*1 ques- the germane is propensity highly gunpoint. Such people However, robbery. this armed committed tion of whether defendant inadmis- evidence is highly charged that the settled such law is well a criminal bent from which is establish purpose sible if its sole the accompanied that predicament the guilt. infer This created robbery conviction— potential of defendant’s earlier armed admission sway prior the that defendant’s conviction would danger inherent al- question that thinking question guilt on the rather than into lowed for its evidence. admission Steigmann’s danger unique to criminal defendants. Justice
This address approach logic derives as a means to mere-fact-impeachment impeachment jurors the risk that will danger. this Mere-fact reduces guilt. a defendant’s This is its prior misuse a conviction decide logical prejudice ease that рurpose potential for unfair —to impeached criminality. face their prior defendants when against Hill take a criminal
James did not the stand defend prior guilt His not be misused to decide his charge. convictions could he guilt because his faced was prejudice issue. criminality possibility prior would use the evidence of his testimony purpose its intended and discount his because it. past Disclosure of the dishonest nature of Hill’s criminal would have prejudiced testimony, way. further his in an unfair but not Jurors question could not used nature of crimes other than to testimony’s prеcisely why This is we allow for the admis- worth. impeachment sion of this form of evidence. stated, I specially
For the reasons concur. ILLINOIS, Plaintiff-Appellee, BARRY THE PEOPLE OF THE STATE OF MATTHEWS, Defendant-Appellant.
Fifth District No. 5 — 96—0554
Opinion April filed
WELCH, J., dissenting. Gandy Fowler, Appellate
Daniel Kirwan and of M. Janet both State Office, Vernon, appellant. Defender’s of Mt. (Norbert Overholt, Attorney, Goetten, James State’s of Vandalia J. Ste- Hooks,
phen Norris, Attorneys Appellate E. and Heath H. all of State’s Office, counsel), People. Prosecutor’s for the opinion JUSTICE HOPKINS court: delivered of the defendant, Matthews, Barry by.a The six-person was convictеd jury of criminal aggravated sexual assault and was sentenced to 20 years’ On imprisonment. appeal, defendant raises issues whether he a valid of a jury made waiver whether the sentence an abuse of the trial court’s Due to our dispo- was discretion. only issue appeal, sition of this the first will be discussed. jury six-person
There are four references a the record. In chambers, presence, prior jury, in defendant’s to the selection colloquy the following occurred: asking six[-]person I we will be for a
“[Defense counsel]: think indicated, I THE The I talked tо the State and COURT: State yesterday possibility and the [defense counsel] talked to about that objection. State had no Attorney]: correct.”
[State’s That’s the potential The second reference occurred the court addressed when in the a little different sense as will be bit “[The trial] follows: in criminal case jury. Normally, six-person to use going we’re used twelve-person you what would be to see- you would have a jury one But, go with ing going on TV we’re present on sheet: “Defendant with The third is the docket alternate.” Attorney present. Defendant waives counsel trial. State’s object. Jury not [Attorney] of 12 does requests six. State’s posttrial in defendant’s motion: selected.” The last reference occurs by jury of trial “The failed to obtain a oral waiver written Although was members.” the issue raised consisting of twelve hearing motion, argued it at the on posttrial defendant’s motion. dealing has cases
This court
found few
12-person jury prior
than a
the start of
trial.
waiver
fewer
amendment
to the United States Constitution
fourteenth
guarantees
proceedings
a trial
defendants
state criminal
by jury
charged
where the offense
is such that if the case were tried
People Quinn,
rights
apply.
a federal
sixth amendment
1221,
of six
App. 3d
360 N.E.2d
requirement.
in size meet that
is sufficient
constitutional
I,
Article
section
by jury
of trial
provides,
Illinois Constitution of 1970
“The
I,
enjoyed
as
shall
Ill. Const.
art.
heretofore
remain inviolate.”
§ 13. The minutes of the
Constitutional Convention indicate
Sixth
*3
Rights
that the Bill
drafted article I did
intend
Committee which
empower
legislature
deny
to
in a criminal case the
the
defendant
case,
12
it did
jury
persons
to decide
intend
have
right.
Quinn,
46 Ill.
3d
permit
App.
the defendant waive that
See
582,
103 — 6
Code of Criminal
at
In 1 v. 363 Ill. N.E.2d 225 counsel People stipulated expressly the State the defendants and counsel each of 11 in lieu of by jurors that the be heard consented cause would 12, only persons supreme 11 Our panel. as there were available on the court if a could waive an entire defen reasoned that defendant long one so as the State and the dаnt could also waive or more supreme held that was committed court concurred. Our court no error with by the to the trial of the case proceeding trial court Seudieri, 87, 1 composed only 11 363 Ill. at N.E.2d members. 227.
In Scudieri, the waiver
by
was made
stipulations
the
counsel,
and the opinion does not indicate whether the waiver was made in
court,
open
whether the defendants
present,
were
explanation
what
had been made to the
rights. Quinn,
Scudieris of their
46 App.
Ill.
3d
582,
In People Pierce,
v.
172,
369 Ill.
In People v.
46 App.
3d
(1977),
the defendant chаrged complaints in two with the offense of bat tery. His first trial ended in a mistrial. The record did not reveal number of who served on the jury. Bragg first was convicted *4 trial, by jury six, at the second charges a of of both and was sentenced to concurrent terms of four imprisonment. ap months’ Not until the рeal Bragg’s did he statutory convictions raise the issue that his
419
was violated.
12-person jury
tried
to be
right
and constitutional
found
The court
at 823.
