specially concurring:
I specially concur because I have a problem with the logic of the case law that suggests that a defendant may waive his individual right to a jury trial merely by remaining silent in open court while his attorney states that the right to a jury has been waived without referencing the fact that it was the decision of the defendant alone and not that of the attorney. I am aware that the law is well settled, but that does not make it logical. I submit that, if defense counsel had said in open court, without comment by the attending defendant, “I have discussed this with my client and he objected to the waiver, but I am waiving the right to a jury trial,” the non sequitur and error would be readily apparent. (Note, the error is apparent even without the defendant’s acknowledgment or establishing that the defendant knew the right to a jury trial was solely his right to waive.)
I would affirm the judgment of conviction and conclude that the record does not sustain defendant’s burden of proof on appeal as required by our supreme court in People v. Smith, 106 Ill. 2d 327, 335-36 (1985). Defendant must establish plain error. He claims that he did not knowingly waive his right to a trial by jury. Based upon the record that defendant has provided, we have no way of knowing whether or not he knowingly waived the right to a jury trial. “Without that, we must assume that the record indications of a jury waiver are indeed based on a valid waiver.” Smith, 106 Ill. 2d at 336.