People v. Wheat

• Decision Date: 02 June 2008
• Docket Number: No. 2-06-0888.,2-06-0888.
• Citation: 889 N.E.2d 1195
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kevin W. WHEAT, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

889 N.E.2d 1195

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kevin W. WHEAT, Defendant-Appellant.

No. 2-06-0888.

Appellate Court of Illinois, Second District.

June 2, 2008.

Thomas A. Lilien, Deputy Defender (Court-appointed), Paul Alexander Rogers (Court-appointed), Office of the State Appellate Defender, Elgin, for Kevin W. Wheat.

John H. Vogt, Stephenson County State's Attorney, Freeport, Lawrence M. Bauer, Deputy Director, State's Attorney Appellate Prosecutor, Elgin, L. Anita Richardson, Skokie, for the People.

Justice BOWMAN delivered the opinion of the court:

Following a jury trial, defendant, Kevin W. Wheat, was convicted of possession with intent to deliver more than 100 but less than 400 grams of cocaine (720 ILCS 570/401(a)(2)(B) (West 2002)). He was sentenced to 16 years' imprisonment. On appeal, defendant argues that: (1) the trial court erred by denying his motion to quash a search warrant and suppress evidence; (2) the trial court erred by responding to a jury question asking for a definition of "reasonable doubt"; (3) the trial court erred by refusing defendant's request to poll the jury; and (4) he is entitled to a credit of $1,430 against his fines. We affirm in part, reverse in part, and remand for a new trial.

I. BACKGROUND

The background material in section I is nonpublishable under Supreme Court Rule 23.

[Editor's Note: Text omitted pursuant to Supreme Court Rule 23.]

II. ANALYSIS

A. Motion to Quash and Suppress

The material in section IIA is nonpublishable under Supreme Court Rule 23.

[Editor's Note: Text omitted pursuant to Supreme Court Rule 23.]

B. Polling the Jury

We address defendant's argument that the trial court erred by refusing his request to poll the jury, as we find this issue dispositive of the remainder of the case. Defendant argues that the record shows that the trial court gave him no more than two seconds to ask for the jury to be polled before discharging the jury and that he ultimately made the request to poll while the jury was still present.

We summarize the facts surrounding defendant's request to poll in some detail, as they are particularly relevant in determining whether the request was timely and whether defendant was otherwise given the opportunity to request a poll. When the jury returned after deliberations, the trial court read the verdict and noted that the jurors had signed the pertinent verdict form and left the other two verdict forms unsigned. Within two seconds, the trial court then addressed the jury as follows:

"[THE COURT:] All right. Thank you, ladies and gentlemen of the jury. You are now discharged from your duties and responsibilities.

You can now write the book or not write the book. It's up to you.

[DEFENSE COUNSEL:] Judge—

THE COURT: You can dis—discuss with the defense attorney anything that you choose or not discuss with the defense attorney. Sometimes the lawyers have questions. Feel free to answer them. Feel free not to answer them.

The State's Attorney stepped out for a few moments, and I wasn't gonna keep you in there `cause I'm not sure how long * * * before he comes back, so I thought you have done your job and I'm discharging you, as I say, from your duties."

The trial court then told the jurors that, if they were wondering what would happen next, there would typically be posttrial motions in which the defense attorney would point out any errors that occurred. If the trial court denied the motions, it would proceed to sentencing, which the trial court described to the jury in general terms. The trial court next stated, "So that's the process. It will continue on for some time to come." There was a pause of about four seconds, after which defense counsel stated, "Your Honor, we would make a motion [that] the Jury be polled." The trial court replied, "I've already discharged them. I looked at you and waited a moment, and you didn't ask for it. So they've been discharged."

The trial court then told the jury, in remarks that the record shows lasted about 54 seconds:

"As you—as you walk out of the courtroom[,] * * * if you walk by those monuments out there, the people that paid for the seats we're in, I think you can walk by with a sense of pride knowing that you discharged your responsibilities. You gave the Defendant an opportunity for a fair trial, I think a very fair trial. You did what you were supposed to do. And as I say, you can walk by knowing that you didn't let those people down, that they did not die in vain, they died to make sure that people would have an opportunity, among other things, freedom of region [sic], freedom of speech, but certainly freedom to have a jury trial and to make the government prove that which it accuses us of.

Thank you very much for your service. Have a good day."

