People v. Tooles

People v. Tooles, Nos. 80995, 80997, 81002 cons. (10/17/97)

NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.

Docket Nos. 80995, 80997, 81002 cons.--Agenda 7--May
1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
TYREESE TOOLES, Appellee.--THE PEOPLE OF THE STATE OF
ILLINOIS, Appellant, v. WILLIAM FARMER, Appellee.--THE
PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DEMARCO
GRAY, Appellee.
Opinion filed October 17, 1997.

JUSTICE HEIPLE delivered the opinion of the court:
The sole question presented for our consideration is
whether a judgment of conviction must be reversed and the
cause remanded for a new trial where a trial court fails
to secure a defendant's written jury waiver in violation
of section 115--1 of the Code of Criminal Procedure of
1963 (725 ILCS 5/115--1 (West 1992)). The appellate
court, in each of the three cases allowed and
consolidated for our review (Tooles, 278 Ill. App. 3d
756; Farmer, No. 3--94--0163 (unpublished order under
Supreme Court Rule 23); Gray, No. 3--94--0299
(unpublished order under Supreme Court Rule 23)), held
that the absence of a written jury waiver necessitated
reversal and remand. For the reasons expressed below, we
disagree and hold that the failure to secure a written
jury waiver does not require a new trial where it can be
shown that the defendant's waiver was otherwise
understandingly made. 725 ILCS 5/103--6 (West 1992);
People v. Smith, 106 Ill. 2d 327, 334 (1985).
While the State concedes that defendants did not
execute written jury waivers as required by section 115--
1, it initially argues that the defendants have waived
any claims based on this error because they did not raise
them at trial and in their post-trial motions. See People
v. Enoch, 122 Ill. 2d 176, 186-87 (1988). Defendants
counter that the failure to procure a written jury waiver
is plain error under Rule 615(a), which excuses waiver
where, inter alia, the alleged error is so fundamental
that the defendant was denied a fair proceeding. 134 Ill.
2d R. 615(a). The waiver rule, however, is one of
administrative convenience and is not jurisdictional.
People v. Smith, 106 Ill. 2d 327, 333 (1985). Without
determining whether, in every case, the failure to secure
a written jury waiver warrants review under the plain
error rule, we shall consider the instant defendants'
jury waiver arguments because of the frequency with which
issues surrounding noncompliance with this requirement
have been arising in the appellate court. See Smith, 106 Ill. 2d at 333, citing People v. Rehbein, 74 Ill. 2d 435,
439 (1978) (merits may be reached despite waiver on
appeal where deciding issue will facilitate the uniform
administration of justice).
Section 115--1 of the Code of Criminal Procedure
provides:
"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."
(Emphasis added.) 725 ILCS 5/115--1 (West
1992).
On appeal, the State contends that the written waiver
requirement is procedural, and not substantive, thus
making noncompliance with section 115--1 amenable to a
harmless error analysis. The defendants counter that the
appellate court was correct in holding that the written
jury waiver requirement is substantive in nature,
necessitating a new trial where a jury is waived without
a written waiver. This court considers the question for
the first time here today.
In classifying the requirement as substantive in
nature, defendants rely upon two previous decisions of
this court which declared unconstitutional that portion
of section 115--1 requiring the State's agreement before
a defendant could waive his right to a jury. People ex
rel. Daley v. Joyce, 126 Ill. 2d 209 (1988); People v.
Gersch, 135 Ill. 2d 384 (1990). While these precedents do
not specifically concern the written jury waiver
requirement, defendants argue that their recognition of
the inviolate nature of the right to a jury trial
suggests that section 115--1's statutory written jury
waiver requirement cannot be excused under any
circumstances.
The State counters that the right of criminal
defendants to be unencumbered in exercising or waiving
their right to a jury, recognized in Joyce and Gersch, is
dispositive of nothing in the instant case. Joyce, 126 Ill. 2d 209; Gersch, 135 Ill. 2d 384. Section 115--1's
written jury waiver requirement does not impact a
defendant's constitutional right to choose whether to
have a jury trial. Instead of operating to give substance
to or define the defendant's constitutional right to
waive a jury, the writing requirement merely memorializes
the decision to exercise this right, further imparting to
the defendant the significance of the waiver. Thus, Joyce
and Gersch are readily distinguishable.
The defendants next analogize to People v. Nitz, 173 Ill. 2d 151 (1996), in an attempt to show that the
written waiver requirement is substantive and not
procedural. Nitz involved a defendant who, though he had
potentially ingested psychotropic medication during
trial, was tried without first having the benefit of a
fitness hearing. This court held that because the
ingestion of psychotropic medication during trial raises
a bona fide doubt as to a defendant's fitness, which
further requires an immediate fitness hearing, a new
