The opinion of the court was delivered by: Justice McMORROW
Docket No. 89138-Agenda 4-January 2001.
Defendant, Willie Lindsey, was charged by indictment with one count of unlawful possession of a controlled substance (cocaine) with the intent to deliver (720 ILCS 570/401(c)(2) (West 1996)) and one count of unlawful possession of cannabis with the intent to deliver (720 ILCS 550/5(d) (West 1996)). Following a bench trial in the circuit court of Kankakee County, defendant was found guilty of the charged offenses and later sentenced to concurrent terms of imprisonment for periods of 10 years and 4 years, respectively.
Direct appeal was taken to the appellate court. There defendant argued, for the first time, that his appearances in the trial court via closed circuit television at the time of arraignment and jury waiver violated his constitutional and statutory right to be present. The appellate court rejected defendant's arguments and affirmed defendant's convictions and sentences. 309 Ill. App. 3d 1031.
We allowed defendant's petition for leave to appeal. 177 Ill. 2d R. 315. For reasons that follow, we affirm the judgment of the appellate court.
On October 8, 1997, at about 9 p.m., Kankakee police officers executed a search warrant at the home of defendant's girlfriend, Nikeya Hairston. In the course of the search, police recovered drugs and drug paraphernalia. Both Hairston and defendant were present during the search and both were arrested.
The record shows that, on October 9, 1997, an information containing the charges against defendant was filed with the court and a copy furnished to defendant. A hearing was held, at which time defendant was advised of the minimum and maximum penalties, the right to a jury trial and the right to counsel. The court, at defendant's request, appointed the public defender's office to represent defendant. It is unclear from the record whether defendant appeared in person or by closed circuit television for this hearing.
On October 17, 1997, the grand jury returned a bill of indictment against defendant and on October 23, 1997, defendant was arraigned. At the arraignment, defendant was represented by counsel, who was present in the courtroom. Defendant, however, appeared via closed circuit television from the jail. Defense counsel acknowledged receipt of the indictment, waived its formal reading, requested statutory discovery, and demanded a jury trial.
Immediately following arraignment, the court held a hearing on defendant's bond-reduction motion. Defendant testified via closed circuit television in support of the motion. After hearing the testimony, the court denied the motion and defendant remained in custody.
The record shows that, between arraignment and trial, the circuit court conducted eight pretrial hearings regarding defendant's case. Defendant was not physically present in the courtroom at any of these hearings. Instead, defendant "appeared" at the hearings via closed circuit television from a room within the county jail. Defense counsel, however, appeared in the courtroom. Defendant and counsel had no opportunity for immediate communication with each other, unless it was done through the closed circuit system, which meant that the judge and other attorneys could hear their conversation. To speak privately with defendant, defense counsel had to leave the courtroom and contact defendant by telephone. The record does not disclose whether separate, secure telephone lines were set aside for this purpose.
One of the pretrial hearings occurred on February 4, 1998. Although the case had been set for trial on that date, the State moved for a continuance because certain witnesses were unavailable. After the court granted the continuance, defendant, who was present via closed circuit television, asked to speak to his attorney. The case was recessed so that defense counsel could telephone defendant. When the case was recalled, the court was advised by counsel that defendant wanted to waive his right to a jury trial. The court, speaking to defendant across the closed circuit system, admonished defendant regarding his right to a jury trial. Finding that defendant understood his right to trial by jury and was voluntarily giving up that right, the court accepted defendant's jury waiver. A jury waiver form was then signed by defendant at the jail and later transmitted to the court.
After the jury waiver was accepted, the court inquired about possible stipulations. Defense counsel conferred publicly with defendant across the closed circuit system. The following colloquy took place:
"[DEFENSE COUNSEL]: Judge I think-Mr. Lindsey the Judge is asking you about the lab.
[DEFENSE COUNSEL]: Since our defense does not involve saying that this is not-that the materials were found [sic] were not-I believe it's alleged to be cocaine, but rather they were not our materials, do you have any objection to stipulating that what the substance of the police [sic] found was in fact cocaine?