1083, 531 N.E.2d
3d at
App.
176 Ill.
Bragg,
will be
and error
may be invoked
error
plain
that
the doctrine
by a violation
prejudiced
was
that the defendant
appeаrs
if it
found
1084, 531
App.
Ill.
3d at
176
jury. Bragg,
right
to a
where
may
presumed
be
prejudice
found that
The court
N.E.2d
neither
full
right to a
unaware of his
the defendant was
the full number
to waive
in a decision
agreed
acquiesced
to nor
at 823. The court
1084, 531 N.E.2d
App.
Ill.
3d at
jurors. Bragg, 176
absolutely silent on the waiver
that wherе the record
reasoned
even aware of
was
assurances that defendant
and there are no
aspects
that
could not conclude
reviewing court
jury, a
right
to a
full
right to a
infringement of his
by the
Bragg
prejudiced
The court
at 824.
3d at
531 N.E.2d
App.
176 Ill.
jury. Bragg,
Bragg knew
whether
hearing
to determine
the cause for
remanded
right
acquiesced
or
and waived that
12-person jury
right
he had a
foregoing
and if the
in
the decision
a new
established,
request
condition could not be
1084-85,
531 N.E.2d
App.
176 Ill.
3d
granted. Bragg,
trial was to be
at 824.
(1996),
Johnson,
were not obstructing a resisting or guilty in found which defendant was request, officer, Upon the court’s a Class misdemeanor. peace Johnson, appearing who was addressed the issue. рarties specifically request in voluntarily purposely se, responded that he acted pro Johnson, statement. accepted The court Johnson’s ing only jurors. six case is at 487. The Johnson App. 3d at 674 N.E.2d 285 that the to a a court of this state found important that reviewing court raised on that a trial of 12 is so fundamental impaneled. the issue of how a of six was its own motion a criminal defendant’s found that Courts of this state have reviewing courts will that 12-person jury is so fundamental on or raise the issue appropriate doctrine where plain invoke the errоr feature of is an essential 12-person jury to a its own motion. The 3d at Bragg, guarantee. a substantial constitutional record indicates bar, nothing at 823. In the case at jury. Nothing aware of his defendant was than 12 of fewer agreed to the record indicates that defendant Preju in a оf six. members, acquiesced as occurred of his was unaware may presumed dice where defendant be in a decision acquiesced to nor agreed and neither waive the full jurors. number of 3d at *5 N.E.2d at 823. argues, The State “Because the record indicates that only stipulatеd defendant not six-person jury[ to a actually ] but one, requested it is fair to assume that fully defendant was informed right of his to a twelve-person jury and voluntarily waived it.” On a record, silent this court refuses to make the same assumption as does the State. therefore, This judgment reverses the of the circuit court and remands this cause for a new trial. This court declines to remedy follow the provided in Bragg First, for two reasons. this issue was raised in posttrial motion and should have been resolved at the hearing Second, on that motion. the trial years occurred over 2V2 prior decision, to this and this court believes that a reconstruction of prior what occurred to the trial would be People Neal, difficult. See 541, 554, 179 Ill. 2d
For the foregoing reasons, the judgment of the circuit court is re- versed, and this cause is remanded for a new trial.
Reversed and remanded.
GOLDENHERSH, J., concurs. WELCH, dissenting:
JUSTICE As I believe anything “silеnt,” the record in this case is but I respectfully dissent. good
A portion majority’s decision discusses the facts and However, holding Bragg. mysterious reason, some the majority omits the following statement made that court:
“[W]ere presented we here with a record from which we could statе with conviction that defendant specifically or his counsel had agreed six-person jury, with a we would not hesitate to determine, inas that defendant waived his State constitu added.) challenge purposes appeal.” tional (Emphasis Bragg, 3d at 1084. in Bragg proceedings The rеason this court remanded for further “absolutely because the record regarding silent” the defendant’s right absolutely nothing waiver of his showed jury. Bragg, that the defendant was aware of the to a in Bragg, 3d at 1084. Based on the statements made we can conclude that the record did spеcifi not show that defense counsel cally agreed six-person jury. Otherwise, according to a to its own anal ysis, its result would have been different. because,
The facts in differ from the facts in the case at bar Bragg here, multiple indicating the record contains instances that dеfendant that defendant jury to a knowingly waived his First, as to a unaware of his could not have been agreed specifically out, defense counsel majority points change the result enough been which would have presence in the requested he of defen- jurors, following pоtential addition, the court stated the dant. In the presence of defendant: only go- in the sense we’re a little bit different
“[The trial] will be you Normally,in a criminal case six-personjury. ing to use a twelve-personjury ***.” states, entry “Defendant waives Finally, there is a docket which These instances do not demonstrate requests jury of 12 and of six.” objects, claims that Defendant never never record which is “silent.” 12-person jury, and never claims he did not waive 12-person jury. he was unaware of can be found knowing understanding oral waiver from the ac where, presence objеction and without in the accused’s *6 accused’s cused, expressly advises the court of the defense counsel People Eyen, a bench trial. desire to reasoning apply not why There is no reason should here, completely does not even waive where defendant jurors. In merely agrees trial to a reduction the number of case, request agree this do we have defense counsel’s of defendant without presence ment for a made clearly objection, entry which indicates defendant’s we have docket that defendant аnd we have state waived presence pointing out that a ments made record in this Accordingly, is unusual. I do not believe that the Instead, acquiesced that defendant silent. I believe that it shows case is been un jury and that he could not have to a waiver of a such, respect I must finding aware of his fully dissent.