trial was required where no such hearing transpired
because neither the reviewing court nor the lower court
could, nunc pro tunc, conduct a fitness hearing. Nitz,
173 Ill. 2d at 159, 164. Defendants argue that the same
conclusion must obtain in the instant case because the
written waiver requirement exists to insure that a
defendant has not been denied his constitutional right to
a jury trial.
What defendants' reliance on Nitz fails to
acknowledge, however, is that this court held that a
fitness hearing could not be conducted nunc pro tunc, and
that a new trial was instead required, because of the
impossibility of ascertaining a defendant's earlier
fitness to stand trial from the cold record or from some
after-the-fact forensic analysis. Nitz, 173 Ill. 2d at
163-64; People v. Gevas, 166 Ill. 2d 461, 471 (1995).
This is quite distinct from the instant case, where a
review of the cold record is more than adequate to
determine whether the defendants' jury waiver was made
understandingly pursuant to section 103--6 of the Code of
Criminal Procedure (725 ILCS 5/103--6 (West 1992)). Thus,
Nitz is of no avail to defendants.
Defendants also analogize to People v. Janes, 158 Ill. 2d 27 (1994), in an attempt to show that
noncompliance with the written jury waiver requirement
necessitates a new trial without regard for whether the
noncompliance was harmless error. Rule 604(d) requires,
inter alia, that where a defendant seeks to withdraw a
plea of guilty, defense counsel must file a certificate
indicating that the petition has been reviewed to insure
that it raises every practicable claim of error. In
Janes, this court held that noncompliance with Supreme
Court Rule 604(d)'s certificate requirement necessitates
a new trial without regard to whether the trial record
evidences that there was substantial compliance. Janes,
158 Ill. 2d at 35. Defendants argue that the same
conclusion must obtain in the instant case because the
written waiver requirement exists to insure that a
defendant has not been denied his constitutional right to
a jury trial.
Defendants' reliance on Janes, however, ignores this
court's rationale for requiring strict compliance with
Rule 604(d). Specifically, this court determined that
strict compliance with Rule 604(d)'s certificate
requirement was necessary to insure fundamental fairness
of its waiver rules, whereby any issue not raised by
defendant in his motion to withdraw his guilty plea is
deemed waived. Janes, 158 Ill. 2d at 35 (citing with
approval People v. Dickerson, 212 Ill. App. 3d 168, 171
(1991)). To avoid unjust application of its waiver rule,
this court requires that defense counsel review the
record to determine whether a defendant has raised all
the applicable arguments in his motion to withdraw the
guilty plea; the certificate requirement evidences that
this procedure has been followed. The waiver concerns of
Rule 604(d), however, do not apply in the instant case.
Regardless of whether a defendant has executed a written
jury waiver, he can still argue that his waiver was not
made understandingly as required by section 103--6 (725
ILCS 5/103--6 (West 1992)). Because noncompliance with
section 115--1's writing requirement does not, ipso
facto, result in a defendant's inability to contest the
constitutionality of his waiver, this court's analysis in
Janes does not control the outcome in this case.
Ultimately, section 115--1 seeks to insure that a
defendant's waiver of the right to a jury is made
understandingly in that it is both knowing and voluntary.
725 ILCS 5/103--6 (West 1992); Smith, 106 Ill. 2d at 334.
Section 115--1, however, does not define or give
substance to the constitutional right to a jury trial;
rather, it is prophylactic in nature, thus allowing a
court to conduct a review of the record to establish
whether a defendant's jury waiver was made
understandingly. While the written waiver requirement is
easy of application and should be complied with by trial
courts in every case, we hold that the failure to do so
does not result in reversal so long as the defendant's
waiver was made understandingly in accordance with
section 103--6 of the Code of Criminal Procedure. 725
ILCS 5/103--6 (West 1992); Smith, 106 Ill. 2d at 334.
In its opening brief, the State specifically argues
that the defendants' trial records evidence that each
defendant understandingly waived his right to a jury. The
defendants' response brief does not address this
contention, arguing instead that this question is
irrelevant because noncompliance with the written jury
waiver requirement necessitates a new trial regardless of
whether the oral waiver was knowing and voluntary.
Insofar as we have rejected the defendants' construction
of section 115--1, we review each defendant's trial
record to determine whether he understandingly waived his
right to a jury. In doing so we observe that, while the
circuit court must insure that a defendant's jury waiver
is understandingly made, no set admonition or advice is
required before an effective waiver of that right may be
made. Smith, 106 Ill. 2d at 334. The determination
whether a jury waiver was made understandingly instead
turns on the facts and circumstances of each particular
case. People v. Tye, 141 Ill. 2d 1, 24 (1990).

