People v. Watkins
Annotate this Case
FIRST DIVISION
December 8, 1997
Nos. 1-95-3829 & 1-96-0386; Cons.
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
ANTILLIO WATKINS,
Defendant-Appellant. )
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)
)
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)
) Appeal from the
Circuit Court of
Cook County
Honorable
William J. Hibbler,
Judge Presiding.
JUSTICE GALLAGHER delivered the opinion of the court:
On August 29, 1992, a jury convicted the defendant, Antillio
Watkins, of two counts of first degree murder for the shooting
deaths of Dovette Russell and Vastille Blakely. That jury also
convicted defendant of the attempted murder of Michael Jones.
The State requested a death penalty hearing, and defendant waived
his right to have that hearing conducted before a jury. Ill.
Rev. Stat. 1991, ch. 38, par. 9-1 (West 1991)(now 720 ILCS 5/9-1
(West 1996)). On September 24, 1992, the trial court found
defendant eligible for the death penalty and sentenced him to
death by lethal injection for the murders of Russell and Blakely;
the court also imposed a 30-year sentence for the attempted first
degree murder of Michael Jones. The Illinois Supreme Court
subsequently remanded the case to the trial court, ordering it to
entertain a postsentencing motion, which is required to preserve
sentencing issues for review in capital cases. People v. Szabo,
113 Ill. 2d 83, 93, 497 N.E.2d 995, 999 (1986). Defendant's
trial counsel had failed to file any such motion. On September
20, 1995, after a hearing on the postsentencing motion, the trial
court vacated defendant's death sentence, imposing instead a
sentence of natural life imprisonment for defendant's murder
convictions. On September 22, 1995, defendant filed a pro se
postconviction petition and motion for appointment of counsel;
that petition was dismissed as frivolous without the appointment
of counsel.
Defendant now appeals from his murder and attempted murder
convictions, and from the summary dismissal of his postconviction
petition.
The State's primary witness was Michael Jones. He testified
that on October 13, 1990, he borrowed a yellow Cadillac from his
friend, Dovette Russell. Russell gave Jones her pager so that
she might contact him if she needed her car. At around 10 or 11
o'clock that night, Russell paged Jones and asked him to pick up
her friend, Tip. Michael Jones then made an in-court
identification of defendant as the man he knew as Tip. Jones had
met defendant roughly one week prior to the night of the
shooting. After Jones picked defendant up outside a bar,
defendant instructed Jones how to get to an apartment located at
1063 West Glenlake on the north side of Chicago. The drive took
approximately 25 minutes. Jones then accompanied defendant into
a first-floor apartment at 1063 West Glenlake, in which Dovette
Russell and Vastille Blakely were waiting. Jones went into the
apartment to use the bathroom and to get gas money from Dovette
for picking up her friend, meaning defendant. On his way to the
bathroom, Jones heard Russell tell defendant that she wanted him
to act as her bodyguard as she "took care of something." Jones
said that, by this time, it was past midnight.
Once Jones returned from the bathroom, defendant said,
"look, you all just get on the bed." Jones did not think
defendant was serious, until he felt a shot, like a "sledge
hammer," hit him in the jaw. As he was shot, Jones briefly saw a
gun out of the corner of his eye. Defendant was holding what
looked like a small, automatic weapon. Jones then saw Vastille
and Dovette jump upon the bed and heard them begging for their
lives, saying "please, no, don't," to defendant as he reached
toward them with the gun in his hand. Jones saw defendant point
the gun at Dovette's head and then Vastille's chest before Jones
passed out. When he came to, Jones noticed that the screaming
had stopped, but he did hear defendant walking toward him. Jones
pretended to be dead. Defendant took the car keys out of Jones'
hand and left.
After waiting a few minutes to be sure defendant had gone,
Jones dialed 911. He saw the bodies of Dovette Russell and
Vastille Blakely. Jones met the police outside the apartment and
described his assailant as a black male, 5 feet 10 inches tall
and approximately 200 pounds, with a goatee mustache and a nose
ring. He also stated that the shooter wore a black and white
jogging suit and a dark felt hat. Paramedics then took Jones to
Illinois Masonic Hospital, where he underwent surgery and had his
jaw wired shut. After about a day and a half, police visited
Jones at the hospital. Jones identified defendant through two
separate photographic lineups.
On cross-examination, Jones stated that he never gave the
name of his assailant to the 911 telephone operator. He simply
repeated, "please help me, hurry. Help me."
Linda Moy testified for the prosecution as well. Dovette
Russell was Moy's friend, and whenever she needed to contact
Dovette, she would page her. The prosecutor then showed Ms. Moy
a pager, which Moy identified as Dovette Russell's pager. Ms.
Moy stated that the last time she had seen that pager was in
Dovette Russell's possession on October 11, 1990.
Deborah Bugaj-Moeller, a paramedic with the Chicago fire
department, testified that she and a partner responded to a call
at 1063 West Glenlake at 3 a.m. on October 14, 1990. Upon their
arrival, Bugaj-Moeller saw Michael Jones lying in the courtyard
of the building with a gunshot wound to his jaw. Jones
repeatedly mumbled "Tip" or "Trip" as the paramedics treated him
and took him to Illinois Masonic Hospital.
The results of the autopsies indicated that both Dovette
Russell and Vastille Blakely died from gunshot wounds. When the
police found their bodies, each victim's clothing was in
disarray. A search of the crime scene revealed three fired
bullets, four cartridges and several unfired bullets; all of the
recovered ammunition fit a 9 millimeter, automatic handgun. A
sizeable amount of narcotics was hidden behind the headboard of
the bed, although no money was found.
The State also called Anthony Demus, defendant's next-door
neighbor. He testified that on October 14, 1990, defendant spoke
with him on Demus' back porch. This occurred at roughly 4:00
a.m. Defendant informed Demus that Dovette was dead. Defendant
next stated that "the Colombians" had killed her. Finally,
defendant admitted to Demus that defendant himself had killed
Dovette; however, in Demus' opinion, defendant made this
admission in jest.
Detective Joseph Guzolek of the Chicago police department
testified that he had been assigned to investigate the homicides
of Dovette Russell and Vastille Blakely. Guzolek first attempted
to interview Michael Jones at the hospital on October 14, 1990;
however, this attempt proved unsuccessful as Jones was sedated
and sleeping. Using the nickname "Tip" (obtained, presumably,
from information provided by the paramedics), Guzolek discovered
the proper name of Antillio Watkins, residing at 6826 South
Cornell in Chicago, in a nickname file compiled by the Chicago
police. He retrieved a 1988 "mug shot" photo of defendant, along
with three other photos, and again went to Illinois Masonic
Hospital to attempt to interview Michael Jones. This time, Jones
was awake. Jones identified defendant as his assailant from the
four photos presented by Guzolek. Jones could not speak but
wrote out "looked like" on a piece of paper, indicating toward
defendant's photograph. When Guzolek asked the victim the name
of his attacker, Jones wrote out "TIP." This identification
occurred at roughly 12:35 a.m. on October 15, 1990. Guzolek next
proceeded to 6826 South Cornell, where he awaited the defendant.
