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05/03/88 the People of the State of v. Jose Diaz

May 3, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JOSE DIAZ, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

522 N.E.2d 1386, 169 Ill. App. 3d 66, 119 Ill. Dec. 527 1988.IL.662

Appeal from the Circuit Court of Du Page County; the Hon. John J. Bowman, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. NASH and UNVERZAGT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Defendant, Jose Diaz, was found guilty by a jury in the circuit court of Du Page County of the offense of residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-3) and was sentenced to an eight-year term of imprisonment. Judgment was not entered on a guilty verdict for the lesser offense of criminal trespass to a residence. Defendant raises three issues on appeal: (1) whether he was deprived of his right to trial by an impartial jury where the trial court failed to admonish the jurors not to discuss the case with anyone and to avoid exposure to media reports about the case; (2) whether the trial court improperly restricted his cross-examination of the State's expert witness; and (3) whether certain closing arguments of the prosecutor deprived him of a fair trial.

Briefly summarized, the trial testimony reveals that, in the late evening hours of July 17, 1985, Village of Bensenville police officers responded to a "burglary in progress" call for a residence in the village. Several persons were arrested. Defendant was not involved in this break-in. A few hours after leaving the residence, at about 5:30 a.m., patrolling police observed defendant running from the driveway of the previously burglarized premises. Defendant entered a nearby car which was then stopped by police. Inside the car, officers observed a pair of nunchucks and a knife which appeared to be similar to those they had seen earlier at the burglarized residence. These items, a jacket, and several stuffed animals found in the car were later identified by the owner of the residence as belonging to him.

Upon returning to the residence, officers observed that the house was ransacked and in disarray, distinct from the original burglary. Spilled garlic powder and sweet and sour sauce from the refrigerator were found on the kitchen floor. A partial shoe print was found on a telephone bill lying on the floor. Beer cans in the refrigerator had small red spots on the top similar to that on a beer can found between defendant's feet when he was stopped in the car in which he was riding.

A forensic chemist testified that particles of garlic powder that were taken from defendant's right running shoe were indistinguishable from the garlic powder spilled on the floor of the residence. Further, the red spots on a beer can in the refrigerator and the ones on a beer can found between defendant's feet shared a common origin at one time. An identification specialist testified that the footprint on the telephone bill found on the floor of the burglarized residence originated from the right heel of the running shoes taken from defendant. Defendant did not testify at trial.

Two of defendant's three contentions of error raised on appeal were not objected to at trial or contained in defendant's written post-trial motion. Both a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) Failure to raise an issue in this fashion results in a waiver of that issue on appeal. Plain error is one of the exceptions to the waiver rule in criminal cases. (Enoch, 122 Ill. 2d at 186.) Here, the plain error doctrine is inapplicable as neither of the two points raised for the first time on appeal demonstrates trial error.

One of defendant's points raised on appeal, but not below, is that he was deprived of his right to a fair trial by an impartial jury where the trial court failed to admonish the jurors during trial not to discuss the case with anyone and to avoid exposure to media reports about the case. He argues that the case, because of several mid-trial continuances, lasted two weeks and "it is inconceivable that the jurors did not discuss the case with family, friends or co-workers." Defendant does not, however, cite to anything in the record to support this assertion and relies on United States v. Williams (8th Cir. 1980), 635 F.2d 744, in contending that actual prejudice need not be shown.

In Williams, after jury deliberations had begun, the jurors were allowed to go home for the evening, and no admonishment not to discuss the case outside the jury room was given then or at any time during the trial. The United States Court of Appeals for the Eighth Circuit held that when the potential prejudice from conversations outside the jury room is as great as it was there, a showing of actual prejudice to the defendant was not necessary in order to warrant a new trial for the failure to give such an admonishment. (Williams, 635 F.2d at 746.) In dicta, the court also intimated that it is essential to a fair trial that a jury be cautioned throughout the trial as to impermissible conduct and conversations outside the jury room.

We first observe that decisions of the lower Federal courts are no more than persuasive authority and are not binding on State courts. (People v. Stansberry (1971), 47 Ill. 2d 541, 545, 268 N.E.2d 431, cert. denied (1971), 404 U.S. 873, 30 L. Ed. 2d 116, 92 S. Ct. 121; People v. Tucker (1985), 138 Ill. App. 3d 503, 504-05, 485 N.E.2d 1290.) Notwithstanding the dicta in Williams, which we decline to follow, the actual facts in that case are distinguishable from the case at bar as the jurors in Williams were allowed to separate during their deliberations without an admonishment. In any event, defendant has failed to show any prejudice or improper influence on the jurors (cf. People v. Rogers (1985), 135 Ill. App. 3d 608, 625-26, 482 N.E.2d 639), and no transcript of the proceedings immediately before, during and following jury selection, when such admonishments are normally made, is available. The record shows that the trial Judge was going to make some general comments just before jury selection, but excused the court reporter by agreement of the attorneys. While we agree that it is the better practice for the trial court to admonish the jurors, on the record, not to communicate about the case with others or be exposed to media reports concerning the case, the record does not indicate that there was any improper communication which prejudiced the defendant here. No error has been shown.

Defendant's second allegation of error, not raised below, concerns the prosecutor's final argument. He argues that the prosecutor improperly aroused the passions and emotions of the jurors when he exhorted the jurors to ...


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