{ "id": 5109628, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN EVANS, Defendant-Appellant", "name_abbreviation": "People v. Evans", "decision_date": "1993-03-02", "docket_number": "No. 1-91-3510", "first_page": "72", "last_page": "83", "citations": [ { "type": "official", "cite": "243 Ill. App. 3d 72" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "307 N.E.2d 753", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "754" } ], "opinion_index": 0 }, { "cite": "17 Ill. App. 3d 650", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2511055 ], "weight": 2, "pin_cites": [ { "page": "650-51" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/17/0650-01" ] }, { "cite": "326 N.E.2d 762", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "60 Ill. 2d 287", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5415171 ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0287-01" ] }, { "cite": "253 N.E.2d 397", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "43 Ill. 2d 256", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2843220 ], "opinion_index": 0, "case_paths": [ "/ill-2d/43/0256-01" ] }, { "cite": "376 N.E.2d 277", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "59 Ill. App. 3d 1050", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3358759 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/59/1050-01" ] }, { "cite": "422 N.E.2d 226", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "96 Ill. App. 3d 994", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 12145191 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/96/0994-01" ] }, { "cite": "565 N.E.2d 931", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "942" } ], "opinion_index": 0 }, { "cite": "141 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238549 ], "pin_cites": [ { "page": "24" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/141/0001-01" ] }, { "cite": "195 N.E.2d 631", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "634" }, { "page": "634" } ], "opinion_index": 0 }, { "cite": "30 Ill. 2d 216", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2829348 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "220" }, { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/30/0216-01" ] }, { "cite": "282 N.E.2d 720", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1964, "pin_cites": [ { "page": "722" }, { "page": "722" } ], "opinion_index": 0 }, { "cite": "51 Ill. 2d 353", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5390219 ], "weight": 3, "year": 1964, "pin_cites": [ { "page": "356" }, { "page": "356" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0353-01" ] }, { "cite": "469 N.E.2d 195", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1972, "pin_cites": [ { "page": "197" }, { "page": "197" }, { "page": "197" } ], "opinion_index": 0 }, { "cite": "103 Ill. 2d 327", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152474 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "332" }, { "page": "332" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/103/0327-01" ] }, { "cite": "395 U.S. 238", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771759 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/395/0238-01" ] }, { "cite": "391 U.S. 145", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767723 ], "weight": 6, "pin_cites": [ { "page": "149" }, { "page": "496" }, { "page": "1447" } ], "opinion_index": 0, "case_paths": [ "/us/391/0145-01" ] }, { "cite": "583 N.E.2d 54", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "221 Ill. App. 3d 864", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5797722 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/221/0864-01" ] }, { "cite": "538 N.E.2d 453", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "471" } ], "opinion_index": 0 }, { "cite": "128 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3228708 ], "pin_cites": [ { "page": "46-47" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0001-01" ] }, { "cite": "287 N.E.2d 688", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "691" } ], "opinion_index": 0 }, { "cite": "52 Ill. 2d 250", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5395587 ], "pin_cites": [ { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/52/0250-01" ] }, { "cite": "362 N.E.2d 307", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "pin_cites": [ { "page": "311" } ], "opinion_index": 0 }, { "cite": "66 Ill. 2d 306", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463620 ], "year": 1972, "pin_cites": [ { "page": "315" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0306-01" ] }, { "cite": "522 N.E.2d 1124", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "478 N.E.2d 357", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 10, "year": 1988, "pin_cites": [ { "page": "360" }, { "page": "362", "parenthetical": "Moran, J., concurring in part, dissenting in part" }, { "page": "360" }, { "page": "360" }, { "page": "361" }, { "page": "360" }, { "page": "359" }, { "page": "362" }, { "page": "360", "parenthetical": "\"[0]ur decisions have imposed on the circuit courts the duty of ensuring that a defendant's waiver of his right to a jury trial be made expressly and understanding^\"" } ], "opinion_index": 0 }, { "cite": "106 Ill. 2d 327", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138824 ], "weight": 10, "year": 1988, "pin_cites": [ { "page": "333" }, { "page": "339" }, { "page": "334" }, { "page": "334" }, { "page": "334" }, { "page": "333" }, { "page": "332" }, { "page": "337" }, { "page": "334" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0327-01" ] } ], "analysis": { "cardinality": 1176, "char_count": 26855, "ocr_confidence": 0.768, "pagerank": { "raw": 5.767635382624051e-08, "percentile": 0.3603756435220741 }, "sha256": "3b2dc1ce59ba49bcf422683bb632aae9acd7b8ab1583924460d459c47d89fb82", "simhash": "1:b235bab7750eacd6", "word_count": 4624 }, "last_updated": "2023-07-14T20:55:01.285518+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN EVANS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE SCARIANO\ndelivered the opinion of the court:\nDefendant Kevin Evans was arrested on January 31, 1991, and on February 13, 1991, he was indicted for his unlawful possession of a stolen automobile in violation of section 4 \u2014 103(a)(1) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95x/2, par. 4 \u2014 103(a)(1)). On February 1, 1991, while in pretrial detention, he submitted a form by which he made a demand for a jury trial. At some point during the pretrial phase of this action, the State proffered a negotiated plea to defendant\u2019s counsel, a public defender, but, apparently, this offer was not conveyed to defendant until he appeared before the trial court on the day of his trial, which had been previously continued five times.\nCounsel for defendant informed the court that the State had offered defendant a term of three years in the custody of the Illinois Department of Corrections in exchange for a guilty plea to the crime charged, but that she had not as yet told him of it. Although the trial court initially ordered her to inform defendant of the offer, the judge subsequently assumed the responsibility himself. After the court advised defendant of the offer by the State, it demanded to know immediately if he would accept it, stating that the case would be an easy one to try as the only witness to the incident was already in court.\u2019 When defendant asked for time to consider the offer, the court replied that he already had been given all the time he would receive.\nDefendant responded by stating that he was ready to go to trial, presumably intending to decline the State\u2019s offer. From this statement, the trial court found that defendant had waived his right to a jury trial and that the waiver was made knowingly and intelligently. Neither the prosecutor nor defense counsel advised the court of defendant\u2019s written jury demand, which presumably was in their files of the case. Consequently, the court proceeded to conduct a bench trial.\nAfter both sides waived opening statements, the State called Chicago police officer Cawley, a foot patrolman, who testified that on January 31, 1991, while directing traffic at the corner of 1130 West Lawrence Avenue, he observed defendant and another African-American male in a 1986 Buick stopped in the eastbound lane of Lawrence Avenue, with defendant in the driver\u2019s seat. The vehicle was tagged with license plates unique to auto dealers and still bore the warranty sticker on a side window. Cawley stated that these factors, combined with the lateness of the day and the fact that it was a holiday, caused him to wonder whether the two occupants of the vehicle were on a test drive or whether the car was stolen.\nAccordingly, he instructed defendant to pull to the side of the road in order that Cawley could check the status of the vehicle. At first, defendant appeared to comply with Cawley\u2019s instructions, but at the last moment, he fled eastbound on Lawrence. At that point, in response to his query, Cawley received word over his radio that a 1986 Buick with the license number of the one driven by defendant was reported stolen from Allen Jacob Buick on January 27, 1991. Cawley immediately issued a flash message for the apprehension of defendant.\nDefendant was ultimately stopped at Wilson Avenue and Sheridan Road, where he was detained and identified by Cawley as being the subject of his earlier flash message. On cross-examination, Cawley admitted that when he originally spotted the vehicle on Lawrence Avenue, the steering column of the Buick was not \u201cpeeled back,\u201d exposing the inner workings of the column, which is one way of telling that the auto was stolen. Cawley also conceded that, in fact, he saw keys in the ignition.