People v. Harris
Annotate this Case
SECOND DIVISION
February 3, 1998
No. 1-96-2020
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
COURTNEY HARRIS, ) Honorable
) Joseph G. Kazmierski,
Defendant-Appellant.) Judge Presiding.
PRESIDING JUSTICE McNULTY delivered the opinion of the court:
After a jury trial, defendant Courtney Harris was found guilty
of first degree murder and sentenced to 28 years imprisonment.
Defendant claims on appeal that: (1) he was not proven guilty beyond
a reasonable doubt of first degree murder under an accountability
theory; (2) the trial court should have quashed his arrest since he
was arrested without probable cause; (2) his statement to police
should have been suppressed since it was the result of an illegal
arrest; (3) he was denied a fair trial when the trial court failed
to inform defense counsel of two notes sent to the court by jurors
during deliberations and then failed to respond to them; and (4) the
28-year sentence imposed by the trial court was excessive. We
affirm.
On June 5, 1993, the victim, Reginold Jones, died of a gunshot
wound to the chest. On November 19, 1993, codefendant Robert Barnes
was arrested on an unrelated robbery charge. At that time, Barnes
informed the police that he had information about the victim's
murder. Barnes initially informed the police that James Mitchell
committed the murder. The police located Mitchell, questioned him
and placed him in a lineup. The police determined that Mitchell had
not been involved in the crime. Barnes then informed the police
that it was actually defendant who committed the murder and that
Barnes acted as a lookout and took some of the victim's possessions.
Detectives then attempted to locate defendant but did not find
him either at his place of employment or his residence. Around 7:30
p.m. on November 19, 1993, defendant and his mother came to Chicago
police department Area One headquarters. Detective Albert Graf
brought defendant to an interview room and gave him his Miranda
warnings. Defendant informed Detective Graf that on June 5, 1993,
he was at Robert Barnes house when the two discussed the fact that
the victim always carried a lot of money and that he could be found
on the corner of 51st and Racine. Barnes then stated that it would
be "nice and sweet" to rob the victim. Defendant agreed that it
would be nice to rob him. Barnes and defendant then went to 5146
South Racine, where they found the victim using a pay telephone.
Defendant stood about 15 to 18 feet away from the victim, and Barnes
approached the victim and put the gun to his chest. The victim
attempted to back away, and Barnes fired the gun, striking the
victim in the chest. The victim fell to the ground and Barnes then
removed the victim's gold chain, beeper and keys. Defendant and
Barnes then fled the scene. A couple of days later, Barnes came to
defendant's home and attempted to give him the stolen jewelry, but
defendant said that he did not want anything to do with the stolen
property.
Assistant State s Attorney Caren Armbrust testified that on
November 29, 1993, at about 9:30 p.m., she advised defendant of his
Miranda rights and defendant indicated that he understood his rights
but would still like to talk about the victim's murder. Armbrust
testified that defendant told her that while at Barnes' home, Barnes
and defendant agreed that it would be "sweet" to rob the victim.
Barnes then went to the back porch, retrieved a handgun, and placed
it in his waistband. Barnes told defendant he should watch for
police and for the victim's bodyguards. When they located the
victim, Barnes approached the victim and shot the victim as he was
backing away. Barnes took money, jewelry and rings from the victim,
and defendant and Barnes ran away. Armbrust then wrote out
defendant's statement and gave it to defendant to review. Defendant
indicated some changes that needed to be made on the statement, and
the changes were made and initialed. This statement was read to the
jury.
Elgin Duncan testified on defendant s behalf that he saw the
victim and the shooter immediately before and after the shooting,
but he did not see another man nearby. Duncan did not see the
shooter s face but did not believe the shooter was Barnes, whom he
had known for a long time.
Defendant first claims on appeal that the State failed to prove
him guilty beyond a reasonable doubt of murder and armed robbery
under an accountability theory. When the sufficiency of evidence is
challenged, the relevant question on review is whether, after
viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); People v. Nitz,
143 Ill. 2d 82, 572 N.E.2d 895 (1991). A defendant is accountable
for the actions of another if "[e]ither before or during the
commission of an offense, and with the intent to promote or
facilitate such commission, he solicits, aids, abets, agrees or
attempts to aid, such other person in the planning or commission of
the offense." 720 ILCS 5/5-2(c)(West 1996). While mere presence at
the scene of a crime alone will not support guilt by accountability,
a defendant may nonetheless be deemed accountable for acts performed
by another pursuant to a common plan or purpose. People v.