Defendant, however, could not be found at that address. Guzolek
remained until approximately 6 a.m., at which time he returned to
the police station to write his reports and be relieved.
Chicago police detective Paul Hagen took over the
investigation from Detective Guzolek at 10:45 a.m. on October 15,
1990. Hagen and his partner proceeded directly to 6826 South
Cornell. Defendant's brother admitted the police to the
apartment, where they found defendant asleep in bed. Hagen woke
defendant and placed him under arrest. Searching defendant's
bedroom, the police found numerous articles of brand new
clothing, approximately $180 in cash, and a pager resting upon
the pile of cash. Defendant pointed to the pile and informed the
police that he wanted to bring "that" with him. The police
complied, and they confiscated both the cash and the pager.
Defendant stated that the pager belonged to him. Later, the
police returned and seized the clothing they observed in the
bedroom, as well as a black felt hat. Once they returned to the
station, the police took a Polaroid photograph of defendant.
That photo and several others were shown to Michael Jones at
Illinois Masonic Hospital. Upon seeing the more recent photo of
defendant, Jones immediately identified defendant as the man who
shot him.
Later that day, Hagen spoke with Linda Moy. Moy informed
the detectives about the victim's pager and gave them the number.
The police dialed that number, which activated the pager seized
from defendant's bedroom. The State then rested its case in
chief.
In its case in chief, the defense called Renee White. She
testified that she and defendant were friends and coworkers at
Sweet Georgia Brown's lounge. At about 8:30 p.m. on October 13,
1990, White went to the Sophisticated Touch Lounge on Chicago's
south side, where she saw defendant. She and defendant remained
at Sophisticated Touch until 2 a.m., when they left to go to
Sweet Georgia Brown's. Once there, she and defendant met another
friend, Vivian Finley, who was working in the kitchen. The three
sat and talked until 4:30 a.m., at which point they all went to
Ms. Finley's house.
Vivian Finley also testified for the defense. Her account
of the events of October 13-14, 1990, essentially corroborated
the testimony of Ms. White. Finley stated that after she,
defendant, and Ms. White arrived at her house in the early
morning hours of October 14, the three played records until
roughly 11 o'clock the next morning. Defendant then left. On
cross-examination, Finley testified that she discovered defendant
had been arrested the following day when the police telephoned
her home. She further stated that defendant was still in her
home when the police called to inform her that they had arrested
him.
Finally, the parties stipulated that Officer Lorraine
Taylor, if called to testify, would state that she worked as an
emergency dispatcher on October 14, 1990, and that she received a
911 call at 2:56 a.m. that morning. The caller identified
himself as Michael. The parties further stipulated that the
audiotape offered by the defense was an accurate recording of
that call. Defense counsel next played the audiotape for the
jurors. The defense then rested.
On rebuttal, the State called Brian Townsend. Townsend
stated that Michael Jones was his cousin, and that Jones dropped
him off at Sweet Georgia Brown's at 11 p.m. on October 13, 1990.
Jones was then driving Russell's yellow Cadillac. Townsend also
knew defendant as Tip, having met him at Sweet Georgia Brown's
several months earlier. On the evening of the crime, Townsend
waited for Jones at Sweet Georgia Brown's until 3:30 a.m. on
October 14, 1990. After Jones failed to show, Townsend took a
cab home. Townsend never saw defendant at Sweet Georgia Brown's
that evening.
Detective Hagen also testified on rebuttal. He stated that
after advising defendant of his constitutional rights, he spoke
with defendant at the police station on October 15, 1990. Hagen
testified that defendant never said he was at Sweet Georgia
Brown's on the night of October 13-14, 1990. Defendant never
stated he spent the evening with Renee White or Vivian Finley.
Instead, defendant claimed that he and Mr. Rodney Casey had been
at the Sophisticated Touch Lounge from 12 a.m. to 3 a.m. Hagen
stated that he never located Casey. The State then rested. The
jury found defendant guilty of the first degree murders of
Dovette Russell and Vastille Blakely, and of the attempted murder
of Michael Jones.
On appeal, defendant asserts the following arguments: (1) he
was denied the effective assistance of counsel when his trial
attorney failed to file a motion to suppress Dovette Russell's
pager, which was recovered by the police when they arrested
defendant; (2) he was deprived of a fair trial where the
prosecution injected evidence of prior crimes by introducing a
two-year-old "mug shot" and referring to the fact that defendant
was listed in a police "nickname file"; alternatively, defendant
argues that his trial counsel was ineffective for failing to
object to the introduction of such evidence; and (3) he was
deprived of a fair trial when the trial court admonished the
jurors to reconsider their positions in order to reach a
unanimous verdict, after the trial court knew that the numerical
division of the jury stood at 10 to 2 in favor of conviction. We
affirm.
Defendant first contends that he was denied the effective
assistance of counsel when his trial attorney failed to file a
motion to suppress the pager of Dovette Russell. In order to
successfully establish the ineffective assistance of counsel, a
defendant must show (1) that the performance of counsel fell
outside the range of professionally competent assistance, and (2)
that the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Defendant suggests that such a motion had
"obvious merit," compelling the conclusion that trial counsel's
failure to seek exclusion of the pager fell outside the range of
professionally competent assistance. Even assuming, arguendo,
that the conduct of defendant's trial counsel did fall outside
the range of professionally competent assistance, we hold that
counsel's alleged omission did not result in prejudice to the
defendant.
Defendant charges that the police seized the pager in
violation of his fourth amendment right to be free from
unreasonable searches and seizures. In our view, however, the
plain view doctrine applied to authorize seizure of the pager;
therefore, any attempt to exclude it would not have succeeded and
so defendant did not suffer prejudice from trial counsel's
failure to file a motion to suppress. The plain view doctrine
authorizes the warrantless seizure of an item when the following
requirements are satisfied: (1) the police view the object from a
place where they are legally entitled to be; and (2) it must be
immediately apparent to the police that the items may be evidence
of a crime, contraband, or otherwise subject to seizure. Horton
v. California, 496 U.S. 128, 110 L. Ed. 2d 112, 110 S. Ct. 2301
(1990). The requirement that an item's criminal nature be
"immediately apparent" essentially translates into a probable
cause requirement. Texas v. Brown, 460 U.S. 730, 738, 75 L. Ed. 2d 502, 511, 103 S. Ct. 1535, 1541 (1983)("[t]he seizure of
property in plain view *** is presumptively reasonable, assuming
that there is probable cause to associate the property with
criminal activity"); Arizona v. Hicks, 480 U.S. 321, 326, 94 L. Ed. 2d 347, 355, 107 S. Ct. 1149, 1153 (1987); People v. Bibbs,
176 Ill. App. 3d 521, 523, 531 N.E.2d 75, 76 (1988).
In the present case, defendant concedes that Detective Hagen
had probable cause to arrest defendant after Michael Jones
identified him as his assailant. Defendant further concedes that
the arrest occurred in defendant's bedroom because the police
lawfully gained entrance to the premises after defendant's
brother permitted them to enter. Finally, defendant acknowledges
that the police then conducted a lawful search incident to
arrest. Pursuant to their search, the police discovered the
pager lying atop a pile of money. However, defendant now asserts
that the police did not have probable cause to seize the pager
and, therefore, that the plain view doctrine does not apply in
this case.
