*1 County (James v. Cook powers. discretionary exercise their Department Public Aid upheld be agencies The acts of administrative and officers should
where, us, limits the case before such acts are within relevant City Chicago v. Town purpose particular enabling legislation. Theatre, Inc., at 936. Underground reasons, of Revenue foregoing For the the decision of the Director affirmed. The of the circuit court reversed.
Reversed. ROMITI,
LINN JJ., amd ILLINOIS, THE Plaintiff-Appellee, PEOPLE OF THE OF STATE BROWN, Defendant-Appellant. L. SHERMAN (5th Division) First District No. 76-283 May Supplemental opinion rehearing filed filed on denial of 1977. July *2 Xinos, Defender, (Suzanne M. Assistant Doherty, Chicago Public of James J. Defender, counsel), appellant. for Public of Bolon, Timothy (Laurence Carey, Chicago Attorney, Bernard of State’s J. counsel), Ward, Attorneys, for the of Quinn, and Michael W. Assistant State’s People. opinion of the
Mr. PRESIDING SULLIVAN delivered JUSTICE court: rape of guilty was found
Following bench On years. to six to a term four deviate sexual assault sentenced trial; (2) valid waiver of a appeal, (1) contends there was no he guilty him prove was insufficient the State’s identification beyond a reasonable doubt. left February she
Mrs. Hill State that on Bessie testified began walking home and south on Racine toward 119th Street to take a place bus her She first man employment. observed a on the street approximately her, half block north she when reached 118th Street she jogging noticed her direction. When he was two directly commented, feet right, to her “The hawk is out.” She man, later identified was not masked and faced her spoke. when light It was enough responded, to see face and she “Yes, just conversation, I my missed bus.” There was no further but as she continued to walk ahead he threw a her head. coat over She started to struggle, but he hit her in the dragged face then to an abandoned her car where he forced her the back seat committed the sex offenses for which he was tried. She was during unable to see her assailant time, covering because the coat was still her head even the sex acts completed removed, had been and the coat had been she too frightened to immediately look but she did north running observe Racine toward 117th She then to a neighbor’s Street. went house and called police who took her to Hospital Roseland she was where examined. 15,1971, On she to police went headquarters and viewed a five-man June lineup and identified her defendant as assailant. She identified him at also trial.
On cross-examination, walking slowly she was because ice on the saw sidewalks and her assailant’s face conversation, which took from five to ten seconds. Within 30 minutes *3 assault, years after the she as 25 police described her assailant to the old, tall, gave 5 4 weighing pounds. feet inches and about 150 She no and, facial description although police she first the her did told assailant beard, a have she did not he later stated recall whether had a beard either at at lineup. having the time of the attack or She admitted intercourse with her night husband the the attack. before
Jerry Springer years he had a and policeman testified been for that after lineup, defendant had been identified he told that defendant the Miranda he had been given identified after he had been warnings, rape defendant admitted but committing denied mother, upon attacks said to his others. Defendant then he wanted see nearby who was with his in a that waiting Springer wife room. testified he accompanied and his Officer O’Connell defendant to meet mother said, they approached, up she stood embrace defendant and “Mama, I did it.” cross-examination,
On his Springer day that on arrest Initially, weighed pounds. defendant was 5 feet 8 inches tall and but, goatee examining did not recall a short after whether defendant wore mustache, had a copy police report, a his he stated that defendant goatee long sideburns. parties stipulated facts were —that no visible Hospital disclosed at Roseland prosecutrix
examination of presence positive indicating smear was injury, vaginal but a — 2, 1971, a February injury an on spermatozoa; that Brown sustained called, Vanderbilt, if foot; that Dr. Paul dropped on his casting Brown for 2, 1971, Sherman he treated testify February that on would and advised Brown taped X-rayed, splinted, a which he injury to toe called, that, Earl Fredrick would work; if Dr. stand not to while February his medical care on that was under testify Sherman Brown him foot, to remain which he advised a of the left for for contusion February February from off his feet and off work Four witnesses for the defense testified: remember could not next door to Foggie, Nelda who lived of 1971 he had in the first three months days but recalled that the exact aid of a crutch. with the on his foot and walked wrapping eight years knew defendant Barbara Jones 6, 1971, that his foot 2, 1971, February February again on noticed together by clips. wrapped bandage with an ace held home February he left Defendant’s mother testified that on Co. When he came go Equipment to work at the Clark p.m. after it was still night, bandaged home from work foot February June, lineup, 4. In she had a conversation wrapped on after the wife, and another Springer, of his Officer presence with defendant to make police trying officer. said then that were Defendant all and that he did not commit rapes confess to committed the area any of them. 2, 1971, he walked with the February
