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06/12/96 PEOPLE STATE ILLINOIS v. ERIC N. MUELLER

June 12, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ERIC N. MUELLER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Washington County. No. 92-CF-51. Honorable Lloyd A. Karmeier, Judge, presiding.

Presiding Justice Hopkins delivered the opinion of the court: Welch and Maag, JJ., concur.

The opinion of the court was delivered by: Hopkins

PRESIDING JUSTICE HOPKINS delivered the opinion of the court:

After a bench trial, the defendant, Eric N. Mueller, was found guilty of reckless homicide and other related traffic offenses. Defendant was sentenced to five years' imprisonment. On appeal, defendant argues that his conviction must be reversed, because he did not sign a written jury waiver. For reasons we will more fully explain, we affirm.

In Illinois, there are two statutes that govern a criminal defendant's rights to receive or waive a trial by jury. Section 103-6 of the Code of Criminal Procedure of 1963 provides, in relevant part, as follows:

"Every person accused of an offense shall have the right to a trial by jury unless (i) understandingly waived by defendant in open court ***." 725 ILCS 5/103-6 (West 1992).

Section 115-1 provides for the method by which a defendant may waive his right to a jury trial.

"Method of Trial. All prosecutions except on a plea of guilty or guilty but mentally ill shall be tried by the court and a jury unless the defendant waives a jury trial in writing." 725 ILCS 5/115-1 (West 1992).

In the trial court below, prior to the bench trial, defendant was advised of his right to a trial by jury on the record, in the presence of his attorney and in open court. Defendant stated that he understood that he had a right to a jury trial but that he wanted to waive his right to a jury trial, that he understood what the court meant by a bench trial, and that he wanted a bench trial. Defendant did not sign a written waiver of his right to a jury trial before or after the trial. Defendant filed a posttrial motion, but he did not raise the issue of the lack of a written jury waiver in that motion.

On appeal, defendant argues only that the lack of a written jury waiver form requires this court to reverse his conviction and remand his case for a new trial. Defendant does not refute the State's argument that he knowingly and voluntarily waived his right to a jury trial and that his stipulated bench trial was fair. The State additionally argues that the error of not having defendant sign a written jury trial waiver is harmless error that defendant has waived, since he did not raise the issue in his posttrial motion.

We find that the lack of a written jury waiver is harmless error under the circumstances of the case. Normally, we would consider an error such as this waived for purposes of our review, since defendant did not raise the issue in his posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 119 Ill. Dec. 265, 522 N.E.2d 1124 (1988). Nevertheless, due to the importance of the issue and the arguments raised by defendant, we choose to consider the merits of this issue.

Defendant argues that the trial court's failure to obtain a written waiver of jury trial cannot be considered harmless error. Defendant cites Arizona v. Fulminante, 499 U.S. 279, 309-10, 113 L. Ed. 2d 302, 331, 111 S. Ct. 1246 (1991), for the proposition that the form of the trial, whether jury or bench, is part of the framework within which a trial proceeds and, therefore, any defect, including the lack of a writing to memorialize defendant's oral waiver of jury trial, is not subject to harmless error analysis. Defendant's argument is flawed.

In the Fulminante case, the United States Supreme Court was not referring to the form in which a defendant is allowed to waive a jury trial, which is at the heart of the issue before this court. On the contrary, the Court in Fulminante determined that constitutional deprivations such as the complete deprivation of counsel or the presence of a judge who is biased affect "the framework within which the trial proceeds" and are different from errors in the trial process itself. Fulminante, 499 U.S. at 309-10, 113 L. Ed. 2d at 331, 111 S. Ct. at 1265.

In the case at bar, defendant does not argue that there was any error in the bench trial, that he was prejudiced in any way by proceeding in a bench trial rather than in a jury trial, or that his bench trial was in any way unfair. Defendant argues, in essence, that the form of the waiver of his substantial right to a jury trial must take ...


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