People v. Walker

Fourth Division
September 25, 1997

Nos. 1-96-1869, 1-96-3907 Cons.

THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY.
)
v. )
)
GERALD WALKER, ) HONORABLE
) JAMES P. FLANNERY, JR.,
Defendant-Appellant. ) JUDGE PRESIDING.

PRESIDING JUSTICE WOLFSON delivered the opinion of the
court:
Gerald Walker appeals two separate criminal convictions.
One of them raises a serious question concerning the potential
tainting of a jury by the unwarranted and indefensible remarks of
a Chicago police officer in a criminal court elevator.
While we strongly disapprove of what happened in that
elevator, our examination of the record leads us to affirm the
conviction in question.
On March 6, 1996, in case No. 1-96-1869, Walker was
sentenced on two counts of aggravated criminal sexual assault and
on separate armed robbery and aggravated kidnapping counts.
On September 26, 1996, in case No. 1-96-3907, Walker was
sentenced on two counts of aggravated criminal sexual assault and
on separate armed robbery and aggravated kidnapping counts.
These two cases were consolidated for the purpose of appeal.
FACTS
A. No. 1-96-1869
On February 18, 1993, Walker allegedly abducted a 16-year-
old female off the street at gun-point and sexually assaulted her
in a nearby garage. Walker was placed under arrest and tried
before a jury. On January 4, 1996, during the second day of
trial, Walker's trial attorneys told the trial court they heard a
Chicago police officer speak to several jurors near the elevator:
"Judge, after we broke for lunch, I and [co-counsel],
we were standing waiting for the elevator and the
sheriff came out. There was no one else in the
hallway. The sheriff came out with the jury. An
elevator came and we walked to the other side to allow
the jury to take the elevator.
The sheriff asked three police officers, not
involved in this case, no idea who they are to exit the
elevator. And they were dressed in uniform, bullet
proof vests, and they had there [sic] flashlights and
everything. And as they walked out they made a joke at
which everybody smiled; don't we get lunch, too.
But then one of the officers said oh, it's the
jury. All we care is that you find them guilty.
That's all we care about. Then another police officer
said, you know, you are not supposed to be talking to
them. It was all done in a joking kind of way and half
the jury was on. Half the jury was still coming on.
We could see them. They could see me and that was said
and the doors shut.
The basis of that is that these police officers
wear [sic] talking to a jury outside the courtroom and
telling them this information. We would ask for a
mistrial.
Alternatively, we would ask that you, when the
jury comes out, to admonish them that the only evidence
they are supposed to listen to is the evidence they
hear in this courtroom and not outside of this
courtroom."
The trial court denied Walker's request for a mistrial and
instead granted Walker's motion to admonish the jury about this
incident. The court addressed the jury:
"All right. Folks, it's been brought to my attention
that when you were being taken to lunch a police
officer who had nothing to do with this case may have
made some comments to you about the case in general
about finding somebody guilty. I just want to remind
you of a couple of things. Mr. Walker, as every person
in the United States, has a presumption of innocence.
The burden is on the state to prove the defendant
guilty beyond a reasonable doubt. The only evidence
that you are to consider is evidence that you have
heard from the jury stand, evidence that you will hear
from the jury stand. Anything that takes place outside
the courtroom you are to disregard completely.
So, I think you all know that anyway, but I just
want to remind you."
Defense counsel did not object to the admonition at the
time. The trial proceeded.
At trial, the prosecution presented DNA evidence comparing
semen samples taken from the victim immediately after the alleged
rape with blood and saliva samples from Walker. The
prosecution's criminologist testified that the semen samples
matched Walker's samples. The criminologist further testified
that the probabilities of another match for these samples was
less than one billion to one. The prosecution also presented
evidence that the victim identified Walker in a line-up.
On January 9, 1996, after the jury had deliberated for less
than two hours, Walker was convicted. He was sentenced on two
counts of aggravated criminal sexual assault to consecutive terms
of 50 years each, a total of 100 years. Walker also was
sentenced on separate armed robbery and aggravated kidnapping
counts to terms of 50 years and 30 years respectively, concurrent
with each other and the sexual assault counts. Walker's total
sentence in this case was 100 years.
