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People v. Thornton8/16/2002
ion.
(m) In the trial of a capital or other offense, any juror who is a member of a panel or jury which has been impaneled and sworn as a panel or as a jury shall be permitted to separate from other such jurors during every period of adjournment to a later day, until final submissions of the cause to the jury for determination, except that no such separation shall be permitted in any trial after the court, upon motion by the defendant or the State or upon its own motion, finds a probability that prejudice to the defendant or to the State will result from such separation."
Defendant argues that the separation of the juror in the instant case caused prejudice to defendant. Defendant acknowledges that the standard of review as to the determination of whether a defendant has been prejudiced is left to the sound discretion of the trial court, based upon the facts and circumstances of each case and the nature of the action which is alleged to be prejudicial, citing People v. Payton, 84 Ill. App. 3d 181 (1980), and People v. Martinez, 45 Ill. App. 3d 939 (1977).
However, defendant urges us to hold that, to the extent that either section 115-4(1) or (m) is violated, and the jurors are separated during deliberations, a strict reading of the statute requires reversal of any conviction, per se. In support of this proposition, defendant relies upon the holding in People v. Ritzert, 17 Ill. App. 3d 791 (1974).
In Ritzert, the defendant was convicted of driving while intoxicated. After the jury had deliberated for four hours without reaching a verdict, the trial court asked counsel from both sides what they wished to do. Defense counsel preferred that a mistrial be declared and the prosecutor urged that the jury be allowed to go home and resume deliberations in the morning. The court sent the jury home. The following morning the defendant objected to the procedure but the trial court noted that no objections had been raised prior to the jury's release. The appellate court reversed the defendant's conviction and found that defendant's failure to object to the separation was of no consequence and that, under the statute, the parties could only agree to such a separation after the jury had concluded deliberations and sealed its verdict. Ritzert, 17 Ill. App. 3d at 795.
Defendant acknowledges that many courts have held that the separation of jurors during deliberations in violation of the statute does not, per se, require reversal, citing People v. Dahlin, 184 Ill. App. 3d 59 (1989), People v. Dungy, 122 Ill. App. 3d 314 (1984), People v. Jackson, 105 Ill. App. 3d 750 (1982), and People v. Martinez, 45 Ill. App. 3d 939 (1977). Dahlin and Jackson specifically declined to follow Ritzert.
Defendant also acknowledges that in People v. Hanson, 31 Ill. 2d 31, 41-42 (1964), our supreme court held: " here the separation [of the jury was] *by inadvertence or carelessness of the jurors or of the officer, or of both, the verdict will not be set aside unless it is clearly shown the jurors were operated on in some way to the prejudice of the prisoner. [Citations.]"
This topic has also been the subject of legal commentary. "Where it appears that a separation of jurors after submission of a criminal case to the jury was with authority of the court and not in violation of a statute or rule, or in some instances, where the separation was of such temporary or trivial nature as not to reasonably suggest the likelihood of prejudice, or where the separation was for a necessary purpose, the defendant generally has the burden of proving reversible harm." 75B Am. Jur. 2d Trial §1531 (1992), citing Brown v. United States, 69 App. D.C. 96, 99 F.2d 131 (1938), cert. deni
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