Stanciel, 153 Ill. 2d 218, 606 N.E.2d 1201 (1992); People v. Furby,
138 Ill. 2d 434, 563 N.E.2d 421 (1990). Factors that raise an
inference that the accused aided and abetted in the commission of
the crime include presence at the scene of the crime without
dissociating oneself from the crime scene, flight from the scene,
continued association with the perpetrator after the criminal act,
failure to report the incident, acceptance of illegal proceeds of
the crime, and concealment or destruction of the evidence. People
v. Johnson, 220 Ill. App. 3d 550, 581 N.E.2d 118 (1991). Acting as
a lookout constitutes aiding and abetting the commission of the
offense. People v. Montes, 192 Ill. App. 3d 874, 549 N.E.2d 700
(1989). Once the State proves that the defendant intended to
promote or facilitate a crime, it has established the defendant's
responsibility for any criminal act done in furtherance of the
intended crime. People v. Houston, 258 Ill. App. 3d 364, 629 N.E.2d 774 (1994).
There was sufficient evidence for the jury here to conclude
that defendant was an accessory to the victim's murder. The
victim's murder was committed while defendant and Barnes were
engaging in a common plan to rob the victim. Defendant was at
Barnes' home when the two discussed that the victim carried a lot of
money, and defendant agreed with Barnes that it would be "sweet" to
rob the victim. Barnes then retrieved a handgun and put it in his
waistband. Defendant and Barnes then went to the corner where they
knew the victim was located. Barnes told defendant to watch for
police, and defendant stopped about 15 feet away from the victim and
acted as a lookout while Barnes approached the victim. After Barnes
shot the victim, Barnes and defendant fled the scene. Defendant did
not report the crime to the police. These facts are sufficient for
the jury to find defendant guilty of murder under an accountability
theory.
Defendant s next contention is that the trial court should have
granted his motion to quash arrest since he was arrested without
probable cause. Probable cause to arrest exists where the facts and
circumstances known by the police justify a reasonable belief that
the person to be arrested has committed a crime. People v. Robinson
167 Ill. 2d 397, 657 N.E.2d 1020 (1995). Defendant claims that the
only basis the police had for arresting him was Barnes' statement
implicating defendant. Defendant claims that Barnes statement was
insufficient to establish probable cause since Barnes had already
proven to be unreliable. Defendant points out that, prior to
implicating defendant, Barnes had implicated another man, and the
police had determined that that man was not involved in the crime.
We find the instant case similar to People v. James, 118 Ill. 2d 214, 514 N.E.2d 998 (1987). There, while codefendant Meeks was
being questioned by police, he confessed and implicated the victim.
Based on Meeks statements, the police arrested James, who confessed
after being confronted with Meeks admission. The supreme court
held that Meeks statements provided probable cause to arrest James.
The court found that the statement of an accomplice to a crime made
while in police custody, implicating another, may provide probable
cause to arrest the individual implicated, provided there are some
indicia of reliability. The court stated that the reliability of a
statement is enhanced: (1) if it contains a statement against penal
interest; (2) if it is shown that the statement was not made
pursuant to promises of leniency or other inducements; and (3) if
there is independent verification of substantial parts of the
statement by facts learned through police investigation.
Here, Barnes statement regarding defendant's involvement in
the murder implicated himself as well as defendant. In Barnes'
initial statement implicating James Mitchell, Barnes merely stated
that Mitchell told him that he was going to commit the crime and
then informed him that the crime had been committed. In Barnes'
statement implicating defendant, however, Barnes stated that he
acted as a lookout and that he went through the victim s clothing
and removed money. Moreover, there is no evidence that Barnes
statement was made pursuant to promises of leniency or other
inducements. Furthermore, in his statement implicating defendant,
Barnes gave specific information as to where the victim was shot and
what items were taken from the victim. These factors were
sufficient to provide some indicia of reliability establishing
probable cause to arrest defendant.
In light of our decision that defendant was not illegally
arrested, we need not address defendant s contention that his
statement should have been suppressed since it was not sufficiently
attenuated from the illegal arrest.
