People v. Childs
| Decision Date | 19 June 1992 |
| Docket Number | No. 1-90-2065,1-90-2065 |
| Parties | , 172 Ill.Dec. 829 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry CHILDS, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Michael J. Pellettier, Deputy Defender (Martin Carlson, Martha V. Sackley and Christopher M. Murphy, Chicago, of counsel), for defendant-appellant.
Jack O'Malley, State's Atty. (Renee Goldfarb, James E. Fitzgerald, Chicago, of counsel), for plaintiff-appellee.
Defendant Larry Childs was indicted for the offenses of murder and armed robbery. He was found guilty of these offenses by a jury and sentenced to concurrent terms of life imprisonment for murder and 60 years for armed robbery. He appeals his conviction and sentence.
Two issues are presented for review: (1) whether the trial court erred in failing to apprise defense counsel of a question submitted by the jury and by sending an ex parte communication to the jury through a court bailiff during deliberations and (2) whether the trial court erred in refusing to answer a question from the jury concerning whether defendant could be found guilty of armed robbery and voluntary or involuntary manslaughter instead of murder. For the reasons set forth below we reverse and remand for a new trial.
On February 4, 1987, Jerry Nichols was killed by a single gun shot wound to the abdomen. Defendant, a neighborhood friend, was arrested and charged with murder. At trial Childs testified that on the afternoon of Nichols' death, Nichols had gone to Childs' home to borrow money. He asked Childs to lend him 50 dollars. Nichols had asked Childs to lend him money several times in the past and had always repaid Childs. Childs loaned Nichols the money and Nichols promised to repay it that same day. Nichols did not repay the loan that day as he had promised. That evening Childs went to the store where Nichols worked as a security guard to collect his money. On the way to the store Childs bought a BB gun from some children playing by a school near his mother's house. Childs further testified that not only was Nichols a much larger man than himself, but also that Nichols had told him he had once killed a man and been in fights with other men. Childs had seen Nichols in a fight and had often seen him in possession of weapons.
When Childs arrived at the store where Nichols worked, the BB gun was in his pocket and he walked back to the meat counter where Nichols stood. Childs told Nichols he needed his money and Nichols then walked toward the cash register. Childs followed him, thinking he was going to repay the money and did not remove the BB gun from his pocket.
The State's principal witness Ayyash, who was working at the cash register, testified he saw a gun in Childs' hand, that Childs was behind and close to Nichols, and that Nichols, not Childs, said that it was a hold up.
Childs testified that when they arrived at the cash register, Nichols turned around and pointed a gun at him. Childs grabbed the gun barrel and wrestled with Nichols. After wrestling for four or five minutes, they fell over and the gun discharged. Ayyash testified that before the struggle, Childs had tried to open the cash register, but Nichols then turned on him and grabbed him in a bear hug, and the two men struggled to the ground. Nichols fell down first and Childs went down on top of him. Ayyash then testified that he heard a shot but did not see who fired it. Then Childs stood up with Nichols' .38 caliber gun in his hand.
Childs testifed that he picked the gun up from the floor because he thought Nichols was alive and did not want Nichols to shoot him. He then went toward Ayyash and asked for the money Nichols owed him. Ayyash testified Childs pointed the gun at him and demanded that he open the cash register, but that he was unable to do so. When Childs could not open the cash register he slammed it on the floor, broke it open, and removed $30 or $40 from it. Ayyash testified that Childs then walked him over to the other cash register, ordered him to open it, took money from that register as well and then jumped over the counter and ran out of the store. Childs further testified that Nichols appeared conscious, he did not see any blood, and he then returned to his mother's house where the police arrived about 20 or 30 minutes later and arrested him.
Officer O'Donovan testified that after arriving at the scene and getting a description of defendant from another officer, he and three observers, who knew where a man fitting that description lived, went to defendant's home. As he approached defendant's home, defendant was leaving it, but upon seeing the officer approach, defendant unsuccessfully attempted to get back into the house. Defendant was then arrested and the officers seized a .38 caliber gun that defendant had thrown down as well as cash found on defendant and lying on the porch. Defendant was transported to the police station where he was identified in a lineup by Ayyash. The .38 caliber gun was later identified as Nichols' gun which had been used to shoot Nichols.
