dissenting:
Although I agree with the majority that a trial without a jury cannot be upheld where the record is silent as to defendant’s jury waiver, the record before us is certainly not silent. Courts have repeatedly stated that whether a defendant has knowingly and understandingly waived his right to a jury trial depends upon the facts and circumstances of each case. In the context of what is essentially a bifurcated trial, the record here discloses a more than adequate jury waiver.
The defendant was first charged with reckless homicide. As to these charges, the defendant waived a jury trial. Later, the additional charge of driving under the influence was added. The defendant pleaded not guilty and both bench and jury trials were set. Ordinarily, the charges would have been tried together. However, the parties agreed to have the two offenses tried separately so that evidence admissible only as to the DUI charge would not be heard in connection with the reckless homicide charge.
As the majority candidly admits, a good argument can be made that the defendant properly waived his right to a jury in the reckless homicide trial and that the defendant was fully aware that he could demand a jury in the trial for DUI. Yet the majority refuses to take the additional step of finding that the defendant waived a jury in the second trial. In my opinion, this conclusion is based on an unreasonably restrictive reading of the record. The record discloses that on March 18, 1982, the parties were in court and ready to proceed with trial. In the defendant’s presence, the court announced that both the reckless homicide and the DUI counts were set for a bench trial. Defense counsel raised no objection to the bench-trial setting. Instead, he simply called the court’s attention to an agreement between the parties to try the charges separately. The court noted the agreement for the record and proceeded to try the reckless homicide charges. Since the defendant had previously waived a jury trial as to the reckless homicide counts, and because the defendant was clearly aware that he could demand a jury as to the DUI count, the courtroom events of March 18 constituted a jury waiver which was legally sufficient under the circumstances of this case.
In addition, it is important to note that the events of March 18 do not stand alone. Without going into further detail, the remainder of the record, especially the hearing on the motion for a new trial, indicates that the defendant, having been acquitted of reckless homicide after a bench trial, knowingly opted for the same procedure the following day as to the remaining charge. The majority opinion overlooks the obvious and demands more evidence than is necessary to show that the defendant waived a jury trial. Therefore, I dissent.