concurring in part and dissenting in part:
In this case, the majority finds that defendant Sandra Barrier’s right to a 12-person jury was properly waived by her attorney and that there was no basis for her complaint of having been convicted by only 11 jurors. Defendant’s claim of entitlement to monetary credit for 31 days in presentence custody was granted. I concur in the latter finding but, for the following reasons, respectfully dissent from the decision that her state constitutional and statutory rights were adequately and appropriately waived.
After noting a split of authority in the appellate court on this issue, the majority has elected to follow People v. Chandler, 7 Ill. App. 3d 949, 289 N.E.2d 67 (1972), and the dissent in People v. Matthews, 304 Ill. App. 3d 415, 420-21, 710 N.E.2d 524 (1999) (Welch, J., dissenting). The dissenting justice, in what seems to me to be an unwarranted leap of faith, concluded that because the court had said that trial by a six-person jury was “unusual,” knowledge of defendant’s right to a 12-person jury and his acquiescence to the attorney’s waiver of that right could properly be presumed. I believe that the majority opinion in Matthews is the better-reasoned analysis and best addresses both the letter and the spirit of the constitutional and statutory protections and the legal concept of waiver.
Our supreme court has found that a defendant can waive the right to be tried by a 12-person jury. People v. Pierce, 369 Ill. 172, 15 N.E.2d 845 (1938); People v. Scudieri, 363 Ill. 84, 1 N.E.2d 225 (1936). It is also clear that waiver of the right by a defendant’s attorney with the defendant’s acquiescence is not reversible error. People v. Quinn, 46 Ill. App. 3d 579, 360 N.E.2d 1221 (1977). I agree with the Matthews court, that in the absence of some showing that defendant was made aware, prior to the waiver, that he or she had a right to refuse to proceed with less than a 12-person jury, prejudice should be presumed and the case remanded for a new trial.
In some circumstances, it is at least conceivable that a court might be justified in assuming that the defendant had been advised by counsel that he or she was constitutionally and statutorily entitled to be tried by 12 persons and that proceeding before fewer would require a knowing and voluntary waiver of the right. Such is not the case here. It is absolutely clear from the transcript that the entire matter of excusing the ill juror came up unexpectedly on the morning of trial and was handled immediately in the courtroom. The record is totally devoid of any affirmative showing that either the court or defense counsel explained to defendant that she had a right to a 12-person jury and could refuse to proceed with fewer jurors. The court, after going on the record and confirming the agreement of the parties the preceding day to not pick an alternate, said: “We will either proceed ahead with 11 jurors.” Without even waiting for the court to state any available alternatives and without time to explain to the defendant what rights she had with respect to what was happening, defense attorney said: “That would be fine.” Both assistant State’s Attorneys also immediately agreed. It cannot be denied that defendant raised no objection to proceeding with the smaller jury, but it also cannot be argued on these facts that her silence constituted acquiescence to her attorney’s waiver of a constitutional and statutory right that she knew she possessed. Nor is there any support anywhere in the record for the State’s argument on appeal that the attorney’s waiver was a matter of legitimate trial tactics or prudent trial strategy. See People v. Scott, 355 Ill. App. 3d 741, 824 N.E.2d 302 (2005). The State merely assumes that defense counsel not only thought about the wisdom of waiving the 12-person jury but also drew an instantaneous conclusion that there were legitimate and prudent reasons for doing so. The record does not support such an assumption.
The majority asserts that it cannot be argued that defendant might have been unaware of her right to the 12-person jury because that was what had been selected the preceding day. That assertion completely ignores the very real possibility that a person unschooled in constitutional law might understand that a thing (such as picking a jury of a certain size) may be done as a matter of custom or practice without knowing that she had a right to a jury of that size. And, in fact, such a limited understanding would actually be a misunderstanding reinforced by the failure of the court or her attorney to point out that entitlement to her. Again, the record is devoid of any indication that she was so advised. The State has asked us to “presume” defendant’s right to a 12-person jury completely out of existence, and the majority consents.
The majority also appears to take the position that defendant’s challenge is suspect because she did not include a claim of ineffective assistance of counsel in her posttrial motion seeking a new trial. She did, however, assert in that motion that her trial attorney’s agreement to proceed to trial with 11 jurors was error. I am unaware of any requirement (nor has the majority cited any) that this claim of error must be accompanied by a claim of ineffective assistance in order to raise an appropriate and cognizable allegation of error or to merit full consideration of the issue on review.
For the reasons I have set out, I believe there was an ineffective waiver of defendant’s constitutional and statutory right to trial by a jury of 12, that defendant must be presumed to have been prejudiced by the attempted waiver, and that the conviction should be reversed and the cause remanded for a new trial.