Appeal from the Circuit Court of Fayette County. No. 95-CF-108 Honorable Dennis M. Huber, Judge, presiding.
The opinion of the court was delivered by: Justice Hopkins
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
Rule 23 Order filed March 31, 1999;
Motion to publish granted
The defendant, Barry Matthews, was convicted by a six-person jury of aggravated criminal sexual assault and was sentenced to 20 years' imprisonment. On appeal, defendant raises the issues of whether he made a valid waiver of a 12-person jury and whether the sentence was an abuse of the trial court's discretion. Due to our Disposition of this appeal, only the first issue will be discussed.
There are only four references to a six-person jury in the record. In chambers, in defendant's presence, prior to the selection of the jury, the following colloquy occurred:
"[Defense counsel]: I think we will be asking for a six[-]person jury."
"The Court: The State indicated, I talked to the State and I talked to [defense counsel] yesterday about that possibility and the State had no objection."
"[State's Attorney]: That's correct."
The second reference occurred when the court addressed the potential jurors as follows: "[The trial] will be a little bit different in the sense we're only going to use a six-person jury. Normally, in a criminal case you would have a twelve-person jury, what you would be used to seeing on TV. But, we're going to go with a six-person jury and one alternate." The third is on the docket sheet: "Defendant present with counsel for jury trial. State's Attorney present. Defendant waives jury of 12 and requests jury of six. State's [Attorney] does not object. Jury selected." The last reference occurs in defendant's posttrial motion: "The court failed to obtain a written or oral waiver of trial by jury consisting of twelve members." Although the issue was raised in defendant's posttrial motion, it was not argued at the hearing on the motion.
This court has found few cases dealing with a defendant's waiver of less than a 12-person jury prior to the start of a jury trial. The fourteenth amendment to the United States Constitution guarantees defendants in State criminal proceedings a right to a trial by jury where the offense charged is such that if the case were tried in a federal court, sixth amendment rights would apply. People v. Quinn, 46 Ill. App. 3d 579, 581, 360 N.E.2d 1221, 1223 (1977). A jury of six persons is sufficient in size to meet that constitutional requirement. Quinn, 46 Ill. App. 3d at 581, 360 N.E.2d at 1223. Article I, section 13, of the Illinois Constitution of 1970 provides, "The right of trial by jury as heretofore enjoyed shall remain inviolate." The minutes of the Sixth Constitutional Convention indicate that the Bill of Rights Committee which drafted article I did not intend to empower the legislature to deny a defendant in a criminal case the right to have a jury of 12 persons to decide his case, but it did intend to permit the defendant to waive that right. See Quinn, 46 Ill. App. 3d at 582, 360 N.E.2d at 1223. Section 103-6 of the Code of Criminal Procedure of 1963 provides that an accused has the right of trial by jury "unless understandingly waived by defendant in open court" (725 ILCS 5/103-6 (West 1996)). Therefore, the issue raised is one of Illinois law and not Federal constitutional law.
In People v. Scudieri, 363 Ill. 84, 1 N.E.2d 225 (1936), counsel for the State and counsel for each of the defendants expressly stipulated and consented that the cause would be heard by 11 jurors in lieu of 12, as there were only 11 persons available on the panel. Our supreme court reasoned that if a defendant could waive an entire jury, a defendant could also waive one or more jurors so long as the State and the court concurred. Our supreme court held that no error was committed by the trial court in proceeding to the trial of the case with a jury composed of only 11 members. Scudieri, 363 Ill. at 87, 1 N.E.2d at 227.
In Scudieri, the waiver was made by the stipulations of counsel, and the opinion does not indicate whether the waiver was made in open court, whether the defendants were present, or what explanation had been made to the Scudieris of their rights. Quinn, 46 Ill. App. 3d at 582, 360 N.E.2d at 1223.
In People v. Pierce, 369 Ill. 172, 15 N.E.2d 845 (1938), prior to the start of trial, it was stipulated by the defendant, his trial counsel, and the People that the court should allow the trial to proceed with only 11 jurors, because the jury panel was exhausted. Pierce, 369 Ill. at 175, 15 N.E.2d at 846. On appeal, Pierce alleged that proceeding with an 11-person jury was error. Our supreme court held that the point is procedural; therefore, the defendant could not take advantage of a circumstance that arose only through his own action and consent. Pierce, 369 Ill. ...