Detective Horne and Assistant State's Attorney Paula Becker testified for the State that Childs made oral statements to them in which he admitted entering the store to rob it. Childs testified that he made the statement because he was injured, tired and was repeatedly threatened and beaten by Detective Horne. He further testified that he agreed to repeat the prepared statements made by Detective Horne to avoid further beatings. Detective Horne was present during Childs' interview with Paula Becker.
On May 11, 1990, the trial was completed and the court gave the jury its instructions. The jury was given two packets of verdict forms. The first packet included four verdict forms: guilty of murder; guilty of voluntary manslaughter; guilty of involuntary manslaughter; and not guilty of murder, voluntary manslaughter and involuntary manslaughter. The second packet included two verdict forms: guilty of armed robbery and not guilty of armed robbery. No verdict form was submitted as to felony murder.
The jury then began its deliberations. During deliberations the jury posed a question to the court by means of a note given to the bailiff who was attending to the jury. The trial judge, who was having a meal with the State's attorneys at a restaurant, received a telephone call from the bailiff regarding the jury's note. The note read: "Can the defendant be guilty of armed robbery and voluntary or involuntary manslaughter or must murder be the only option with armed robbery?" The trial judge without consulting the State's attorneys or defense counsel declined to answer the question and told the bailiff to tell the jury to read the instructions as to the law and to continue to deliberate. The judge then informed the State's attorneys of the question and answer he gave, but made no effort to contact defense counsel before telling the bailiff how to respond to the jury's question, although defense counsel had given the court a phone number where he could be reached during jury deliberations.
Upon learning about what had transpired, defense counsel objected to the court's failure to contact him about the jury's question and to the content of the court's response to it. The judge replied that he considered the question to be very difficult and confusing.
The jury returned verdicts of guilty of armed robbery and guilty of murder. Defense counsel filed a motion for new trial. At the sentencing hearing the trial court sentenced Childs to concurrent terms of natural life and 60 years stating: Defendant's motion for new trial was denied and this appeal followed.
There is a long line of authority in Illinois that it is error for the trial court to have an ex parte communication with the jury after it has retired for deliberations without informing defense counsel. In People v. Harmon (1968), 104 Ill.App.2d 294, 244 N.E.2d 358, the bailiff in response to a "buzz" from the jury room learned from the jury that they desired to ask certain questions. The bailiff indicated that he could not answer their questions and communicated their request to the judge together with a summary of the questions the jury had posed. The judge told the bailiff to tell the jury that they had heard the evidence and were to leave the law up to the judge. The bailiff communicated this to the jury and they resumed deliberations. Neither defendant nor his counsel were brought into court and told of this event until the jury had reached its verdict convicting defendant. The reviewing court determined that it was reversible error for a trial judge to hold any communication with the jury after its retirement to deliberate except in open court, citing People v. Beck (1922), 305 Ill. 593, 137 N.E. 454. The reasoning principally relied upon in the earlier Illinois cases is that the accused is entitled to a public trial and communication by the court with the jury outside defendant's presence violates that constitutional guarantee.
There are several supreme court cases holding that the trial court's failure to inform defense counsel of a jury's substantive legal question is grounds for reversal regardless of the correctness of the court's response. People v. McGrane (1929), 336 Ill. 404, 168 N.E. 321; People v. Beck (1922), 305 Ill. 593, 137 N.E. 454; Mound City v. Mason (1914), 262 Ill. 392, 104 N.E. 685; Chicago & Alton R.R. Co. v. Robbins (1895), 159 Ill. 598, 43 N.E. 332; Crabtree v. Hagenbaugh (1860), 23 Ill. 349.
In the case at bar both the jury's question to the court and the response to it was outside the presence of the defendant and...
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