It is common knowledge--even to the layperson--that pagers
and other forms of communications technology are widely used in
the distribution of narcotics. The evidence at trial indicated
that the police discovered a sizeable quantity of narcotics at
the crime scene. Under the circumstances in which the beeper was
discovered--lying atop a "pile" of money--we believe that these
facts, available to both Detective Hagen and his partner,
warranted a reasonable belief in their minds that the pager may
have been useful as evidence linking defendant to the crime.
Texas v. Brown, 460 U.S. at 742, 75 L. Ed. 2d at 514, 103 S. Ct.
at 1543. Accordingly, we hold that the plain view doctrine
applied to justify the seizure of the pager. As a result, any
motion to suppress filed by defendant's trial counsel would have
been unsuccessful, and the failure to file such a motion could
not have prejudiced defendant. We therefore reject defendant's
first point of error.
In addition, because of our holding that the pager was
admissible under the plain view doctrine, we affirm the summary
dismissal of defendant's postconviction petition. Since the
plain view doctrine authorized seizing the pager, defendant's
postconviction petition failed to present the gist of a
meritorious constitutional claim, thus making summary dismissal
appropriate. People v. Brown, 169 Ill. 2d 94, 101, 660 N.E.2d 964, 967 (1995).
Defendant next argues that he was deprived of a fair trial,
insofar as the prosecution placed before the jury impermissible
prior crimes evidence by introducing defendant's two-year-old mug
shot photo and by mentioning the fact that defendant was listed
in a police "nickname file." As defendant correctly points out,
evidence of other crimes in which the defendant may have
participated is not admissible to show the defendant's propensity
for criminal activity. People v. Coleman, 158 Ill. 2d 319, 333,
633 N.E.2d 654, 662 (1994). The State responds, however, that
defendant waived this argument by failing to object to the issue
at trial or raise the issue in his posttrial motion. Coleman,
158 Ill. 2d at 333, 633 N.E.2d at 662. Nevertheless, Supreme
Court Rule 615(a) permits review of issues not properly preserved
at trial under the plain error doctrine, where (1) the evidence
is closely balanced, or (2) the error is of such magnitude that
defendant was denied a fair trial. Coleman, 158 Ill. 2d at 333,
633 N.E.2d at 662. Because improper use of prior crimes evidence
may have denied defendant a fair trial (People v. Graham, 179
Ill. App. 3d 496, 509, 534 N.E.2d 1382, 1390 (1989)), we review
this issue under the second prong of the plain error doctrine.
Coleman, 158 Ill. 2d at 334, 633 N.E.2d at 662.
We first consider the admission of defendant's two-year-old
mug shot photo. Evidence of other crimes is admissible if it is
relevant for any legitimate trial purpose, such as
identification, modus operandi, proof of motive, intent or
absence of mistake. Coleman, 158 Ill. 2d at 333, 633 N.E.2d at
662. The State argues that it introduced the mug shot photo at
trial for the legitimate purpose of establishing that Michael
Jones, the only surviving victim, initially identified the
defendant through said photo. Defendant responds by saying that
identification was never an issue in the trial. The record,
however, belies defendant's response, because in his opening
statement defense counsel stated, "This is a case of pure
mistaken identity." As such, we find no error in the admission
of the mug shot photo. See People v. Davis, 285 Ill. App. 3d
1039, 1045, 675 N.E.2d 194, 200 (1996)(trial court did not abuse
its discretion where it admitted a mug shot photo but did not
alter the photo to remove any and all information of the prior
arrest).
Defendant also complains that the State's reference to a
police "nickname file," located at Chicago Police Area One
Violent Crimes headquarters, gratuitously colored defendant as a
person with a violent criminal history. Assuming that this
offhand reference constituted error, we find such error to be
harmless due to the overwhelming evidence of guilt in this case.
The jury heard eyewitness testimony from the surviving victim
identifying defendant as the man who shot him; one of the
victim's personal belongings (namely, the pager) was found in
defendant's possession; another State witness testified that
defendant had confessed to the crime one hour after it occurred;
finally, on rebuttal the State offered evidence strongly
undermining the credibility of defendant's alibi witnesses. See
generally People v. Carroll, 260 Ill. App. 3d 319, 344, 631 N.E.2d 1155, 1171 (1992), quoting People v. Warmack, 83 Ill. 2d 112, 128-29, 413 N.E.2d 1254, 1262 (1980)("'In reviewing what we
believe to be the abundant evidence of guilt, however, we have
concluded that the error is harmless. We have considered the
totality of the evidence presented and can safely conclude that a
trial without this error would produce no different result'"),
rev'g 73 Ill.App.3d 783, 392 N.E.2d 334 (1979). Because any
error in referring to the "nickname file" was harmless, we reject
defendant's second point of error.
Given our conclusion that no reversible error occurred in
the admission of evidence pertaining to defendant's prior
criminal history, we need not discuss defendant's ineffective
assistance argument with respect to trial counsel's failure to
object to such evidence. Plainly, that contention lacks merit.
Finally, defendant contends he was deprived of a fair trial
when the trial court admonished the jurors to reconsider their
positions in order to reach a unanimous verdict, where the trial
court knew that the numerical division of the jury stood at 10 to
2 in favor of conviction. Before we consider this argument, we
find it necessary to recount the events that occurred during the
jury's deliberations.
On August 28, 1992, at 1:20 p.m., the court instructed the
jury and it retired to deliberate. At 7 p.m., the court
reconvened and announced to the parties that it had received two
notes from the jury. The two notes, marked "5:45 p.m." and "6:30
p.m.," respectively, both indicated a 10 to 2 split amongst the
jurors--the majority favoring conviction. The court informed the
parties that the notes reflected the jurors' opinion that they
were deadlocked. After discussing the matter with both sides
(although it did not disclose to the parties the numerical
division of the jurors), the court announced its intention to
issue an anti-deadlock instruction. Neither party objected to
the proposed course of action.
