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 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 at 289-90 (Freeman, J., dissenting). Indeed, whether a jury 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. 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 SWAE