People v. Daily

• Decision Date: 31 December 2018
• Docket Number: No. 1-16-0813,1-16-0813
• Citation: 018 IL App (1st) 160813 -U
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNIE DAILY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

018 IL App (1st) 160813-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNIE DAILY, Defendant-Appellant.

No. 1-16-0813

APPELLATE COURT OF ILLINOIS FIRST DISTRICT First Division

December 31, 2018

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County.

No. 14 CR 10167

Honorable Matthew E. Coghlan, Judge, presiding.

JUSTICE PIERCEdelivered the judgment of the court.

Justice Griffin concurred in the judgment.

Justice Walker dissented.

ORDER

¶ 1Held: Defendant's conviction for aggravated unlawful use of a weapon affirmed over his contention that juror misconduct deprived him of a fair trial.We also modify his fines, fees, and costs order.

¶ 2 Following a jury trial, defendantJohnie Daily was convicted of aggravated unlawful use of a weapon (AUUW)(720 ILCS 5/24-1.6(a)(1), (3)(A-5)(West 2014)), and sentenced to two years' probation.On appeal, defendant contends that his conviction should be reversed because juror misconduct deprived him of a fair trial by an impartial jury.He also challenges various fines imposed by the trial court.For the following reasons, we affirm and modify his fines, fees, and costs order.

¶ 3 Because defendant does not contest the sufficiency of the evidence, we recite only those facts necessary to our disposition.Defendant was charged with four counts of AUUW for (1) possessing an uncased, loaded weapon on his person without a concealed carry license, (2) possessing an uncased, loaded weapon in his vehicle without a concealed carry license, (3) possessing an uncased, loaded weapon on his person while in possession of cannabis, and (4) possessing an uncased, loaded weapon in his vehicle while in possession of cannabis.

¶ 4 Prior to trial, the court admonished the jury not to consider any information they"may have seen or heard outside the courtroom."The court additionally admonished the jury not to "communicate with, provide information personally, in writing, or electronically to anyone about this case not even your own families or friends *** and also not even among yourselves until instructed otherwise."The court instructed the jury not to reach any opinions or conclusions until they heard "everything there is to hear" about the case and started deliberations.The court gave the same admonishments several times to the jury prior to recesses throughout the trial.

¶ 5 The evidence at trial established that, on May 16, 2014, near the 100 block of South Pulaski Road, Chicago police officers Strazzante and Vivanco approached defendant, who was sitting in the driver's seat of a vehicle parked in a bus stop tow zone.The officers smelled burntcannabis and eventually removed defendant from the vehicle.As defendant exited the vehicle, Sergeant G.T. Murphy, who was on the scene for backup, observed a gun near the driver's seat.The officers recovered a Newport cigarette box containing four small Ziploc bags of suspected cannabis on defendant's person.Following a search of defendant's car, Strazzante recovered from between the driver's seat and door, an uncased Glock "2240" caliber semi-automatic handgun containing 13 live rounds in the magazine.He inventoried the weapon and suspected narcotics.Defendant did not have a driver's license, firearm owner's identification (FOID) card, or concealed carry license on his person.Strazzante learned later that defendant had a valid driver's license.Forensic testimony established that 2.7 grams of cannabis was recovered from defendant's person.

¶ 6The State introduced and published to the jury a certified business record from the Illinois Secretary of State's office showing defendant owned the vehicle.The State also introduced a copy of a document from the Illinois State Police, which showed that defendant had a valid FOID card at the time of the incident, but had not applied for a concealed carry license.

¶ 7Defendant acknowledged that he was parked at a bus stop on the day of the incident and did not have his driver's license or FOID card with him.He denied being in possession of marijuana that day and having smoked marijuana that day.Further, defendant testified that he was in possession of a gun that day, but that it was in a case under the driver's seat.

¶ 8 During deliberations, the jury sent the court a note, which read, "What do we do if we're not unanimous on a decision of guilty or not guilty on two counts?"After consulting with the parties, the court instructed the jury to "please continue your deliberations."The jury found defendant guilty of all four counts of AUUW.

¶ 9Defendant subsequently filed a posttrial motion alleging, inter alia, that juror misconduct discovered after trial denied defendant his right to a fair trial by an impartial jury.In the motion, defendant argued "actual evidence of juror misconduct was discovered on December 8, 2015."The misconduct was evidenced by several Facebook posts by impaneled juror J. Swint.Defendant alleged Swint posted publicly on Facebook about defendant's case during the pendency of the trial, which revealed she(1) disregarded the trial court's orders not to converse with anyone else on the subject of the trial or listen to outside comments about the case, (2) discussed the case with third parties, and (3) improperly formed an opinion prior to the conclusion of the evidence.