No. 80995
The preliminary hearing colloquy between defendant
Tyreese Tooles, defendant's counsel and the trial court
evidences that defendant's waiver was made
understandingly:
"MR. BURNS: Judge, this is up for setting
today. We'd like to enter a jury waiver and
have it set down for the bench trial as soon
as practical with the court.
THE COURT: Okay. Mr. Tooles, how old are
you?
DEFENDANT TOOLES: Twenty-four, sir.
THE COURT: Do you know what a jury trial
is?
DEFENDANT TOOLES: A-ha.
THE COURT: Can you tell me please?
DEFENDANT TOOLES: A jury trial is when
you try it in front of thirteen other people
and they decide all that.
THE COURT: You get twelve.
DEFENDANT TOOLES: Judge trial basically
you decide.
THE COURT: Constitution guarantees to you
a right to trial by jury, do you understand
that?
DEFENDANT TOOLES: Yes, I do.
THE COURT: Anybody promise you anything
to get you to give up your right to a trial by
jury?
DEFENDANT TOOLES: No.
THE COURT: Threaten you?
DEFENDANT TOOLES: No.
THE COURT: Agree with this?
MR. BURNS: Judge, I would.
THE COURT: Court will accept waiver of
right to trial by jury."
After an amended bill of indictment was filed, the
following additional admonition was had:
"MR. BURNS: This is also a waiver, Judge.
He waived at one point to the original Bill of
Indictment. There was an Amended Bill that was
filed.
THE COURT: Yeah. Mr. Tooles, Mr. Burns
indicates that you had previously waived your
right to trial by jury on the original Bill of
Indictment *** and now Mr. Burns indicates you
would again like to waive your right to trial
by jury.
DEFENDANT TOOLES: Yes, sir.
THE COURT: Remember everything I told you
last time?
DEFENDANT TOOLES: Right.
THE COURT: Still wish to give it up?
DEFENDANT TOOLES: Um-hum."
From this it follows that defendant understandingly
waived his right to a jury trial. The trial court insured
that defendant was aware of the difference between a jury
and bench trial and then informed defendant that he had
a constitutional right to a trial by jury. The court
further determined that defendant's desire to waive his
right to a jury trial was not the product of any promises
or threats. When an amended bill of indictment was filed,
the trial court ascertained that the defendant recalled
its previous admonitions after which the defendant
reasserted his desire to waive his right to a jury. Under
these facts and circumstances, the defendant's waiver was
understandingly made as contemplated by section 103--6.

