Appeal from the Circuit Court of Cook County; the Hon. Matthew
J. Moran, Judge, presiding.
JUSTICE MURRAY DELIVERED THE OPINION OF THE COURT:
After a bench trial, defendant, Perry Turner, was convicted of aggravated battery (Ill. Rev. Stat. 1983, ch. 38, par. 12-4(b)(1)) and was sentenced to a term of two years' probation, the first four months of which were to be served in the Cook County department of corrections. On appeal, defendant contends that the trial court erroneously concluded that he had waived his right to a jury trial, that the evidence was insufficient to support his conviction, and that the trial court improperly shifted the burden of proof to him.
The complainant, James Pack, testified that at 6:30 p.m. on January 27, 1984, he was visiting a tenant, who resided in the first-floor apartment of the building where he lived, when defendant arrived. Defendant, whose family owned the building, seized complainant by the collar, struck him, pulled him from the apartment and downstairs, then shot him in the left thigh while complainant said, "Perry don't shoot me. Don't shoot me Perry." The bullet fired into his left thigh passed through his right leg, requiring his hospitalization and surgery on both legs.
Four days after the shooting, defendant apologized to complainant and stated that the gun had accidentally discharged. Defendant also told complainant that he learned that complainant had not reported the condition of the building to the authorities. Complainant, who is illiterate, added that defendant promised him a rent-free apartment and gave him a $500 check in exchange for complainant's agreement to execute an affidavit that exonerated defendant from any culpability for the shooting. However, after complainant executed the affidavit, he learned that the check was nonnegotiable and the rent-free apartment never materialized.
Officer George Patton testified that on February 6, 1984, when he went to 633 East 88th to investigate the instant offense, defendant's automobile was parked outside the two-flat residence located there. The officer heard movement inside the residence and knocked on the door, but no one responded. When the officer proceeded to tow defendant's vehicle away, Richard Turner arrived and identified himself as defendant's brother. After Officer Patton told Turner that defendant had been charged with aggravated battery and that the policeman believed that he was concealed inside the residence, Turner agreed to locate defendant and to have him contact Officer Patton. The following day defendant telephoned the police and the latter escorted him to the police station. After the officer advised defendant of the Miranda rights, defendant stated that when he went to 8210 South Drexel, he became involved in an argument with complainant who ran into his apartment and returned with a gun. When the two men struggled over the weapon, it discharged, and complainant ran from the building with the gun. Subsequently, defendant went to an out-of-State funeral then returned to Chicago.
When Officer Patton interviewed complainant, the latter stated that preceding the incident defendant had accused him of notifying authorities about the supposed bad condition of the Drexel building.
A stipulation was entered that if personnel at Jackson Park Hospital testified, they would state that the complainant was admitted into the hospital at 7:45 p.m. on January 27, 1984, and treated for gunshot wounds in both thighs. It was also stipulated that if personnel from Cook County Hospital testified, they would state that complainant was transferred to the hospital for additional surgery. They would add that his post-operative diagnosis was a superficial femoral artery thrombosis secondary to gunshot wounds in both thighs.
Richard Turner testified that he is defendant's brother and that their family owns the building located at 8210 South Drexel. On March 14, 1984, Turner was replacing a light fixture in the building when complainant arrived and apologized to him for having defendant arrested. Complainant explained that he had identified defendant as his assailant in order to avoid being arrested by the police. Complainant agreed to rectify defendant's problem by signing a notarized affidavit that absolved defendant of any guilt. When Turner prepared an affidavit and read it to complainant, the latter signed it before a notary public at a currency exchange. Turner denied that he paid complainant $500 in exchange for complainant's agreement to execute the affidavit. Turner added that he had seen complainant with a handgun in November and December 1983. Turner also stated that he and defendant went to a funeral after January 27, 1984.
A stipulation was entered that if Officer Little testified, he would state that about 10 minutes after the shooting, complainant told him that he and his assailant first argued then fought in the hall in the Drexel building after someone allegedly said that complainant had attempted to force his entry into a female tenant's apartment. Complainant, who did not identify defendant as the offender at this time, said that the assailant then shot him before fleeing from the building. It was also stipulated that if Detective M. Baker testified, he would state that when he interviewed complainant at Cook County Hospital, complainant said that he did not know why defendant had shot him.
In rebuttal, complainant stated that while he knew Richard Turner, they had never talked and that complainant had signed the affidavit in an empty apartment.
• 1 Defendant's first contention is that the trial court erroneously assumed that he waived his right to a jury trial without the proper procedural safeguards which insure that such a waiver is an informed decision. Every person accused of an offense shall have the right to a trial by jury unless it is understandingly waived by defendant in open court. (Ill. Rev. Stat. 1983, ch. 38, par. 103-6.) Whether a defendant understandingly and knowingly waives his right to a jury trial depends on the facts and circumstances of each case. (People v. Rynberk (1980), 92 Ill. App.3d 112, 118, 415 N.E.2d 1087.) Waiver of the right to a jury trial is valid where the accused permits his attorney, in his presence and without objection, to expressly advise the court of that choice, and the accused is deemed thereby to have agreed and be bound by his attorney's actions. (People v. Spain (1980), 91 Ill. App.3d 900, 906, 415 N.E.2d 456.) Defense counsel's sole statement that defendant was waiving a jury may be held to constitute a valid waiver where a defendant was present in the courtroom and failed to object. It is not necessary that the record affirmatively establish that the trial court advised defendant of his right to a jury trial and elicited his waiver of that right, nor that the court or counsel advised defendant of the consequences of the waiver. People v. Frey (1984), 103 Ill.2d 327, 332, 469 N.E.2d 195.
• 2 Our review of the record reveals that the waiver was made orally by defense counsel in open court in the presence of defendant who, by silently standing by, acquiesced in the waiver. The following excerpt from the verbatim transcript of trial proceedings illustrates what transpired:
"The Court: The State's ready to proceed?
The Court: The plea is not guilty, jury waived?
[Defense Counsel]: Yes, Judge.
The Court: Call your first witness."
The case then proceeded through trial, argument on defendant's motion for a directed verdict and a sentencing hearing. Defendant, who was a college graduate and not a stranger to the criminal justice system, never asked for a jury trial or expressed dissatisfaction with defense counsel's statement that trial by a jury was waived. The only mention at trial of the jury waiver issue was in the written post-trial motion. When the trial court at the hearing on the motion referred to the above colloquy, defense counsel stated that he had raised the issue only because he did not recall the colloquy. At that time, defendant was present and did not claim that he wanted or that he had been deprived of a jury trial. Nor does he contend that he was in any way prejudiced by his counsel's waiver. In addition, if in fact defendant had not been present when his counsel waived a jury in open court, he or his counsel could have made an adequate memorial of his absence to preserve the issue for appeal. *fn1 People v. Smith (1985), 106 Ill.2d 327, 334-35, 478 N.E.2d 357; People v. Oatis (1977), 47 Ill. App.3d 229, 231-32, 361 N.E.2d 1146.
The circumstances of this case are indistinguishable from People v. Murrell (1975), 60 Ill.2d 287, 326 N.E.2d 762, in which our supreme court noted that, although the preferred procedure is that the court shall not accept a waiver unless the defendant personally waives his right to trial by jury either in writing or orally before the court, this is not constitutionally required. There, the supreme court also reaffirmed its position that defense counsel's waiver of defendant's right to a jury trial in defendant's presence is a sufficient jury waiver if defendant does not object. (See also People v. Frey (1984), 103 Ill.2d 327, ...