Defendant’s wife testified that on crutch, that this condition bandaged, since his foot was aid of never through February 4. She also said continued rape of which he admitted in her that he committed accused. called if Officer O’Connell were parties stipulated then that Officer
rebuttal, substantially the same as would be Springer. contends, is silent and the
Defendant first “[w]here clerk’s form and the waiver is written evidence of *4 admonished, jury trial is not the waiver of memo that defendant was knowingly jury made.” Whether waiver expressly intelligently facts and particular on the depends made 497, (1965), 32 case. v. Richardson circumstances of each the waiver had ascertain whether 453.) duty N.E.2d The court has a been understandingly Bell 479, made. However, 321.) N.E.2d explanation an of the jury ramifications of a is necessary only when the facts and circumstances indicate defendant did not right understand his by to trial in jury regard, this he is held to have and understanding^ waived a jury when his attorney, with confer, whom an opportunity he had waives a jury (People v. objection. without his Sailor 256, Ill. 2d court, in People v. Murrell supreme Our 287, preferred said that the jury waiver procedure was that contained the American Bar Association Standards relating to the Administration of Criminal Justice, as follows:
“The court should not accept defendant, a waiver unless the after being advised the court of his right by jury, to trial personally right waives his by jury, to trial either in writing or open 287, 291, court for the 762, 765. record.” 60 Ill. 2d case, In the instant jury 30, 1974, waiver form dated October was signed and it contained the statement:
“I, undersigned, hereby do waive trial and submit above entitled cause to the court for hearing.” The record also court, contains a five-page document of the trial entitied Orders,” “Memorandum of in which there is a entry clerk’s dated October 30, 1974, stating it, interpret parties plea were and a guilty entered; of not that defendant was advised of but waived his right to trial by jury; signed waiver; that he a jury and that after heard, a motion for mistrial was made following which more testimony was heard.
We note that
most of
the content of this October
notation is
otherwise supported by the record.
Included
it is
signed jury
and the transcript
of proceedings
reveals
the trial
commenced and testimony was
day;
heard on that
that a motion for
mistrial was
denial,
made
following its
additional
taken.
matter
the October
notation not specifically
found in the record is the
statement
defendant was
advised to
however,
trial. It
significant,
that defendant was
represented by private
counsel
proceeded
and the case
aas bench
which
Further,
would indicate there
had been a
waiver.
first
page of the transcript proceedings,
appears
prior
commencement
of trial on October
certain
matters
preliminary
were
discussed as evidenced from the comment of defendant’s counsel to the
court just
that,
before making
opening
ready
statement
“We answered
this morning.” No transcript of those morning proceedings was included
record,
in the
nor for that
transcripts
matter were
of the
pretrial
numerous
than
proceedings,
arraignment.
party
other
*5
which
record
present
must
a
reviewing court
brings a cause to a
who
for a decision
necessary and material
all matters
clearly
fully presents
and
(1974),
v. Callahan
Printing Co.
(Interstate
of
questions
raised
incomplete,
930,
and
the record is
786),
310 N.E.2d
where
App. 3d
not
with
facts
inconsistent
reviewing
presume
court will
trial court.
support
will
and
of
record which
sustain
190,
206 N.E.2d
(1965),
App.
57 Ill.
2d
People v. Zimmerman
a
Here,
of
incomplete
is
because of the absence
the record
a
of
preliminary proceeding
question
of the
at which
record
was discussed. The
apparently
waiver would have been and
the trial
attorney
his
indicates that
was
with
defendant
it
that either
appear
and
does
began on
nowhere
Murrell,
in refusing
presume
In
to
objected to a bench trial.
the court
and
knowingly
trial was
from a silent record that the waiver of a
not
made,
neither of
understandingly
thought
significant that
deprived
a
there
that he
or was
urged
defendants
had
wanted
here,
his
So too
prejudiced by
or that he was
counsel’s waiver thereof.
only
makes
asserts
that the record
defendant
no such contentions. He
that the
as
a
from such a record
silent
and we will
assume
Murrell;
was not
and
See
made.
