No. 2--04--0565 Filed: 2/16/06 _________________________________________________________________________ _____
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT _________________________________________________________________________ _____
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 01--TR--77114 ) WALTER L. THORNTON, Honorable) ) Peter J. Dockery, Defendant-Appellant. ) Judge, Presiding. _________________________________________________________________________ ______
JUSTICE BOWMAN delivered the opinion of the court:
Following a bench trial, defendant, Walter L. Thornton, was convicted of leaving the
scene of an accident without exchanging personal information (625 ILCS 5/11--402(a)
(West 2000)) and sentenced to one year of conditional discharge and five days of work in
the Sheriff's Work Alternative Program (SWAP). Defendant's sole contention on appeal is
that the record fails to establish that he validly waived his right to a jury trial. We reverse
and remand.
I. BACKGROUND
On May 11, 2001, defendant was involved in a two-car accident on County Farm
Road in Carol Stream and was subsequently charged with leaving the scene of an accident without exchanging personal information. On August 28, 2001, a public defender was
appointed to represent defendant.
The first transcript that appears in the record is dated December 11, 2001. On that
date, defendant appeared in court and his attorney, assistant public defender Julia Yetter,
answered ready for trial. While the State also answered ready for trial, the trial date was
continued to March 11, 2002, because defendant's case was not the oldest case on the
court's docket.
Defendant appeared in court on the morning of March 11, 2002. At that time, the
court informed defendant that the case was being passed until "1:30 for bench trial," to
which defendant replied, "Okay." According to the record, attorney Yetter was also present,
although the trial court advised defendant to "inform Ms. Yetter and return at 1:30 or as she
directs you to." At 1:30 p.m., in defendant's presence, attorney Yetter explained to the
court that, although she had answered ready for trial that morning, a defense witness had
since become unavailable and a continuance was necessary. The trial court denied this
motion, but ultimately continued the case due to the precedence of another trial.
Specifically, the court stated, "[Defendant], that being a bench trial, I'll set it for the bench
trial week of July 1st." However, following a discussion regarding the witnesses' and
defendant's availability, the court continued the case to June 14 "for bench trial." According
to the record, a written jury waiver, signed by defendant and attorney Yetter, was filed on
March 11, 2002. In addition, the record contains a written docket entry for March 11, 2002,
stating that "D waives JT; 5 witnesses present-cont. on ct. mtn. 6-14-02 @ 9:30, [courtroom
number], F/BT." No. 2--04--0565
On May 17, 2002, the State moved for a continuance, and the court held a hearing
on the motion on May 31, 2002. The record does not indicate that defendant was present
at that hearing, and a different assistant public defender, Nina Zahrieh, appeared on his
behalf. After the court granted the continuance, attorney Zahrieh stated, "I believe, Judge,
it's a bench trial also," to which the court responded, "Yes. To October 11th for bench trial."
Defendant failed to appear in court on October 11, 2002, however, and a warrant was
issued for his arrest.
On October 25, 2002, defendant appeared in court with attorney Zahrieh. Attorney
Zahrieh explained that defendant was absent on October 11, 2002, because he was
mistaken as to the October court date and because an order of protection prevented him
from retrieving from his home the papers stating the court date. The court said to
defendant, "What occurred, sir, was that on May 31st, the matter was continued to October
11th for bench trial." The court then questioned attorney Zahrieh about whether defendant
was notified of "the State's motion to continue the matter for bench trial." Attorney Zahrieh
advised the court that efforts had been made to contact defendant at his old address, but
that he had moved. The court quashed the arrest warrant and stated that the "matter will
be continued for bench trial." In particular, the court continued the case to "February 14th
at 9:30 for bench trial."
On February 14, 2003, defendant appeared in court with another assistant public
defender, Elizabeth Reed, who was standing in for John Casey, the public defender
handling the case. Attorney Reed informed the court that attorney Casey was sick, and
she requested a continuance. The court continued the case to March 14, 2003, "for bench
trial."
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Defendant appeared in court on March 14, 2003, and the State answered ready for
trial. When the court asked defendant whether he had spoken to his public defender,
however, defendant replied "no." The court then passed the case until later that day, at
which time attorney Casey answered ready for trial. The court stated, "[w]e will proceed to
a bench trial." Following the bench trial, defendant was convicted of the charged offense
and sentenced to one year of conditional discharge and five days of SWAP. The court
admonished defendant regarding his right to appeal and his right to request a new trial and
sentencing hearing.