Immediately thereafter, the court recalled the jurors and
informed them that, in their communications with the court, they
need not reveal the division of the jurors and how many favored
conviction over acquittal. Without objection, the court next
admonished the jury as follows:
"[I]t is important that we try in every case [to]
arrive at a unanimous verdict. This case has been
tried and you have been privy to all the evidence in
the case. It is not likely that that evidence will
ever change. It is the court's belief that it should
be possible for 12 reasonable people to arrive at a
unanimous verdict if you diligently deliberate.
I know you have been deliberating for [some time].
I believe you went out at 1:25[p.m.] And you have had
lunch and dinner since you have been out. But despite
that fact, it is still about six hours.
I'm going to request and require that you return
to the jury room and continue your deliberations. Now,
I know you have been at it for [some time] here this
afternoon and as the hour grows later your ability to
concentrate and to deliberate might be somehow
impaired. I will allow you to deliberate for [some
time] longer this evening and at some later hour if you
have not arrived at a unanimous verdict I will make a
determination as to whether or not accommodation will
be provided for you for the evening so that you can get
a fresh start tomorrow.
But at this time I ask that you return to the jury
room, continue your deliberations. I would indicate to
each of you that you should not be constrained not to
reconsider your position, not to rediscuss the evidence
with a new view hopefully to arrive at a unanimous
verdict without doing violence to any of your
individual consciences. With that, will you please
retire to the jury room and continue your
deliberations."
The jury was then excused to continue its deliberations.
At approximately 8:30 p.m., the court reconvened again to
inform the parties that it had received yet another note from the
jury. This note stated, "Tempers are flairing [sic]. I feel no
decision will be reached tonight. We request, we begin to
deliberate in the morning [sic]." The court then announced that
it planned to suspend deliberations and sequester the jury until
the following morning. Before the suspension of deliberations,
however, one juror requested the court to repeat its earlier
admonition. The following colloquy ensued:
"THE COURT: My question then is should I read the
Prim Instruction [(People v. Prim, 53 Ill. 2d 62, 289 N.E.2d 601 (1972))] and add those comments that I added
before or should I just tell them what I told them
before about re-examining their position, attempting to
arrive at a unanimous verdict, et cetera?
MR. GORDON [defense attorney]: And my position on
behalf of Mr. Antillio Watkins would be just to rather
than give them the Prim Instruction, just repeat or
reiterate what you had already told them.
THE COURT: State.
MR. ANDREWS [Assistant State's Attorney]: Judge,
I agree with Mr. Gordon, Judge."
Subsequently, the trial court called the jurors before him and
stated:
"[Y]ou have heard all the evidence in the case. You
have been privy to arguments of counsel and the law.
It is not my belief that to retry this case would
substantially change that evidence. And hopefully, the
12 reasonable people that you are, it appears that you
should be able to arrive at a unanimous verdict. If
each of you understand that you are not a partisan in
this case. That all should review the evidence, that
you should be willing to reconsider your own point.
That you should listen to the opinions of others and
re-examine your own opinions and your own
determinations as to what the facts are. Keeping in
mind that you must do that with an eye towards not
doing violence to your own judgment. But that you
should do that with an eye of trying to arrive at a
unanimous verdict. Because it is in the interest of
justice for all parties that we be able to arrive at a
unanimous verdict after hearing all the evidence."
The jury was then sequestered. At roughly 9 a.m. the following
day, the jury resumed its deliberations. That same day at noon,
August 29, 1992, the jury returned verdicts finding defendant
guilty of the first degree murders of Dovette Russell and
Vastille Blakely, and the attempted murder of Michael Jones.
As defendant correctly points out, it may be improper for a
court to issue supplemental instructions urging deadlocked jurors
to reach a unanimous verdict after the court becomes aware that a
majority of jurors favor conviction. People v. Santiago, 108
Ill. App. 3d 787, 805, 439 N.E.2d 984, 996 (1982). This rule of
law arises from the possibility that a supplemental jury
instruction given to a deadlocked jury may have a coercive effect
upon jurors in the minority, particularly where those jurors
might feel that the judge agrees with the majority. People v.
Prim, 53 Ill. 2d 62, 72-73, 289 N.E.2d 601, 607-08 (1972); People
v. Danielly, 274 Ill. App. 3d 358, 366, 653 N.E.2d 866, 872
(1995). However, where the trial court receives an unsolicited
statement regarding the numerical division of the jurors, an
order instructing the jury to continue its deliberations does not
constitute error. People v. Iozzo, 195 Ill. App. 3d 1078, 1086,
552 N.E.2d 1308, 1314 (1990); People v. Farella, 79 Ill. App. 3d
440, 445, 398 N.E.2d 615, 619 (1979). We hold that the trial
court's anti-deadlock admonition, given after the jury
volunteered its numerical breakdown of 10 to 2 in favor of
conviction, does not rise to the level of reversible error.
Defendant argues that Farella stands for the proposition
that the trial court should have merely instructed the jurors to
keep deliberating. While it is true that the court in that case
did not admonish the jurors as to the need for unanimity
(Farella, 79 Ill. App. 3d at 445, 398 N.E.2d at 619), it does not
follow that the supplemental instruction issued by the trial
court in this case was demonstrably coercive and thus requires
reversal. Farella relied upon a decision by the United States
Court of Appeals for the Second Circuit, United States v.
Jennings, 471 F.2d 1310 (2d Cir. 1973). In Jennings, the trial
judge instructed the jury as to the need for a unanimous verdict,
although it cautioned the jurors not to sacrifice their beliefs
as to the proper verdict merely for the sake of unanimity; this
anti-deadlock instruction was affirmed despite the fact that the
judge knew that 11 jurors favored conviction. 471 F.2d at 1314.
In the present case, the trial court instructed the jury as to
the importance of unanimously agreeing on a verdict, although it
offered the caveat that the jurors should do so "with an eye
towards not doing violence to your own judgment." We feel that
this instruction is analogous to the one affirmed in Jennings,
and later approved of by Farella.
Moreover, defendant's trial counsel acquiesced in this
supplemental instruction the first time the trial court addressed
the jury on this matter, and counsel specifically requested the
instruction be given when the court issued its second anti-
deadlock admonition. Therefore, defendant invited any error and
cannot now be heard to complain. People v. Morgan, 142 Ill. 2d 410, 452, 568 N.E.2d 755, 769 (1991)(where the alleged error from
a judge's remarks was caused by defense counsel, issue is waived
on appeal), rev'd on other grounds, Morgan v. Illinois,
504 U.S. 719, 119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992).
Accordingly, we affirm the judgment of the trial court.
