People v. Johnson ( 2010 )

Docket No. 108253.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JAMES
T. JOHNSON, Appellee.
Opinion filed October 21, 2010.
JUSTICE KILBRIDE delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Thomas, Garman, and
Karmeier concurred in the judgment and opinion.
Justice Burke dissented, with opinion, joined by Justice Freeman.
OPINION
The issue in this appeal is whether defendant’s forfeiture of his
challenge to the trial court’s ex parte communication should be
excused under either prong of plain-error analysis. The appellate court
determined that defendant’s claim was reviewable under the second
prong of the plain-error doctrine because the error was sufficiently
serious to deny him a fair trial. 388 Ill. App. 3d 199, 203 (Johnson II).
For the reasons that follow, we reverse the appellate court’s
judgment.
I. BACKGROUND
The State charged defendant, James T. Johnson, with one count
of criminal sexual abuse, a Class A misdemeanor (720 ILCS
5/12–15(c) (West 2004)), alleging that on May 23, 2005, defendant
knowingly had sexual intercourse with the victim, A.C., when she was
between 13 and 17 years old, and defendant was less than 5 years
older than A.C. Defendant’s first jury trial in the circuit court of Will
County resulted in a deadlocked jury, and the court declared a
mistrial. The State then retried defendant.
At defendant’s second jury trial, A.C. testified that she was born
on November 12, 1990, and defendant was born on March 29, 1988.
On the date of the incident, May 23, 2005, A.C. was 14 years old and
had been dating defendant, who was 17 years old, for less than one
year. Although it was a regular school day, A.C. did not report for
school that morning. Instead, A.C. went to defendant’s house and
defendant called her school to report falsely she was sick. A.C. and
defendant watched television together until defendant’s mother left for
work. After defendant’s mother departed, A.C. and defendant had
sexual intercourse.
Later, A.C. heard her mother knocking on the front door of
defendant’s house. Rather than answering the door, A.C. and
defendant went to a second-story back room and waited for A.C.’s
mother to leave. Less than an hour later, A.C. heard her mother and
father return to defendant’s house. A.C. and defendant again did not
respond and waited for her parents to leave. A.C.’s father returned to
the house a second time, but left after receiving no response from
anyone inside. Thereafter, A.C. and defendant left and went to a
friend’s house, staying there for two or three hours before returning
to defendant’s house.
Later that evening, at approximately 5:30 p.m., a police officer
arrived at defendant’s house looking for A.C. A.C. left with the
officer, who drove her to her parents’ home. A.C.’s mother then took
her to the police station, where A.C. told officers she had sexual
intercourse with defendant that morning. A.C. also went to a hospital
for an examination and later learned that she was pregnant.
On cross-examination, A.C. testified that she voluntarily had
intercourse with defendant and he never forced her to do anything.
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A.C. reported she cared for defendant at the time and she continued
to care for him after the incident. A.C. also stated that her parents
were angry at her and defendant, and they refused to let A.C. see
defendant.
The State next called Lockport police detective William Sheehan,
who interviewed defendant at the police department. During that
interview, defendant admitted having sexual intercourse with A.C. on
May 23, 2005. The State introduced defendant’s birth certificate and
then rested its case against defendant. The defense rested without
presenting any evidence.
Following closing arguments, the jury found defendant guilty of
criminal sexual abuse. After dismissing the jurors, the trial judge
explained to the parties a note he received from the jury during its
deliberations, as follows:
“Approximately 30 minutes ago, 40 minutes ago, I
received a note, this note[,] from the jurors. ‘Our desicion
[sic] is 11 to 1, we need advise/help [sic].’ My response to
that was, ‘continue deliberating.’ This was not on the note
when I received it, this writing on the bottom here.”
The writing on the bottom of the note referenced by the judge
indicated, “We have one not guilty who will not change. 11 vote
guilty.”
Defense counsel responded “okay” to the information about the
jury note, but did not object to the trial court’s response. Nor did
defendant raise a claim based on the jury note in his posttrial motion
for a new trial.