\nThe parties stipulated that if called to testify, Anthony Anderson, an agent of Allen Jacob Buick, would state that the dealership owned the 1986 Buick found in defendant\u2019s possession, that the car was stolen on January 27, 1991, and that no agent of the dealer had authorized anyone, including defendant, to take possession of the auto. After the State rested, defendant moved for a \u201cdirected finding,\u201d which the trial court denied. The defense then rested, and the court found the defendant guilty of the crime charged.\nA presentence investigation report revealed that defendant had two prior convictions. In December 1987, he was convicted of unlawful use of a weapon and sentenced to 24 months\u2019 probation, and in December 1988, he was convicted of the manufacture and/or delivery of a controlled substance, namely cocaine, and sentenced to four years in the custody of the Illinois Department of Corrections. Defendant\u2019s education extended only to the tenth grade. He was last employed in 1987, when he worked in the fast-food industry. The report also indicated that defendant, although unmarried, was the father of a three-year-old girl.\nAt the sentencing hearing, the State, relying on the facts of the case and defendant\u2019s prior convictions as factors in aggravation, sought an extended-term sentence. As mitigating factors, defendant pointed to his age (21 years old at the time of the hearing); his employment history (worked for two fast-food restaurants only a few years before); and that he was never convicted of a violent crime.\nThe court sentenced defendant to an extended term of nine years\u2019 imprisonment. It expressly stated that it based its sentencing decision on defendant\u2019s prior criminal history. In the process of passing sentence, the court offered defendant suggestions on matters he should ponder while serving his sentence; for instance, that he should decide what to do with his future in view of his lack of education and, more important, he should determine how best to provide for the future of his daughter. After the sentencing hearing, defendant timely filed his notice of appeal.\nI\nAlthough defendant raises three issues on appeal, given our resolution of the first one, we need not reach the other two. The main issue is whether defendant made a knowing and intelligent waiver of his right to be tried by a jury. Defendant asserts that because the record contains no affirmative act or statement on his part or that of his counsel which manifested either a relinquishment of the right or even an understanding of the consequences of a waiver (i.e., having a bench trial with the court sitting as the trier of fact), the trial court, by not securing such a waiver on the record, committed reversible error.\nThe State responds that the failure of the defendant and his counsel to object to the trial court\u2019s express finding that defendant waived his right to a jury trial, as well as the defense\u2019s tacit acquiescence in the court\u2019s subsequent conduct of the trial as a nonjury matter, sufficiently conveyed the message that defendant waived his right to a jury trial. In the State\u2019s view, its acquiescence argument is consistent with and, in fact, merely a logical extension of the holding in prior cases that where a defendant\u2019s counsel orally waives the right to a jury trial in the defendant\u2019s physical presence, the defendant will be deemed to have approved of the waiver and thus to have been bound by it.\nA\nWe note, without the State\u2019s urging the point, that defendant failed to assert the issue of the inadequacy of his jury waiver in his post-trial motion for a new trial, but raises it for the first time on appeal. In People v. Smith (1985), 106 Ill. 2d 327, 478 N.E.2d 357, our supreme court implied that the adequacy of a jury waiver would be susceptible to the waiver rule later enunciated in People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124. But, as Smith observed: \u201cThe waiver rule is one of administrative convenience rather than jurisdiction, however, and we have provided by rule that plain errors affecting substantial rights may be noticed on review though not brought to the trial court\u2019s attention [citation].\u201d Smith, 106 Ill. 2d at 333, 478 N.E.2d at 360, citing 87 Ill. 2d R. 615(a).\nConsequently, while defendant\u2019s failure to raise this issue in his motion for a new trial may constitute a waiver of it for the purposes of appeal, invocation of the plain error rule is appropriate here. It has long been noted that \u201c[i]t is solely within the discretion of the reviewing court to consider alleged errors not raised or presented at trial.