Affirmed.
BUCKLEY and O'BRIEN, JJ., concur.
December 8, 1997
Nos. 1-95-3829 & 1-96-0386; Cons.
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
ANTILLIO WATKINS,
Defendant-Appellant. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
Honorable
William J. Hibbler,
Judge Presiding.
JUSTICE GALLAGHER delivered the opinion of the court:
On August 29, 1992, a jury convicted the defendant, Antillio
Watkins, of two counts of first degree murder for the shooting
deaths of Dovette Russell and Vastille Blakely. That jury also
convicted defendant of the attempted murder of Michael Jones.
The State requested a death penalty hearing, and defendant waived
his right to have that hearing conducted before a jury. Ill.
Rev. Stat. 1991, ch. 38, par. 9-1 (West 1991)(now 720 ILCS 5/9-1
(West 1996)). On September 24, 1992, the trial court found
defendant eligible for the death penalty and sentenced him to
death by lethal injection for the murders of Russell and Blakely;
the court also imposed a 30-year sentence for the attempted first
degree murder of Michael Jones. The Illinois Supreme Court
subsequently remanded the case to the trial court, ordering it to
entertain a postsentencing motion, which is required to preserve
sentencing issues for review in capital cases. People v. Szabo,
113 Ill. 2d 83, 93, 497 N.E.2d 995, 999 (1986). Defendant's
trial counsel had failed to file any such motion. On September
20, 1995, after a hearing on the postsentencing motion, the trial
court vacated defendant's death sentence, imposing instead a
sentence of natural life imprisonment for defendant's murder
convictions. On September 22, 1995, defendant filed a pro se
postconviction petition and motion for appointment of counsel;
that petition was dismissed as frivolous without the appointment
of counsel.
Defendant now appeals from his murder and attempted murder
convictions, and from the summary dismissal of his postconviction
petition.
The State's primary witness was Michael Jones. He testified
that on October 13, 1990, he borrowed a yellow Cadillac from his
friend, Dovette Russell. Russell gave Jones her pager so that
she might contact him if she needed her car. At around 10 or 11
o'clock that night, Russell paged Jones and asked him to pick up
her friend, Tip. Michael Jones then made an in-court
identification of defendant as the man he knew as Tip. Jones had
met defendant roughly one week prior to the night of the
shooting. After Jones picked defendant up outside a bar,
defendant instructed Jones how to get to an apartment located at
1063 West Glenlake on the north side of Chicago. The drive took
approximately 25 minutes. Jones then accompanied defendant into
a first-floor apartment at 1063 West Glenlake, in which Dovette
Russell and Vastille Blakely were waiting. Jones went into the
apartment to use the bathroom and to get gas money from Dovette
for picking up her friend, meaning defendant. On his way to the
bathroom, Jones heard Russell tell defendant that she wanted him
to act as her bodyguard as she "took care of something." Jones
said that, by this time, it was past midnight.
Once Jones returned from the bathroom, defendant said,
"look, you all just get on the bed." Jones did not think
defendant was serious, until he felt a shot, like a "sledge
hammer," hit him in the jaw. As he was shot, Jones briefly saw a
gun out of the corner of his eye. Defendant was holding what
looked like a small, automatic weapon. Jones then saw Vastille
and Dovette jump upon the bed and heard them begging for their
lives, saying "please, no, don't," to defendant as he reached
toward them with the gun in his hand. Jones saw defendant point
the gun at Dovette's head and then Vastille's chest before Jones
passed out. When he came to, Jones noticed that the screaming
had stopped, but he did hear defendant walking toward him. Jones
pretended to be dead. Defendant took the car keys out of Jones'
hand and left.
After waiting a few minutes to be sure defendant had gone,
Jones dialed 911. He saw the bodies of Dovette Russell and
Vastille Blakely. Jones met the police outside the apartment and
described his assailant as a black male, 5 feet 10 inches tall
and approximately 200 pounds, with a goatee mustache and a nose
ring. He also stated that the shooter wore a black and white
jogging suit and a dark felt hat. Paramedics then took Jones to
Illinois Masonic Hospital, where he underwent surgery and had his
jaw wired shut. After about a day and a half, police visited
Jones at the hospital. Jones identified defendant through two
separate photographic lineups.
On cross-examination, Jones stated that he never gave the
name of his assailant to the 911 telephone operator. He simply
repeated, "please help me, hurry. Help me."
Linda Moy testified for the prosecution as well. Dovette
Russell was Moy's friend, and whenever she needed to contact
Dovette, she would page her. The prosecutor then showed Ms. Moy
a pager, which Moy identified as Dovette Russell's pager. Ms.
Moy stated that the last time she had seen that pager was in
Dovette Russell's possession on October 11, 1990.
Deborah Bugaj-Moeller, a paramedic with the Chicago fire
department, testified that she and a partner responded to a call
at 1063 West Glenlake at 3 a.m. on October 14, 1990. Upon their
arrival, Bugaj-Moeller saw Michael Jones lying in the courtyard
of the building with a gunshot wound to his jaw. Jones
repeatedly mumbled "Tip" or "Trip" as the paramedics treated him
and took him to Illinois Masonic Hospital.
The results of the autopsies indicated that both Dovette
Russell and Vastille Blakely died from gunshot wounds. When the
police found their bodies, each victim's clothing was in
disarray. A search of the crime scene revealed three fired
bullets, four cartridges and several unfired bullets; all of the
recovered ammunition fit a 9 millimeter, automatic handgun. A
sizeable amount of narcotics was hidden behind the headboard of
the bed, although no money was found.
The State also called Anthony Demus, defendant's next-door
neighbor. He testified that on October 14, 1990, defendant spoke
with him on Demus' back porch. This occurred at roughly 4:00
a.m. Defendant informed Demus that Dovette was dead. Defendant
next stated that "the Colombians" had killed her. Finally,
defendant admitted to Demus that defendant himself had killed
Dovette; however, in Demus' opinion, defendant made this
admission in jest.
Detective Joseph Guzolek of the Chicago police department
testified that he had been assigned to investigate the homicides
of Dovette Russell and Vastille Blakely. Guzolek first attempted
to interview Michael Jones at the hospital on October 14, 1990;
however, this attempt proved unsuccessful as Jones was sedated
and sleeping. Using the nickname "Tip" (obtained, presumably,
from information provided by the paramedics), Guzolek discovered
the proper name of Antillio Watkins, residing at 6826 South
Cornell in Chicago, in a nickname file compiled by the Chicago
police. He retrieved a 1988 "mug shot" photo of defendant, along
with three other photos, and again went to Illinois Masonic
Hospital to attempt to interview Michael Jones. This time, Jones
was awake. Jones identified defendant as his assailant from the
four photos presented by Guzolek. Jones could not speak but
wrote out "looked like" on a piece of paper, indicating toward
defendant's photograph. When Guzolek asked the victim the name
of his attacker, Jones wrote out "TIP." This identification
occurred at roughly 12:35 a.m. on October 15, 1990. Guzolek next
proceeded to 6826 South Cornell, where he awaited the defendant.