Defendant subsequently mailed a letter to the court, postmarked April 4, 2003,
requesting an appeal and stating grounds for relief. The circuit clerk failed to notify the trial
court of defendant's request, however, and the court did not learn of defendant's letter until
December 18, 2003. Finding that it was the clerk and not defendant who erred, the trial
court determined that defendant's request to file a notice of appeal was timely. The court
ordered the clerk to file a notice of appeal, and a public defender was appointed.
On March 26, 2004, this court dismissed the case and remanded it to the trial court
with directions to treat defendant's letter as a pro se posttrial motion. On remand, the trial
court ordered that the public defender remain appointed to represent defendant. On April
28, 2004, assistant public defender Thomas Ost filed a motion for a new trial arguing, inter
alia, that the State failed to prove defendant guilty beyond a reasonable doubt. The motion
stated that "On March 11, 2002, the Defendant waived Jury before the Honorable Peter J.
Dockery." The court held a hearing on the motion and then denied it on May 27, 2004.
Defendant's timely notice of appeal followed.
II. ANALYSIS
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The sole issue in this case is whether defendant validly waived his right to a jury trial.
As an initial matter, we note that the State urges us to find this issue waived. As the State
points out, defendant not only failed to raise the issue in his posttrial motion, but he also
admitted a valid waiver in his motion. Generally, errors not objected to during trial or raised
in a posttrial motion are considered waived. In re R.A.B., 197 Ill. 2d 358, 363 (2001).
Nevertheless, under Supreme Court Rule 615(a), we will review plain errors affecting
substantial rights, even if those errors were not objected to during trial or presented in a
posttrial motion. See 134 Ill. 2d R. 615(a); In re R.A.B., 197 Ill. 2d at 362-63. The right to a
jury trial is a fundamental right. U.S. Const., amend. VII; People v. Victors, 353 Ill. App. 3d
801, 805 (2004). As this case concerns the waiver of the fundamental right to a jury trial,
we will consider this issue under the plain error doctrine. See In re R.A.B., 197 Ill. 2d at
363; see also Victors, 353 Ill. App. 3d at 805. Whether a defendant validly waived his right
to a jury trial is a question of law entitled to de novo review. Victors, 353 Ill. App. 3d at 805.
Section 103--6 of the Code of Criminal Procedure of 1963 (Code) provides that
"[e]very 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 2000). Section 115--1 further provides that a waiver of a jury trial should be in
writing. 725 ILCS 5/115--1 (West 2000); People v. Scott, 186 Ill. 2d 283, 284 (1999). A
written waiver is one means by which a defendant's intent may be established, although
adherence to this provision is not always dispositive of a valid waiver. People v. Bracey,
213 Ill. 2d 265, 269-70 (2004). In addition, the lack of a written waiver is not fatal, if it can
be ascertained that the defendant understandingly waived his right to a jury trial. Bracey,
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213 Ill. 2d at 270. According to our supreme court, "a defendant validly waives his right to a
jury trial only if made (1) understandingly; and (2) in open court." Scott, 186 Ill. 2d at 285.
The question of whether a jury waiver is valid cannot rest on any precise formula but
depends on the facts and circumstances of each particular case. In re R.A.B., 197 Ill. 2d at
364. The court need not impart any specific admonition or advice to a defendant for a
waiver to be effective. Bracey, 213 Ill. 2d at 270. An oral jury waiver may be valid if it is
made by defense counsel in the defendant's presence in open court and the defendant
does not object. Bracey, 213 Ill. 2d at 270. However, our supreme court has repeatedly
stated that it has " '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.' " Bracey, 213
Ill. 2d at 270, quoting Scott, 186 Ill. 2d at 285. Moreover, a written jury waiver, standing
alone, is insufficient to prove a valid waiver of the right to a jury trial. Victors, 353 Ill. App.
3d at 806.
