APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
516 N.E.2d 642, 163 Ill. App. 3d 370, 114 Ill. Dec. 487 1987.IL.1652
Appeal from the Circuit Court of Cook County; the Hon Themis Kanezis, Judge, presiding.
JUSTICE LORENZ delivered the opinion of the court. SULLIVAN, P.J., and MURRAY, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ
Defendant appeals urging the following. First, the entire venire did not fully understand defendant's presumption of innocence. Second, the trial Judge's communication with the jury outside of defendant's presence and his failure to reinstruct the jury on the question of whether defendant had the opportunity to testify in his own behalf was reversible error. Third, the court's failure to insure that a sick juror received his medicine constituted coercion to reach a verdict and was reversible error. Fourth, the signing of the verdict by a person who was not a member of the jury was an irregularity of such magnitude as to grievously taint the entire judicial proceeding to which the defendant was subjected and mandates a reversal of his conviction.
The following facts are pertinent to our Disposition. In exchange for $100 defendant gave a police officer four clear plastic bags containing a white powder substance. Defendant was then placed under arrest. The plastic bags were subsequently found to contain .95 grams of cocaine.
At the beginning of the voir dire proceedings, the trial Judge addressed the entire venire by stating that he was going to explain some "basic principles of law" which are applied in criminal cases. He explained that a defendant is presumed innocent throughout trial, that the State has the burden of proving the defendant guilty beyond a reasonable doubt, and that a defendant is not required to testify. The entire venire was then advised that each juror has an absolute duty to follow the law and must agree and swear to follow the law. He concluded by reiterating that the State bears the burden of proof and that he assumed the jurors had no quarrel with the law. Additionally, the trial Judge questioned veniremen individually and inquired whether each could be fair in light of the law as explained. Also, after the close of the evidence, the jury was instructed on the presumption of innocence pursuant to IPI Criminal No. 2.03 (Illinois Pattern Jury Instructions, Criminal, No. 2.03 (2d ed. 1985).
After closing arguments, the jury was sent back to deliberate. Approximately two hours later, at 6:50 p.m., the jury sent two questions to the Judge. They asked: "Can you confirm for us that [defendant] had an opportunity to take the stand and speak on his own behalf?" They also inquired as to whether they could call their families. Outside of the presence of defendant and his counsel, the trial Judge responded to these questions. He instructed the deputies to advise the jury to continue their deliberations and to make arrangements to contact their families. In open court, at 8:30 p.m., the Judge informed all parties of the questions and his response. Additionally, at that time the trial Judge had been advised that one of the jurors had high blood pressure and had not taken his medication. The Judge replied:
"Well, that is not the problem. We can get their medication. I propose to bring the jury out at this time and advise them that we will make arrangements for their overnight stay and anybody who needs medication, we will get that. Now if anybody has any objection to that they can make their objections known now or any motions. State?"
The State replied that they had no objections. The defense counsel, while not objecting, did suggest "for the record" that the court inquire as to the jurors' wishes. The Judge restated his intention to sequester the jury for the night and informed defense counsel that arrangements would be made with the sheriff to see that the sick juror received his medicine. At approximately 10 p.m. the jury was sequestered until 10 a.m. the following morning.
At 10:45 a.m. the jury returned a verdict of guilty of the offense of delivery of a controlled substance. The jury was then polled.
On July 31, 1985, the trial Judge heard defendant's motion for a new trial. Defendant alleged, inter alia, that jury deliberations were tainted because the juror who had high blood pressure never did receive medication. Defendant did not introduce any evidence with regard to his motion. Defendant's attorney stated that on July 10, a juror had told him that the juror who had requested the medication did not receive it. The trial Judge denied the motion for a new trial, stating that it would be improper to vacate a jury decision based upon speculation and that ...