On direct appeal, however, defendant challenged the trial court’s
answer to the jury note, arguing that the court’s response in
defendant’s absence denied his right to be present and his right to
counsel at a critical stage in the proceedings. The State countered that
defendant forfeited his claim by failing to preserve it with a timely
objection and posttrial motion. The State further argued defendant
could not demonstrate plain error to excuse his forfeiture.
Rejecting the State’s plain-error argument, the appellate court
reversed defendant’s conviction, holding that the trial court’s ex parte
communication with the jury deprived defendant of his constitutional
rights to be present and to counsel and the State failed to show
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defendant was not prejudiced by the court’s communication. People
v. Johnson, 383 Ill. App. 3d 281, 285 (2008) (Johnson I). Justice
Carter specially concurred, agreeing that defendant’s conviction
should be reversed but contending that the court should have
reviewed his claim for plain error, with the burden of persuasion on
defendant. Johnson I, 383 Ill. App. 3d at 285 (Carter, J., specially
concurring).
This court denied the State’s petition for leave to appeal. Instead,
we issued a supervisory order directing the appellate court to vacate
and “reconsider its judgment, in a published opinion, in light of the
rule that in a plain-error analysis, the burden of persuasion is on the
defendant.” People v. Johnson, 229 Ill. 2d 681 (2008) (supervisory
order).
On remand, the appellate court again reversed defendant’s
conviction, concluding that the trial court’s ex parte response to the
jury note deprived defendant of his constitutional right to be present
during all critical proceedings. Johnson II, 388 Ill. App. 3d at 204.
Accordingly, the appellate court found that defendant satisfied his
burden under plain-error analysis to show the trial court’s ex parte
communication with the jury prejudiced him. Johnson II, 388 Ill. App.
3d at 203. This court allowed the State’s petition for leave to appeal.
210 Ill. 2d R. 315.
II. ANALYSIS
The primary issue in this case is whether the trial court’s improper
ex parte communication with the jury about the note is reviewable as
plain error. When, as here, a defendant fails to object to an error at
trial and include the error in a posttrial motion, he forfeits ordinary
appellate review of that error. People v. Enoch, 122 Ill. 2d 176, 186
(1988). Consequently, as the parties agree, defendant forfeited, or
procedurally defaulted, his challenge to the trial court’s ex parte
communication with the jury about the note by failing to object and
raise his claim in a posttrial motion.
Under Illinois’s plain-error doctrine, however, a reviewing court
may consider a forfeited claim when:
“(1) a clear or obvious error occurred and the evidence is
so closely balanced that the error alone threatened to tip the
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scales of justice against the defendant, regardless of the
seriousness of the error, or (2) a clear or obvious error
occurred and that error is so serious that it affected the
fairness of the defendant’s trial and challenged the integrity of
the judicial process, regardless of the strength of the
evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007),
citing People v. Herron, 215 Ill. 2d 167, 186-87 (2005).
The doctrine is intended to ensure that a defendant receives a fair trial,
but it does not guarantee every defendant a perfect trial. Herron, 215
Ill. 2d at 177. Rather than operating as a general savings clause, it is
construed as a narrow and limited exception to the typical forfeiture
rule applicable to unpreserved claims. Herron, 215 Ill. 2d at 177.
A defendant seeking plain-error review has the burden of
persuasion to show the underlying forfeiture should be excused.
Herron, 215 Ill. 2d at 187. The ultimate question of whether a
forfeited claim is reviewable as plain error is a question of law that is
reviewed de novo. People v. McLaurin, 235 Ill. 2d 478, 485 (2009).
On appeal, the State acknowledges that the trial court erred when
it responded to the jury note without consulting the parties, citing
People v. Kliner, 185 Ill. 2d 81 (1998), People v. McDonald, 168 Ill.
2d 420 (1995), and People v. Childs, 159 Ill. 2d 217 (1994).
Nonetheless, the State argues that defendant forfeited appellate review
of that error by failing to object at trial and raise the error in a posttrial
motion. The State further argues that the forfeited issue is not
reviewable as plain error because the evidence of defendant’s guilt
was not closely balanced and the error was not serious enough to deny
defendant a fair trial. The State contends that the substance of the trial
court’s response to “continue deliberating” was appropriate and did
not impact the fairness of defendant's trial.