109,
(1975),
App.
v. Burnett
35 Ill.
We duty carefully our examine in rape the evidence cases, but upon we will not encroach the function of the trier of fact to Collins weigh credibility (People v. presented. and assess the evidence (1974), App. 916.) 3d 315 N.E.2d sustain a We note also rape, testimony conviction of complainant must be clear and convincing or other corroborated facts and circumstances. Here, App. Ill. there was Jackson testimony police from the officers on two occasions defendant Moreover, rape. admitted strong the Hill Therefore, unwavering vigorous even under cross-examination. we believe that was her clear and it was convincing but also supported corroborating facts.
In a bench judgment we will not substitute our for that of the trial proof court unless unsatisfactory justify is so as to a reasonable doubt v. Clark guilt. Ill. 363; People v. Tillis 332), have not found so in this case. reasons, foregoing
For the is affirmed.
Affirmed. WILSON, JJ.,
MEJDA ON DENIAL OF REHEARING SUPPLEMENTAL OPINION opinion Mr. SULLIVAN delivered PRESIDING JUSTICE court: he termed to be rehearing,
With defendant filed what petition record,”1 statements from court containing two short “supplemental trial court that there were no reporters suggests which he established 30, 1974. Based morning in this of October proceedings matter on statements, is mandated because solely argued it is that reversal on these at that time relative to defendant could not have been admonished statements, Alpha trial. In Martin states: one of the Judge White “I did Sherman Brown before not take the case of October, for a half hour day only present on the 30th 1974.1was late. The case of Sherman reporter because the for that court was I Brown was not even called while was there.” other, In Sayre Ruth states: WHITE’S assigned Judge I was DANIEL court “[T]hat J. 30th, my *7 in corroborating entry
defendant on October “memorandum of orders” on the same date.
The trial session of the court on October commenced the afternoon reference to the proceedings because the containsno place took either jury appears that the admonitions morning attended either of the two court session or some time not A from the comment of reporters. morning session was indicated called the afternoon attorney defendant’s when the case was morning.” light In the ready that “We answered mandated foregoing, reject that reversal is defendant’s contention reporter the content of the court' statements.
Moreover, morning that there was no such even were we to assume session, remains our belief that defendant “supplemental but, This record” was not conformance with the rules in the absence of objection thereto, we allowed it to be filed. jury waived a trial. We think that facts are significant more and are controlling themselves of this issue. First, sign defendant did being waiver on October 30 while counsel; represented by
Second, the October 30 entry clearly the memorandum of orders states that he was advised of his trial after being so informed, waiver; signed
Third, objection no was made at the commencement of October 30 to the jury; case heard without a Fourth, defendant urge does not that he wanted or that he was trial; deprived of a jury
Fifth, he does not sign contend he did not or that it was not voluntary or that he way prejudiced by it. 287, 291, 326
As in People v. Murrell 765:
“Neither of the defendants in these cases now before this court has urged that he wanted or that was deprived trial. urges Also neither in any way prejudiced by his counsel’s waiver. There no contention that the waiver was not voluntary. Under these circumstances we will not reverse the People Dudley, 57; People Morehead, convictions. v. 58 Ill. 2d v. 326.” thereof, here, In view we will not reverse the conviction petition rehearing will be denied. Petition for rehearing denied. WILSON, JJ.,
MEJDA In re PETITION FOR REFERENDUM CONCERNING DISCONNECTION (ALSIP PARK OF PROPERTY WORTH-PALOS PARK FROM DISTRICT. — DISTRICT, DISTRICT, Petitioner-Appellee, WORTH-PALOS PARK Respondent-Appellant.) (4th Division) 76-117 First District No. filed June A.D. notes 1974. I transcribed shorthand pertaining of Illinois versus People to the case of of the State Brown, P.M. on hearing commencing Sherman at a at 2:00o’clock nothing I there was hereby certify said date. that on said date in morning.” relative to the Sherman Brown case heard and that neither Initially, is noted the statements are unverified reporter morning court in the courtroom on the question. Martin say does not whether her half-hour state, however, morning reporter assigned or afternoon. She does that the in question day. Sayre says to the courtroom appearing was late that she assigned reporter present during was the and was the afternoon Although session. she makes no as to the courtroom statement session, morning nothing concludes that nevertheless is not morning. related to the instant case was heard in the This conclusion record, supported by signed by is a which there