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01/12/96 PEOPLE STATE ILLINOIS v. DERRICK POTTS

January 12, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DERRICK POTTS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois. No. 94-CF-509. Honorable John Michela, Judge, Presiding.

Released for Publication February 16, 1996.

Present - Honorable Tom M. Lytton, Justice, Honorable Michael P. Mccuskey, Justice, Honorable Kent Slater, Justice. Justice Slater delivered the opinion of the court: Lytton, J., concurs. Justice McCUSKEY, specially concurring:

The opinion of the court was delivered by: Slater

The Honorable Justice SLATER delivered the opinion of the court:

The trial court found defendant Derrick Potts guilty of possession of explosive or incendiary devices (720 ILCS 5/20-2 (West 1994)) and sentenced him to a six-year term of imprisonment. On appeal, defendant argues that his conviction must be reversed and the cause remanded because he did not make a written waiver of jury trial. The State responds that defendant waived this issue, a written jury waiver was not required, the statute requiring written waivers is unconstitutional, and any error was harmless.

The right to a jury trial is a substantial right, the waiver of which this court will consider even when the issue is not properly preserved for appeal. ( People v. Jennings (1994), 268 Ill. App. 3d 439, 644 N.E.2d 1199, 206 Ill. Dec. 146; see also People v. Daniels (1995), 273 Ill. App. 3d 645, 653 N.E.2d 408, 210 Ill. Dec. 503.) Section 115-1 of the Code of Criminal Procedure of 1963 provides that all criminal trials shall be tried before a jury unless the defendant waives a jury trial in writing. (725 ILCS 5/115-1 (West 1994).) The statute is mandatory. ( People v. Nuccio (1994), 263 Ill. App. 3d 315, 636 N.E.2d 1154, 201 Ill. Dec. 722.) The statute insures that a defendant's personal right to waive a jury trial is not lightly relinquished, and it is not unconstitutional. ( Jennings, 268 Ill. App. 3d 439, 644 N.E.2d 1199, 206 Ill. Dec. 146.) For these reasons, we reject the State's arguments. We reverse defendant's conviction, and we remand the cause for a new trial.

Reversed and remanded.

LYTTON, J., concurs.

The Honorable Justice McCUSKEY, specially concurring:

I concur because I recognize that Jennings, a decision of this court, is directly on point. Accordingly, I feel bound by stare decisis. However, I write separately because I believe Jennings was incorrectly decided and will result in unnecessary retrials.

It is very important to recognize that the defendant in this case freely, voluntarily and knowingly waived his right to a jury trial in open court. No one disputes the trial court's finding on this issue. The only trial error claimed in this appeal is that the defendant did not additionally sign a document waiving his right to a jury trial. Otherwise, there is no dispute that the defendant has received a fair trial in every respect. Moreover, the defendant does not contend that he was prejudiced by his failure to sign a written document waiving his right to a jury trial. Nevertheless, Jennings requires us to grant the defendant a new trial.

My first reason for opposing a remand in this case is because the defendant has waived review of the issue regarding a written jury waiver. Under People v. Enoch (1988), 122 Ill. 2d 176, 186-87, 522 N.E.2d 1124, 1130, 119 Ill. Dec. 265, an issue is not preserved for review unless the error was raised by both an objection at trial and a post-trial motion. In the instant case, as in Jennings, no objection was made at trial; and the issue was not raised in the post-trial motion. The Jennings court rejected the State's waiver argument, stating that "the right to a jury trial is a substantial right, and issues regarding the waiver of that right should be considered even when not properly preserved." Jennings, 268 Ill. App. 3d at 444, 644 N.E.2d at 1203; see also People v. Daniels (1995), 273 Ill. App. 3d 645, 646, 653 N.E.2d 408, 409-10.

However, statutory requirements concerning the right to a jury trial have been waived when not raised in the trial court. In People v. Johnson (1990), 206 Ill. App. 3d 318, 564 N.E.2d 232, 151 Ill. Dec. 255, the defendant was convicted of burglary following a jury trial in Macon County. On appeal, the defendant argued that his conviction should be reversed because one of the jurors, Phillips, was not a resident of the county. The defendant argued that Phillips was not qualified to be a juror according to the express requirements of sections 1 and 2 of the Jury Act (705 ILCS 305/1, 305/2 (West 1992)). The court found the defendant waived his objection to Phillips' jury service by failing to raise it during trial. Johnson, 206 Ill. App. 3d at 326, 564 N.E.2d at 237-38.

Also, I do not believe that a substantial right accruing to the defendant was involved in Jennings, nor is it involved here. The defendant in each case freely and voluntarily waived his right to a jury trial in open court. (Cf. People v. Watson (1993), 246 Ill. App. 3d 548, 616 N.E.2d 649, 186 Ill. Dec. 459.) In my opinion, a defendant does not have a "substantial right" to sign a document waiving his right to a trial by jury after he has knowingly and intelligently waived that right in ...


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