Defendant concedes he forfeited his claim, but argues it is
reviewable under both prongs of plain-error analysis. Defendant
argues the evidence is closely balanced and the trial court’s error
involved his substantial constitutional right to be present with counsel
at all critical proceedings, implicating the fundamental fairness and
integrity of his trial. Defendant also argues the substance of the trial
court’s communication is irrelevant to a plain-error analysis.
Alternatively, defendant maintains a more lenient standard of
procedural default should apply when, as here, the basis for the
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defendant’s claim is the trial judge’s erroneous conduct.
Because the State concedes that the trial court’s ex parte
communication in this case was error, this appeal focuses on the two-
prong test governing a plain-error analysis. See, e.g., Piatkowski, 225
Ill. 2d at 565 (ordinarily, the first step in a plain-error analysis is
determining whether a clear and obvious error occurred). Under the
first prong, the defendant must show that the evidence was “so closely
balanced that the error alone threatened to tip the scales of justice
against the defendant, regardless of the seriousness of the error.”
Piatkowski, 225 Ill. 2d at 565. As this court has explained, “[w]hen
error occurs in a close case, we will opt to ‘err on the side of fairness,
so as not to convict an innocent person.’ ” Piatkowski, 225 Ill. 2d at
566, quoting Herron, 215 Ill. 2d at 193. The question of whether the
evidence is closely balanced is distinct from a challenge to the
sufficiency of the evidence. Piatkowski, 225 Ill. 2d at 566. Defendant
was accused of committing criminal sexual abuse by knowingly having
sexual intercourse with A.C. when she was between 13 and 17 years
old and he was less than 5 years older than A.C. See 720 ILCS
5/12–15(c) (West 2004).
Here, it is undisputed that on May 23, 2005, the victim, A.C., was
14 years old, and defendant was 17 years old. A.C. also testified for
the State, explaining that she had consensual sexual intercourse with
defendant at his home that day. Detective Sheehan testified that
defendant admitted to having intercourse with A.C. that day.
Defendant did not present evidence or witnesses in his defense, nor
did he testify.
We reject defendant’s characterization of the evidence as closely
balanced for the purpose of plain-error analysis. To the contrary, in
our view, the strength of the evidence is overwhelming. A.C. testified
that she and defendant had sexual intercourse and defendant admitted
the same to Detective Sheehan. Neither A.C.’s nor Detective
Sheehan’s testimony was substantively impeached or otherwise
contested on that issue. In addition, the ages of A.C. and defendant
were not disputed. Accordingly, defendant’s forfeiture may not be
excused under the first prong of the plain-error test.
We next consider the second prong of plain-error analysis,
requiring defendant to show that, despite forfeiture, the error was “so
serious that it affected the fairness of [his] trial and challenged the
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integrity of the judicial process, regardless of the closeness of the
evidence.” Piatkowski, 225 Ill. 2d at 565. Under the second prong, the
strength of the State’s evidence is immaterial because prejudice to the
defendant is presumed based on the importance of the right involved.
Herron, 215 Ill. 2d at 187.
This court recently considered a trial court’s ex parte
communication with a jury under a plain-error analysis. See
McLaurin, 235 Ill. 2d at 496. The McLaurin defendant challenged the
trial court’s discussion of several jury notes with counsel in
defendant’s absence, and the court’s decision to instruct a bailiff to
enter the jury room and tell the jury to continue deliberating. The
defendant, however, did not object at trial and did not raise his claims
in a posttrial motion, thus forfeiting review on appeal. McLaurin, 235
Ill. 2d at 485.
Before rejecting the defendant’s argument that his forfeited claim
should be reviewed as plain error as a violation of his substantial right
to be present, this court observed that, “although criminal defendants
have a ‘general right to be present’ at every stage of the trial, ‘the
broad “right to be present at trial” is not itself a substantial right under
the Illinois Constitution.’ ” McLaurin, 235 Ill. 2d at 490, quoting
People v. Bean, 137 Ill. 2d 65, 80-81 (1990). Instead, the right to be
present is a “lesser right” that is intended to secure the substantial
rights of a defendant, such as the right to confront witnesses, the right
to present a defense, or the right to an impartial jury. In McLaurin, the
defendant did not show that any of those underlying substantive rights
had been violated. McLaurin, 235 Ill. 2d at 491. Likewise, this court
observed that “the federal ‘right of presence’ is not itself an express
constitutional right” before similarly determining that the defendant’s
federal right was not violated. McLaurin, 235 Ill. 2d at 492, quoting
Bean, 137 Ill. 2d at 82-83.
