{ "id": 3264150, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUSSELL HIGHTOWER et al., Defendants-Appellants", "name_abbreviation": "People v. Hightower", "decision_date": "1979-06-29", "docket_number": "Nos. 78-745, 78-746 cons.", "first_page": "779", "last_page": "783", "citations": [ { "type": "official", "cite": "73 Ill. App. 3d 779" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "326 N.E.2d 762", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "765" }, { "page": "764-65" } ], "opinion_index": 0 }, { "cite": "60 Ill. 2d 287", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5415171 ], "weight": 4, "pin_cites": [ { "page": "291" }, { "page": "290" }, { "page": "290-91" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0287-01" ] }, { "cite": "253 N.E.2d 399", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "43 Ill. 2d 261", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "240 N.E.2d 756", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "758" }, { "page": "758" } ], "opinion_index": 0 }, { "cite": "99 Ill. App. 2d 208", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5322515 ], "weight": 3, "pin_cites": [ { "page": "211" }, { "page": "211-12" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/99/0208-01" ] }, { "cite": "253 N.E.2d 397", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "399" } ], "opinion_index": 0 }, { "cite": "43 Ill. 2d 256", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2843220 ], "weight": 2, "pin_cites": [ { "page": "260" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/43/0256-01" ] }, { "cite": "365 N.E.2d 907", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "50 Ill. App. 3d 348", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5642334 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/50/0348-01" ] } ], "analysis": { "cardinality": 515, "char_count": 9982, "ocr_confidence": 0.89, "pagerank": { "raw": 6.059735594408584e-08, "percentile": 0.3747071740475989 }, "sha256": "6857705ea9ad2efad79d347362b6ac384cc1a9c82e887e0ae8ca4022c231ca6f", "simhash": "1:a380881d356c9d12", "word_count": 1709 }, "last_updated": "2023-07-14T21:56:34.335432+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. RUSSELL HIGHTOWER et al., Defendants-Appellants." ], "opinions": [ { "text": "Mr. JUSTICE LORENZ\ndelivered the opinion of the court:\nFollowing a bench trial, defendants were convicted of theft (Ill. Rev. Stat. 1977, ch. 38, par. 16\u20141) and sentenced to 30 days imprisonment. On appeal, they contend that their convictions should be reversed because their waivers of jury trials were not understandingly made.\nThe following pertinent facts were adduced at trial.\nFor the State\nJoseph Jackson\nOn February 9, 1978, he was robbed at gunpoint. His 1975 Buick LeSabre, his watch, and his wallet containing his driver\u2019s license and motor club card were taken. He never gave defendants Hightower and Harris permission to touch or take anything on his car.\nOn cross-examination, he acknowledged that neither Hightower nor Harris robbed him on February 9, 1978.\nRaymond Turnan, Chicago Police Officer\nOn February 27, 1978, he saw defendants Hightower and Harris at 30th and Federal in Chicago. He observed Hightower and Harris take the last tire off a 1975 Buick, which was on \u201cblocks\u201d on the street, and put the tire into a white stationwagon. When he questioned them about this activity, Hightower told him that the Buick was his car, and he was selling the tires to Harris. Hightower showed him an \u201cAmco\u201d card and a driver\u2019s license which were in the name of Joseph Jackson. He noticed a discrepancy between Hightower\u2019s height and weight and the height and weight on the driver\u2019s license. After a check revealed that the 1975 Buick had been reported stolen, he placed Hightower and Harris under arrest. Harris told him he was purchasing \u201cthe tires\u201d for $200.\nOn cross-examination, he conceded that Hightower told him that he had purchased the Buick for $500.