People v. Epps

• Decision Date: 18 April 1990
• Docket Number: No. 5-88-0724,5-88-0724
• Citation: 554 N.E.2d 637,197 Ill.App.3d 376,143 Ill.Dec. 702
• Parties: , 143 Ill.Dec. 702 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Clabon EPPS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 637

554 N.E.2d 637

197 Ill.App.3d 376, 143 Ill.Dec. 702

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Clabon EPPS, Defendant-Appellant.

No. 5-88-0724.

Appellate Court of Illinois Fifth District.

April 18, 1990.

James J. Gomric, P.C., Belleville, for defendant-appellant.

John Baricevic, State's Atty., Belleville, Kenneth R. Boyle, Director, Stephen E. Norris, Deputy Director, Office of the State's Attys. Appellate Prosecutor, Mt. Vernon, Larry Kuster, of counsel, Jacksonville, for plaintiff-appellee.

Justice HOWERTON delivered the opinion of the court:

"She said, 'Well, Mom, I am going,' and I said, 'Okay, you all be careful,' and she walked on around the car to get in the car. By the time she got in there and slammed the door, out come Clabon with this gun in his hand and I said, 'Connie, get away, Connie, quick as you can. Here come Clabon with a gun. Get going fast as you can!' I said. And she was so nervous she couldn't put that key in and then whenever he did come up there and go up to the car, he had taken his hand and pulled that little boy's head and pumped them bullets into his head. He didn't hold his hand and the little boy, when he shot him, and he said, 'Oh,' and he pumped another bullet and the third time he didn't say nothing and I said, 'Clabon, you don't kill my daughter. Don't kill my daughter.' He aimed his body around like this so he could get Connie and he shot her twice."

So testified the mother of Connie, the little boy's grandmother.

A four-day trial ended when a jury convicted sixty-four-year-old Clabon Epps of the first degree murder of seven-year-old Robert Mackin, and also of armed violence, attempted murder and aggravated battery on the seven-year-old's mother, Connie Bennett.

Sentenced to concurrent terms of twenty years for murder and ten years for armed violence, defendant appeals. We affirm, rejecting his four claims of error.

I.

Defendant's first claim consists of two parts. The factual basis of his claim is: (A) a bailiff and a juror talked during deliberations; and (B) this same juror, when answering the poll of the jury after verdict, paused, shook, and sobbed before answering, "yes," it was her verdict. Defendant claims that these facts taken together show that the juror did not assent freely to the verdict, and therefore, the verdict was coerced.

To expand the factual basis of defendant's claim, we note that the jury had been told throughout the case that the State was going to ask for death. The jury took the case and began their deliberations. During their deliberations, a juror asked the bailiff, "Is there any way I can get out of this? Do I have to help make a decision?"

The bailiff reported the conversation to the judge, but neither the state's attorney nor defense counsel was informed. The judge instructed the bailiff to tell the juror that the jury had to make whatever decision they were going to make in the case and that the juror was not going to be relieved of her service.

The bailiff carried out the instructions, telling the juror what the judge had said. The juror said "okay."

Later, after verdict and while the jury was being polled, this same juror, when asked whether this was her verdict, became visibly shaken, began to cry, delayed answering by thirty seconds, then blurted out "yes" and continued to cry.

Defendant moved for a mistrial, arguing that this juror's decision was not voluntary, but coerced.

The circuit court examined the circumstances and said that the crying was the outward manifestation of making a difficult decision, given that the sixty-four-year-old defendant was on trial for shooting a seven-year-old, and, if convicted was facing death. The circuit court then found that the juror had said expressly that the verdict was hers and gave no indication, other than sobbing and delaying her answer, that it was not her verdict. The juror, therefore, was found to have voluntarily assented to the verdict, and the motion for mistrial was denied.

We examine each component of defendant's single argument.

A.

We must examine initially whether the St. Clair County Circuit Court should have granted a mistrial because a bailiff and a juror talked during deliberations.

No prejudice is presumed from a third person's communication with the jury; it must appear from the record that prejudice resulted, or that there was an intent to influence the jury's decision. (People v. Veal (1978), 58 Ill.App.3d 938, 16 Ill.App.3d 188, 374 N.E.2d 963.) No jury verdict will be set aside because of a communication with a juror by court personnel or other third persons outside the presence of the accused unless it is apparent that prejudice resulted from the exchange. People v. Cart (1981), 102 Ill.App.3d 173, 57 Ill.Dec. 655, 429 N.E.2d 553.