¶ 10Defendant described the posts in his motion, and apparently attached printed copies of the posts as exhibits.However, copies of the posts are not included in the record on appeal.According to defendant's motion, the day after Swint was sworn in as a juror and instructed by the trial court, she posted the following on Facebook on December 3, 2015:

"As if one day of jury duty wasn't enough smh day 2 I'm soooo over it already!!!!

* * *

Lolol oh by the way this is goin n the fact that I gotta keep showin up theren missin wrk...just cuz Ima vote guilty lol. #impetty #PettyLinda."

¶ 11Defendant's motion also described Swint's interaction with a third party, who responded to her Facebook posts:

"[THIRD PARTY]: It's your civic duty!Lol.

[SWINT]: Well, I'm over this duty lol."

¶ 12 At the initial hearing on defendant's posttrial motion, defense counsel informed the court that defendant brought Swint's Facebook posts to counsel's attention, which the court took to mean that defendant looked up the jurors' Facebook pages.Although not mentioned in the motion, counsel further informed the court that the attached copies of the posts showed that another third party responded to Swint'spost, saying "vote guilty."After reading the posts, the court issued a summons to Swint in order to investigate the matter.

¶ 13 At the hearing on the juror misconduct issue, Swint acknowledged the Facebook posts were her own.The court inquired of Swint:

"[THE COURT]: There is a post there from somebody who says vote guilty.

[SWINT]: Okay.

[THE COURT]: Okay.Did that have any effect on your deliberations as a juror?

[SWINT]: No, not at all.

[THE COURT]: Did you bring that to the attention of the other jurors?

[SWINT]: What, my Facebook?

[THE COURT]: Yes.

[SWINT]: No.Why?

[THE COURT]: Did you tell anybody that other people had told you to vote guilty?

[SWINT]: No.

[THE COURT]: There is another post there, and you were expressing -- I would say exacerbation [sic] with having been chosen and having to serve another day and you were going to vote guilty just because you had to be here.

[SWINT]: What, I was going to vote guilty just because I had to be here?

[THE COURT]: Right.Do you see that post?

(Witness peruses document.)

[THE COURT]: What does it say?

[SWINT]: When she said vote guilty, I said LOL.LOL.Oh, by the way --

[THE COURT]: Speak up so the court reporter can hear you.

[SWINT]: She said vote guilty.I said LOL.LOL.I said, oh, by the way, this is going in -- what -- oh, by the way, this is going and the fact that I have to keep showing up and missing work -- just because of [inaudible] I'm going to vote guilty.LOL.Oh, yeah, I said that, but that didn't have nothing to do with anything.I just said it.

[THE COURT]: Okay.Did you mean it?

[SWINT]: That I was going to vote him guilty because of that?

[THE COURT]: Yes.

[SWINT]: No."

¶ 14 On examination by defense counsel, Swint acknowledged that she was annoyed at having to serve jury duty and was annoyed on the date of the hearing.Swint also acknowledged posting on her Facebook the night before the hearing:

[DEFENSE COUNSEL]: And you said you didn't care what happened to the people because you didn't want to do jury duty, right?

[SWINT]: I do not."

Swint testified that the person who told her to vote guilty was her friend, and acknowledged that she values the friend's opinion "depending on what the situation is."Swint wrote "LOL" after another person wrote that jury duty was her civic duty.She"guess[ed]"she knew that jury duty was her civic duty, and clarified, "I mean, I know now that I am doing this.But before this, no, I didn't no [sic] nothing about this.I didn't even know I had to do anything like this."

¶ 15 Swint remembered being instructed by the trial court, and denied discussing the case with anyone.She did not believe that posting she was going to vote guilty constituted discussing the case with anyone.She did not specifically remember the court's instruction telling the jurors to not knowingly read or listen to outside comments or news accounts until after being discharged, including anything on the internet.However, Swint recalled receiving the following instruction: "You are not to discuss amongst yourselves any subject connected with the trial or form or express any opinion of the case until it is submitted to you for deliberation."When defense counsel reminded her that the judge instructed her not to discuss the case, she replied "I didn't discuss the case" and "I did hear that, but I never discussed the case."

¶ 16...