People Of The State Of Ill. v. Walker

• Decision Date: 15 July 2010
• Docket Number: No. 1-07-2889.,1-07-2889.
• Citation: 932 N.E.2d 1115,342 Ill.Dec. 654,403 Ill.App.3d 68
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas WALKER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

403 Ill.App.3d 68

932 N.E.2d 1115

342 Ill.Dec. 654

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Thomas WALKER, Defendant-Appellant.

No. 1-07-2889.

Appellate Court of Illinois,First District, First Division.

July 15, 2010.

COPYRIGHT MATERIAL OMITTED.

Michael J. Pelletier, State Appellate Defender, Patricia Unsinn, Deputy Defender, and Michael H. Orenstein, Assistant Appellate Defender, of the Office of the State Appellate Defender, Chicago, IL, for Appellant.

Anita Alvarez, Cook County State's Attorney, Chicago, IL (James E. Fitzgerald, Mary P. Needham, and Mikah Soliunas, Assistant State's Attorneys, of counsel), for Appellee.

Presiding Justice FROSSARD delivered the opinion of the court:

Following a jury trial, defendant Thomas Walker was convicted of first degree murder and sentenced to 65 years in prison. On appeal, defendant contends that: (1) the trial court misled the jury and coerced a verdict; (2) the trial court failed to ensure all the jurors understood and accepted principles that are fundamental to a fair trial; (3) the trial court failed to inquire into defendant's pro se ineffective assistance of counsel claim; and (4) the mittimus incorrectly states defendant was adjudged guilty of two counts of first degree murder.

For the reasons that follow, we affirm defendant's first degree murder conviction and sentence but correct the mittimus to reflect a single conviction for murder.

I. BACKGROUND

Defendant was charged with committing the murder of Juliette Robinson. The State's witnesses testified that defendant shared a home with Juliette and, on the evening of February 4, 2004, entered her bedroom while she was sleeping. Defendant and Juliette's 11-year-old son, Thomas Walker III, was also sleeping in Juliette's room. Defendant was carrying a loaded revolver and argued with Juliette. Defendant summoned his 15-year-old stepdaughter, Dionne Robinson, into the room and told her to tie up her brother, but she refused. Defendant then accused Juliette of having an affair and an argument ensued. When defendant reached for a tape recorder he had hidden behind Juliette's bed, Juliette fled the room and defendant fired two gunshots at her. She continued to run through the living room and out the front door while defendant shot at her. She was killed by a single gunshot wound to the back and collapsed at the bottom of the outside stairs. Defendant fled the scene and was later arrested at a hospital where he was being treated for a failed suicide attempt.

Thomas Walker III and Dionne testified consistently about the events that evening. Dionne also added that when defendant summoned her into the room, he was waving a gun and said that someone in the room was going to die that night. Furthermore, defendant started shooting at Juliette while she was still in the bedroom. Dionne heard two shots in the bedroom, two outside the bedroom, and two more after that. After Dionne summoned the police, she ran outside to check on her mother and saw defendant get in his van and drive away.

Alberta Randall, who lived across the street from the crime scene, testified that she heard defendant and Juliette arguing on the night of the offense. Next, Randall heard a gunshot and saw Juliette fall down her front stairs. Then, defendant ran down the same stairs with a gun in his hand, got in his van and drove away.

A police investigation unit processed the crime scene. The unit observed bullet holes in the walls and holes from bullets that had passed through a door before going into the wall. The unit, however, was unable to retrieve any bullet fragments, which might have passed through the drywall and dropped down into the hollow portion of the wall. Furthermore, the lack of bullet casings at the scene indicated that the offender probably used a revolver.

Defendant testified on his own behalf. He claimed he did not have a gun when he entered Juliette's bedroom on the night of the offense.

According to defendant, he went into Juliette's room to talk about the problems they were having, but she started yelling. Defendant remembered reaching into a dresser drawer to look for his hidden tape recorder but instead grabbed Juliette's gun. He claimed the gun was already cocked when he took it out of the drawer. While he was reaching for the tape recorder with his empty hand, Juliette jumped up, ran past him and pushed the gun that was in defendant's other hand. The gun went off, and defendant claimed he could not remember the subsequent events clearly.

The jury found defendant guilty of first degree murder and found that he personally discharged a weapon which proximately caused the death of the victim. Defendant was sentenced to 40 years on the charge of first degree murder to be served consecutively to a sentence of 25 years based on the jury's finding that defendant personally discharged a firearm that caused the victim's death. Defendant timely appealed.