Defendant contends that the record fails to establish that he validly waived his right
to a jury trial. Specifically, defendant contends that: (1) he never waived his right to a jury
trial in open court; (2) the signed jury waiver was never submitted, acknowledged, or
mentioned in open court; (3) a written waiver alone does not establish a valid waiver; (4)
the trial court's few references to a bench trial were not sufficient to show that he validly
waived his right to a jury trial; and (5) he was not present on the only occasion in which his
public defender explicitly referred to his trial as a "bench trial." The State responds that the
following evidence in the record establishes a valid waiver: (1) the signed jury waiver; (2)
defendant's failure to object on any of the numerous occasions in which defense counsel
agreed to a bench trial in defendant's presence; (3) defendant's agreement to a bench trial
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in open court on March 11, 2002; and (4) the fact that defendant was not "a stranger to the
courts by the time" he faced the instant charge.
Despite a plethora of cases addressing this subject, our supreme court's decision in
Scott most closely resembles the case at bar. Like defendant here, the defendant in Scott
executed a written jury waiver. Scott, 186 Ill. 2d at 284. In addition, several references
were made, in the defendant's presence, to proceeding with a bench trial. Specifically, the
following exchange occurred between the defendant's attorney and the trial court on the
day of the trial:
"MR. WILLIAMS [the 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: *** We will then proceed with the bench trial." Scott, 186 Ill. 2d
at
284.
In Scott, the State argued that the references to proceeding with a bench trial constituted
an acknowledgment of the waiver in open court. Scott, 186 Ill. 2d at 285. Despite the
signed waiver, our supreme court held that the defendant did not validly waive his right to a
jury trial in open court. Scott, 186 Ill. 2d at 285-86. In particular, the court reasoned that
the defendant never acknowledged the waiver in open court and that he was never present
in open court when a jury waiver was discussed. Scott, 186 Ill. 2d at 285-86. In addition,
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the court noted that the references to a bench trial arose in a dialogue between the
defendant's attorney and the trial court concerning a motion to dismiss, rather than in the
context of a jury waiver. Scott, 186 Ill. 2d at 285-86. As a result, defense counsel's
statement that he would proceed with a bench trial was not meant as an affirmative waiver,
but merely an indication that the defendant would proceed with trial despite the pending
motion. Scott, 186 Ill. 2d at 286. Thus, the court concluded that the defendant never
acknowledged the written jury waiver in open court, either affirmatively or though his
silence. Scott, 186 Ill. 2d at 286. According to the court, it had "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." Scott, 186 Ill. 2d at 285.
Given our supreme court's decision in Scott, we determine that the record fails to
establish that defendant validly waived his right to a jury trial. Considering each of
defendant's and his counsel's several appearances in this case, it is undisputed that
defendant was never present in open court when a jury waiver was discussed.
The first transcript that appears in the record is dated March 11, 2002, the same
date that the signed written jury waiver was filed. While the State avers that defendant
agreed to a bench trial on that date, we disagree. According to the trial transcript, the court
informed defendant that the case was being passed until "1:30 for bench trial," to which
defendant replied, "Okay." The court then advised defendant to inform attorney Yetter and
return at 1:30 or whatever time attorney Yetter specified. From this context, it is clear that
defendant was not waiving his right to a jury trial but was agreeing to return to court that
afternoon. Thus, defendant's agreement to come back later that day was not an affirmative
acknowledgment of a jury waiver in open court.
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Nor did defendant's silence during the trial court's few references to a bench trial
later that day constitute an acknowledgment of the waiver in open court. When the parties
returned to court that afternoon, attorney Yetter requested a continuance due to the
unavailability of a witness. The court stated, "[Defendant], that being a bench trial, I'll set it
for the bench trial week of July 1st." Based on the parties' schedules, however, the trial
court continued the case to June 14 "for bench trial." As in Scott, the March 11 references
to a bench trial did not occur in the context of a jury waiver. Instead, all of the references
were made by the trial court in response to attorney Yetter's request for a continuance.
Consequently, defendant's silence during these references did not constitute an
acknowledgment of a jury waiver.