This court was not persuaded by the defendant’s argument that he
was denied an opportunity to provide his own answers to the jury’s
note, finding the defendant’s failure to challenge the substance of the
trial judge’s responses significant. Noting that a trial court has broad
discretion to respond to a jury note indicating a deadlocked jury, we
concluded that the court’s responses to “keep on deliberating with an
open mind” and “keep on deliberating” were properly clear, simple,
and not coercive. Thus, after reviewing the record, this court found
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that the defendant was not denied a fair trial by his absence from the
discussion of the jury notes. McLaurin, 235 Ill. 2d at 491-93.
This court also rejected the defendant’s argument, based on the
decisions in People v. McDonald, 168 Ill. 2d 420 (1995), and People
v. Childs, 159 Ill. 2d 217 (1994), that his mere absence from the
discussion of the jury notes required a new trial, regardless of the
substance of the ex parte communication. Recognizing a defendant’s
right to appear and participate in person and by counsel at all
proceedings involving his substantial rights, we nonetheless observed
that Childs and McDonald further held that a defendant was not
entitled to a new trial based on errors impacting that right unless he
suffered actual prejudice. This court also noted that both defendants
in Childs and McDonald properly preserved their claims of error, thus
requiring the State to show that the errors were nonprejudicial under
a harmless-error analysis. In contrast, the McLaurin defendant failed
to preserve his claim, and, thus, he had the burden of persuasion in a
plain-error analysis. Ultimately, this court concluded that defendant
did not satisfy his burden. McLaurin, 235 Ill. 2d at 494-96.
In our view, McLaurin is dispositive on the issue of whether
defendant’s claim in this case is reviewable as plain error under the
second prong. Defendant argues that his forfeited claim qualifies for
review as second-prong plain error because the trial court’s ex parte
response to the jury’s note was an error serious enough to deny him
a fair trial, regardless of the substance of that communication. In
McLaurin, however, we considered an almost identical ex parte
response and concluded it did not deny the defendant a fair trial for
purposes of plain-error review. McLaurin, 235 Ill. 2d at 491-93.
Furthermore, defendant is essentially arguing that his right to a fair
trial was per se impacted based solely on the trial court’s ex parte
communication with the jury. Defendant contends that the substance
of the communication is irrelevant to a plain-error analysis. Although
this court historically required a new trial whenever any ex parte
communication occurred between the trial judge and the jury,
regardless of its substance, we have expressly moved away from such
a rule. See Childs, 159 Ill. 2d at 227-28 (detailing “evolution” of this
court’s handling of ex parte communications between trial judge and
jury). In fact, as we explained in Childs, an ex parte communication
now serves as grounds for a new trial only if it results in injury or
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prejudice to the defendant. Childs, 159 Ill. 2d at 227-28; see also
McDonald, 168 Ill. 2d at 460. Simply put, a nonprejudicial ex parte
communication is insufficient to impact the fairness of a defendant’s
trial.
Thus, as the State argues, when a defendant forfeits his challenge
to a trial court’s ex parte communication with the jury, it is necessary
to consider the substance of that communication to determine whether
it constitutes plain error. Here, as in McLaurin, the trial judge simply
told the jurors to “continue deliberating,” a clear and noncoercive
response well within his discretion. See McLaurin, 235 Ill. 2d at 491(noting that “the trial court has broad discretion when responding to
a jury that claims to be deadlocked, although any response should be
clear, simple, and not coercive”).
After carefully reviewing McLaurin, we find no reason to depart
from its reasoning and similarly conclude that the trial court’s ex
parte response to the jury to “continue deliberating” did not deny
defendant a fair trial. Because the error was not “so serious that it
affected the fairness of the defendant’s trial and challenged the
integrity of the judicial process, regardless of the closeness of the
evidence,” it is not reviewable as second-prong plain error.