\u201d (People v. McCullum (1977), 66 Ill. 2d 306, 315, 362 N.E.2d 307, 311; see also People v. McAdrian (1972), 52 Ill. 2d 250, 255, 287 N.E.2d 688, 691.) Under Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)), we may address and rectify errors not properly preserved which affect the substantial rights of a defendant. The supreme court has explained that substantial rights are deleteriously affected where either the evidence is \u201cclosely balanced\u201d or where the error is of such magnitude that its commission denied the accused a fair trial. People v. Young (1989), 128 Ill. 2d 1, 46-47, 538 N.E.2d 453, 471.\nDefendant asserts that the trial court, in its anxiety to resolve the case before it, glossed over the fundamental nature of the right and that this would be the type of trial mistake the plain error rule was intended to correct. Moreover, in People v. Hall (1991), 221 Ill. App. 3d 864, 583 N.E.2d 54, we recently invoked the plain error rule to review the validity of a jury waiver even though the State argued waiver, because the defendant did not raise the issue in his post-trial motion. Here, in contrast to Hall, the State does not rely on or even contend that the issue is waived. The State therefore will not be heard to complain that it will suffer prejudice as a result of our invocation of plain error to review the issue of jury waiver. Accordingly, given this lack of prejudice to the State, the long-recognized importance of trial by jury in our system of government, and the trial court\u2019s cursory manner of treating with defendant\u2019s right to a jury, we elect to consider this issue as being within the scope of the plain error doctrine.\nB\nIn Duncan v. Louisiana (1968), 391 U.S. 145, 20 L. Ed. 2d 491, 88 S. Ct. 1444, the Supreme Court discussed the importance of the right to a trial by jury and it held that because the right was \u201cfundamental to the American scheme of justice,\u201d the due process clause of the fourteenth amendment prohibits the imposition of \u201cserious\u201d punishment unless the State has afforded the defendant a trial by jury. (Duncan, 391 U.S. at 149, 20 L. Ed. 2d at 496, 88 S. Ct. at 1447.) Subsequently, in Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709, the court held that because a plea of guilty waives fundamental rights, including the right to a trial by jury, the acceptance of any such plea will be constitutionally infirm unless the record clearly manifests that the defendant knows and understands the rights he foregoes by his plea. Accordingly, one may reasonably infer that it would be equally invalid to accept the bare waiver of the right to a jury trial, absent a clear manifestation that defendant truly appreciated what he has waived. See Smith, 106 Ill. 2d at 339, 478 N.E.2d at 362 (Moran, J., concurring in part, dissenting in part).\nThe right to trial by jury is guaranteed as well by the Illinois Constitution, which states: \u201cIn all criminal prosecutions, the accused shall have the right to *** have a speedy public trial by an impartial jury ***.\u201d (Ill. Const. 1970, art. I, \u00a78.) To enforce this State right to a trial by jury as well as its co-existent Federal counterpart, our legislature , enacted section 103 \u2014 6 of the Code of Criminal Procedure, which provides in pertinent part: \u201cEvery person accused of an offense shall have the right to a trial by jury unless (i) understanding^ waived by defendant in open court.\u201d Ill. Rev. Stat. 1991, ch. 38, par. 103 \u2014 6.\nIn construing this provision, our supreme court has held that it imposes an obligation on the trial court to ascertain and ensure that the election to forego a trial by jury is made both expressly and with an understanding of the nature of the rights waived. (Smith, 106 Ill. 2d at 334, 478 N.E.2d at 360; People v. Frey (1984), 103 Ill. 2d 327, 332, 469 N.E.2d 195, 197; County of McLean v. Kickapoo Creek, Inc. (1972), 51 Ill. 2d 353, 356, 282 N.E.2d 720, 722; People v. Clark (1964), 30 Ill. 2d 216, 220, 195 N.E.2d 631, 634.) Although the determination of whether defendant has waived this right with knowledge and understanding is not formulaic, it nevertheless turns on the facts and circumstances of each case, as evidenced by its record. People v. Tye (1990), 141 Ill. 2d 1, 24, 565 N.E.2d 931, 942; Smith, 106 Ill. 2d at 334, 478 N.E.2d at 360; Frey, 103. Ill. 2d at 332, 469 N.E.2d at 197.