In addition, although the March 11, 2002, docket entry suggests that a waiver was
made, the transcript of that hearing contains no evidence of a waiver in open court. See
People v. Roberts, 263 Ill. App. 3d 348, 351 (1994) (although docket entries suggested that
a waiver was made, the transcripts furnished by the defendant contained no evidence of a
waiver in open court). The next relevant date is May 31, 2002, when the court held a
hearing on the State's motion for a continuance. At that time a different public defender,
attorney Zahrieh, appeared on defendant's behalf and stated, "I believe, Judge, it's a bench
trial also," to which the court responded, "Yes. To October 11th for bench trial." As
defendant points out, this is the only occasion in which defense counsel explicitly referred
to defendant's trial as a bench trial. However, even if attorney Zahrieh's statement could be
interpreted as an agreement to a bench trial, defendant was not present at this hearing.
See Victors, 353 Ill. App. 3d at 808 (the discussion and waiver of a jury trial, outside the
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defendant's presence, did not constitute a valid waiver of a jury trial by the defendant
himself).
As the record illustrates, defendant appeared in court on three more occasions in
which the trial court made references to a bench trial. On October 25, 2002, defendant
explained his absence on October 11, 2002, and the trial court explained that the case had
been continued to October 11 "for bench trial." The court questioned attorney Zahrieh
about whether defendant was notified of the State's motion to continue the matter "for
bench trial." The court then stated that the "matter will be continued for bench trial" and
continued the case to "February 14th for bench trial." Then, on February 14, attorney
Reed, stepping in for attorney Casey, requested another continuance. The court continued
the case to March 14, 2003, "for bench trial." On March 14, 2003, the court stated, "[w]e
will proceed to a bench trial," and defendant was found guilty.
Although the trial court made multiple references to a bench trial in defendant's
presence, such references do not constitute a discussion of a jury waiver in open court.
The right to a trial by jury is one of the most revered rights guaranteed by our federal and
state constitutions. Bracey, 213 Ill. 2d at 269. Accordingly, a jury waiver, to be valid, must
be made understandingly and in open court. 725 ILCS 5/103--6 (West 2000); Scott, 186 Ill.
2d at 285. Based on the statute's explicit requirement that the defendant waive a jury "in
open court" (Scott, 186 Ill. 2d at 288 (Bilandic, J., specially concurring)), Scott makes clear
that the defendant must be present in open court when a jury waiver, written or otherwise,
is at least discussed. Scott, 186 Ill. 2d at 285. Unlike the dissent, we do not believe that
mere references to a bench trial, especially in the context of conversations about other
matters, equate to a "discussion" of a jury waiver in open court. This is because a
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reference to a bench trial, without more, assumes that the defendant understands the
difference between a jury trial and a bench trial, and that he has already made an
understanding jury waiver outside of court. As our supreme court stated:
" ' "It takes but a few moments of a trial judge's time to directly elicit from a
defendant a response indicating that he understands that he is entitled to a jury trial,
that he understands what a jury trial is, and whether or not he wishes to be tried by a
jury or by the court without a jury. This simple procedure incorporated in the record
will reduce the countless contentions raised in the reviewing courts about jury
waivers." ' " Scott, 186 Ill. 2d at 288 (Bilandic, J., specially concurring), quoting
People v. Chitwood, 67 Ill. 2d 443, 448-49 (1977), quoting People v. Bell, 104 Ill.
App. 2d 479, 482 (1969).
Consistent with Scott, the court in People v. Williamson, 311 Ill. App. 3d 54, 59
(1999), held that multiple references to a bench trial by the State and the trial court were
insufficient to constitute a "discussion" of a jury waiver in open court. While the dissent
argues that Williamson is inapposite to the case at bar because the defendant in
Williamson did not sign a written jury waiver, we note that the written jury waiver that was
filed in Scott was not dispositive given the other factors in that case, particularly the lack of
any discussion in the defendant's presence with respect to a jury waiver. See People v.
Elders, 349 Ill. App. 3d 573, 584 (2004).
