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11/07/95 PEOPLE STATE ILLINOIS v. JOHN R. SANDHAM

November 7, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOHN R. SANDHAM, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Livingston County. No. 93CF59. Honorable Charles H. Frank, Judge Presiding.

Released for Publication December 11, 1995. As Corrected January 9, 1996. Petition for Leave to Appeal Allowed January 31, 1996.

Justices: Honorable John T. McCULLOUGH, J., Honorable Rita B. Garman, J., Honorable Robert J. Steigmann, J., Specially Concurring

The opinion of the court was delivered by: Mccullough

JUSTICE McCULLOUGH delivered the opinion of the court:

Following a bench trial conducted in the circuit court of Livingston County, defendant John Sandham was found guilty of aggravated criminal sexual abuse. (720 ILCS 5/12-16(c)(1)(i) (West 1992).) Defendant was sentenced to five years' imprisonment, with credit for 344 days previously served.

The issues are whether (1) defendant is entitled to a new trial because the trial court failed to secure his signed, written waiver of jury trial or, in the alternative, because defendant did not knowingly and voluntarily waive his right to a jury trial; (2) reversible error occurred when the trial court failed to sua sponte order a fitness hearing prior to trial or sentencing; (3) the trial court erred in admitting hearsay statements of the victim without properly determining their reliability; (4) defendant was improperly convicted of aggravated criminal abuse based on evidence of an incident involving the victim with which defendant was not charged; (5) the trial court improperly excluded testimony offered by defendant to establish defendant's character and reputation for morality and decency; and (6) defendant was proved guilty of aggravated criminal sexual abuse beyond a reasonable doubt. We affirm.

The facts will not be reviewed in detail.

The first issue is whether defendant is entitled to a new trial because the trial court failed to secure his signed, written waiver of jury trial or, in the alternative, because defendant did not knowingly and voluntarily waive his right to a jury trial. On March 26, 1993, in open court, the defendant's counsel advised the trial judge that defendant would (1) waive preliminary hearing, (2) plead not guilty, and (3) "also be waiving jury and asking that this matter be set at the court's earliest convenience for bench trial." The State concedes that defendant did not sign a written jury waiver. The defendant concedes, by arguing plain error, that the issue was not raised in the trial court.

In People v. Daniels (1995), 273 Ill. App. 3d 645, 646-47, 653 N.E.2d 408, 409-10, 210 Ill. Dec. 503, this court reversed because of the absence of a written jury waiver, declined to find waiver of the issue on appeal, and rejected the State's arguments regarding separation of powers and harmless error. We find Daniels distinguishable from the case at bar and further find that the failure to obtain a written jury waiver in this case amounted to harmless error.

In Daniels, this court said that the signing of an order by the defendant did not satisfy the requirement of written jury waiver because the record did not indicate the defendant understood the term "bench trial." In Daniels, the defendant also raised an issue of whether his jury waiver was knowing, intelligent, and voluntary, and this court considered that issue along with the question of whether the jury waiver must be in writing. The Daniels decision was based not only on the absence of a written jury waiver, but on our determination that the waiver was not knowing, intelligent, and voluntary. In this case, the trial judge took greater pains to explain what a waiver of a jury trial meant. Defendant nevertheless argues that the trial judge's explanation in this case was confusing and he could not have fully appreciated the right he was waiving. Defendant also points to the deficiencies in defendant's mental stability to support the argument.

There is no set formula for determining whether a waiver was knowingly made. ( People v. Roberts (1994), 263 Ill. App. 3d 348, 351, 636 N.E.2d 86, 88-89, 200 Ill. Dec. 895.) Without going into defendant's mental condition, which will be addressed in the analysis of the next issue, defendant's oral waiver of jury trial in open court was understandingly made. (725 ILCS 5/103-6 (West 1992).) There was an affirmative statement by defendant's attorney made in the presence of defendant and inquiry directed by the trial court to the defendant. The defendant was advised that he had a right to a jury trial or a trial by a judge. While the trial judge could and should have gone into more detail in his admonishments, under the totality of the circumstances, defendant understood he was agreeing to not be tried by a jury.

The legislature has stated that waiver of a jury trial be evidenced by a written document. This requirement is not confusing and can easily be complied with by the trial court. We do not condone the failure to obtain a written jury waiver. However, we decline to find that the failure to obtain a written waiver of jury trial requires reversal of a defendant's conviction in all cases. (See People v. Jennings (1994), 268 Ill. App. 3d 439, 444-46, 644 N.E.2d 1199, 1203-04, 206 Ill. Dec. 146; People v. Nuccio (1994), 263 Ill. App. 3d 315, 316-17, 636 N.E.2d 1154, 1155-56, 201 Ill. Dec. 722.) In this case, the failure to obtain a written waiver was harmless error.

The next issue is whether reversible error occurred when the trial court failed to sua sponte order a fitness hearing prior to trial or sentencing. In a letter addressed to the trial judge, and filed March 30, 1993, defendant requested a 14-year sentence without good time and concluded, "Then I can proceed with my real life and have no regrets about ending this one." At a pretrial hearing conducted April 22, 1993, defendant's counsel asked the court for permission to employ a psychiatrist for the purpose of determining defendant's fitness. Defendant's attorney indicated he would follow the oral request with a written motion, and if the court would indicate whether it would grant such a motion, he would arrange the exam. The trial court indicated it would grant the motion. Defendant's attorney stated he would furnish an order. No written motion was filed and no written order was entered. Subsequently, there was a motion to continue asserting in part defendant was admitted to the psychiatric ward at BroMenn Hospital on May 10, 1993.

The jury trial commenced on September 13, 1993. The State presented four witnesses in its case in chief. The defendant presented his own testimony and the testimony of four other witnesses. We have thoroughly reviewed the evidence presented. None of the evidence presented by defendant ...


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