No. 80997
The preliminary hearing colloquy between defendant
William Farmer, defendant's counsel and the trial court
evidences that defendant's waiver was made
understandingly:
"MR. LEE: *** Mr. Farmer's going to waive
jury and request a trial before the court.
THE COURT: How old are you, Mr. Farmer?
DEFENDANT FARMER: Twenty-six.
THE COURT: Mr. Farmer, do you understand
you are giving up your constitutional right to
a jury trial? Once you do that if there is a
trial it would be by the judge sitting without
a jury. Once you have done that you can't
change your mind about it. Do you understand
that?
DEFENDANT FARMER: Yes, sir.
THE COURT: All right, jury is waived."
Though the trial court's admonitions regarding
defendant's right to a jury trial were somewhat cursory,
they were nevertheless sufficient to insure that he
understandingly waived his right to a jury trial. The
trial court ascertained that defendant understood he had
a constitutional right to a trial by jury and that waiver
of this right was irrevocable. The court also apprised
defendant that waiving this right would result in a
judge, without a jury, deciding his case. We further
observe that defendant's criminal record consisted of
four previous convictions, through which he was
presumably familiar with his constitutional right to a
trial by jury and the ramifications attendant to waiving
this right. Under these facts and circumstances, the
defendant's waiver was understandingly made as
contemplated by section 103--6.


No. 81002
The preliminary hearing colloquy between defendant
Demarco Gray, defendant's counsel and the trial court
evidences that defendant's waiver was made
understandingly:
"MR. GERTS: Your Honor, at this time I
believe that Mr. Gray will waive his right to
a jury and ask for bench trials.
THE COURT: We have both these felonies
scheduled for trial today?
MR. GERTS: Yes, your Honor.
THE COURT: All right. Mr. Gray, how old
are you sir?
DEFENDANT GRAY: Seventeen.
THE COURT: Mr. Gray, you understand your
lawyer tells me you are going to waive, give
up, your right to a jury trial at this time?
Do you understand a jury trial is where we put
12 people in the jury box and they listen to
the evidence, they decide your guilt or
innocence? That is a constitutional right.
If you give up that right there is a
trial by the court sitting without a jury
called a bench trial or a trial by the court.
The judge listens to the evidence. He decides
what the facts are. He applies the law to the
facts. He decides your guilt or innocence.
Once you give up your right to trial by
jury if there is a trial at all it will be a
bench trial. Do you understand that?
DEFENDANT GRAY: Yes.
THE COURT: You have to say yes sir or no
sir. The court reporter has to hear you.
You have discussed this with Mr. Gerts?
DEFENDANT GRAY: Yes, sir.
THE COURT: And having discussed it with
him you have decided to give up your right to
a jury trial, is that correct?
DEFENDANT GRAY: Yes, sir.
THE COURT: Jury is waived ***."
From this it follows that defendant understandingly
waived his right to a jury trial. The trial court insured
that defendant was aware of the difference between a jury
and bench trial. The court then stressed that in a bench
trial it was the judge, as opposed to a jury, who would
decide the facts and apply the law to the facts in
deciding defendant's guilt or innocence. When defendant
thereafter indicated that he wanted to waive his right to
a jury, the court further ascertained that he had
conferred with his counsel on this issue before accepting
the waiver. Under these facts and circumstances, the
defendant's waiver was understandingly made as
contemplated by section 103--6.

CONCLUSION
In conclusion, we hold that the failure to procure
defendants' written jury waivers does not necessitate
reversal of their convictions because the record
otherwise evidences that defendants' jury waivers were
understandingly made. Accordingly, the judgments of the
appellate court are reversed and the judgments of the
circuit courts are affirmed.

Appellate court judgments reversed;
circuit court judgments affirmed.