dissenting in part and specially concurring in part:
I respectfully dissent from the majority’s reversal of the defendant’s conviction. I would find that any error the trial court may have made in not securing a written jury waiver was harmless beyond a reasonable doubt. While I agree with the majority that under the doctrine of stare decisis this court is bound to follow the Jennings decision, I disagree with its conclusion that Jennings prevents us from finding harmless error. The Jennings court never ruled on whether the failure to secure a written jury waiver constituted harmless error. We are free therefore to consider the question of harmless error in this matter without doing a disservice to the doctrine of stare decisis.
I also believe that Jennings was incorrectly decided. Were it not for this court’s holding in Jennings, I would hold that section 115 — 1 of the Code of Criminal Procedure of 1963 (Code) is an unconstitutional infringement by the legislature on the powers of the judiciary. A trial judge’s responsibility for insuring that a defendant has understandingly waived his or her right to a jury trial is no different from the responsibility to insure that witnesses understandingly swear or affirm to testify truthfully before the court. I suspect that were the legislature to enact a statute requiring a witness to sign a written oath of truth prior to testifying in court, that statute would easily be dismissed as an unconstitutional infringement on the power of the court to administer justice. I am at a loss to explain how section 115 — 1 of the Code is any less of an undue infringement on the inherent power of the judiciary.
Turning to the matter subjudice, I do not believe that the failure to follow the statutory requirement of a written jury waiver establishes per se a constitutional violation. But even if the trial court’s failure to secure a written jury waiver rises to the level of a violation of the defendant’s constitutional right to a trial by jury, I would find nonetheless that the trial court’s error was harmless beyond a reasonable doubt. People v. James, 153 Ill. App. 3d 131,135 (1987) ("[a] reversal on constitutional grounds is not warranted if it can be determined beyond a reasonable doubt that the error was harmless”).
It is well settled that "even a constitutional error may constitute harmless error, and in the setting of a particular case, the constitutional error may not require the reversal of a conviction.” People v. Hansen, 90 Ill. App. 3d 407, 408 (1980). "There are some errors affecting constitutional rights which in the setting of a particular case are so unimportant and insignificant that they may be deemed harmless and not requiring automatic reversal of the conviction.” People v. Poliszczuk, 151 Ill. App. 3d 578, 588 (1987).
The matter sub judice, in my opinion, presents just such an unimportant and insignificant error. It is an uncontroverted and undisputed fact that the defendant knowingly and understandingly waived his right to a jury trial. The record clearly establishes that the trial court took reasonable steps to question the defendant to insure that he understood the significance of his waiver. On appeal, the defendant has pointed out no prejudice resulting from the trial court’s failure to secure written evidence of his waiver and I can discern no prejudice from the record.
Several cases have been cited to this court where the conviction has been overturned on appeal simply because the trial court failed to secure written evidence of the defendant’s waiver. I believe, however, that common sense has been ignored in reaching this result without any discussion of harmless error. A defendant, who cannot dispute the fact that he has already received a fair trial, will be allowed to put the young victim of a sexual assault and the prosecution to a trial more burdensome than the first. Decisions such as this one, I fear, represent the ultimate elevation of form over substance and help to bring about the current disrespect for the legal system that seems to be rampant today. Should thoughtful citizens and commentators choose to wring their hands and shake their heads after hearing of this court’s decision, their criticisms would be well taken. I would affirm the trial court.
I concur with the holding of the majority that the People presented sufficient evidence to support the conviction beyond a reasonable doubt such that retrial will not subject the defendant to double jeopardy.