Defendant, however, could not be found at that address. Guzolek
remained until approximately 6 a.m., at which time he returned to
the police station to write his reports and be relieved.
Chicago police detective Paul Hagen took over the
investigation from Detective Guzolek at 10:45 a.m. on October 15,
1990. Hagen and his partner proceeded directly to 6826 South
Cornell. Defendant's brother admitted the police to the
apartment, where they found defendant asleep in bed. Hagen woke
defendant and placed him under arrest. Searching defendant's
bedroom, the police found numerous articles of brand new
clothing, approximately $180 in cash, and a pager resting upon
the pile of cash. Defendant pointed to the pile and informed the
police that he wanted to bring "that" with him. The police
complied, and they confiscated both the cash and the pager.
Defendant stated that the pager belonged to him. Later, the
police returned and seized the clothing they observed in the
bedroom, as well as a black felt hat. Once they returned to the
station, the police took a Polaroid photograph of defendant.
That photo and several others were shown to Michael Jones at
Illinois Masonic Hospital. Upon seeing the more recent photo of
defendant, Jones immediately identified defendant as the man who
shot him.
Later that day, Hagen spoke with Linda Moy. Moy informed
the detectives about the victim's pager and gave them the number.
The police dialed that number, which activated the pager seized
from defendant's bedroom. The State then rested its case in
chief.
In its case in chief, the defense called Renee White. She
testified that she and defendant were friends and coworkers at
Sweet Georgia Brown's lounge. At about 8:30 p.m. on October 13,
1990, White went to the Sophisticated Touch Lounge on Chicago's
south side, where she saw defendant. She and defendant remained
at Sophisticated Touch until 2 a.m., when they left to go to
Sweet Georgia Brown's. Once there, she and defendant met another
friend, Vivian Finley, who was working in the kitchen. The three
sat and talked until 4:30 a.m., at which point they all went to
Ms. Finley's house.
Vivian Finley also testified for the defense. Her account
of the events of October 13-14, 1990, essentially corroborated
the testimony of Ms. White. Finley stated that after she,
defendant, and Ms. White arrived at her house in the early
morning hours of October 14, the three played records until
roughly 11 o'clock the next morning. Defendant then left. On
cross-examination, Finley testified that she discovered defendant
had been arrested the following day when the police telephoned
her home. She further stated that defendant was still in her
home when the police called to inform her that they had arrested
him.
Finally, the parties stipulated that Officer Lorraine
Taylor, if called to testify, would state that she worked as an
emergency dispatcher on October 14, 1990, and that she received a
911 call at 2:56 a.m. that morning. The caller identified
himself as Michael. The parties further stipulated that the
audiotape offered by the defense was an accurate recording of
that call. Defense counsel next played the audiotape for the
jurors. The defense then rested.
On rebuttal, the State called Brian Townsend. Townsend
stated that Michael Jones was his cousin, and that Jones dropped
him off at Sweet Georgia Brown's at 11 p.m. on October 13, 1990.
Jones was then driving Russell's yellow Cadillac. Townsend also
knew defendant as Tip, having met him at Sweet Georgia Brown's
several months earlier. On the evening of the crime, Townsend
waited for Jones at Sweet Georgia Brown's until 3:30 a.m. on
October 14, 1990. After Jones failed to show, Townsend took a
cab home. Townsend never saw defendant at Sweet Georgia Brown's
that evening.
Detective Hagen also testified on rebuttal. He stated that
after advising defendant of his constitutional rights, he spoke
with defendant at the police station on October 15, 1990. Hagen
testified that defendant never said he was at Sweet Georgia
Brown's on the night of October 13-14, 1990. Defendant never
stated he spent the evening with Renee White or Vivian Finley.
Instead, defendant claimed that he and Mr. Rodney Casey had been
at the Sophisticated Touch Lounge from 12 a.m. to 3 a.m. Hagen
stated that he never located Casey. The State then rested. The
jury found defendant guilty of the first degree murders of
Dovette Russell and Vastille Blakely, and of the attempted murder
of Michael Jones.
On appeal, defendant asserts the following arguments: (1) he
was denied the effective assistance of counsel when his trial
attorney failed to file a motion to suppress Dovette Russell's
pager, which was recovered by the police when they arrested
defendant; (2) he was deprived of a fair trial where the
prosecution injected evidence of prior crimes by introducing a
two-year-old "mug shot" and referring to the fact that defendant
was listed in a police "nickname file"; alternatively, defendant
argues that his trial counsel was ineffective for failing to
object to the introduction of such evidence; and (3) he was
deprived of a fair trial when the trial court admonished the
jurors to reconsider their positions in order to reach a
unanimous verdict, after the trial court knew that the numerical
division of the jury stood at 10 to 2 in favor of conviction. We
affirm.
Defendant first contends that he was denied the effective
assistance of counsel when his trial attorney failed to file a
motion to suppress the pager of Dovette Russell. In order to
successfully establish the ineffective assistance of counsel, a
defendant must show (1) that the performance of counsel fell
outside the range of professionally competent assistance, and (2)
that the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Defendant suggests that such a motion had
"obvious merit," compelling the conclusion that trial counsel's
failure to seek exclusion of the pager fell outside the range of
professionally competent assistance. Even assuming, arguendo,
that the conduct of defendant's trial counsel did fall outside
the range of professionally competent assistance, we hold that
counsel's alleged omission did not result in prejudice to the
defendant.
Defendant charges that the police seized the pager in
violation of his fourth amendment right to be free from
unreasonable searches and seizures. In our view, however, the
plain view doctrine applied to authorize seizure of the pager;
therefore, any attempt to exclude it would not have succeeded and
so defendant did not suffer prejudice from trial counsel's
failure to file a motion to suppress. The plain view doctrine
authorizes the warrantless seizure of an item when the following
requirements are satisfied: (1) the police view the object from a
place where they are legally entitled to be; and (2) it must be
immediately apparent to the police that the items may be evidence
of a crime, contraband, or otherwise subject to seizure. Horton
v. California, 496 U.S. 128, 110 L. Ed. 2d 112, 110 S. Ct. 2301
(1990). The requirement that an item's criminal nature be
"immediately apparent" essentially translates into a probable
cause requirement. Texas v. Brown, 460 U.S. 730, 738, 75 L. Ed. 2d 502, 511, 103 S. Ct. 1535, 1541 (1983)("[t]he seizure of
property in plain view *** is presumptively reasonable, assuming
that there is probable cause to associate the property with
criminal activity"); Arizona v. Hicks, 480 U.S. 321, 326, 94 L. Ed. 2d 347, 355, 107 S. Ct. 1149, 1153 (1987); People v. Bibbs,
176 Ill. App. 3d 521, 523, 531 N.E.2d 75, 76 (1988).
In the present case, defendant concedes that Detective Hagen
had probable cause to arrest defendant after Michael Jones
identified him as his assailant. Defendant further concedes that
the arrest occurred in defendant's bedroom because the police
lawfully gained entrance to the premises after defendant's
brother permitted them to enter. Finally, defendant acknowledges
that the police then conducted a lawful search incident to
arrest. Pursuant to their search, the police discovered the
pager lying atop a pile of money. However, defendant now asserts
that the police did not have probable cause to seize the pager
and, therefore, that the plain view doctrine does not apply in
this case.