Piatkowski, 225 Ill. 2d at 565. Having determined that defendant’s
forfeited claim does not qualify for plain-error review under either
prong, we hold that there is no basis to excuse its forfeiture.
Nor are we persuaded by defendant’s alternative argument that the
forfeiture rule should be relaxed because the procedural default
involves the trial judge’s conduct, citing People v. Sprinkle, 27 Ill. 2d
398, 400-01 (1963). We rejected this same argument in McLaurin,
concluding the defendant failed to present a sufficiently compelling
reason to justify relaxing the forfeiture rule. McLaurin, 235 Ill. 2d at
489. More recently, in the context of discussing Sprinkle, this court
explained that excusing forfeiture based on the trial judge’s conduct
“is warranted when the trial court has overstepped its authority in the
presence of the jury or when counsel is effectively prevented from
objecting as any objection would have ‘fallen on deaf ears.’ ” People
v. Hanson, No. 106566, slip op. at 33 (June 24, 2010), quoting
McLaurin, 235 Ill. 2d at 488.
Here, as we have already determined, the trial court did not
overstep its authority by instructing the jury to “continue
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deliberating.” Although defendant may have been precluded from
objecting to the trial court’s initial ex parte communication when it
was issued because he was not present, he did have the opportunity to
object when the court later informed his counsel of that
communication. Nothing in the record indicates that an objection
would have been ignored by the trial court. Defendant, however,
failed to object at that time and later failed to raise the claim in a
posttrial motion. As McLaurin observed, “[f]ailure to raise claims of
error before the trial court denies the court the opportunity to correct
the error immediately and grant a new trial if one is warranted,
wasting time and judicial resources.” McLaurin, 235 Ill. 2d at 488,
citing Enoch, 122 Ill. 2d at 185-87. We find no justification for
relaxing the forfeiture rule in this case.
III. CONCLUSION
We conclude that defendant has failed to meet his burden to show
that his forfeited claim should be reviewed as plain error under either
prong of plain-error analysis. We find no basis to excuse its forfeiture
or to relax the forfeiture rule. Accordingly, we reverse the judgment
of the appellate court and affirm the circuit court’s judgment.
Appellate court judgment reversed;
circuit court judgment affirmed.
JUSTICE BURKE, dissenting:
Defendant, a high school student, was charged with criminal
sexual abuse after he and his girlfriend, a fellow student and minor,
engaged in consensual sex. A trial commenced on September 29,
2005. The jury retired to deliberate at 1:30 p.m. on September 30. At
4:05 p.m., the jury advised the court it was unable to reach a verdict.
The trial court continued the case to October 3. On October 3, the
jury continued to deliberate.1 At 10:54 a.m., the jury advised the court
1
The record does not disclose what time the jury resumed deliberations.
The docket entry from September 30 states court was to resume at 9:30 a.m.
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it was, in the words of the court, “hopelessly deadlocked.” The trial
court declared a mistrial.
A second trial commenced on April 19, 2006. The jury retired to
deliberate at 2:14 p.m. At 4:17 p.m., the jury returned a guilty verdict.
In the intervening time, the jury sent two notes to the trial judge.
Within 1½ hours of retiring to deliberate, the jury sent a note stating:
“Our desicion [sic] is 11 to 1, we need advise/help [sic].” The trial
judge responded: “Continue deliberating.” At 4:17 p.m., 30 to 40
minutes later, according to the trial judge’s statement on the record,
the jury returned its verdict. Thereafter, the trial judge advised the
parties of the jury’s note. At this time, the court also advised the
parties there was additional writing at the bottom of the note which
had not been there when he first received the note. This writing stated:
“We have one not guilty who will not change. 11 vote guilty.”
There is a second note from the jury in the record. This note,
dated April 19, 2006, states, “What are the possible sentences for
crimial [sic] sexual abuse?” The trial judge responded to this note,
stating, “You should not be concerned with the possible punishment
or sentence for the offense charged during your deliberations.” The
trial judge never advised the parties of this note or his response.