\nSmith provides the analytical method by which we determine whether a trial court has complied with its duty to ascertain that a waiver of a jury trial was knowingly and intelligently made. The court in that case found that where the common law record indicates that the defendant opts for a bench trial, it gives rise to an inference that the jury waiver was made with knowledge and understanding of its implications. It then becomes incumbent on the defendant, the party alleging it, to establish the error by showing that the common law record does not correctly reflect what actually transpired. He can accomplish this by providing a verbatim transcript of the proceeding, \u201ca proposed report of the proceedings or an agreed statement of facts.\u201d Smith, 106 Ill. 2d at 334, 478 N.E.2d at 361.\nIn Smith, the common law records in both cases incontrovertibly indicated that the defendants waived a trial by jury. In one case, the half-sheet, contained the stamped legends \u201cTRIAL BY COURT-FINDING OF GUILTY\u201d and \u201cPLEA OF NOT GUILTY JURY WAIVED.\u201d (Smith, 106 Ill. 2d at 333, 478 N.E.2d at 360.) In the other case, the common law record included an entry which stated: \u201cCause comes for Bench Trial.\u201d (Smith, 106 Ill. 2d at 332, 478 N.E.2d at 359.) The court held that these were sufficient to create an inference of a knowing and intelligent waiver of a jury trial by both defendants. It then became the defendants\u2019 obligation to rebut the inference by offering something which would memorialize when the waiver indicated on the half-sheet allegedly occurred and which would contradict the common law record\u2019s reflection of waiver. In the absence of an inconsistent transcript or its suitable substitute, the court presumed the correctness of the common law entry showing waiver and that it was knowingly and intelligently made.\nIn the instant case, the common law record fails unequivocally to give rise to an inference of a valid waiver, as it is self-contradictory. Rather than offering proof of a knowing and intelligent waiver, it could actually be said to provide sufficient evidence that the jury waiver was not even made. On February 1, 1991, defendant made an express written demand for a jury trial by filing a demand for trial form and marking the box indicating that a jury was desired. On the other hand, the half-sheet, without making any reference to the withdrawal of the preexisting jury demand, contains an entry which indicates that defendant chose a bench trial, thus arguably waiving his right to a jury and presumably retracting the earlier jury demand. However, in view of the unequivocal nature of the jury demand and the recognized importance of the right to a jury trial, we find the ambiguous entry on the half-sheet insufficient to give rise to a Smith inference that defendant withdrew his jury demand or that he subsequently waived the right to a jury.\nFurthermore, even assuming the half-sheet entry of July 29, 1991, to be sufficiently clear, the report of proceedings rebuts any inference of waiver that might be gleaned from the half-sheet notations of that day. The transcript shows that the trial court did not attempt to explain to defendant the nature of the rights he would forego, nor did it attempt to ascertain if defendant already knew of them. Instead the court, seemingly on its own motion, found waiver presumably from defendant\u2019s silence. The salient portion of the transcript, after the defendant\u2019s case was called, reads as follows:\n\u201cMs. Strzalka [Counsel for defendant]: Judge, this is Mr. Evans. This case is set for trial today, Judge. The State\u2019s made Mr. Evans an offer which I have not yet had a chance to convey to him due to other matters.\nTHE COURT: Convey it. The offer is three years. Do you want it or not? The police officer is right in back of you, sitting right there. You know how long it would take to put this case on? Just like that.\nAll right, now, do you want to play some more games in the system, or you want to dispose of this case right now, or we\u2019ll go to trial?\nDEFENDANT: Can I get some time to think about it?\nTHE COURT: No, you have got all the time that you are going to get to think about it. And you should have thought about it before you got to this point.f]\nDEFENDANT: I\u2019m ready to go to trial.\nTHE COURT: You\u2019re ready to go to trial. Have a seat over there. The Court finds there is an informed and intelligent election on the part of the defendant to waive his right to trial, the right to jury. Accordingly, we\u2019ll proceed to bench trial.\u201d (Emphasis added.)\nIn Smith, the court held that a record which does not address the subject of jury waiver sufficiently rebuts the inference raised by a half-sheet entry which states that the defendant waived a trial by jury. Here, the record is not merely silent on jury waiver, but on the contrary, clearly manifests that defendant made no such waiver; he stated only that he was prepared to go to trial. Section 103 \u2014 6 creates a presumption that where a defendant does not affirmatively act to expressly waive his right to a jury, he must be tried before jury. Thus, the trial court, by inferring waiver from silence, erred in finding that the defendant waived a jury. Accordingly, we are bound to conclude, as did our supreme court in similar circumstances, that \u201c[i]t is apparent from the record, then, that the requirements of an understanding waiver made in open court were not satisfied, and therefore the cause must be remanded for a new trial.