Review of the record shows no prejudice. The record displays no intent to influence the jury's decision. The essence of this communication is that a juror wanted off a case and the judge refused the request.

B.

We next examine the juror's response to the polling of the jury and her conduct and determine whether the circuit court's finding that the verdict was voluntary is unreasonable.

A trial judge has discretion to determine whether a juror's assent to a verdict is voluntary, and that determination will not be set aside unless it clearly is unreasonable, because "the trial judge, in determining whether a juror has freely asserted to the verdict, not only hears the juror's response, but observes the juror's demeanor and tone of voice during the course of the polling of the jury." People v. Cabrera (1987), 116 Ill.2d 474, 490, 108 Ill.Dec. 397, 403, 508 N.E.2d 708, 714.

The juror said nothing during polling that demonstrated that the verdict was not hers. She unambiguously stated "yes"--it was her verdict. All she did was show emotion. Emotion shown is not necessarily involuntariness revealed.

This was a hard case.

To put the tragedy in full view, this sixty-four-year-old defendant had just suffered the pain and humiliation of being beaten on his own front lawn by the seven-year-old victim's father, a much younger man--a beating that was so prolonged, so terrible and so brutal, that passersby had halted and begged the younger man to stop the outrage.

As the young man let him up, defendant pulled a carpet knife from his jacket pocket, and threatened the father, and he, the young father, got in his truck and drove off.

Bloodied, defendant went inside his house, tried to wash the blood from his face, and then pulled a gun and shells from his bureau drawer.

Defendant went back outside, loaded gun in hand, and stepped toward the street. With mother and son in their car preparing to leave, Grandmother, seeing defendant and recognizing death, yelled, warning her daughter, while defendant walked on, as the mother, herself then seeing and knowing it was death that stalked them, and so nervous she couldn't put the key in the ignition, tried to fire up the car and drive herself and her son to safety, and defendant continued to come on, and then fired and killed the boy in full view of the boy's mother and grandmother.

The State was asking for the death penalty and did not waive death until after the jury was polled.

In this context, the emotion shown by the juror is ambiguous. It is ambiguous because there are at least two inferences. The first inference is that although the tragedy moved the juror, she nevertheless would remain true to her oath and render a verdict of guilty of first degree murder. The second inference is that the juror was yielding to illicit coercion and rendering her verdict contrary to her belief and to her oath.

On the other hand, her verbal response, "yes," is unambiguous.

The unambiguous response, when weighed against the ambiguity, so completely tilts the scales of justice so that we find it difficult to see any result other than the one announced by the circuit court.

Keenly aware that we were not witnesses to the polling, fully acquainted with the record, and giving the deference to the circuit court that the law commands, we affirm the discretionary finding that this verdict was voluntary.

II.

Defendant's second claim consists of four syllogistic steps: (1) the testimonies of the slain boy's mother, grandmother and a neighbor were all so in conflict with the findings of a pathologist, as well as the findings of a forensic scientist, that they should be found to have been perjured; (2) therefore, those testimonies should be discarded; (3) therefore, this case lacks credible evidence as to the actual shooting and killing of the boy; and (4) therefore, the circuit court's refusal to direct a verdict in defendant's favor is erroneous.

The first step for us, of course, is to identify the conflict. The conflict: the mother, who also was the victim of the armed violence, testified defendant stuck the pistol to the boy's head and fired--in contrast, the forensic scientist found the boy to have been shot from a distance, not point blank; the grandmother testified that defendant shot the boy in the head three times--in contrast, the autopsy showed that the boy had been shot only once; the neighbor testified that three, or four, or maybe five shots had been fired, likewise in conflict with the autopsy.

Our vantage point is one step further removed from the thunderstrike of reality than the vantage point of the jurors. Whereas they did not see or hear or smell or touch or taste the killing, the death, or the tragedy that forevermore will mark the mother's, the grandmother's, the father's and the defendant's lives, the jurors at least saw and heard the witnesses. Not us. We neither saw, nor heard, the shooting. We are called to make our ruling on the reported account of those we neither saw nor heard.

Not only that, but for every incident, no matter how benign, the descriptions of an event vary in accordance...