Relying on People v. McLaurin, 235 Ill. 2d 478 (2009), the
majority concludes there was no reversible error in this case even
though the trial judge responded to the jury’s notes without contacting
or consulting with either defendant or his attorney. I disagree with this
conclusion and the majority’s reliance on McLaurin and therefore
dissent.
In McLaurin, the jury sent five notes to the trial judge during
deliberations. The first note requested certain evidence. The jury sent
a second note, stating it was deadlocked 8-4. The trial court, after
consulting with both counsel, instructed the jury to continue
deliberating. The jury then sent a third note, stating it was deadlocked
7-5. Before the court answered the third note, the jury sent another
note again stating it was deadlocked 7-5. The jury, at this time, also
requested to review certain testimony. The trial court provided the
jury with the testimony and ordered the jury members to keep
deliberating. Shortly thereafter, the jury returned a guilty verdict.
Importantly, defense counsel was present and participated in the
discussing concerning each of these notes. McLaurin, 235 Ill. 2d at
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483.
On appeal, the defendant argued that his personal right to be
present, under both the Illinois and federal constitutions, had been
violated because he was absent from the conversations in which the
jury notes were discussed. Noting the defendant failed to object at trial
or raise the claim in his posttrial motion, we found the claim was
reviewable only under the plain-error doctrine. Relying on People v.
Bean, 137 Ill. 2d 65 (1990), we reasoned that the defendant’s absence
did not have an effect on any of his substantial rights and, therefore,
no plain error occurred.
Notably, the defendant in McLaurin relied upon People v. Childs,
159 Ill. 2d 217 (1994), and People v. McDonald, 168 Ill. 2d 420(1995), to support his contention that he was entitled to a new trial.
However, we found both cases factually distinguishable. As we
explained, in McLaurin, “defendant’s counsel was present when the
court considered the jury’s notes,” while in Childs and McDonald,
“the person actually representing the defendant was absent.”
McLaurin, 235 Ill. 2d at 494.
In McLaurin, the defendant’s attorney was present and
participated in the discussions concerning each of the jury’s notes and
the trial court’s responses. Here, in contrast, neither defendant nor his
attorney was present. Neither defendant nor his attorney was informed
of the jury’s note regarding its deadlock until after the jury had
reached its verdict and been discharged, and they were never informed
of the second note at all. Thus, unlike McLaurin, neither defendant
nor his attorney was afforded an opportunity to take action necessary
to secure defendant’s rights. Because McLaurin is distinguishable
from the present case, I do not find it helpful in addressing defendant’s
contentions.
The United State Supreme Court has held that it is error for a trial
judge to respond to jury communications without the presence of
either the defendant or his counsel. Rogers v. United States, 422 U.S.
35, 39, 45 L. Ed. 2d 1, 6, 95 S. Ct. 2091, 2095 (1975). Ordinarily, the
State bears the burden of establishing whether the error was harmless
beyond a reasonable doubt. See People v. Kliner, 185 Ill. 2d 81, 162
(1998). However, in this case, defendant failed to preserve his claim
of error in his posttrial motion. Accordingly, in order to prevail,
defendant must satisfy the plain-error rule, which allows a reviewing
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court “to consider unpreserved error when (1) a clear or obvious error
occurred and the evidence is so closely balanced that the error alone
threatened to tip the scales of justice against the defendant, regardless
of the seriousness of the error, or (2) a clear or obvious error occurred
and that error is so serious that it affected the fairness of the
defendant’s trial and challenged the integrity of the judicial process,
regardless of the closeness of the evidence.” People v. Piatkowski,
225 Ill. 2d 551, 565 (2007). “Essentially, the fairness of the trial must
be undermined.” People v. Keene, 169 Ill. 2d 1, 17 (1995). The
defendant bears the burden of persuasion under each prong of the
doctrine. People v. Naylor, 229 Ill. 2d 584, 593 (2008). If the
defendant is unable to establish plain error, the procedural default
must be honored. Keene, 169 Ill. 2d at 17.