B. No. 1-96-3907
On February 25, 1993, Walker allegedly abducted a 15-year-
old female at gun-point off the street and sexually assaulted her
in his car. Walker was arrested, and in his initial presentence
investigation, Walker declined to provide certain background
psychological and physiological information until he conferred
with an attorney.
Walker was tried before a jury. At this trial, the
prosecution also presented DNA evidence comparing semen samples
taken from the victim immediately after the alleged rape with
blood and saliva samples from Walker. The prosecution's
criminologist again testified that the semen samples matched
Walker's samples. The criminologist further testified that the
probabilities of another match for these samples was less than
one billion to one. The prosecution also presented evidence that
the victim identified Walker in a line-up. On July 31, 1996,
after the jury had deliberated for about one hour, Walker was
convicted.
Before sentencing, the court noted that page two of the
presentence investigation was not completed. During a short
recess, Walker spoke with Edward Palma, supervisor of Adult
Probation, who took handwritten notes to complete page two of
Walker's presentence investigation report. Palma's note states
under "PHYSIOLOGICAL INFORMATION": "Blackout seizures - 1 1/2
years - Due to stress/tension (per physician) - Medication taken
- Unknown." The court then asked the parties if they requested
any changes to the report. Both defense counsel and the
prosecutor declined to make any changes. The court did not
conduct a fitness hearing.
On September 26, 1996, Walker was sentenced on two counts of
aggravated criminal sexual assault to consecutive terms of 60
years each, a total of 120 years. He also was sentenced on
separate armed robbery and aggravated kidnapping counts to terms
of 60 years and 30 years respectively, concurrent with each other
and with the sexual assault counts. Walker's total sentence in
this case was 120 years.
ISSUES
1. In No. 1-96-1869, is Walker entitled to a new trial
because he was prejudiced by the Chicago police officer's
extra-judicial statement in the presence of some jurors,
despite the trial court's subsequent admonishment to the
jury?
2. In No. 1-96-3907, is Walker entitled to a new trial
because he was denied effective assistance of counsel when
his attorney failed to demand a fitness hearing based upon
the presentence investigation report, which disclosed
Walker's use of unknown medication?
3. Is Walker entitled to resentencing in No. 1-96-3907 if
he receives a new trial in No. 1-96-1869?
OPINION

A. No. 1-96-1869
Extra-judicial communications to jurors "are controlled by
the command of the Sixth Amendment, made applicable to the States
through the Due Process Clause of the Fourteenth Amendment."
Parker v. Gladden, 385 U.S. 363, 364, 17 L. Ed. 2d 420, 422, 87 S. Ct. 468, 470 (1966). "The 'evidence developed' against a
defendant shall come from the witness stand in a public courtroom
where there is full judicial protection of the defendant's right
of confrontation, of cross-examination, and of counsel." Turner
v. Louisiana, 379 U.S. 466, 472-73, 13 L. Ed. 2d 424, 429, 85 S. Ct. 546, 549 (1965). However, when the defendant cannot
demonstrate any apparent injury or prejudice resulting from an
extra-judicial communication to jurors by a third person, the
jury's verdict will not be set aside. People v. Rettig, 50 Ill. 2d 317, 278 N.E.2d 781 (1972); People v. Kawoleski, 313 Ill. 257,
145 N.E. 203 (1924).
In Parker, a bailiff assigned to a sequestered jury spoke
about the defendant to a juror in the presence of other jurors,
stating, "Oh that wicked fellow, he is guilty." Parker, 385 U.S.
at 363, 17 L. Ed. 2d at 422, 87 S. Ct. at 470. On another
occasion, the bailiff spoke to a different juror about convicting
the defendant, saying, "If there is anything wrong...the Supreme
Court will correct it." Parker, 385 U.S. at 364, 17 L. Ed. 2d at
422, 87 S. Ct. at 470. Additionally, at least one regular or
alternate juror overheard the bailiff's statements.