Moreover, this is not a case where defense counsel made an affirmative statement
in defendant's presence indicating that defendant was waiving his right to a jury trial in favor
of a bench trial. See Bracey, 213 Ill. 2d at 270 (generally, a jury waiver is valid if it is made
by defense counsel in defendant's presence in open court, without an objection by
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defendant). As the State concedes, defense counsel never even uttered the words "bench
trial" when defendant was present in court. Thus, we disagree with the dissent's assertion
that defendant's silence during the trial court's references to a bench trial was equivalent to
an acquiescence. See Roberts, 263 Ill. App. 3d at 351-52 (the defendant's silence during
the trial court's few references to a bench trial and her simple acquiescence to the bench
trial at the time it occurred were not sufficient to show she validly waived her right to a jury
trial, in the absence of some affirmative action by her or her attorney while she was
present); see also Elders, 349 Ill. App. 3d at 583 (at the very least, the record must disclose
evidence of some discussion of a jury waiver in the defendant's presence, prior to being
found guilty). As previously stated, the trial court's references to a bench trial in this case
were made not in the context of a jury waiver, but in discussions of defendant's absence
and motions to continue. Consequently, nothing was said at any of these pretrial hearings
or on the day of trial that would have indicated to defendant that he had a right to a jury trial
or that his right to a jury trial was being waived. See Williamson, 311 Ill. App. 3d at 59.
In short, we interpret Scott as setting a minimum standard that the defendant be
present in open court when the jury waiver is discussed. See Scott, 186 Ill. 2d at 288
(Bilandic, J., specially concurring). Unlike the dissent, which seeks to distinguish Scott
based on its "unique set of facts that are very different from those of the present case" (slip
op. at 15), we believe that the Scott majority found no valid waiver because "it [was]
undisputed that [the] defendant was never present in open court when a jury waiver was
discussed" (Scott, 186 Ill. 2d at 285). Accordingly, while the dissent places great emphasis
on defendant's history with the judicial system, the written jury waiver, and the numerous
references to a bench trial, these circumstances do not provide a substitute for this
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minimum requirement, nor do they satisfy it. For example, as dissenting Justice Freeman
pointed out in Scott, the defendant signed a clear and detailed written jury waiver, failed to
object when his defense counsel indicated that he was prepared to proceed with a bench
trial, and had a history with and knowledge of the justice system. Scott, 186 Ill. 2d at 289-
90 (Freeman, J., dissenting). Nevertheless, the majority failed to find a valid waiver.
In the case at bar, the written waiver was never discussed in open court, the
references to a bench trial did not amount to a "discussion" of a jury waiver in open court,
and defendant's alleged history with the justice system did not impute knowledge of his
right to a jury trial. 1 See In re R.A.B., 197 Ill. 2d at 368 (although the respondent had
previous experience in the juvenile justice system, the court could not presume from this
fact that he had knowledge of his right to a jury trial). If such circumstances were
insufficient to establish a valid waiver in Scott, they are insufficient here.
1 Although the State offered some evidence at the sentencing hearing indicating
that defendant has had previous contact with the justice system, the record contains no
presentence report.
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III. CONCLUSION
Because defendant was never present in open court when a jury waiver was
discussed, defendant did not validly waive his right to a jury trial. Accordingly, we reverse
the judgment of the circuit court of Du Page County and remand the cause for a new trial.
Reversed and remanded.
HUTCHINSON, J., concurs.
JUSTICE GILLERAN JOHNSON, dissenting:
I respectfully dissent. I agree with the legal proposition the majority espouses: a written waiver alone
generally does not constitute a valid waiver of a defendant's right to a jury trial. People v. Bracey, 213 Ill.
2d 265, 270 (2004); People v. Scott, 186 Ill. 2d 283, 286 (1999). However, I
disagree with the majority's application of this principle to the present case, because the record in this case
reveals much more than a written waiver.
In addition to signing a written jury waiver, the defendant was present when the trial court stated
numerous times in open court that the case would be proceeding to a bench trial. On March 11, 2002, the
trial court clearly stated on three occasions that the defendant's case was scheduled for a bench trial. On the
last of those, the trial court stated, "Mr. Thornton, we're passing your matter till 1:30 for bench trial." The
defendant responded, "Okay." Neither the defendant nor his attorney voiced any objection. That same day, in
compliance with section 115--1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115--1
(West 2000)) ("All prosecutions *** shall be tried by the court and a jury unless the defendant waives a jury
trial in writing"), the defendant executed a written waiver of his right to a jury trial. The waiver stated that the
defendant "has been fully advised of his right to Trial by Jury; that he waives same and elects to be tried by the
Court." On October 25, 2002, the trial court stated three times that the defendant's case was
scheduled for a bench trial. Again, neither the defendant nor his attorney voiced any objection. On February
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14, 2003, the trial court again indicated that the case was scheduled for a bench trial without any objection
from the defendant or his attorney. Finally, on March 14, 2003, just prior to the commencement of the
trial, the trial court stated that the case was proceeding to a bench trial. The defendant and his attorney did not
object. The defendant's silence on those occasions when it was discussed that his case was scheduled for a bench
trial and his acknowledgment of "Okay" on March 11, 2002, are equivalent to an acquiescence. See
People v. Frey, 103 Ill. 2d 327, 333 (1984) (the defendant's silence at the judge's statement on
the day of trial that the matter was set for a bench trial was acquiescence).
