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People v. Kellogg

OPINION FILED NOVEMBER 21, 1979.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

MITCHELL KELLOGG, APPELLEE.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Albert Green, Judge, presiding.

MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Following a jury trial in the circuit court of Cook County, the defendant, Mitchell Kellogg, was convicted of armed robbery and sentenced to a period of 4 to 8 years in the penitentiary. The sole question on review is whether the response of a juror, during the polling of the jury, cast doubt on the unanimity of the verdict. The appellate court reversed the trial court and found that the court's questioning of one juror deprived her of an opportunity to dissent. (68 Ill. App.3d 456.) This court granted leave to appeal. 65 Ill.2d R. 315.

A guilty verdict signed by all the jurors was returned by the jury. After the verdict was read, the jury was polled. Each juror was asked, "Was this then and is this now your verdict?" Eleven jurors replied in the affirmative. The following colloquy occurred between the court and the remaining juror:

"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."

In People v. Preston (1979), 76 Ill.2d 274, this court referred to the appellate court's holding in the present case and distinguished the opportunity the juror in this case had to voice a dissent from that which this court approved in Preston. We now affirm the judgment of the appellate court.

When a jury is polled, each juror should be questioned individually as to whether the announced verdict is his own. The poll should be conducted so as to obtain an unequivocal expression from each juror. (ABA Standards, Trial by Jury, sec. 5.5 (1968).) The very purpose of the formality of polling is to afford the juror, before the verdict is recorded, an opportunity for "free expression unhampered by the fears or the errors which may have attended the private proceedings" of the jury room. (8 Wigmore, Evidence sec. 2355, at 717 (rev. ed. 1961).) In conducting the poll, each juror should be examined to make sure that he truly assents to the verdict. See Annot., 25 A.L.R.3d 1151 (1969).

The trial court may use its discretion in selecting the specific form of question to be asked in the polling process as long as a juror is given the opportunity to dissent. The double-barreled question used in this case, "Was this then and is this now your verdict?" has often been used in Illinois. (See People ex rel. Lane v. Pate (1968), 39 Ill.2d 115.) We see nothing wrong with using this question in polling the jury. However, if a juror indicates some hesitancy or ambivalence in his answer, then it is the trial judge's duty to ascertain the juror's present intent by affording the juror the opportunity to make an unambiguous reply as to his present state of mind. (People v. Preston (1979), 76 Ill.2d 274.) Jurors must be able to express disagreement during the poll or else the polling process would be a farce and the jurors would be bound by their signatures on the verdict. Before the final verdict is recorded, a juror has the right to inform the court that a mistake has been made, or to ask that the jury be permitted to reconsider its verdict, or to express disagreement with the verdict returned. If the trial judge determines that any juror does dissent from the verdict submitted to the court, then the proper remedy is for the trial court, on its own motion if necessary, to either direct the jury to retire for further deliberations (Martin v. Morelock (1863), 32 Ill. 485), or to discharge it (ABA Standards, Trial by Jury sec. 5.5 (1968)).

In attempting to determine the juror's present intent during the poll, the trial court judge must be careful not to make the polling process another arena for deliberations. However, an opportunity must be afforded for the juror to express his opinion free from coercive influences that may have dominated the deliberations of the jury room. It is a matter for the trial judge to determine whether a juror has freely assented to the verdict. The trial judge not only hears the juror's response, but he can observe the juror's demeanor and tone of voice. (People v. Superior Court (1967), 67 Cal.2d 929, 434 P.2d 623, 64 Cal. Rptr. 327; Commonwealth ex rel. Ryan v. Banmiller (1960), 400 Pa. 326, 162 A.2d 354.) However, the trial judge's determination is ...


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