\u201d Smith, 106 Ill. 2d at 337, 478 N.E.2d at 362, citing Kickapoo Creek, Inc., 51 Ill. 2d 353, 282 N.E.2d 720; People v. Montgomery (1981), 96 Ill. App. 3d 994, 422 N.E.2d 226; People v. Coleman (1978), 59 Ill. App. 3d 1050, 376 N.E.2d 277.\nC\nThe State, however, maintains that although neither the defendant nor his attorney expressly waived the right to a jury, the trial court\u2019s finding of waiver may be affirmed nonetheless. To do so, the State asks that we extend the rule of People v. Sailor (1969), 43 Ill. 2d 256, 253 N.E.2d 397, wherein our supreme court held that a waiver of the right to a jury made by defendant\u2019s counsel will be valid and will bind the defendant if made in his presence and without objection. (See also People v. Murrell (1975), 60 Ill. 2d 287, 326 N.E.2d 762.) The State\u2019s argument in summary is that since defense counsel knew the consequences of the court\u2019s statement that it would hold a bench trial, and yet did not object, she implicitly waived her client\u2019s right to a jury trial, and defendant, by remaining silent in view of her acquiescence, is bound to her implicit waiver just as the defendants in Sailor and Murrell were bound by their attorneys\u2019 express waivers.\nWe find this argument unavailing for several reasons. First, the statute itself does not allow the trial court to infer from the defendant\u2019s silence that he waives the right to a jury. Rather, the cases construing section 103 \u2014 6 have held that it is satisfied only by an express waiver made by the defendant or his agent. (See Smith, 106 Ill. 2d at 334, 478 N.E.2d at 360 (\u201c[0]ur decisions have imposed on the circuit courts the duty of ensuring that a defendant\u2019s waiver of his right to a jury trial be made expressly and understanding^\u201d) (emphasis added); see also Frey, 103 Ill. 2d at 332, 469 N.E.2d at 197; Kickapoo Creek, Inc., 51 Ill. 2d at 356, 282 N.E.2d at 722; Clark, 30 Ill. 2d at 220, 195 N.E.2d at 634.) Clearly, none of these cases allows us to find waiver by piling inferences onto inferences as the State\u2019s proposed \u201cextension\u201d of Sailor would require.\nFurthermore, Sailor itself does not support the State\u2019s proposed extension of its rule. There, the court premised its holding on the pragmatic notion that a defendant normally acts through his agent, the attorney, and that courts necessarily rely on the professional competence of attorneys to ensure that their affirmative acts are made in the interest of adequately representing their clients. Absent this reliance, the court\u2019s conducting of a trial would be impracticable, as the judge would constantly be compelled to ask the defendant for assurances that an action taken by his attorney was authorized.\nHowever, given the ambiguity of silence, it would not be reasonable for a trial court to rely on or infer anything from an attorney\u2019s acquiescence; the court could never be certain that the silence actually conveys the message it perceives, much less that the defendant approves of that message. For instance, in the case at bar, it may very well be that the silence of the attorney and defendant conveys not a jury waiver, but only a lack of defendant\u2019s appreciation of the consequences of the court\u2019s finding that he waived a jury trial. This possibility is precisely what section 103 \u2014 6 was enacted to avoid. Under it, a waiver is valid only if affirmatively and unequivocally made; thus, we are precluded from finding waiver in silence.\nMore important, in a case not cited by either party, we have already addressed and rejected the State\u2019s argument that silence by both the defendant and counsel can constitute a valid waiver of the right to a jury trial. In People v. Ceaser (1974), 17 Ill. App. 3d 650, 307 N.E.2d 753, the defendant sought reversal of a conviction after a bench trial because the record was devoid of any indication that he was advised of or waived his right to a trial by jury. The court agreed, rejecting the argument that the waiver was apparent because the defendant sat through three days of trial without a jury while being represented by counsel, and never once objected to the conduct of the trial. The court recognized that any member of the bar would know that the defendant had a right to a jury, and that it was a \u201ccommonsense inference\u201d to suggest that both counsel and the defendant by remaining silent implicitly waived the right. The court concluded:\n\u201cHowever, our statute [Ill. Rev. Stat. 1967, ch. 38, par. 103\u2014 6] and the case law require more than the drawing of \u2018commonsense inferences\u2019 for the waiver [of the right to jury trial] to be effective. *** For us to say that the defendant here \u2018understandably waived\u2019 a jury trial we must have something more than the face of a three-day trial without a jury. A silent record does not show an affirmative compliance with the statute and this is required.