People v. Johnson

Decision Date21 October 2010
Docket NumberNo. 108253.,108253.
Citation238 Ill.2d 478,939 N.E.2d 475,345 Ill.Dec. 632
PartiesThe PEOPLE of the State of Illinois, Appellant,v.James T. JOHNSON, Appellee.
CourtIllinois Supreme Court

238 Ill.2d 478
939 N.E.2d 475
345 Ill.Dec.
632

The PEOPLE of the State of Illinois, Appellant,
v.
James T. JOHNSON, Appellee.

No. 108253.

Supreme Court of Illinois.

Oct. 21, 2010.


[939 N.E.2d 477]

Lisa Madigan, Atty. Gen., of Springfield, James W. Glosgow, State's Atty., of Joliet (Michael A. Scodro, Solicitor Gen., Michael M. Glick, Charles Redfern, Asst. Attorneys Gen., of Chicago, Patrick Delfino, Terry A. Mertel, Gary F. Gnidovec, of Office of State's Attorneys Appellate Prosecutor, of Ottawa, of counsel), for the People.Michael J. Pelletier, State Appellate Def., Robert Agostinelli, Deputy Def., Melissa Anne Maye, Asst. Appellate Def., of Office of State Appellate Def., of Ottawa. for appellee.

[345 Ill.Dec. 634 , 238 Ill.2d 480] OPINION
Justice KILBRIDE delivered the judgment of the court, with opinion.

The issue in this appeal is whether defendant's forfeiture of his challenge to the trial court's ex parte communication should be excused under either prong of plain-error analysis. The appellate court determined that defendant's claim was reviewable under the second prong [238 Ill.2d 481] of the plain-error doctrine because the error was sufficiently serious to deny him a fair trial. 388 Ill.App.3d 199, 203, 327 Ill.Dec. 879, 902 N.E.2d 1265 ( Johnson II ). For the reasons that follow, we reverse the appellate court's judgment.

I. BACKGROUND

The State charged defendant, James T. Johnson, with one count of criminal sexual abuse, a Class A misdemeanor (720 ILCS 5/12–15(c) (West 2004)), alleging that on

[345 Ill.Dec. 635 , 939 N.E.2d 478]

May 23, 2005, defendant knowingly had sexual intercourse with the victim, A.C., when she was between 13 and 17 years old, and defendant was less than 5 years older than A.C. Defendant's first jury trial in the circuit court of Will County resulted in a deadlocked jury, and the court declared a mistrial. The State then retried defendant.

At defendant's second jury trial, A.C. testified that she was born on November 12, 1990, and defendant was born on March 29, 1988. On the date of the incident, May 23, 2005, A.C. was 14 years old and had been dating defendant, who was 17 years old, for less than one year. Although it was a regular school day, A.C. did not report for school that morning. Instead, A.C. went to defendant's house and defendant called her school to report falsely she was sick. A.C. and defendant watched television together until defendant's mother left for work. After defendant's mother departed, A.C. and defendant had sexual intercourse.

Later, A.C. heard her mother knocking on the front door of defendant's house. Rather than answering the door, A.C. and defendant went to a second-story back room and waited for A.C.'s mother to leave. Less than an hour later, A.C. heard her mother and father return to defendant's house. A.C. and defendant again did not respond and waited for her parents to leave. A.C.'s father returned to the house a second time, but left after receiving no response from anyone inside. Thereafter, A.C. and [238 Ill.2d 482] defendant left and went to a friend's house, staying there for two or three hours before returning to defendant's house.

Later that evening, at approximately 5:30 p.m., a police officer arrived at defendant's house looking for A.C. A.C. left with the officer, who drove her to her parents' home. A.C.'s mother then took her to the police station, where A.C. told officers she had sexual intercourse with defendant that morning. A.C. also went to a hospital for an examination and later learned that she was pregnant.

On cross-examination, A.C. testified that she voluntarily had intercourse with defendant and he never forced her to do anything. A.C. reported she cared for defendant at the time and she continued to care for him after the incident. A.C. also stated that her parents were angry at her and defendant, and they refused to let A.C. see defendant.

The State next called Lockport police detective William Sheehan, who interviewed defendant at the police department. During that interview, defendant admitted having sexual intercourse with A.C. on May 23, 2005. The State introduced defendant's birth certificate and then rested its case against defendant. The defense rested without presenting any evidence.

Following closing arguments, the jury found defendant guilty of criminal sexual abuse. After dismissing the jurors, the trial judge explained to the parties a note he received from the jury during its deliberations, as follows:

“Approximately 30 minutes ago, 40 minutes ago, I received a note, this note [,] from the jurors. ‘Our desicion [ sic ] is 11 to 1, we need advise/help [ sic ].’ My response to that was, ‘continue deliberating.’ This was not on the note when I received it, this writing on the bottom here.”