It is common knowledge--even to the layperson--that pagers
and other forms of communications technology are widely used in
the distribution of narcotics. The evidence at trial indicated
that the police discovered a sizeable quantity of narcotics at
the crime scene. Under the circumstances in which the beeper was
discovered--lying atop a "pile" of money--we believe that these
facts, available to both Detective Hagen and his partner,
warranted a reasonable belief in their minds that the pager may
have been useful as evidence linking defendant to the crime.
Texas v. Brown, 460 U.S. at 742, 75 L. Ed. 2d at 514, 103 S. Ct.
at 1543. Accordingly, we hold that the plain view doctrine
applied to justify the seizure of the pager. As a result, any
motion to suppress filed by defendant's trial counsel would have
been unsuccessful, and the failure to file such a motion could
not have prejudiced defendant. We therefore reject defendant's
first point of error.
In addition, because of our holding that the pager was
admissible under the plain view doctrine, we affirm the summary
dismissal of defendant's postconviction petition. Since the
plain view doctrine authorized seizing the pager, defendant's
postconviction petition failed to present the gist of a
meritorious constitutional claim, thus making summary dismissal
appropriate. People v. Brown, 169 Ill. 2d 94, 101, 660 N.E.2d 964, 967 (1995).
Defendant next argues that he was deprived of a fair trial,
insofar as the prosecution placed before the jury impermissible
prior crimes evidence by introducing defendant's two-year-old mug
shot photo and by mentioning the fact that defendant was listed
in a police "nickname file." As defendant correctly points out,
evidence of other crimes in which the defendant may have
participated is not admissible to show the defendant's propensity
for criminal activity. People v. Coleman, 158 Ill. 2d 319, 333,
633 N.E.2d 654, 662 (1994). The State responds, however, that
defendant waived this argument by failing to object to the issue
at trial or raise the issue in his posttrial motion. Coleman,
158 Ill. 2d at 333, 633 N.E.2d at 662. Nevertheless, Supreme
Court Rule 615(a) permits review of issues not properly preserved
at trial under the plain error doctrine, where (1) the evidence
is closely balanced, or (2) the error is of such magnitude that
defendant was denied a fair trial. Coleman, 158 Ill. 2d at 333,
633 N.E.2d at 662. Because improper use of prior crimes evidence
may have denied defendant a fair trial (People v. Graham, 179
Ill. App. 3d 496, 509, 534 N.E.2d 1382, 1390 (1989)), we review
this issue under the second prong of the plain error doctrine.
Coleman, 158 Ill. 2d at 334, 633 N.E.2d at 662.
We first consider the admission of defendant's two-year-old
mug shot photo. Evidence of other crimes is admissible if it is
relevant for any legitimate trial purpose, such as
identification, modus operandi, proof of motive, intent or
absence of mistake. Coleman, 158 Ill. 2d at 333, 633 N.E.2d at
662. The State argues that it introduced the mug shot photo at
trial for the legitimate purpose of establishing that Michael
Jones, the only surviving victim, initially identified the
defendant through said photo. Defendant responds by saying that
identification was never an issue in the trial. The record,
however, belies defendant's response, because in his opening
statement defense counsel stated, "This is a case of pure
mistaken identity." As such, we find no error in the admission
of the mug shot photo. See People v. Davis, 285 Ill. App. 3d
1039, 1045, 675 N.E.2d 194, 200 (1996)(trial court did not abuse
its discretion where it admitted a mug shot photo but did not
alter the photo to remove any and all information of the prior
arrest).
Defendant also complains that the State's reference to a
police "nickname file," located at Chicago Police Area One
Violent Crimes headquarters, gratuitously colored defendant as a
person with a violent criminal history. Assuming that this
offhand reference constituted error, we find such error to be
harmless due to the overwhelming evidence of guilt in this case.
The jury heard eyewitness testimony from the surviving victim
identifying defendant as the man who shot him; one of the
victim's personal belongings (namely, the pager) was found in
defendant's possession; another State witness testified that
defendant had confessed to the crime one hour after it occurred;
finally, on rebuttal the State offered evidence strongly
undermining the credibility of defendant's alibi witnesses. See
generally People v. Carroll, 260 Ill. App. 3d 319, 344, 631 N.E.2d 1155, 1171 (1992), quoting People v. Warmack, 83 Ill. 2d 112, 128-29, 413 N.E.2d 1254, 1262 (1980)("'In reviewing what we
believe to be the abundant evidence of guilt, however, we have
concluded that the error is harmless. We have considered the
totality of the evidence presented and can safely conclude that a
trial without this error would produce no different result'"),
rev'g 73 Ill.App.3d 783, 392 N.E.2d 334 (1979). Because any
error in referring to the "nickname file" was harmless, we reject
defendant's second point of error.
Given our conclusion that no reversible error occurred in
the admission of evidence pertaining to defendant's prior
criminal history, we need not discuss defendant's ineffective
assistance argument with respect to trial counsel's failure to
object to such evidence. Plainly, that contention lacks merit.
Finally, defendant contends he was deprived of a fair trial
when the trial court admonished the jurors to reconsider their
positions in order to reach a unanimous verdict, where the trial
court knew that the numerical division of the jury stood at 10 to
2 in favor of conviction. Before we consider this argument, we
find it necessary to recount the events that occurred during the
jury's deliberations.
On August 28, 1992, at 1:20 p.m., the court instructed the
jury and it retired to deliberate. At 7 p.m., the court
reconvened and announced to the parties that it had received two
notes from the jury. The two notes, marked "5:45 p.m." and "6:30
p.m.," respectively, both indicated a 10 to 2 split amongst the
jurors--the majority favoring conviction. The court informed the
parties that the notes reflected the jurors' opinion that they
were deadlocked. After discussing the matter with both sides
(although it did not disclose to the parties the numerical
division of the jurors), the court announced its intention to
issue an anti-deadlock instruction. Neither party objected to
the proposed course of action.
