The opinion of the court was delivered by: Justice Heiple
Agenda 11-September 1998.
The sole issue for consideration by this court is whether a written waiver alone validly waives a defendant's right to a jury trial. We hold that it does not.
Defendant executed a written jury waiver in his attorney's office, which was later filed outside of defendant's presence. Thereafter, on the day of trial and in defendant's presence, the following exchange occurred between his attorney and the trial Judge:
"MR. WILLIAMS [defendant's counsel]: And we would proceed to the bench trial today."
"THE COURT: Okay, Defendant files motion to dismiss. States Attorney given two weeks to file responsive pleading. Okay, we'll proceed to bench trial, then?"
"THE COURT: Okay, appreciate that., [sic] okay. We will then proceed with the bench trial. Mr. Vaughan, you may proceed."
Section 103-6 of the Code of Criminal Procedure of 1963 (Code) provides that a bench trial may be held if the right to trial by jury is "understandingly waived by defendant in open court." (Emphasis added.) 725 ILCS 5/103-6 (West 1992). Section 115-1 of the Code further provides that a waiver of jury trial should be in writing. 725 ILCS 5/115-1 (West 1992). Reading these provisions together, this court recently held that failure to file a written jury waiver does not require reversal "so long as the defendant's waiver was made understandingly in accordance with section 103-6 of the Code of Criminal Procedure." (Emphasis added.) People v. Tooles, 177 Ill. 2d 462, 468 (1997). Thus, a defendant validly waives his right to a jury trial only if made (1) understandingly; and (2) in open court. 725 ILCS 5/103-6 (West 1992).
We have never found a valid jury waiver where the defendant was not present in open court when a jury waiver, written or otherwise, was at least discussed. The State, however, argues that the references on the day of trial to proceeding with a bench trial constituted an acknowledgment of the waiver in open court. In People v. Frey, 103 Ill. 2d 327, 332 (1984), this court held that an accused typically speaks and acts through his attorney, and a jury waiver is valid when "made by defense counsel in defendant's presence where defendant gave no indication of any objection to the court hearing the case." Frey, 103 Ill. 2d at 332. However, the court also specifically noted that the defendant in Frey "was present at some point prior to trial when the jury waiver was discussed." Frey, 103 Ill. 2d at 333. In the instant case, it is undisputed that defendant was never present in open court when a jury waiver was discussed.
Additionally, the written jury waiver here stated that defendant had "until the last Thursday of December, 1994 to revoke this waiver of jury trial." This language creates an inference that the jury waiver was irrevocable after the last Thursday of December 1994. Thus, rather than find defendant's silence to be "acquiescence," as the court did in Frey, we find defendant's silence here may have been due to his belief that it was too late to revoke his jury waiver. Therefore, we cannot presume defendant's silence constituted a waiver in open court.
Finally, the significance of the references to proceeding with a bench trial is not as great as the State suggests. The references arose in a dialogue between defendant's attorney and the trial Judge concerning a motion to dismiss. The trial Judge had not ruled on the motion to dismiss as of the date of trial, and defendant's attorney agreed to allow the State two weeks to present a written response. From this context, it is clear that defendant's attorney, when stating he would proceed with a bench trial, was merely indicating that despite the pending motion to dismiss, defendant was ready to proceed. Consequently, the statement was not meant as an affirmative waiver, but instead as an indication to the court that defendant would proceed with trial despite the pending motion. Thus, the defendant never acknowledged the written jury waiver in open court, either affirmatively or through his silence. For the reasons stated, we hold that defendant did not validly waive his right to a jury trial in open court. Accordingly, the judgment of the appellate court reversing the judgment of the circuit court of Wayne County and remanding the cause for further proceedings (293 Ill. App. 3d 241) is affirmed.
Appellate court judgment affirmed.
JUSTICE MILLER, specially Concurring:
I concur. I agree with the majority's Conclusion that the circumstances in the present case fail to show that the defendant validly waived his right to a jury trial. Notably, the jury waiver signed by the defendant stated that it could not be revoked after a specified date. Thus, the defendant's subsequent silence in open court, when both defense counsel and the trial Judge referred to the impending proceeding as a bench trial, might not have represented acquiescence in the waiver, and instead could have simply been the product of the defendant's mistaken belief that he could no longer change his mind and demand a jury trial. ...