Defendant next claims that he was denied a fair trial when the
trial court failed to inform defense counsel of a note sent by the
jury during deliberations and failed to respond to this note. The
jury began its deliberations at 4:55 p.m. At 6:08 p.m., the jury
sent the trial court a note asking when Barnes was picked up by
police and when he was charged. At the same time the jury sent a
note asking the meaning of reasonable doubt. The trial court
discussed the notes with the prosecution and defense, and both sides
agreed with the trial court s responses. At 7:56 p.m., the jury
sent a third note stating, "Your Honor: We have reached an agreement
on the armed robbery charge. But, we have an 11-1 hung jury on
first degree murder." The trial court discussed the note with the
prosecution and defense and told the jury, "Continue your
deliberations on that charge." At 10:04 p.m., the jury sent out a
fourth note, stating, "Your honor: Our hopelessly hung jury has
resulted in a jury member dangerously close to a diabetic/high blood
pressure emergency." The transcript next shows that at 10:10 p.m.
the prosecutor and defense counsel were present and the trial court
informed them that he was going to sequester the jury for the night.
The transcript does not reveal that the trial court informed the
attorneys of the fourth note. Finally, at 10:40 the next morning,
the jury sent out a fifth note stating that its deliberations were
"extremely thorough, soul searching and emotional," and expressing
its hope that defendant s voluntary surrender and cooperation would
"go a long way toward leniency in your sentencing." The transcript
again reveals no communication of the contents of this note by the
court to defense counsel nor any response to this note by the court
to the jury. The record simply reveals the jury reached a verdict
that morning, and the jurors were then polled and excused.
Defendant claims that he was denied a fair trial when he was
denied the right to be present and participate in formulating a
response to the jury's fourth note. Jury deliberations are a
critical stage of trial and involve substantial rights. People v.
Childs, 159 Ill. 2d 217, 636 N.E.2d 534 (1994). A defendant has a
right to appear and participate in person and by counsel at all
proceedings affecting his substantial rights, so that he knows what
is being done, can make objections and take such action as he deems
best to secure his rights and for his protection and defense.
Childs, 159 Ill. 2d 217, 636 N.E.2d 534 (1994). We find that, in
the instant case, the trial court's failure to inform defendant of
the note deprived him of his constitutional right to be present at
and to participate in a critical stage of trial. See People v.
McDonald, 168 Ill. 2d 420, 660 N.E.2d 832 (1995).
We must therefore determine whether defendant suffered any
prejudice from the court's failure to inform him of the note. When
a defendant is deprived of his constitutional rights to be present
at and to participate for his protection in a critical stage of
trial, the burden is on the State to prove beyond a reasonable doubt
that the error was harmless. Childs, 159 Ill. 2d 217, 636 N.E.2d 534.
Defendant contends that in failing to inquire whether the jury
member was feeling well enough to deliberate, the ill juror likely
believed the deliberations would continue until a verdict was
reached and was thus compelled to chose between his convictions and
his health. Defendant claims that the trial court should have given
the jury a Prim instruction informing the jury that they should not
surrender their convictions for the purpose of returning a verdict.
People v. Prim, 53 Ill. 2d 62, 289 N.E.2d 601 (1972).
The determinations of what length of time is reasonable to
permit a jury to deliberate, whether a jury should continue to
deliberate after it has indicated that it is hopelessly deadlocked,
and whether to sequester a jury that has more than once indicated
that it cannot reach a verdict are matters within the discretion of
the trial court. People v. Allen, 47 Ill. App. 3d 900, 365 N.E.2d 460 (1977). The record here reveals that a few minutes after
receiving the fourth note regarding the juror's health concerns, the
trial court addressed this concern by suspending deliberations and
sequestering the jurors for the evening. The record does not reveal
that the juror with the health concern was also the juror who had
not yet decided whether defendant was guilty. However, even
assuming the ill juror was the holdout, the trial court's decision
to sequester the jury assured that the juror was not forced to
continue deliberations despite his illness. We, therefore, do not
find that the juror was compelled to choose between his convictions
and his health.
