defendant has waived jury trial so that the cause will be tried by the court," and requesting that the judge, "as trier of the facts," view the scene of the accident. On November 16 the case was continued by agreement to December 17 for "Bench trial." On that date the case was again continued to January 21, 1982, for a hearing on a motion to suppress, and a bench trial was set for January 28. Following allowance of the motion to suppress, the State's Attorney, on January 27, filed an information charging defendant with driving while under the influence of intoxicating liquor. This charge also stemmed from the March 6 accident and was added to the State's case as "Count III."
It was thereafter agreed by the parties that the reckless-homicide counts would be tried before the driving-under-the-influence count since the results of two breath-alyzer tests showing defendant's blood alcohol content of .16 and .15 would be admissible only in the latter. The parties also stipulated that most of the evidence presented in the reckless-homicide trial could be considered by the judge in the subsequent driving-under-the-influence trial. An order entered on March 1, 1982, shows that a bench trial of that charge was scheduled for March 18, 1982. Apparently no record was made of the discussions between court and counsel on the numerous occasions when counsel was in court prior to trial. Consequently, we do not know with certainty precisely what was said nor on which occasions defendant was present. However, the prosecuting attorney's unrebutted testimony in defendant's presence at the hearing on defendant's motion for a new trial was that defendant was present on occasions when the matter of a bench trial was discussed, and at some point was advised of his right to trial by a jury or by the court.
On the day of trial the following colloquy took place:
"THE COURT: Let the record show that this is case No. 81 CF 878, entitled the People of the State of Illinois versus Brian J. Frey, on a bill of indictment charging reckless homicide in count 1, reckless homicide in count 2 and driving while under the influence of intoxicating liquor in count 3. Count 3 is by way of information, that being a class A misdemeanor.
The record should reflect that the defendant is present in person accompanied by his attorney, Mr. Joseph Napoli. The People are present by Robert Gaubas, first assistant State's Attorney. And these causes were set today for purposes of bench trial and the issues presented by all three counts pending against this defendant.
Are the People ready for trial at this time?
MR. GAUBAS: The People are ready, Your Honor.
THE COURT: Mr. Napoli, is the defendant ready?
MR. NAPOLI: The defendant is ready, Judge, but I'd like to call your attention to the fact that at the last hearing, we did agree —
THE COURT: There was an agreement, the record should reflect, that first will be tried the issues presented by the two counts of the bill of indictment, charging reckless homicide. Following a determination on those two counts, it was the intention of the parties, I believe, to try the issues presented by the count ...