During the hearing on defendant's motion for a new trial, in discussing the request to poll, the trial court stated that the verdict had been returned and it had discharged the jury. Defense counsel responded that, after "the jury read the instruction [sic]," "the court looked at [him] for a second or two" and then discharged the jury. Defense counsel further stated that he asked to poll the jury in the middle of the trial court's instruction, but the trial court informed him that the jury had already been discharged, and it did not poll the jury. The trial court replied that it had never seen a jury flip on a polling issue, though a flip could theoretically happen. It "looked, [it] didn't hear a request for a polling, [it] spoke, [and] discharged the jury." The trial court stated that it considered asking the jurors to sit back down and go through the polling process, but decided that, since it had dismissed them, they could "go on their way." The trial court denied defendant's motion for a new trial.

The opportunity to poll jurors is basic to our legal system, which requires unanimity among the jurors. People v. Rehberger, 73 Ill.App.3d 964, 968, 29 Ill. Dec. 838, 392 N.E.2d 395 (1979). "The purpose of the poll of a jury is to determine whether the verdict has in fact been freely reached and remains unanimous." People v. Ellis, 93 Ill.App.3d 981, 985, 49 Ill.Dec. 444, 418 N.E.2d 88 (1981); see also People v. Kliner, 185 Ill.2d 81, 166, 235 Ill.Dec. 667, 705 N.E.2d 850 (1998). Through a jury poll, jurors may freely assent or dissent to the verdict without the fear, errors, or coercive influences that may have prevailed in the jury's private collective deliberations. People v. Banks, 344 Ill.App.3d 590, 597, 278 Ill.Dec. 785, 799 N.E.2d 503 (2003). In Illinois, after a guilty verdict is returned but before it is accepted and recorded, a criminal defendant has an absolute right to poll the jury regarding whether each individual agreed with the pronounced verdict. Rehberger, 73 Ill.App.3d at 968-69, 29 Ill.Dec. 838, 392 N.E.2d 395. This right has been described as a "substantial" right (People v. Herron, 30 Ill.App.3d 788, 791, 332 N.E.2d 623 (1975)), and, if the jury is not polled despite a defendant's timely request to do so, reversible error occurs (People v. DeStefano, 64 Ill.App.2d 389, 408-09, 212 N.E.2d 357 (1965)). Moreover, if a defendant is denied the opportunity to poll the jury, his conviction must be reversed. See Rehberger, 73 Ill.App.3d at 969, 29 Ill.Dec. 838, 392 N.E.2d 395 (where jury's verdicts were not pronounced in open court and the defendant did not have a chance to poll the jury before the trial court accepted the verdicts, the defendant's convictions were reversed); see also People v. Townsend, 5 Ill.App.3d 924, 926, 284 N.E.2d 414 (1972) (appellate court ordered a new trial where the record showed that sealed verdict was received without agreement of the defense and was opened outside of the defendant's presence, and where the jury was not present and could not be polled when the defendant was advised of the verdict). Still, a defendant is required to have only an opportunity to poll the jury, so the right to poll may be waived. See People v Hood, 262 Ill.App.3d 171, 178, 199 Ill.Dec. 565, 634 N.E.2d 404 (1994).

Our research has not revealed any cases that directly discuss the applicable standard of review for the polling issues raised by defendant. We note that polling the jury on nonverdict-related issues, such as the potentially prejudicial effect of newspaper articles, is within the trial court's discretion. People v. Black, 314 Ill.App.3d 276, 280, 247 Ill.Dec. 661, 732 N.E.2d 716 (2000). The manner in which jury polls are conducted is also within the trial court's discretion (People v. Chandler, 88 Ill.App.3d 644, 650, 44 Ill. Dec. 314, 411 N.E.2d 283 (1980)), and a trial court's determination regarding whether a juror's assent to the verdict was voluntary will not be set aside unless the determination is clearly unreasonable (Kliner, 185 Ill.2d at 167, 235 Ill.Dec. 667, 705 N.E.2d 850).

For the issues at hand, we believe that any findings of fact made by the trial court relating to the sequence of events surrounding the discharge of the verdict and the defendant's request to poll, such as the amount of time that elapsed, should be accepted unless they are against the manifest weight of the evidence. See Best v. Best, 223 Ill.2d 342, 350-51, 307 Ill.Dec. 586, 860 N.E.2d 240 (2006) (trial court's factual findings generally reviewed under manifest-weight-of-the-evidence standard). Determinations of whether that amount of time was sufficient to request to poll the jury and whether the defendant made the request in a timely manner cannot be prescribed within fixed parameters but, instead, are subject to some latitude. We therefore believe that they should be left to the discretion of the trial court, which was in control of the jury and in the best position to determine the answers to these questions in light of the proceedings. See In re Marriage of Rife, 376 Ill.App.3d 1050, 1058-59, 316 Ill.Dec. 53, 878 N.E.2d 775 (2007) (reviewing courts defer to trial court decisi...