Appeal from the Circuit Court of Kane County. No. 98--CM--274 Honorable Franklin D. Brewe, Judge, Presiding.
Thomas and Rapp, JJ., concur.
The opinion of the court was delivered by: Justice McLAREN
Following a bench trial, defendant, Margit R. Lundgren, was found guilty of obstructing a peace officer (720 ILCS 5/31--1 (West 1998)).
Defendant was sentenced to six months of non-reporting conditional discharge and a fine of $185. Defendant timely appeals and contends that her conviction must be reversed (1) because the State failed to prove her guilty beyond a reasonable doubt, and (2) because the record fails to show that she understandingly waived her right to a jury trial. We reverse and remand.
A recitation of the facts is necessary because defendant contends that the evidence was not sufficient to prove her guilty beyond a reasonable doubt. According to a certified bystander's report, defendant was charged with obstructing a peace officer and unlawful delivery of alcoholic liquor to a minor. Defendant did not file a motion to quash arrest on either charge. The State nol-prossed the charge of unlawful delivery of alcoholic liquor to a minor and proceeded to trial only on the charge of obstructing a peace officer.
The certified bystander's report contains the following facts regarding the proceedings at trial on June 9, 1998. The State's only witness at trial was Scott Harmon, a Maple Park police officer. Harmon testified that he had been an officer with the Maple Park police department for 1½ years. On January 1, 1998, at about 1 a.m., Harmon went to the door of defendant's residence. Harmon testified that defendant opened the door slightly but then attempted to close the door when she saw that it was the police. Harmon stopped defendant from closing the door by putting his foot in the doorway. Harmon testified that he told defendant that he had a complaint for her arrest. Harmon testified that defendant "told him to get out" and "put her hand on his chest and pushed him out the door." According to Harmon, the door was then opened and defendant was placed in custody without further resistance. On cross-examination, Harmon acknowledged that he did not have a warrant for defendant's arrest.
After the trial court denied her motion for a directed finding, defendant presented her case. Louie Dell, a neighbor of defendant's, testified that he was with defendant when Officer Harmon came to defendant's door, that defendant opened the door about four inches, and that Harmon then started pushing the door. Dell also testified that defendant told Harmon that he was not welcome there and that when defendant said that to Harmon she put her hand on Harmon's chest. According to Dell, Harmon then came into defendant's home and placed her under arrest. On cross-examination, Dell testified that Harmon did not say anything when he first came to defendant's door.
Defendant testified that when Harmon came to her door she opened the door and Harmon asked her if she was Margit Lundgren. Defendant also testified that when she answered affirmatively Harmon began to walk into her home and she told him that he was not an invited guest. Defendant acknowledged that when Harmon began to enter her home she put her hand on his chest to stop him from entering.
The trial court found defendant guilty of obstructing a peace officer. The trial court subsequently denied defendant's posttrial motion that sought the reversal of her conviction or a new trial. Defendant's timely notice of appeal followed.
On appeal, defendant contends that her conviction must be reversed because the State failed to prove her guilty beyond a reasonable doubt and because the record fails to show that she understandingly waived her right to a jury trial.
We first address the jury waiver issue. The certified bystander's report does not directly address or otherwise refer to a waiver by defendant of her right to a jury trial. The only pertinent document in the common law record is an order that was entered on April 28, 1998. The order is a preprinted form with certain boxes checked. Next to one of the checked boxes is the following text: "Defendant is present in open court." Next to another checked box is "case continued to 6/9/98." Next to another checked box is "by agreement." And next to another box is "bench trial."
Defendant argues that this record fails to show that she was advised of her right to a jury trial or that she validly waived that right and therefore her conviction must be reversed. The State first responds that defendant has waived the issue of jury waiver by failing to raise it in the trial court.
Even if defendant did not raise the jury waiver issue in the trial court, we elect to address the issue because of the fundamental right involved. The right of a defendant to a jury trial in a criminal prosecution is constitutionally guaranteed. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §§8, 13. Consequently, courts have a duty to ensure that a defendant's waiver of this right is expressly and understandingly made. People v. Taylor, 291 Ill. App. 3d 18, 20 (1997).
The State next argues that defendant is not entitled to reversal of her conviction on the merits of the jury waiver issue. In the State's view, the record is adequate to show that defendant understandingly waived her right to a jury trial. The State also takes the position that defendant is not entitled to reversal ...