Defendant argues that the trial judge’s actions undermined the
fairness of his trial under the second prong of the plain-error rule
because he did not have the opportunity to request an instruction
pursuant to People v. Prim, 53 Ill. 2d 62 (1972). A Prim instruction
“informs the jury of the requirement that the verdict be unanimous;
that the jury has a duty to deliberate; that jurors must impartially
consider the evidence; and that jurors should not hesitate to reexamine
their views and change their opinions if they believe them to be
erroneous, provided the change is not solely because of the opinion of
fellow jurors or for the mere purpose of returning a verdict.” People
v. Chapman, 194 Ill. 2d 186, 222 (2000). Defendant argues that the
trial judge’s direction to “keep deliberating” failed to properly convey
the notion that jurors should not change their opinions solely for the
purpose of returning a verdict.
Generally, trial judges are afforded discretion in matters
concerning jury management. People v. Roberts, 214 Ill. 2d 106, 121
(2005). Nevertheless, it goes without saying that the integrity of a jury
verdict “must be protected from coercion, duress or influence.”
People v. Patten, 105 Ill. App. 3d 892, 894 (1982). This court has
recognized that a “verdict should express the deliberate judgment of
the jury. The juror *** has an independent duty to perform, and he
ought to be left free to pronounce his own conviction. A verdict
hastened by the action of the judge, however worthy the motive,
cannot be the result of that deliberation which the law guarantees.
Remarks by a trial judge calculated to effect the rendition of a verdict
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without affording the jury an opportunity for careful consideration are
unwarranted and often lead to great abuse. Whether the error is
harmless or prejudicial depends upon the facts of the case.” People v.
Golub, 333 Ill. 554, 561 (1929).
Defendant argues that counsel’s absence prevented the defense
from requesting a Prim instruction. According to defendant, the trial
judge’s direction to “keep deliberating” failed to convey to jurors the
unanimity and reexamination components that are also the duties of a
juror. More importantly, the trial judge’s direction failed to instruct
jurors that a change of opinion should not occur solely because of the
opinion of fellow jurors or for the mere purpose of returning a verdict.
Notably, this court’s decision in McLaurin did not address any
argument considering the absence of a Prim instruction–another
distinguishing factor in this case that the majority overlooks. See
McLaurin, 235 Ill. 2d at 491-92.
I find defendant’s contentions persuasive and agree with the
appellate court’s conclusion:
“We find that Johnson has sustained his burden and
established that the trial court’s ex parte communication with
the jury prejudiced him. Johnson’s absence at this critical stage
in the proceedings denied him direct knowledge of what was
said and done in response to the jury’s question and deprived
him of the opportunity to make objections and take any
actions necessary to secure his rights. The State speculates
that the trial court would have refused a request by Johnson
for a Prim instruction because of the short duration the jury
had deliberated before sending its note and because the trial
court failed to give the instruction at Johnson’s first trial. The
State also points out that Johnson never asked for a Prim
instruction at his first trial and, based on the similarities
between the first and second trials, no prejudice could be said
to have resulted from the ex parte communication. The State’s
speculation is unpersuasive. Johnson was deprived of his right
to be present when the jury note was presented and we cannot
guess what response he may have had to it. Because the trial
court’s ex parte communication deprived Johnson of his
constitutional right to be present at all critical stages of the
proceedings against him, we reverse his conviction and
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remand.” Johnson II, 388 Ill. App. 3d at 203-04.
The jury in defendant’s first trial deadlocked, prompting a mistrial.
At defendant’s second trial, the jury sent two notes, one of which
stated that the members of the jury were deadlocked and one of which
asked what punishment would be imposed on defendant. These notes
clearly indicate that the jury had serious concerns about this case and
were troubled about the ramifications of its decision. In these
circumstances, the judge should have been particularly mindful of the
need to protect defendant’s right to be present.
In my view, the adversary process ceased to function in this case
when the trial court failed to inform defendant or his attorney of the
jury’s notes, an event that may have significantly affected the ability
of one member of the jury to act impartially and on his or her own
accord to reach a decision. Given the importance of the rights
involved and the facts presented in this case, I believe defendant has
met his burden of showing that he suffered prejudice. I therefore
dissent.
JUSTICE FREEMAN joins in this dissent.
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