Furthermore, we find that the communication by the jury here,
as well as the court's failure to respond to the communication,
presents a factual situation distinct from the Childs case. In
Childs, the jury asked the trial court a legal question that was
deserving of an answer. In the instant case, in its fourth note,
the jury did not ask a question but, rather, simply informed the
court that it was deadlocked and a juror was ill. The court
immediately responded to this note by halting the deliberations and
sequestering the jury. The fifth note sent by the jurors likewise
did not ask the court a question but merely informed the court of
the status of the deliberations. Certainly no response was required
to this note. We therefore find that although the trial court
should have communicated these notes to the defendant, no prejudice
resulted from the court's failure to do so.
Defendant next claims that the trial court abused its
discretion in imposing upon defendant a 28-year sentence for first
degree murder. Defendant claims that he should have been sentenced
to the minimum term of imprisonment for this crime, 20 years. 730
ILCS 5/5-8-1(a)(1)(a) (West 1994).
We initially note that defendant has waived any challenge to
his sentence by failing to file a post sentencing motion challenging
the sentence. 730 ILCS 5/5-8-1(c)(West 1994). Even if defendant
had not waived this issue, defendant has not shown that the trial
court abused its discretion in imposing defendant s sentence. The
trial court has wide discretion in determining what sentence is
appropriate under the circumstances. People v. Hattery, 183 Ill.
App. 3d 785, 539 N.E.2d 368 (1989). Defendant points to several
mitigating factors that he claims the trial court failed to
consider: his youth, his steady employment, his interest in pursuing
his education, his cooperation with police, his show of remorse at
the sentencing hearing, and his status as an accomplice rather than
a principal. However, we presume the trial court considered these
factors. People v. Phillips, 226 Ill. App. 3d 878, 589 N.E.2d 1107
(1992). The trial court likely also considered that defendant had
a delinquency finding for armed robbery. The trial court is not
required to give more weight to defendant s rehabilitative potential
than to the seriousness of the offense. People v. Dower, 218 Ill.
App. 3d 844, 578 N.E.2d 1153 (1991). Thus, we cannot say that the
trial court abused its discretion in imposing a sentence eight years
above the minimum sentence for first degree murder.
Accordingly, for the reasons set forth above defendant s
conviction and sentence are affirmed.
Affirmed.
TULLY and COUSINS, JJ., concur.
February 3, 1998
No. 1-96-2020
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
COURTNEY HARRIS, ) Honorable
) Joseph G. Kazmierski,
Defendant-Appellant.) Judge Presiding.
PRESIDING JUSTICE McNULTY delivered the opinion of the court:
After a jury trial, defendant Courtney Harris was found guilty
of first degree murder and sentenced to 28 years imprisonment.
Defendant claims on appeal that: (1) he was not proven guilty beyond
a reasonable doubt of first degree murder under an accountability
theory; (2) the trial court should have quashed his arrest since he
was arrested without probable cause; (2) his statement to police
should have been suppressed since it was the result of an illegal
arrest; (3) he was denied a fair trial when the trial court failed
to inform defense counsel of two notes sent to the court by jurors
during deliberations and then failed to respond to them; and (4) the
28-year sentence imposed by the trial court was excessive. We
affirm.
On June 5, 1993, the victim, Reginold Jones, died of a gunshot
wound to the chest. On November 19, 1993, codefendant Robert Barnes
was arrested on an unrelated robbery charge. At that time, Barnes
informed the police that he had information about the victim's
murder. Barnes initially informed the police that James Mitchell
committed the murder. The police located Mitchell, questioned him
and placed him in a lineup. The police determined that Mitchell had
not been involved in the crime. Barnes then informed the police
that it was actually defendant who committed the murder and that
Barnes acted as a lookout and took some of the victim's possessions.
Detectives then attempted to locate defendant but did not find
him either at his place of employment or his residence. Around 7:30
p.m. on November 19, 1993, defendant and his mother came to Chicago
police department Area One headquarters. Detective Albert Graf
brought defendant to an interview room and gave him his Miranda
warnings. Defendant informed Detective Graf that on June 5, 1993,
he was at Robert Barnes house when the two discussed the fact that
the victim always carried a lot of money and that he could be found
on the corner of 51st and Racine. Barnes then stated that it would
be "nice and sweet" to rob the victim. Defendant agreed that it
would be nice to rob him. Barnes and defendant then went to 5146
South Racine, where they found the victim using a pay telephone.
