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People v. Thornton8/16/2002
olve substantial rights. People v. Kliner, 185 Ill. 2d 81 (1998); People v. Harris, 294 Ill. App. 3d 561 (1998). Jury deliberations are a critical stage of trial which involve substantial rights. People v. Ross, 303 Ill. App. 3d 966 (1999).
"A communication between the judge and the jury following the jury's retiring to deliberate, except one held in open court and in the defendant's presence, deprives the defendant of his constitutional rights. See McDonald, 168 Ill. 2d at 459; Childs, 159 Ill. 2d at 227. A jury verdict, however, will not be set aside where it is apparent that no harm or prejudice resulted from an ex parte communication. See McDonald, 168 Ill. 2d at 460; Childs, 159 Ill. 2d at 227-28. The State has the burden of proving that any error in the ex parte response is harmless beyond a reasonable doubt. See McDonald, 168 Ill. 2d at 460; Childs, 159 Ill. 2d at 228." People v. Kliner, 185 Ill. 2d at 162.
In the instant case, the trial court did notify the attorneys for both sides of the juror's illness and conducted an in camera interview with that juror on the record, in their presence. This is considerably different from the facts reviewed in the cases cited by defendant. In Childs, the trial court discussed notes from a jury during deliberations with the State but did not discuss them with the defendant or his counsel. In McDonald, the trial court informed the State and defendant's standby counsel of notes from a jury during deliberations but did not inform the defendant, who was trying the case pro se, until after giving the response. In Kliner, the trial court did not tell the defendant or his attorney of six written inquiries from a jury during deliberations before choosing to answer or choosing not to reply. The courts in McDonald and Kliner found the actions of the trial court to be error but that the improper communications were harmless beyond a reasonable doubt.
In Harris, a case relied upon by defendant, the trial court received a note from the jury's foreperson saying that one of the jurors was ill and they were "hopelessly hung." Harris, 294 Ill. App. 3d at 567. The trial court did not advise the defendant, his counsel, or the State of this communication or of another subsequent note. In finding this to be harmless error, the appellate court distinguished the holding in Childs. In Childs, the jury asked the trial court a legal question that was deserving of an answer. In Harris, the appellate court pointed out that the notes did not ask legal questions, indeed, they were not questions at all. Similarly, in the instant case, the in camera interview did not involve a legal question. It involved a determination as to whether an ill juror thought she was well enough to continue deliberating. The reason that a defendant has a right to be present when there is a communication with a juror during deliberations is "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." People v. Harris, 294 Ill. App. 3d at 568, citing People v. Childs, 159 Ill. 2d 217 (1994). Considering the nature of the communication in the instant case, it is hard to see what action defendant could have taken. The court in Kliner similarly considered the nature of the communications between the jury and the judge in holding that they amounted to harmless error. Kliner, 185 Ill. 2d at 163-65.
For of all these reason, we find that the trial court's failure to have the defendant present during the interview with the juror, while erroneous, caused him no prejudice and was therefore harmless beyond a reasonable doubt.
Reasonable Doubt
Finally, defendant contends tha
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