APPEAL from the Circuit Court of St. Clair County; the Hon.
JOHN J. HOBAN, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
Defendant, Michael J. Henderson, appeals from a judgment of the circuit court of St. Clair County where he was sentenced to imprisonment for 100 to 200 years in the penitentiary after a jury found him guilty of murder.
Defendant presents two issues for review: (1) whether it was error for the trial court to recall an alternate juror after the final submission of the cause to the jury and to substitute the alternate juror for the regular juror without the defendant's consent; and (2) whether the sentence of 100 to 200 years was excessive in view of defendant's age and lack of a significant prior criminal record.
The facts, briefly stated, show that defendant approached the decedent, Richard Schaeffer, who was sitting in a car, with the intention of committing an armed robbery. The attempted robbery was impulsive and followed defendant's learning that the decedent had money on his person. For no apparent reason, defendant twice fired his weapon causing the death of his victim.
The first jury trial in this cause resulted in a verdict of guilty; however, the trial court granted defendant's motion for a new trial based on errors committed therein. Thereafter a second jury trial was had which resulted in a mistrial when the jury was unable to reach a verdict. Subsequently, there was a third jury trial which resulted in defendant's conviction. At this trial, following the final submission of the cause to the jury, a juror suffered a heart attack 2 1/2 hours after deliberation commenced. Upon establishing the juror's incapacity and inability to continue, the court recalled the two alternates previously sent home. The alternates were then questioned by the trial court, the State and the defense. The alternate ultimately selected for substitution stated that during the short time he had been home, he had only discussed the facts of the case with his wife but that she had expressed no opinion to him. He also stated that: "I have seen the evidence either way, and I haven't made up my mind." Following this proceeding, the alternate was permitted to join in the jury's deliberations. Five hours later, the jury composed of 11 regular jurors and the substituted alternate juror rendered a verdict of guilty.
Defendant on appeal contends that the substitution of the alternate juror following a final submission of the cause to the jury was reversible error. The issue is one of first impression and defendant primarily relies on section 115-4(g) of the Code of Criminal Procedure (Ill. Rev. Stat. 1975, ch. 38, par. 115-4(g)) which states in part:
"If before the final submission of a cause a member of the jury dies or is discharged he shall be replaced by an alternate juror in the order of selection." (Emphasis added.)
Citing People v. Curran, 286 Ill. 302, 306, 121 N.E. 637, defendant argues that at common law, when a juror was taken ill during the trial, the whole jury was discharged and the remaining eleven plus another were impaneled de novo. On the other hand, under the statute cited, alternates may be simply substituted for a dead or discharged juror but only prior to final submission of the cause to the jury. Thus, the defendant concludes that under neither common law nor statutory provision could the trial court have properly taken the action as in the case at bar. Instead, he argues, the court had no option but to order a mistrial.
The State responds by asserting that defendant waived consideration of this issue by his acquiescence in the procedure adopted by the court. Defendant, however, argues that the record does not reflect that he or his counsel in any way agreed to the use of the alternate and that in addition, he was personally not present in court during the proceeding in issue.
• 1 The record shows that after the juror, Mr. Pickett, was stricken, the two alternate jurors were recalled and proceedings were had wherein defense counsel Gomric but not apparently defendant himself was present. The alternate jurors were extensively questioned by the court, the prosecutor Aguirre, and defense counsel. Thereafter the following discussion ensued:
"Mr. Aguirre: The only question in my mind is we have only one reasonable alternative or two. That would be to proceed on eleven on the argument of necessity, and the other would be to reintroduce one of these alternates in there so that you have a verdict of twelve. I would assume you would take it in the order that they were selected as alternates, and it would be alternate number 1. He has stated on the record that he could enter into the deliberations in this matter.
The Court: What do you think, Mr. Gomric:
Mr. Gomric: Based upon what my client has indicated throughout the trial of this case, and based upon my knowledge of my client, I would indicate to the Court that we could not stipulate to eleven. If Mr. Pickett is deemed unavailable and could not continue, the only alternative would be the choosing of the alternate jurors in the order in which they are serving."
Gomric, however, would not stipulate to the use of the alternate because he believed it required a "court ruling, and that is why we have the alternate." The court therefore ordered the substitution based on its finding that the alternate could render a fair and impartial verdict. Clearly the record shows that the action taken by the trial court was made at the suggestion and with the acquiescence of defendant's attorney. At no time prior to the verdict of the jury did defendant object or move for a mistrial on the basis of the issue now raised. Not until defendant filed a post-trial motion was his objection brought to the attention of the trial court. We find his objection came too late. It is fundamental that generally a defendant may not sit idly by and allow proceedings to occur without objection, and afterwards seek to reverse his conviction by asserting that those same proceedings were irregular. (People v. Helm, 40 Ill.2d 39, 237 N.E.2d 433; People v. Taylor, 25 Ill. App.3d 396, 323 N.E.2d 388.) By defendant's specific acquiescence to the alleged irregularity during the course of the trial, he waived any objection he had thereto. (People v. Morgan, 44 Ill. App.3d 459, 358 N.E.2d 280.) Indeed, defendant invited the alleged error and thus cannot now complain. (People v. Jennings, 84 Ill. App.2d 33, 228 N.E.2d 566.) That defendant was not personally present in the courtroom at the time it was decided to substitute the alternate juror is of no consequence. Defendant cites People v. Ryan (1966), 19 N.Y.2d 100, 278, N.Y.S.2d 199, 224 N.E.2d 710, for the proposition that a substitution as under the circumstances here, taken only with the consent of defense counsel but not with the personal express consent of defendant violates defendant's constitutional right to a jury trial. Ryan, however, is solely based upon the State Constitution of New York, which the court found prohibits the substitution of an alternate juror after jury deliberation has begun and only permits an exception thereto upon "a written instrument signed by the defendant in person in open court." (19 N.Y.2d 100, 105, 278 N.Y.S.2d 199, 203, 224 N.E.2d 710, 713.) The Court of Appeals of New York equated a defendant's consent to substitution of an alternate after jury deliberation has begun to a defendant's waiver of a jury trial which was also similarly limited under the State constitution. In Illinois, our supreme court has held broader limits of conduct may be sufficient ...