Defendant stood about 15 to 18 feet away from the victim, and Barnes
approached the victim and put the gun to his chest. The victim
attempted to back away, and Barnes fired the gun, striking the
victim in the chest. The victim fell to the ground and Barnes then
removed the victim's gold chain, beeper and keys. Defendant and
Barnes then fled the scene. A couple of days later, Barnes came to
defendant's home and attempted to give him the stolen jewelry, but
defendant said that he did not want anything to do with the stolen
property.
Assistant State s Attorney Caren Armbrust testified that on
November 29, 1993, at about 9:30 p.m., she advised defendant of his
Miranda rights and defendant indicated that he understood his rights
but would still like to talk about the victim's murder. Armbrust
testified that defendant told her that while at Barnes' home, Barnes
and defendant agreed that it would be "sweet" to rob the victim.
Barnes then went to the back porch, retrieved a handgun, and placed
it in his waistband. Barnes told defendant he should watch for
police and for the victim's bodyguards. When they located the
victim, Barnes approached the victim and shot the victim as he was
backing away. Barnes took money, jewelry and rings from the victim,
and defendant and Barnes ran away. Armbrust then wrote out
defendant's statement and gave it to defendant to review. Defendant
indicated some changes that needed to be made on the statement, and
the changes were made and initialed. This statement was read to the
jury.
Elgin Duncan testified on defendant s behalf that he saw the
victim and the shooter immediately before and after the shooting,
but he did not see another man nearby. Duncan did not see the
shooter s face but did not believe the shooter was Barnes, whom he
had known for a long time.
Defendant first claims on appeal that the State failed to prove
him guilty beyond a reasonable doubt of murder and armed robbery
under an accountability theory. When the sufficiency of evidence is
challenged, the relevant question on review is whether, after
viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); People v. Nitz,
143 Ill. 2d 82, 572 N.E.2d 895 (1991). A defendant is accountable
for the actions of another if "[e]ither before or during the
commission of an offense, and with the intent to promote or
facilitate such commission, he solicits, aids, abets, agrees or
attempts to aid, such other person in the planning or commission of
the offense." 720 ILCS 5/5-2(c)(West 1996). While mere presence at
the scene of a crime alone will not support guilt by accountability,
a defendant may nonetheless be deemed accountable for acts performed
by another pursuant to a common plan or purpose. People v.
Stanciel, 153 Ill. 2d 218, 606 N.E.2d 1201 (1992); People v. Furby,
138 Ill. 2d 434, 563 N.E.2d 421 (1990). Factors that raise an
inference that the accused aided and abetted in the commission of
the crime include presence at the scene of the crime without
dissociating oneself from the crime scene, flight from the scene,
continued association with the perpetrator after the criminal act,
failure to report the incident, acceptance of illegal proceeds of
the crime, and concealment or destruction of the evidence. People
v. Johnson, 220 Ill. App. 3d 550, 581 N.E.2d 118 (1991). Acting as
a lookout constitutes aiding and abetting the commission of the
offense. People v. Montes, 192 Ill. App. 3d 874, 549 N.E.2d 700
(1989). Once the State proves that the defendant intended to
promote or facilitate a crime, it has established the defendant's
responsibility for any criminal act done in furtherance of the
intended crime. People v. Houston, 258 Ill. App. 3d 364, 629 N.E.2d 774 (1994).
There was sufficient evidence for the jury here to conclude
that defendant was an accessory to the victim's murder. The
victim's murder was committed while defendant and Barnes were
engaging in a common plan to rob the victim. Defendant was at
Barnes' home when the two discussed that the victim carried a lot of
money, and defendant agreed with Barnes that it would be "sweet" to
rob the victim. Barnes then retrieved a handgun and put it in his
waistband. Defendant and Barnes then went to the corner where they
knew the victim was located. Barnes told defendant to watch for
police, and defendant stopped about 15 feet away from the victim and
acted as a lookout while Barnes approached the victim. After Barnes
shot the victim, Barnes and defendant fled the scene. Defendant did
not report the crime to the police. These facts are sufficient for
the jury to find defendant guilty of murder under an accountability
theory.