Furthermore, other portions of the record suggest that the defendant intended to waive his right to a jury
trial. The defendant's attorney answered ready for a bench trial on two occasions, March 11, 2002, and
March 14, 2003. Notably, the accused typically speaks and acts through his attorney.
Frey, 103 Ill. 2d at 332. Furthermore, on January 2, 2003, a bench warrant was issued for
failure to appear on October 11, 2002, for a "bench trial." Most telling, in his motion for a
new trial on April 4, 2004, the defendant admitted that he had waived his right to a trial by
jury.
Along with the written waiver, the numerous references made in open court and in
the defendant's presence, and the defendant's admission in his posttrial motion, the record
also shows that the defendant was well-spoken and had a history with the court system.
The defendant was 31 years old at the time of trial and had been in court numerous times
in the past for charges of driving while his license was suspended, driving under the
influence, and other traffic violations, and for an order of protection. The fact that the
defendant possessed a level of familiarity with the court system should be considered in
assessing whether he validly relinquished his right to a jury trial. See Frey, 103 Ill. 2d at
333; see also Scott, 186 Ill. 2d 289-90 (Freeman, J., dissenting). Indeed, whether a jury
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waiver is valid cannot be determined by application of a precise formula but rather turns on
the particular facts and the totality of the circumstances in each case. In re R.A.B., 197 Ill.
2d 358, 364 (2001). Here, the defendant's involvement with and knowledge of the judicial
system, coupled with his written jury waiver and the numerous references to a bench trial
made in open court, indicate that the defendant validly waived his right to a jury trial and
proceeded with a bench trial.
The majority discounts the references to a bench trial because they were made by
the trial court and not the defendant's attorney. The fact that the trial court made these
references and not the attorney did not make the waiver invalid. The authority relied upon
by the majority to suggest otherwise, People v. Williamson, 311 Ill. App. 3d 54 (1999), is
inapposite to the case at bar. In Williamson, the Appellate Court, First District, held that
references to a bench trial made by the trial court were insufficient to constitute a valid jury
waiver. Williamson, 311 Ill. App. 3d at 59. However, the defendant in Williamson failed to
sign a written jury waiver. Williamson, 311 Ill. App. 3d at 58. In this case, in addition to the
numerous references made by the trial court, the defendant did sign a written waiver. As such, Williamson does
not mandate a reversal of this case.
Neither does the Illinois Supreme Court's decision in Scott mandate a reversal. In Scott, the
Illinois Supreme Court determined that the defendant's written jury waiver was insufficient. Scott, 186 Ill.
2d at 286. However, the Scott case presents a unique set of facts that are very different from those of
the present case. First, in Scott, there was no mention in court of a jury waiver or of a bench trial prior to the
date of trial. Scott, 186 Ill. 2d at 285. Here, as noted above, there were numerous references made
on three different days prior to the trial date. Second, unlike in the case herein, the written waiver in Scott was
unorthodox as it stated that the waiver was irrevocable after a certain date. Scott, 186 Ill. 2d at 285.
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Thus, it could not be determined in Scott that the defendant's silence upon his attorney's mention of a bench trial
was acquiescence. Scott, 186 Ill. 2d at 285. The defendant's silence in court at the mention of a bench
trial may likely have been due to his belief that it was too late to revoke the jury waiver. Scott, 186 Ill. 2d at
285. The Scott court placed great emphasis on the fact that the written jury waiver was made irrevocable.
Scott, 186 Ill. 2d at 285.
In this case, I would hold that the defendant understandingly waived his right to a jury trial in open court.
Accordingly, I would affirm the judgment of the circuit court finding the defendant guilty and sentencing him to a
term of conditional discharge and five days of SWAP.
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