The writing on the bottom of the note referenced by the judge indicated, “We have one not guilty who will not change. 11 vote guilty.”

[238 Ill.2d 483] Defense counsel responded “okay” to the information about the jury note, but did not object to the trial court's response. Nor did defendant raise a claim based on

[345 Ill.Dec. 636 , 939 N.E.2d 479]

the jury note in his posttrial motion for a new trial.

On direct appeal, however, defendant challenged the trial court's answer to the jury note, arguing that the court's response in defendant's absence denied his right to be present and his right to counsel at a critical stage in the proceedings. The State countered that defendant forfeited his claim by failing to preserve it with a timely objection and posttrial motion. The State further argued defendant could not demonstrate plain error to excuse his forfeiture.

Rejecting the State's plain-error argument, the appellate court reversed defendant's conviction, holding that the trial court's ex parte communication with the jury deprived defendant of his constitutional rights to be present and to counsel and the State failed to show defendant was not prejudiced by the court's communication. People v. Johnson, 383 Ill.App.3d 281, 285, 321 Ill.Dec. 946, 890 N.E.2d 668 (2008) ( Johnson I ). Justice Carter specially concurred, agreeing that defendant's conviction should be reversed but contending that the court should have reviewed his claim for plain error, with the burden of persuasion on defendant. Johnson I, 383 Ill.App.3d at 285, 321 Ill.Dec. 946, 890 N.E.2d 668 (Carter, J., specially concurring).

This court denied the State's petition for leave to appeal. Instead, we issued a supervisory order directing the appellate court to vacate and “reconsider its judgment, in a published opinion, in light of the rule that in a plain-error analysis, the burden of persuasion is on the defendant.” People v. Johnson, 229 Ill.2d 681, 324 Ill.Dec. 841, 896 N.E.2d 1060 (2008) (supervisory order).

On remand, the appellate court again reversed defendant's conviction, concluding that the trial court's ex parte response to the jury note deprived defendant of [238 Ill.2d 484] his constitutional right to be present during all critical proceedings. Johnson II, 388 Ill.App.3d at 204, 327 Ill.Dec. 879, 902 N.E.2d 1265. Accordingly, the appellate court found that defendant satisfied his burden under plain-error analysis to show the trial court's ex parte communication with the jury prejudiced him. Johnson II, 388 Ill.App.3d at 203, 327 Ill.Dec. 879, 902 N.E.2d 1265. This court allowed the State's petition for leave to appeal. 210 Ill.2d R. 315.

II. ANALYSIS

The primary issue in this case is whether the trial court's improper ex parte communication with the jury about the note is reviewable as plain error. When, as here, a defendant fails to object to an error at trial and include the error in a posttrial motion, he forfeits ordinary appellate review of that error. People v. Enoch, 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988). Consequently, as the parties agree, defendant forfeited, or procedurally defaulted, his challenge to the trial court's ex parte communication with the jury about the note by failing to object and raise his claim in a posttrial motion.

Under Illinois's plain-error doctrine, however, a reviewing court may consider a forfeited claim when:

“(1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the strength of the evidence.” People v. Piatkowski, 225 Ill.2d 551, 565, 312 Ill.Dec. 338, 870 N.E.2d 403 (2007), citing

[939 N.E.2d 480 , 345 Ill.Dec. 637]

People v. Herron, 215 Ill.2d 167, 186–87, 294 Ill.Dec. 55, 830 N.E.2d 467 (2005).

The doctrine is intended to ensure that a defendant receives a fair trial, but it does not guarantee every defendant a perfect trial. Herron, 215 Ill.2d at 177, 294 Ill.Dec. 55, 830 N.E.2d 467. Rather than operating as a general savings clause, it is construed as a narrow and limited exception to the typical forfeiture rule applicable to unpreserved claims. Herron, 215 Ill.2d at 177, 294 Ill.Dec. 55, 830 N.E.2d 467.

[238 Ill.2d 485] A defendant seeking plain-error review has the burden of persuasion to show the underlying forfeiture should be excused. Herron, 215 Ill.2d at 187, 294 Ill.Dec. 55, 830 N.E.2d 467. The ultimate question of whether a forfeited claim is reviewable as plain error is a question of law that is reviewed de novo. People v. McLaurin, 235 Ill.2d 478, 485, 337 Ill.Dec. 221, 922 N.E.2d 344 (2009).

On appeal, the State acknowledges that the trial court erred when it responded to the jury note without consulting the parties, citing People v. Kliner, 185 Ill.2d 81, 235 Ill.Dec. 667, 705 N.E.2d 850 (1998), People v. McDonald, 168 Ill.2d 420, 214 Ill.Dec. 125, 660 N.E.2d 832 (1995), and People v. Childs, 159 Ill.2d 217, 201 Ill.Dec. 102,...

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