\u201d Ceaser, 17 Ill. App. 3d at 650-51, 307 N.E.2d at 754.\nThe State\u2019s acquiescence argument here is merely a recasting of the \u201ccommonsense inference\u201d argument rejected in Ceaser. However, nothing has transpired in the nearly 20-year period since the handing down of that decision to affect the logic of its holding or to warrant a retreat therefrom. Section 103 \u2014 6 still requires an affirmative indication by the defendant or defense counsel which unambiguously manifests a knowing and intelligent waiver of the right to a jury trial. Such a waiver is totally lacking in the record here. Thus, the trial court\u2019s finding was clearly erroneous, and, therefore, its judgment of guilty must be reversed and the cause remanded for a new trial. As a final matter, we deem it appropriate to remind the trial attorneys in this case that although our supreme court has held that the onus is on the trial court to determine that the defendant makes a knowing waiver of the right to a jury trial, counsel for the State and the defendant, as officers of the court, have the concomitant duty to maintain the integrity of the criminal justice system. The appeal of this issue and the subsequent remand of this action because of it could easily have been avoided if either the State or defense counsel had simply informed the court that defendant had filed a trial demand and had requested a jury. The trial court would then have been on notice that, contrary to its mistaken belief, defendant desired a trial by jury. Instead, the attorneys did nothing. They, along with the trial court, share responsibility for the retrial of this action and its additional cost to the taxpayers of Illinois. However, since we may not visit the omissions of the attorneys on defendant and since the trial court failed to carry out its duty to secure an adequate waiver of a jury trial, we are forced to reverse the judgment of the trial court and remand for a new trial.\nReversed and remanded.\nMcCORMICK, P.J., and DiVITO, J., concur.\nWe are not offered any information in the record as to what holiday annually falls on January 31 or what holiday may have been observed on Thursday, January 31,1991.\nStatutory procedures requiring an express waiver of trial by jury in open court, thus ensuring on-the-record proof that the waiver was knowing and intelligent, have been a part of the Illinois Code of Criminal Procedure since 1827. See Rev. Laws 1827, par. 162, \u00a7176.\nThe case was actually a consolidation of two separate appeals on the validity of jury waivers. The cases were People v. Smith, No. 59851 and People v. Flowers, No. 59911.\nThe half-sheet entry on the date of the trial, July 29, 1991, cryptically reads: \u201cP PcPNGB trial FGPSi ordered Mot for P + DMHd ANSWto Disc Filed O/C 8-29-91.\u201d We assume \u201cB trial\u201d indicates a bench trial, manifesting defendant\u2019s waiver of a jury trial.\nWe note from the record that from February 11, 1991, when defendant first appeared before the court, until the commencement of trial, July 29, 1991, when the above colloquy took place, this action was continued five times. This could account for the trial court\u2019s apparent irritation. The record, however, does not indicate at which party\u2019s prompting the continuances were granted. Moreover, the many continuances do not absolve the trial court of its obligation to ensure that defendant does not waive so fundamental a right rashly but does so only after adequate contemplation.", "type": "majority", "author": "JUSTICE SCARIANO" } ], "attorneys": [ "Rita A. Fry, Public Defender, of Chicago (Denise R. Avant, Assistant Public Defender, of counsel), for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and Linda Woloshin, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN EVANS, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201491\u20143510\nOpinion filed March 2, 1993.\nRita A. Fry, Public Defender, of Chicago (Denise R. Avant, Assistant Public Defender, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and Linda Woloshin, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0072-01", "first_page_order": 90, "last_page_order": 101 }