Defendant s next contention is that the trial court should have
granted his motion to quash arrest since he was arrested without
probable cause. Probable cause to arrest exists where the facts and
circumstances known by the police justify a reasonable belief that
the person to be arrested has committed a crime. People v. Robinson
167 Ill. 2d 397, 657 N.E.2d 1020 (1995). Defendant claims that the
only basis the police had for arresting him was Barnes' statement
implicating defendant. Defendant claims that Barnes statement was
insufficient to establish probable cause since Barnes had already
proven to be unreliable. Defendant points out that, prior to
implicating defendant, Barnes had implicated another man, and the
police had determined that that man was not involved in the crime.
We find the instant case similar to People v. James, 118 Ill. 2d 214, 514 N.E.2d 998 (1987). There, while codefendant Meeks was
being questioned by police, he confessed and implicated the victim.
Based on Meeks statements, the police arrested James, who confessed
after being confronted with Meeks admission. The supreme court
held that Meeks statements provided probable cause to arrest James.
The court found that the statement of an accomplice to a crime made
while in police custody, implicating another, may provide probable
cause to arrest the individual implicated, provided there are some
indicia of reliability. The court stated that the reliability of a
statement is enhanced: (1) if it contains a statement against penal
interest; (2) if it is shown that the statement was not made
pursuant to promises of leniency or other inducements; and (3) if
there is independent verification of substantial parts of the
statement by facts learned through police investigation.
Here, Barnes statement regarding defendant's involvement in
the murder implicated himself as well as defendant. In Barnes'
initial statement implicating James Mitchell, Barnes merely stated
that Mitchell told him that he was going to commit the crime and
then informed him that the crime had been committed. In Barnes'
statement implicating defendant, however, Barnes stated that he
acted as a lookout and that he went through the victim s clothing
and removed money. Moreover, there is no evidence that Barnes
statement was made pursuant to promises of leniency or other
inducements. Furthermore, in his statement implicating defendant,
Barnes gave specific information as to where the victim was shot and
what items were taken from the victim. These factors were
sufficient to provide some indicia of reliability establishing
probable cause to arrest defendant.
In light of our decision that defendant was not illegally
arrested, we need not address defendant s contention that his
statement should have been suppressed since it was not sufficiently
attenuated from the illegal arrest.
Defendant next claims that he was denied a fair trial when the
trial court failed to inform defense counsel of a note sent by the
jury during deliberations and failed to respond to this note. The
jury began its deliberations at 4:55 p.m. At 6:08 p.m., the jury
sent the trial court a note asking when Barnes was picked up by
police and when he was charged. At the same time the jury sent a
note asking the meaning of reasonable doubt. The trial court
discussed the notes with the prosecution and defense, and both sides
agreed with the trial court s responses. At 7:56 p.m., the jury
sent a third note stating, "Your Honor: We have reached an agreement
on the armed robbery charge. But, we have an 11-1 hung jury on
first degree murder." The trial court discussed the note with the
prosecution and defense and told the jury, "Continue your
deliberations on that charge." At 10:04 p.m., the jury sent out a
fourth note, stating, "Your honor: Our hopelessly hung jury has
resulted in a jury member dangerously close to a diabetic/high blood
pressure emergency." The transcript next shows that at 10:10 p.m.
the prosecutor and defense counsel were present and the trial court
informed them that he was going to sequester the jury for the night.
The transcript does not reveal that the trial court informed the
attorneys of the fourth note. Finally, at 10:40 the next morning,
the jury sent out a fifth note stating that its deliberations were
"extremely thorough, soul searching and emotional," and expressing
its hope that defendant s voluntary surrender and cooperation would
"go a long way toward leniency in your sentencing." The transcript
again reveals no communication of the contents of this note by the
court to defense counsel nor any response to this note by the court
to the jury. The record simply reveals the jury reached a verdict
that morning, and the jurors were then polled and excused.
Defendant claims that he was denied a fair trial when he was
denied the right to be present and participate in formulating a
response to the jury's fourth note. Jury deliberations are a
critical stage of trial and involve substantial rights. People v.
Childs, 159 Ill. 2d 217, 636 N.E.2d 534 (1994). A defendant has a
right to appear and participate in person and by counsel at all
proceedings affecting his substantial rights, so that he knows what
is being done, can make objections and take such action as he deems
best to secure his rights and for his protection and defense.
