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People v. Gardner

OPINION FILED JULY 29, 1976.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

THOMAS R. GARDNER ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of St. Clair County; the Hon. ROBERT L. GAGEN, Judge, presiding.

MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

After a jury trial in the circuit court of St. Clair County, defendants Thomas R. Gardner and Harry McCraw were convicted of the offense of burglary and each was sentenced to a term of two to six years in the penitentiary. Both defendants have appealed and their appeals have been consolidated for purposes of review.

Two issues are presented by the defendant, Thomas R. Gardner for review: The first is whether the trial court erred in not dismissing the jury or alternatively returning it for further deliberations when, upon polling, a juror expressed his assent to the verdict in an unorthodox manner. Defendant Harry McCraw appealed only upon this issue. The second issue raised by defendant Gardner is whether the prosecutor's closing argument was improper and prejudicial.

During the polling of the jury, the following exchange transpired between the trial judge and juror Bunetic:

"The Court: Mr. Bunetic?

Mr. Bunetic: I give my verdict as not guilty, but there was certain points that I was not certain of, that I was * * * reluctant, I should state.

The Court: Did you sign this verdict?

Mr. Bunetic: I signed it guilty.

The Court: Is this your verdict?

Mr. Bunetic: I signed it guilty, sir."

The court then polled the remaining jurors. Only after the entire jury had been polled and excused did the defendants place their objection to Bunetic's verdict on the record. There was no motion for a mistrial nor was there a request by defendant's counsel that the court return the jury for further deliberations.

The defendants argue that on the basis of the responses given by Bunetic, the trial court, sua sponte, should have declared a mistrial or returned the jury for further deliberations. The State argues that the trial court acted properly, and that the defendants waived their rights by their failure to raise the objection in a timely fashion at the trial.

The real question is whether the response of the juror, during the polling of the jury, cast a reasonable doubt on the unanimity of the verdict.

• 1 The case of People v. Herron, (1st Dist. 1975), 30 Ill. App.3d 788, 332 N.E.2d 623, collected the recent cases dealing with the question presented in this cause. People v. Herron dealt with the foreman's response, ...


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