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People v. Thornton8/16/2002
ed, 305 U.S. 562, 83 L. Ed. 354, 59 S. Ct. 97 (1938).
Defendant argues that in the instant case he has shown he was prejudiced by the separation because deliberations continued in the absence of the ill juror and a verdict was reached while all 12 jurors were not together. Specifically, defendant argues, "It is obvious that when the juror claimed she was ill and left the jury room, the other jurors, especially the two who had not voted for guilty, got scared and thought that the deliberations would be prolonged due to the illness of the juror and immediately gave up their beliefs of not guilty and changed their vote to guilty."
This court rejected a similar argument in People v. Harris, 294 Ill. App. 3d 561 (1998). There, the trial court received several notes from a jury during its deliberations. After three hours of deliberation, the jury sent out a note saying it was hopelessly deadlocked 11 to 1 on the first degree murder charge. The trial court discussed the note with the defense and prosecutor and told the jury, "Continue your deliberations on that charge." 294 Ill. App. 3d at 567. Two hours later, the jury sent out their next note saying, "Your Honor: Our hopelessly hung jury has resulted in a jury member dangerously close to a diabetic/high blood pressure emergency." 294 Ill. App. 3d at 567. The record does not indicate whether the trial court advised the parties of this note, but six minutes after receiving it, the judge informed everyone he was sequestering the jury for the night. The jury returned a verdict of guilty on the murder charge the following morning. On appeal, defendant contended that "because of the court's failure 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." Harris, 294 Ill. App. 3d at 568.
In the instant case, the trial court polled the jurors and questioned the foreperson regarding whether the ill juror was one of the two "holdouts" on the one charge of aggravated kidnaping the jurors had not yet agreed upon when she was brought to the judge and attorneys to explain her illness. The foreperson explained that she was not a holdout and had given her permission to continue deliberating and that the ill juror agreed to the verdicts when she returned to the jury room. Consequently, the case for affirmance is much stronger here than it was in Harris. Indeed, by questioning the juror about her illness, the trial court in the instant case was taking steps to guard against the concern raised by the defense in Harris.
The dissent opines that we are treating this matter as "being de minimis simply because the ultimate result might have been the same" (slip op. at 28) and " he majority seems to be of the opinion the constitution allows an ill juror to simply ratify the desired verdict ex post facto" (slip op. at 27). The transcript of the polling of the jurors clearly indicates, prior to the juror becoming ill, all of the jurors had unanimously voted to convict defendant on the charge of aggravated kidnaping based upon kidnapping with a demand for ransom (720 ILCS 5/10-2(a)(1)(West 1996)). Further, the ill juror had voted to convict defendant on the charge of aggravated kidnaping based upon inflicting great bodily harm upon the victim (720 ILCS 5/10-2(a)(3)(West 1996)). While two other jurors had not voted to convict defendant on this second count when the juror became ill and was brought to the judge and attorneys to explain her condition, the ill juror returned to the jury room and spoke with the foreman prior to the jury being brought out. Consequently, contrary t
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