The Court held these statements violated the Sixth
Amendment's guarantee of a trial by an impartial jury. Parker,
385 U.S. at 364, 17 L. Ed. 2d at 422, 87 S. Ct. at 470. The
Court characterized the bailiff's statements as "private talk,"
intended to sway the jury by "outside influence." Parker, 385 U.S. at 364, 17 L. Ed. 2d at 422, 87 S. Ct. at 470. However,
contrary to Walker's contention, the Court did not create a per
se rule that such statements necessarily prejudice criminal
defendants and always entitle them to a new trial.
Rather, the Court focused on the "official character of the
bailiff--as an officer of the court as well as the State," the
constant contact between the bailiff and the jury due to
sequestration, and the considerable length of deliberations, 26
hours, indicating a difference of opinion among the jurors.
Parker, 385 U.S. at 365, 17 L. Ed. 2d at 423, 87 S. Ct. at 470.
Most importantly, the Court found evidence of actual prejudice in
the testimony of a juror who admitted the bailiff's statements
"must have influenced" her decision to convict the defendant.
Parker, 385 U.S. at 365 n.3, 17 L. Ed. 2d at 423 n.3, 87 S. Ct.
at 470-71 n.3.
In Rettig, a deputy sheriff assigned to a jury spoke with
several jurors about their lunch immediately before
deliberations. The deputy sheriff, who also was a witness in the
case, spoke to the jurors again during deliberations, explaining
that the trial judge would not answer a question posed by the
jury. The court held the extra-judicial communication did not
prejudice the defendant. Rettig, 50 Ill. 2d at 320. The court
found no prejudice because the deputy sheriff's statements during
brief encounters with the jury were not "manifestly calculated to
influence the jury's decision." Rettig, 50 Ill. 2d at 319.
The court also found that the deputy sheriff's testimony
against the defendant was neither crucial nor controverted.
Rettig, 50 Ill. 2d at 320. The court declined to presume extra-
judicial statements by a deputy sheriff to the jury are
prejudicial as a matter of law. The Parker decision, said the
court, "***does not in any way diminish the need for showing that
the rights of a defendant were prejudiced" by the extra-judicial
statements. Rettig, 50 Ill. 2d at 319. See also Waller v.
Bagga, 219 Ill. App. 3d 542, 579 N.E.2d 1073 (1991)(holding that
a bailiff's comments that "this case shouldn't be here" did not
reflect a "manifest tendency to sway" a civil jury against the
plaintiff).
In Kawoleski, a deputy sheriff assigned to a jury made a
remark while near the entire jury that "it should not take more
than two or three minutes to convict that bird." The defendant's
lawyer brought this remark to the trial court's attention after
the jury convicted the defendant. The court, reversing the
conviction, held this remark was prejudicial to the defendant
because it was "calculated to prejudice defendant with the jury."
Kawoleski, 313 Ill. at 258-59.
Unlike the deputy sheriffs in Parker, Rettig, and Kawoleski,
the Chicago police officer in the instant case was not assigned
to the case and did not appear at trial. Unlike the bailiff in
Parker, the police officer here did not shepherd a sequestered
jury for more than a week. Aside from his incidental contact
with only part of the jury near the elevators, the police officer
was unknown to this jury.
Though the statements by the deputy sheriff in Rettig were
harmless, the unfortunate statements by the police officer here,
however flippant, may have been calculated to influence the
jury's verdict. However, unlike the deputy sheriffs in Parker
and Kawoleski, the police officer had not seen the defendant's
trial and had no apparent basis for his remark, other than a
general animus against criminal defendants. Additionally, unlike
the trial court in Kawoleski, the trial court here immediately
and effectively admonished the jury. Not only did the trial
court instruct the jury to disregard the police officer's
statements, but also to remember the defendant's presumption of
innocence. Tellingly, in Parker, the Court found evidence the
bailiff's statements influenced at least one juror's decision.
Here, the record is devoid of any evidence showing the police
officer's statement actually influenced the jury.
The defendant's attorney asked for a mistrial or,
alternatively, for an admonition to the jury. The court did
admonish the jury. Defense counsel did receive what she asked
for. The defendant may not ask the trial court to admonish the
jury regarding extra-judicial statements and then assign as error
the court's failure to declare a mistrial for these same
statements. Cf. People v. Miller, 120 Ill. App. 3d 495, 457 N.E.2d 1373 (1983). The jury presumably followed the court's
instructions and based its verdict on the evidence. See People
v. Harris, 123 Ill. 2d 113, 526 N.E.2d 335 (1988); People v.