\nFor the Defense\nDefendant Travis Harris, on his own behalf\nWhen arrested on February 27, he was buying four tires from Hightower. He had first met Hightower that same day at the house of his girlfriend, Cynthia Brown, and he thought Hightower owned the tires. On cross-examination he denied ever going into the trunk of the Buick, and stated that Hightower alone went into the Buick and took off the tires.\nCynthia Brown\nShe lives with Harris. Harris had met Hightower once before the incident, but they did not speak. On the day in question, Hightower and Harris left her house and went to Hightower\u2019s car, so that Harris could buy tires.\nDefendant Russell Hightower, on his own behalf\nHe had purchased the 1975 Buick in question from Ray Caraway on the Monday before he was arrested. He had given Caraway $500, but was due to give him another $500 and get title to the car at that time. On February 27, 1978, immediately before his arrest by Officer Turnan, he was taking the tires off the car to sell them to Harris. He told Harris that he owned the car. He was selling the tires because the car would not move, and he was trying to get his money back. He had the keys to the car, and he put it on blocks and took the tires off by himself.\nOn cross-examination he admitted that he is not Joseph Jackson, but that at the time of his arrest he produced a driver\u2019s license and an \u201cAmco\u201d card which were in the name of Joseph Jackson and which he found in a wallet in the glove compartment of the car. He acknowledged that he met Harris at Cynthia Brown\u2019s house that day, but denied that Harris knew him or called out his first name.\nFor the State in rebuttal\nPolice Officer Raymond Turnan\nHe observed defendant Harris open the trunk of the Buick in question, take out a jack, and place it in the white stationwagon.\nOpinion\nDefendants\u2019 sole contention on appeal is that they did not knowingly and understandingly waive their rights to a jury trial. Defendants based this contention on the following exchange:\n\u201cASSISTANT PUBLIC DEFENDER: Your Honor, Defendant is ready for trial. Mr. Hightower is demanding trial by jury, and Mr. Harris is ready for trial and will waive his right to a jury trial.\nTHE COURT: We have to keep them together. I am not going to split them.\nASSISTANT PUBLIC DEFENDER: Your Honor, Mr. High-tower will withdraw his demand for a jury, and he\u2019ll waive his right to a jury.\nTHE COURT: What is the plea to the charge on Mr. Harris, trespassing and theft?\nASSISTANT PUBLIC DEFENDER: Not guilty.\nTHE COURT: What is the plea as to Mr. Hightower?\nASSISTANT PUBLIC DEFENDER: Not guilty.\u201d\nAs defendants point out, section 103 \u2014 6 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 103\u20146) provides that:\n\u201c[Ejvery person accused of an offense shall have the right to a trial by jury unless understandingly waived by defendant in open court,\u201d\nand it is the trial court\u2019s duty to insure that this is done. (People v. Brown (1977), 50 Ill. App. 3d 348, 365 N.E.2d 907.) Defendants initially argue that following the refusal to grant separate trials, the court should have \u201cgiven an opportunity\u201d or \u201callowed a short recess\u201d for them to consult with their attorney. However, they concede that no request for a recess or opportunity for a consultation was ever made of the court, and that no error can be charged to the court on that basis. They nevertheless argue that because it does not appear that they discussed their jury waivers with their attorney after the court\u2019s ruling, those waivers were \u201ccoerced\u201d by the ruling and \u201ccould not have knowingly and understandingly\u201d been made.\nWe disagree with defendants\u2019 argument. In People v. Sailor (1969), 43 Ill. 2d 256, 253 N.E.2d 397, our supreme court dealt with an argument that the trial court had not sufficiently determined that defendant\u2019s waiver of a jury trial, made through her attorney, was knowingly and understandingly made. In rejecting this argument, the court stated that: \u201cThe record reveals that defendant\u2019s counsel, in her presence and without objection on her part, expressly advised the court that the plea was \u2018not guilty\u2019 and that a jury was waived. 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.