II. ANALYSIS

A. Coercion of the Verdict

Defendant contends comment by the judge midway through the two-day jury trial withheld the option of a deadlock and coerced a verdict. The challenged comment was as follows:

“We still intend to complete this trial on Thursday, which means that once you start deliberating, you'll continue to work until you reach a verdict * * *.”

The State contends the defendant's argument is forfeited because defendant failed either to contemporaneously object or to raise this issue in a posttrial motion. People v. Enoch, 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988). Defendant responds that we should relax the waiver rule because the basis for the objection is the trial judge's conduct. The rationale for the relaxation of the waiver rule when the conduct of the judge is at issue derives from “ ‘the fundamental importance of a fair trial and the practical difficulties involved in objecting to the conduct of the trial judge.’ ” People v. Brown, 200 Ill.App.3d 566, 575, 146 Ill.Dec. 346, 558 N.E.2d 309 (1990), quoting People v. Heidorn, 114 Ill.App.3d 933, 936, 70 Ill.Dec. 439, 449 N.E.2d 568 (1983). Keeping in mind that the waiver rule is relaxed when the objection is based on the judge's conduct, we find exception to the waiver rule applicable here. Accordingly, we will address defendant's argument. We note the alleged error implicated defendant's right to a fair trial, thus the question is a legal one which we review de novo. People v. Ramos, 396 Ill.App.3d 869, 878-79, 336 Ill.Dec. 295, 920 N.E.2d 504 (2009).

Defendant argues that the comment by the judge to the jury-“you'll continue to work until you reach a verdict”-essentially ordered a unanimous verdict and ruled out the possibility of a hung jury. In support of this argument defendant relies on People v. Gregory, 184 Ill.App.3d 676, 132 Ill.Dec. 932, 540 N.E.2d 854 (1989), People v. Ferro, 195 Ill.App.3d 282, 292-93, 141 Ill.Dec. 850, 551 N.E.2d 1378 (1990), and United States v. Arpan, 861 F.2d 1073, 1077 (8th Cir.1988). Unlike the instant case, these cases challenge responses by the trial courts to jury questions once the jury reached a standstill in the deliberation process. Rather, the comments by the trial court in the instant case, which occurred midway through the trial process, simply conveyed a schedule timeline for the remainder of the proceedings to allow jurors to make the appropriate plans, bring any required medications and make any necessary notifications. In context the comment by the judge was as follows:

“Ladies and gentlemen, that's going to conclude the evidence you're going to hear today. As I told you when you were selected yesterday, because of prior scheduling of other matters, we will not hear evidence tomorrow.

We will ask you to be back here on Thursday at 10:30 in the morning, and I will do everything possible to start closer to on time than we did today.

We still intend to complete this trial Thursday, which means that once you start deliberating, you'll continue to work until you reach a verdict so that you will let people know about that. And should you need medications or something like that, bring them with you so you don't run into these problems, okay?”

We note that those comments were not made to a deliberating jury or to a jury about to begin deliberations. The record does not reflect any indication by the trial judge that the jurors would be held indefinitely. The record does not reflect any coercion by the experienced trial judge. We reject defendant's argument that the comments by the judge coerced a unanimous verdict or misled the jury. Rather, the judge was giving the jurors information regarding scheduling they needed to know to make necessary plans and notifications before any deliberation began.

B. Compliance with Supreme Court Rule 431(b)

Defendant argues his conviction must be reversed and this case remanded for a new trial because the trial court failed to fully comply with Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007). We review the trial court's compliance with a supreme court rule de novo. People v. Suarez, 224 Ill.2d 37, 41-42, 308 Ill.Dec. 774, 862 N.E.2d 977 (2007).

Our constitutions guarantee a defendant a fair trial by an impartial jury. U.S. Const., amends. VI, XIV; Ill. Const.1970, art. I, § 8; People v. Strain, 194 Ill.2d 467, 475, 252 Ill.Dec. 65, 742 N.E.2d 315 (2000). A defendant's right to a fair trial by an impartial jury requires jurors to be selected through the process of voir dire who are free from bias and prejudice. People v. Zehr, 103 Ill.2d 472, 477, 83 Ill.Dec. 128, 469 N.E.2d 1062 (1984).

Rule 431(b) codifies our supreme court's holding in People v. Zehr, 103 Ill.2d 472, 477, 83 Ill.Dec. 128, 469 N.E.2d 1062 (1984), requiring that four inquiries be made of potential jurors in a criminal case to determine whether a particular bias or prejudice would deprive the defendant of his right to a fair and impartial trial....