DEFENDANT LINDSEY: Well, your Honor, I have a-
THE COURT: Do you understand your lawyer's-
DEFENDANT LINDSEY: That report right here.
[DEFENSE COUNSEL]: Right, but it makes a difference in scheduling if they need to bring the lab personnel down here to testify that they tested the materials and it tested positive for the presence of cocaine. If we agree that testing was done and it returned as positive for cocaine, then they don't need to bring in those lab personnel down here.
DEFENDANT LINDSEY: Right. Well according to these documents they tested it already.
[DEFENSE COUNSEL]: Right, but what I'm asking you is if you will agree and will enter into what is called a stipulation for the Court and for the record we say, Judge, we don't dispute that they tested it and it tested positive for cocaine. In other words, rather than having the lab person who tested it come down here and testify as to the test performed and the results of those tests that it was positive for cocaine, that would just be introduced to the Court by way of agreement.
THE COURT: It shortens up the trial if you're not fighting about whether or not it was cocaine Mr. Lindsey. Do you understand that?
Defendant agreed to stipulate to the lab evidence and the trial date was continued to February 9, 1998. On that date, the State requested another continuance because fingerprint evidence was not yet available. Before granting the motion, the court discussed the possibility of proceeding to the trial, with the fingerprint evidence to be presented at a later date. This colloquy followed:
"[DEFENSE COUNSEL]: Mr. Lindsey, do you understand what the judge is asking about? It would be a bifurcated proceeding. We'd start today. They would put on any evidence except evidence relating to fingerprints that might or might not have been found on these baggies. Do you understand?
DEFENDANT *** LINDSEY: Yes, sir.
[DEFENSE COUNSEL]: So we'd be starting without the results of whether there is any fingerprints on there. Do you have any objection to that?
THE COURT: You want to talk to him privately?
[DEFENSE COUNSEL]: Sure, Judge.
THE COURT: Why don't you go to the phone, Mr. Lindsey. You and your lawyer can confer privately on that.
DEFENDANT *** LINDSEY: Okay."
Counsel then left the courtroom to telephone defendant. When court reconvened, defense counsel informed the court that defendant would not proceed to trial without knowing all of the evidence against him. The court granted the continuance over defendant's objection and a new trial date was set.
Defendant's bench trial commenced on April 10, 1998. Defendant appeared in court with counsel for his trial. The State presented evidence linking defendant to the drugs and drug paraphernalia recovered from Hairston's home. After hearing all of the evidence, the circuit court found defendant guilty of possession of a controlled substance (cocaine) with intent to deliver and possession of cannabis with the intent to deliver. Defendant does not question the sufficiency of the evidence presented against him.
Defendant appealed and, for the first time, challenged his closed circuit television appearances at arraignment and jury waiver. Defendant argued that arraignment and jury waiver are "critical stages" of the criminal proceedings against him and that, in the absence of an express waiver, he had a constitutional right to be physically present at these hearings.
Defendant also maintained that his statutory right to be present in the trial court at the time of his arraignment and jury waiver was violated. Section 113-1 of the Code of Criminal Procedure of 1963 (Code) provides:
"Before any person is tried for the commission of an offense he shall be called into open court, informed of the charge against him, and called upon to plead thereto. If the defendant so requests the formal charge shall be read to him before he is required to plead." (Emphasis added.) 725 ILCS 5/113-1 (West1998).
Similarly, section 103-6 of the Code of Criminal Procedure provides:
"Every person accused of an offense shall have the right to a trial by jury unless (i) understandingly waived by defendant in open court ***." (Emphasis added.) 725 ILCS 5/103-6 (West 1998).
Defendant argued that his appearances via closed circuit television at the time of his arraignment and jury waiver did not satisfy the statutory requirement that he be present in "open court" at these proceedings.
Finally, defendant maintained that the circuit court had no authority to hold any pretrial proceedings via closed circuit television because the court had not adopted rules regarding the use of closed circuit television, as required by section 106D-1 of the Code. Section 106D-1 provides:
"When a defendant's personal appearance is not required by the Constitution of the United States or Illinois Constitution, the court may allow the defendant to personally appear at any pre- trial or ...