dissenting:
As I believe the record in this case is anything but “silent,” I respectfully dissent.
A good portion of the majority’s decision discusses the facts and holding in Bragg. However, for some mysterious reason, the majority omits the following statement made by that court:
“[W]ere we here presented with a record from which we could state with conviction that defendant or his counsel had specifically agreed to proceed with a six-person jury, we would not hesitate to determine, as in Quinn, that defendant waived his State constitutional challenge for purposes of appeal.” (Emphasis added.) Bragg, 176 Ill. App. 3d at 1084.
The reason this court in Bragg remanded for further proceedings is because the record was “absolutely silent” regarding the defendant’s waiver of his right to a 12-person jury and absolutely nothing showed that the defendant was aware of the right to a 12-person jury. Bragg, 176 Ill. App. 3d at 1084. Based on the statements made in Bragg, we can conclude that the record did not show that defense counsel specifically agreed to a six-person jury. Otherwise, according to its own analysis, its result would have been different.
The facts in Bragg differ from the facts in the case at bar because, here, the record contains multiple instances indicating that defendant knowingly waived his right to a 12-person jury and that defendant could not have been unaware of his right to a 12-person jury. First, as the majority points out, defense counsel not only specifically agreed to a six-person jury, which would have been enough to change the result in Bragg, but he requested a six-person jury in the presence of defendant. In addition, the court stated the following to potential jurors, in the presence of defendant:
“[The trial] will be a little bit different in the sense we’re only going to use a six-person jury. Normally, in a criminal case you would have a twelve-person jury ***.”
Finally, there is a docket entry which states, “Defendant waives jury of 12 and requests jury of six.” These instances do not demonstrate a record which is “silent.” Defendant never objects, never claims that he did not waive his right to a 12-person jury, and never claims that he was unaware of his right to a 12-person jury.
A knowing and understanding oral jury waiver can be found where, in the accused’s presence and without objection from the accused, defense counsel expressly advises the court of the accused’s desire to proceed by a bench trial. People v. Eyen, 291 Ill. App. 3d 38, 41 (1997). There is no reason why that reasoning should not apply here, where defendant does not even completely waive his right to a jury trial but merely agrees to a reduction in the number of jurors. In this case, not only do we have defense counsel’s request and agreement for a six-person jury, made in the presence of defendant without defendant’s objection, we have a docket entry which clearly indicates that defendant waived his right to a 12-person jury, and we have statements made in defendant’s presence pointing out that a six-person jury is unusual. Accordingly, I do not believe that the record in this case is silent. Instead, I believe that it shows that defendant acquiesced to a waiver of a 12-person jury and that he could not have been unaware of his right to a 12-person jury. In finding such, I must respectfully dissent.