\u201d (43 Ill. 2d 256, 260, 253 N.E.2d 397, 399.) In the instant case, as in Sailor, waivers of a jury trial by Hightower and Harris were made in open court by their attorney in their presence. There were no objections or any other indications by defendants that the waivers were not understood and acquiesced to. The situation presented in this case is therefore identical to the one in People v. Melero (1968), 99 Ill. App. 2d 208, 240 N.E.2d 756, in which we observed that \u201c[i]f the jury waiver here was not understandingly made, this record does not show it.\u201d (99 Ill. App. 2d 208, 211, 240 N.E.2d 756, 758.) In Melero we further stated, in language quoted by our supreme court in Sailor, that:\n\u201c[T]he trial court was entitled to rely on the professional responsibility of defendant\u2019s attorney that when he informed the court that his client waived a jury, it was knowingly and understandingly consented to by his client. Defendant is not permitted to complain of an alleged error which was invited by his behavior and that of his attorney.\u201d (99 Ill. App. 2d 208, 211-12, 240 N.E.2d 756, 758, quoted at 43 Ill. 2d 261, 253 N.E.2d 399.)\nAlthough defendants herein argue that the trial court\u2019s ruling against separate trials may in some unexplained way have affected their true wishes for jury trials, it appears that this argument is totally based upon speculation which is not supported by the record. In People v. Murrell (1975), 60 Ill. 2d 287, 326 N.E.2d 762, the Illinois Supreme Court repeated the rule expressed in Sailor that a waiver of a jury trial by defense counsel in defendant\u2019s presence and without objection is a valid waiver. Defendants correctly point out that in Murrell, the court accepted as \u201cthe preferred procedure\u201d Standard 1.2(b) of the American Bar Association Standards relating to the Administration of Criminal Justice, which provides that a jury waiver should properly be made by defendant personally, either in writing or in open court for the record. (60 Ill. 2d 287, 291, 326 N.E.2d 762, 765.) Further, defendants attempt to distinguish Murrell by emphasizing defendant Hightower\u2019s original request for a jury trial and, as we noted above, by speculating as to the possible effect the joint trial ruling had on both jury waivers. The fact remains, however, that both jury waivers were made by defendants\u2019 attorney in their presence and without objection. In Murrell, in analyzing the waiver as preserved in the trial record, our supreme court noted that:\n\u201c[T]he waiver of the right to jury trial was not presumed, nor is the record silent on the question of waiver. The record shows that the waiver was made by counsel in open court in the presence of the defendant, who acquiesced in the waiver. The record is only silent as to the defendant\u2019s knowledge and intent.\u201d (60 Ill. 2d 287, 290.)\nThe supreme court concluded that it would not presume from a silent record that a waiver made by defense counsel as described above was not knowingly and intelligently made. (60 Ill. 2d 287, 290-91, 326 N.E.2d 762, 764-65.) We conclude that neither the trial court nor this court could properly presume from an otherwise silent record that a jury waiver made by the defendants through their attorney in their presence and without objection, was not understandingly made. Based on the foregoing, the judgment of the circuit court is affirmed.\nAffirmed.\nSULLIVAN, P. J., and MEJDA, J., concur.", "type": "majority", "author": "Mr. JUSTICE LORENZ" } ], "attorneys": [ "Ralph Ruebner and Nancy Abrahams, both of State Appellate Defender\u2019s Office, of Chicago, for appellants.", "Bernard Carey, State\u2019s Attorney, of Chicago (Lee T. Hettinger, Wesley H. H. Ching, and Paul C. Gridelli, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUSSELL HIGHTOWER et al., Defendants-Appellants.\nFirst District (5th Division)\nNos. 78-745, 78-746 cons.\nOpinion filed June 29, 1979.\nRalph Ruebner and Nancy Abrahams, both of State Appellate Defender\u2019s Office, of Chicago, for appellants.\nBernard Carey, State\u2019s Attorney, of Chicago (Lee T. Hettinger, Wesley H. H. Ching, and Paul C. Gridelli, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0779-01", "first_page_order": 801, "last_page_order": 805 }