Immediately thereafter, the court recalled the jurors and
informed them that, in their communications with the court, they
need not reveal the division of the jurors and how many favored
conviction over acquittal. Without objection, the court next
admonished the jury as follows:
"[I]t is important that we try in every case [to]
arrive at a unanimous verdict. This case has been
tried and you have been privy to all the evidence in
the case. It is not likely that that evidence will
ever change. It is the court's belief that it should
be possible for 12 reasonable people to arrive at a
unanimous verdict if you diligently deliberate.
I know you have been deliberating for [some time].
I believe you went out at 1:25[p.m.] And you have had
lunch and dinner since you have been out. But despite
that fact, it is still about six hours.
I'm going to request and require that you return
to the jury room and continue your deliberations. Now,
I know you have been at it for [some time] here this
afternoon and as the hour grows later your ability to
concentrate and to deliberate might be somehow
impaired. I will allow you to deliberate for [some
time] longer this evening and at some later hour if you
have not arrived at a unanimous verdict I will make a
determination as to whether or not accommodation will
be provided for you for the evening so that you can get
a fresh start tomorrow.
But at this time I ask that you return to the jury
room, continue your deliberations. I would indicate to
each of you that you should not be constrained not to
reconsider your position, not to rediscuss the evidence
with a new view hopefully to arrive at a unanimous
verdict without doing violence to any of your
individual consciences. With that, will you please
retire to the jury room and continue your
deliberations."
The jury was then excused to continue its deliberations.
At approximately 8:30 p.m., the court reconvened again to
inform the parties that it had received yet another note from the
jury. This note stated, "Tempers are flairing [sic]. I feel no
decision will be reached tonight. We request, we begin to
deliberate in the morning [sic]." The court then announced that
it planned to suspend deliberations and sequester the jury until
the following morning. Before the suspension of deliberations,
however, one juror requested the court to repeat its earlier
admonition. The following colloquy ensued:
"THE COURT: My question then is should I read the
Prim Instruction [(People v. Prim, 53 Ill. 2d 62, 289 N.E.2d 601 (1972))] and add those comments that I added
before or should I just tell them what I told them
before about re-examining their position, attempting to
arrive at a unanimous verdict, et cetera?
MR. GORDON [defense attorney]: And my position on
behalf of Mr. Antillio Watkins would be just to rather
than give them the Prim Instruction, just repeat or
reiterate what you had already told them.
THE COURT: State.
MR. ANDREWS [Assistant State's Attorney]: Judge,
I agree with Mr. Gordon, Judge."
Subsequently, the trial court called the jurors before him and
stated:
"[Y]ou have heard all the evidence in the case. You
have been privy to arguments of counsel and the law.
It is not my belief that to retry this case would
substantially change that evidence. And hopefully, the
12 reasonable people that you are, it appears that you
should be able to arrive at a unanimous verdict. If
each of you understand that you are not a partisan in
this case. That all should review the evidence, that
you should be willing to reconsider your own point.
That you should listen to the opinions of others and
re-examine your own opinions and your own
determinations as to what the facts are. Keeping in
mind that you must do that with an eye towards not
doing violence to your own judgment. But that you
should do that with an eye of trying to arrive at a
unanimous verdict. Because it is in the interest of
justice for all parties that we be able to arrive at a
unanimous verdict after hearing all the evidence."
The jury was then sequestered. At roughly 9 a.m. the following
day, the jury resumed its deliberations. That same day at noon,
August 29, 1992, the jury returned verdicts finding defendant
guilty of the first degree murders of Dovette Russell and
Vastille Blakely, and the attempted murder of Michael Jones.
As defendant correctly points out, it may be improper for a
court to issue supplemental instructions urging deadlocked jurors
to reach a unanimous verdict after the court becomes aware that a
majority of jurors favor conviction. People v. Santiago, 108
Ill. App. 3d 787, 805, 439 N.E.2d 984, 996 (1982). This rule of
law arises from the possibility that a supplemental jury
instruction given to a deadlocked jury may have a coercive effect
upon jurors in the minority, particularly where those jurors
might feel that the judge agrees with the majority. People v.
Prim, 53 Ill. 2d 62, 72-73, 289 N.E.2d 601, 607-08 (1972); People
v. Danielly, 274 Ill. App. 3d 358, 366, 653 N.E.2d 866, 872
(1995). However, where the trial court receives an unsolicited
statement regarding the numerical division of the jurors, an
order instructing the jury to continue its deliberations does not
constitute error. People v. Iozzo, 195 Ill. App. 3d 1078, 1086,
552 N.E.2d 1308, 1314 (1990); People v. Farella, 79 Ill. App. 3d
440, 445, 398 N.E.2d 615, 619 (1979). We hold that the trial
court's anti-deadlock admonition, given after the jury
volunteered its numerical breakdown of 10 to 2 in favor of
conviction, does not rise to the level of reversible error.
Defendant argues that Farella stands for the proposition
that the trial court should have merely instructed the jurors to
keep deliberating. While it is true that the court in that case
did not admonish the jurors as to the need for unanimity
(Farella, 79 Ill. App. 3d at 445, 398 N.E.2d at 619), it does not
follow that the supplemental instruction issued by the trial
court in this case was demonstrably coercive and thus requires
reversal. Farella relied upon a decision by the United States
Court of Appeals for the Second Circuit, United States v.
Jennings, 471 F.2d 1310 (2d Cir. 1973). In Jennings, the trial
judge instructed the jury as to the need for a unanimous verdict,
although it cautioned the jurors not to sacrifice their beliefs
as to the proper verdict merely for the sake of unanimity; this
anti-deadlock instruction was affirmed despite the fact that the
judge knew that 11 jurors favored conviction. 471 F.2d at 1314.
In the present case, the trial court instructed the jury as to
the importance of unanimously agreeing on a verdict, although it
offered the caveat that the jurors should do so "with an eye
towards not doing violence to your own judgment." We feel that
this instruction is analogous to the one affirmed in Jennings,
and later approved of by Farella.
Moreover, defendant's trial counsel acquiesced in this
supplemental instruction the first time the trial court addressed
the jury on this matter, and counsel specifically requested the
instruction be given when the court issued its second anti-
deadlock admonition. Therefore, defendant invited any error and
cannot now be heard to complain. People v. Morgan, 142 Ill. 2d 410, 452, 568 N.E.2d 755, 769 (1991)(where the alleged error from
a judge's remarks was caused by defense counsel, issue is waived
on appeal), rev'd on other grounds, Morgan v. Illinois,
504 U.S. 719, 119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992).
Accordingly, we affirm the judgment of the trial court.
Affirmed.
BUCKLEY and O'BRIEN, JJ., concur.
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