People v. Brodus , 19 Ill. App. 3d 840 ( 1974 )

JOHNSON, J.,

dissenting:

I would affirm the judgment of the lower court and hold that there was a proper jury waiver.

In the recent case of People v. Lewis (1973), 13 Ill.App.3d 688, 691, 301 N.E.2d 159, 161, this court in a similar case referred to the case of People v. Sailor (1969), 43 Ill.2d 256, 260, 253 N.E.2d 397, 399, in which the Illinois Supreme Court stated: “ ‘An accused ordinarily speaks and acts through his attorney, who stands in the role of agent, and defendant, by permitting her attorney, in her presence and without objection, to waive her right to a jury trial is deemed to have acquiesced in, and to be bound by, his action.’” This court stated at page 691:

“While we feel that the better practice would be for the court to address the defendant about his desire to waive a jury trial, the record as a whole does not support the claim that he did not knowingly and understandingly waive a jury trial.”

The recent case of People v. Punyko (1973), 9 Ill.App.3d 1052, 293 N.E.2d 672, states at page 1054:

“We have often held that there is no precise standard to determine if a defendant has made an understanding jury waiver. In People v. Sailor, 43 Ill.2d 256, 253 N.E.2d 397, our Supreme Court held that a trial court may rely upon the statement of a defendant’s attorney where he waives a jury in open court in the presence of the defendant and such waiver is not objected to by the defendant. In People v. Kaprelian [1972], 6 Ill.App.3d 1066, 286 N.E.2d 613, we held that a jury was knowingly waived where the defendant’s attorney, in response to a question by the court, stated that a jury was waived. In the case at bar, the statement by the privately retained defense attorney was not ambiguous and effectively waived the right to a jury trial.”

The rule, as announced in Sailor, is applicable to court appointed counsel. (People v. McClinton (1972), 4 Ill.App.3d 253, 280 N.E.2d 795). At pages 255-56, the court stated:

“Defendant seeks to restrict the applicability of these principles to cases involving defendants who, like the defendant in Sailor, have retained private counsel. However, there is no language within that opinion warranting such a limited construction. We note that the distinction which defendant propounds was expressly rejected in People v. Suriwka (1972), 2 Ill.App.3d 384, [389-90], 276 N.E.2d 490, 494. We also perceive nothing in Sailor which would require, as a condition precedent to a valid jury waiver, that the record affirmatively reflect that a defendant and his appointed counsel were afforded an opportunity for consultation. Therefore, we hold that the waiver of jury trial by defendant’s appointed lawyer, in defendant’s presence and with no objection, constituted an express, knowing and understanding waiver of defendant’s right to jury trial.”

As indicated in Sailor and subsequent cases cited, the trial court was entitled to rely upon the professional responsibility of the attorney, and presume from his waiving a jury trial that his client knowingly and understanding^ consented to the procedure.

Supreme Court Rules 401 and 402 for a waiver of counsel, waiver of indictment and pleas of guilty require the court to address the defendant personally in open court. There is no such requirement for a waiver of jury where the defendant is represented by counsel and enters a plea of not guilty. The above mentioned Rules are in accordance with Boykin v. Alabama (1969), 395 U.S. 238.