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People v. Kellogg

OPINION FILED JANUARY 26, 1979.

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

v.

MITCHELL KELLOGG, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ALBERT GREEN, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

After a jury trial, defendant was convicted of armed robbery and, on appeal, contends only that the trial court's polling procedure denied him a fair trial by coercing the assent of a juror to a verdict which was not hers.

The verdict of guilty was signed by all jurors, and during the polling procedure each juror was asked "Was this then and is it now, your verdict?" Except for the following colloquy, each juror responded affirmatively:

"The Clerk: Susan M. Vesecky, was this then and is this now your verdict?

Juror Vesecky: Yes. Can I change my vote?

The Court: The question is, was this then and is this now your verdict?

Juror Vesecky: (No response.)

The Court: Was this then and is this now your verdict?

Juror Vesecky: Yes, sir."

Prior to the entry of judgment on the verdict, defendant made no objection to this manner of polling; but, in his post-trial motion, alleged that the polling procedure denied him a fair trial.

OPINION

• 1 Initially, it should be noted that the State contends that defendant waived review of the polling by failing to object prior to the discharge of the juror. Contrariwise, defendant argues that the question was preserved by its inclusion in his post-trial motion. We find no merit in defendant's argument, as the jury had been discharged prior to the filing of such motion; however, we believe that the issue is reviewable under the plain error doctrine. (Ill. Rev. Stat. 1977, ch. 110A, par. 615(a).) Plain error has been defined as that which in the ordinary sense has not been preserved for review through the failure to object in the trial court but which, nonetheless, may be noticed by a court of review if its effect was to compromise the substantial right of the accused to a fair trial. (People v. Manzella (1973), 56 Ill.2d 187, 306 N.E.2d 16, cert. denied (1974), 417 U.S. 933, 41 L.Ed.2d 236, 94 S.Ct. 2644; People v. Dees (1977), 46 Ill. App.3d 1010, 361 N.E.2d 1126.) As was stated in People v. Burson (1957), 11 Ill.2d 360, 370-71, 143 N.E.2d 239, 245:

"`The court may, as a matter of grace, in a case involving deprivation of life or liberty, take notice of errors appearing upon the record which deprived the accused of substantial means of enjoying a fair and impartial trial, although no exceptions were preserved or the question is imperfectly presented.' [Citations.]"

• 2 Because the coercion of a juror to accept a verdict which was not hers, if shown to be the case, would substantially prejudice defendant's right to a fair trial, we will consider the propriety of the polling of juror Vesecky although no objection was made thereto.

A defendant in a criminal case is guaranteed a trial by a jury of impartial persons. (Ill. Const. 1970, art. I, § 16.) The essential requirement of the jury trial in this state is that the jurors decide unanimously the facts in controversy (People v. Beck (1971), 133 Ill. App.2d 356, 273 N.E.2d 169), and the verdict must be freely arrived at by each juror (Martin v. Morelock (1863), 32 Ill. 485). As was stated in Annot., 25 A.L.R. 3d 1151 (1969):

"The purpose of a poll of the jury in a criminal case is to give each juror an opportunity, before the verdict is recorded, to declare in open court his assent to the verdict which the foreman has returned, and thus enable the court and the parties to ascertain with certainty that the jurors are in agreement as to a verdict and that no juror has been coerced or induced to agree to a verdict to which he has not fully assented."

• 3 In polling a jury, the trial court must fully examine those jurors whose responses indicate possible dissent from the verdict to ascertain whether there may have been coercion. (People ex rel. Paul v. Harvey (1972), 9 Ill. App.3d 209, 292 N.E.2d 124.) However, as a juror's response need not be in any specific form, an unorthodox response of itself does not automatically cast doubt on the unanimity of the verdict. (People v. Riddle (1977), 49 Ill. App.3d 46, 363 N.E.2d 881.) Moreover, further questioning to achieve a more orthodox answer does not require the court to specifically ask the juror to define his first unorthodox response so long as the juror is given the opportunity to disavow the verdict. (See People v. Gardner (1976), 40 Ill. App.3d 700, 352 N.E.2d 448; People v. Hill (1973), 14 Ill. App.3d 20, 302 N.E.2d 373.) Ultimately, the question of whether a juror's response to a poll of the jury indicates a lack of voluntary assent to the verdict is one for the trial court, which is in the best position to observe the juror's demeanor and tone of voice, and its determination should not be disturbed by a court of review unless it is clearly unreasonable. People v. Herron (1975), 30 Ill. App.3d 788, 332 N.E.2d 623.

The cases, however, do not provide clear guidance to the trial courts> in this determination. In People v. Preston (1978), 60 Ill. App.3d 162, 376 N.E.2d 299, a juror responded to the poll by the ...


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