Childs, 159 Ill. 2d 217, 636 N.E.2d 534 (1994). We find that, in
the instant case, the trial court's failure to inform defendant of
the note deprived him of his constitutional right to be present at
and to participate in a critical stage of trial. See People v.
McDonald, 168 Ill. 2d 420, 660 N.E.2d 832 (1995).
We must therefore determine whether defendant suffered any
prejudice from the court's failure to inform him of the note. When
a defendant is deprived of his constitutional rights to be present
at and to participate for his protection in a critical stage of
trial, the burden is on the State to prove beyond a reasonable doubt
that the error was harmless. Childs, 159 Ill. 2d 217, 636 N.E.2d 534.
Defendant contends that in failing to inquire whether the jury
member was feeling well enough to deliberate, the ill juror likely
believed the deliberations would continue until a verdict was
reached and was thus compelled to chose between his convictions and
his health. Defendant claims that the trial court should have given
the jury a Prim instruction informing the jury that they should not
surrender their convictions for the purpose of returning a verdict.
People v. Prim, 53 Ill. 2d 62, 289 N.E.2d 601 (1972).
The determinations of what length of time is reasonable to
permit a jury to deliberate, whether a jury should continue to
deliberate after it has indicated that it is hopelessly deadlocked,
and whether to sequester a jury that has more than once indicated
that it cannot reach a verdict are matters within the discretion of
the trial court. People v. Allen, 47 Ill. App. 3d 900, 365 N.E.2d 460 (1977). The record here reveals that a few minutes after
receiving the fourth note regarding the juror's health concerns, the
trial court addressed this concern by suspending deliberations and
sequestering the jurors for the evening. The record does not reveal
that the juror with the health concern was also the juror who had
not yet decided whether defendant was guilty. However, even
assuming the ill juror was the holdout, the trial court's decision
to sequester the jury assured that the juror was not forced to
continue deliberations despite his illness. We, therefore, do not
find that the juror was compelled to choose between his convictions
and his health.
Furthermore, we find that the communication by the jury here,
as well as the court's failure to respond to the communication,
presents a factual situation distinct from the Childs case. In
Childs, the jury asked the trial court a legal question that was
deserving of an answer. In the instant case, in its fourth note,
the jury did not ask a question but, rather, simply informed the
court that it was deadlocked and a juror was ill. The court
immediately responded to this note by halting the deliberations and
sequestering the jury. The fifth note sent by the jurors likewise
did not ask the court a question but merely informed the court of
the status of the deliberations. Certainly no response was required
to this note. We therefore find that although the trial court
should have communicated these notes to the defendant, no prejudice
resulted from the court's failure to do so.
Defendant next claims that the trial court abused its
discretion in imposing upon defendant a 28-year sentence for first
degree murder. Defendant claims that he should have been sentenced
to the minimum term of imprisonment for this crime, 20 years. 730
ILCS 5/5-8-1(a)(1)(a) (West 1994).
We initially note that defendant has waived any challenge to
his sentence by failing to file a post sentencing motion challenging
the sentence. 730 ILCS 5/5-8-1(c)(West 1994). Even if defendant
had not waived this issue, defendant has not shown that the trial
court abused its discretion in imposing defendant s sentence. The
trial court has wide discretion in determining what sentence is
appropriate under the circumstances. People v. Hattery, 183 Ill.
App. 3d 785, 539 N.E.2d 368 (1989). Defendant points to several
mitigating factors that he claims the trial court failed to
consider: his youth, his steady employment, his interest in pursuing
his education, his cooperation with police, his show of remorse at
the sentencing hearing, and his status as an accomplice rather than
a principal. However, we presume the trial court considered these
factors. People v. Phillips, 226 Ill. App. 3d 878, 589 N.E.2d 1107
(1992). The trial court likely also considered that defendant had
a delinquency finding for armed robbery. The trial court is not
required to give more weight to defendant s rehabilitative potential
than to the seriousness of the offense. People v. Dower, 218 Ill.
App. 3d 844, 578 N.E.2d 1153 (1991). Thus, we cannot say that the
trial court abused its discretion in imposing a sentence eight years
above the minimum sentence for first degree murder.
Accordingly, for the reasons set forth above defendant s
conviction and sentence are affirmed.
Affirmed.
TULLY and COUSINS, JJ., concur.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
