dissenting:
I respectfully dissent from the decision to affirm the convictions of both defendants.
Greylon Brials
Brials was convicted of aggravated criminal sexual assault. It is a crime of force and violence. People v. Mueller, 54 Ill. App. Ct. 2d 189 (1973). Age of the victim was not an issue. Consent was. A fact issue. The trial judge took the issue away from the jury when he instructed that an 11-year-old cannot consent to any act of sexual penetration. The instruction does not appear in the Illinois Pattern Jury Instructions for a good reason — it doesn’t belong there. The instruction was a grave and fundamental error. We should reverse and remand without evaluating the evidence when the jury has not been correctly instructed on an essential element of the case. See People v. Trinkle, 68 Ill. App. Ct. 2d 198 (1977).
Kwame McGlaston
Whether a defendant has validly waived a jury trial poses a question concerning a substantial right. People v. Stokes, 281 Ill. App. Ct. App. 3d 972, 976 (1996). A defendant validly waives his right to a jury trial only if he does so “(1) understandingly; and (2) in open court.” People v. Scott, 186 Ill. App. Ct. 2d 283, 285 (1999); 725 ILCS 5/103 — 6 (West 1992).
There was no valid jury waiver here. Vague references to anticipation of a “bench” trial eight months before trial do not even come close to a valid waiver, especially where there is no signed jury waiver in the record.
In Scott, on the day of trial, in the defendant’s presence, defense counsel said: “ ‘And we would proceed to the bench trial today.’ ” The judge replied: “ ‘Okay, we’ll proceed to bench trial, then?’ ” And he said: “ ‘We will then proceed with the bench trial.’ ” (Emphasis added.) Scott, 186 Ill. App. Ct. 2d at 284. The defendant was not asked for his preference. In Scott, despite the presence of a signed jury waiver, the court held the defendant did not validly waive his right to a jury trial in open court. The conviction was reversed and the cause remanded.
Recently, in People v. Williamson, 311 Ill. App. Ct. App. 3d 54 (1999), we reversed a murder conviction because the defendant did not understandingly waive his right to a jury trial in open court. There, as here, no written waiver was in the record. There, as here, before the day of trial the defense lawyer indicated there would be a bench trial. In fact, he said it three different times. Each time, the defendant was not asked any question by the trial court.
We have not hesitated to reverse convictions where trial judges fail to take the few minutes necessary to obtain a knowing jury trial waiver from the defendant. See People v. Taylor, 291 Ill. App. Ct. App. 3d 18 (1997); People v. Eyen, 291 Ill. App. Ct. App. 3d 38 (1997); People v. Roberts, 263 Ill. App. Ct. App. 3d 348 (1994). It is not a difficult thing to do and it should not require the constant reminders that have come from the appellate and supreme courts of this state. See People v. Chitwood, 67 Ill. App. Ct. 2d 443, 448-49 (1977); Williamson, 311 Ill. App. Ct. App. 3d 54 (and cases cited therein).
The right to a jury trial is not a technicality. It is at the core of our system of law. It does not depend on the character of the accused or the nature of the crime he may have committed. Today, we trivialize that right.