Mitchell, 152 Ill. 2d 274, 604 N.E.2d 877 (1992). The State's
evidence was overwhelming. In a closer case, the outcome well
might be different.
We note defense counsel never asked that jurors be
questioned, individually or as a group, as to whether they heard
the remarks in the elevator and, if so, whether the remarks had
any impact. While the trial judge could have made the inquiry
anyway, and perhaps he should have, the lawyers certainly did not
communicate any sense of urgency. Walker cannot show prejudice
from this extra-judicial communication and is not entitled to a
new trial.
B. No. 1-96-3907
An ineffective assistance of counsel claim is generally
measured against the two-part standard of Strickland v.
Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052
(1984); People v. Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246
(1984). Under Strickland, a defendant must establish counsel's
performance fell below an objective standard of reasonableness
and there is a reasonable probability that, but for counsel's
errors, the fact finder would have reached a different result.
People v. Rice, 257 Ill. App. 3d 220, 226, 628 N.E.2d 837, 841
(1993). Walker contends his attorney's failure to request a
fitness hearing under section 104-21(a) of the Illinois Code of
Criminal Procedure constituted ineffective assistance and
warrants a new trial.
A defendant is considered unfit to stand trial if he is
unable to understand the nature and purpose of proceedings
against him or to assist in his defense because of mental or
physical problems. Rice, 257 Ill. App. 3d at 223. A defendant
who is unfit to stand trial cannot be convicted consistent with
due process. People v. Guttierez, 271 Ill. App. 3d 301, 648 N.E.2d 928 (1995). If a bona fide doubt as to a defendant's
fitness has been raised, the trial court must conduct a fitness
hearing. People v. Eddmonds, 143 Ill. 2d 501, 578 N.E.2d 952
(1991).
Formerly, section 104-21(a) of Code of Criminal Procedure
expressed the general assembly's conclusion that the influence of
psychotropic medication on the defendant during trial always
casts a bona fide doubt on the defendant's fitness. People v.
Gevas, 166 Ill. 2d 461, 655 N.E.2d 461 (1995). Section 104-21(a)
stated as follows: "A defendant who is receiving psychotropic
drugs or other medications under medical direction is entitled to
a hearing on the issue of his fitness while under medication."
725 ILCS 5/104-21(a) (West 1992).
This statute was amended, effective December 31, 1996, and
now states: "A defendant who is receiving psychotropic drugs
shall not be presumed unfit to stand trial solely by virtue of
the receipt of those drugs or medications." 725 ILCS 5/104-21(a)
(West Supp. 1997).
We note that in a recent decision the Illinois Supreme
Court, addressing the former statute, turned away from the remedy
of automatic reversal in cases where a defendant received
psychotropic drugs during his trial. People v. Burgess, 176 Ill. 2d 289, 303, 680 N.E.2d 357, 363 (1997).
In Burgess, the Court analyzed the defendant's conduct at
trial. It found there was nothing in the record to suggest he
was unfit for trial or that the drugs he received had any effect
on his fitness. A new trial was denied.
In the case before us, there is no need to inquire into the
applicability of recent legislation or into the impact of Burgess
on cases where a defendant is found to have been taking
psychotropic drugs during trial and/or sentencing. Here, there
is no evidence Walker was taking psychotropic drugs at trial or
at sentencing. The defendant's brief statement in the
presentence investigation report is vague, equivocal, and without
factual support. No drug is named. No time frame is indicated.
This is not enough to raise a question under the 1992 statute,
even if it were applicable to this case.
A fitness hearing under section 104-21(a) was not necessary,
and Walker's attorney was not required to request such a hearing.
Walker can meet neither the performance nor the prejudice prong
of Strickland and is not entitled to a new trial on his
ineffective assistance claim.
Because Walker is not entitled to a new trial in No. 1-96-
3907, we do not have to address the sentencing issue raised in
the briefs.
CONCLUSION
Walker's convictions and sentences in both Nos. 1-96-1869
and 1-96-3907 are affirmed.
AFFIRMED.
McNAMARA and BURKE, JJ., concur.