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06/20/88 the People of the State of v. Charles Harris

June 20, 1988







526 N.E.2d 335, 123 Ill. 2d 113, 122 Ill. Dec. 76 1988.IL.965

Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Will County, the Hon. Michael A. Orenic, Judge, presiding.


JUSTICE CLARK delivered the opinion of the court.


Defendants Charles Harris, Earnest Wilson, and Fred Collins were convicted of murder and conspiracy to commit murder after a joint jury trial in the circuit court of Will County. Following a bifurcated sentencing hearing, the jury found the defendants eligible for the death penalty, but found mitigating factors sufficient to preclude the imposition of death. The trial court subsequently sentenced the defendants to imprisonment for natural life on their murder convictions. No sentences were imposed on their conspiracy convictions. Following the denial of their post-trial motions, the defendants appealed their convictions to the appellate court. On appeal, the appellate court, in an unpublished Rule 23 order (143 Ill. App. 3d 1163 (unpublished order under Supreme Court Rule 23)), affirmed the defendants' convictions and sentences for murder and vacated their convictions for conspiracy. The State has not contested the vacation of the convictions for conspiracy, and this matter is not before us. We allowed the defendants' petitions for leave to appeal under Rule 315 (107 Ill. 2d R. 315), and consolidated their causes.

The defendants in the instant case, as well as the victim, George Bailey, all resided in Unit B -- West at Stateville prison on January 29, 1981, when the offense was committed. The facts adduced at trial established that the killing of inmate Bailey resulted from prison gang rivalry, specifically between the Black Gangster Disciples and the Black Disciples. The victim was a member of the Black Disciples. At the time of the murder, Bailey was also a member of a small group of privileged inmates who were assigned duties of "cellhouse help." Inmates assigned to "cellhouse help" enjoyed free range of the cellhouse to the extent that, unlike all other prisoners housed in B -- West, their cells were unlocked and they could roam about the cellhouse uncuffed and unescorted by a prison guard. Defendant Earnest ("Smokey") Wilson, head of the Black Gangster Disciples, disapproved of Black Disciples serving as cellhouse helpers.

Approximately two weeks prior to the January 29, 1981, murder of George Bailey, Wilson held a meeting of inmates at his cell to "send a message" to all Black Disciple cellhouse helpers that they could either resign from their positions as cellhouse helpers or join the Black Gangster Disciples. Those in attendance at the meeting included Black Gangster Disciple members Rico Johnson, defendants Fred Collins and Charles Harris, three other Black Gangster Disciples, Franklin Murphy, Robert Watson and Charles Brooks (who were indicted along with Harris, Wilson and Collins for the murder of George Bailey, but were tried separately and convicted only of conspiracy), and three Black Disciple members, including George Bailey, who were also assigned as cellhouse help. Although two of the Black Disciples followed Wilson's suggestion and resigned their positions as cellhouse help, Bailey stayed on as cellhouse help in the B -- West unit.

During the two-week period preceding the murder, the Black Disciples chanted "B. D. Power" every night around 8 p.m. Wilson expressed his dissatisfaction with this practice to Dirk Acklin, leader of the Black Disciples, but the chanting persisted. Sometime shortly after the meeting at Wilson's cell, defendant Collins was placed in segregation because he had been fighting with Bailey. Collins was returned, however, to the B -- West unit as a cellhouse helper on January 29, 1981.

On the evening of January 29, 1981, Wilson met in his cell with inmates Moore, Collins, Harris, Murphy, Brooks and Watson. They smoked some marijuana and discussed the fate of George Bailey. According to James Bates, a Black Disciple housed in the cell adjoining Wilson's, Wilson announced that they should "get" Bailey. Collins said he intended to "get" him anyway. Wilson sent Harris to order Rico Johnson to distribute the gang's weapons from his cell where they were stored. At trial, Johnson testified that he gave an aluminum bat to Collins ("Bobo") and shanks to Harris ("Sundown"), "Big Crip," "Rob" and "Gator." Bates then called Bailey down to his cell to report the conversation he had overheard in order to warn Bailey that he might be in danger. Bailey, however, expressed no fear, and showed Bates a shank he was carrying for protection.

Bates further testified that a unit recount was called at 9:45 p.m., requiring all inmates, including cellhouse help, to return to their cells. According to Bates, Bailey returned to his cell, talked briefly with his cellmate and, moments later, was struck from behind by a baseball bat wielded by Collins.

As the guards began to lock up the cellhouse helpers, Bates saw Collins approach Wilson's cell and signal to Wilson using gang-related gestures. He overheard Collins remark, "It's taken care of." Bates claimed that, after lock up, he saw Collins throw the bat out of his cell.

On February 5, 1981, George Bailey died. The autopsy revealed that his skull had been fractured in several places, consistent with repeated blows from a baseball bat.

As stated previously, the defendants were convicted by a jury of murder and conspiracy to commit murder, and were subsequently sentenced by the trial court to natural life imprisonment on their murder convictions. No sentences were imposed on their conspiracy convictions. The appellate court affirmed the defendants' convictions for murder and vacated their convictions for conspiracy. We granted the defendants' petitions for leave to appeal under Rule 315 (107 Ill. 2d R. 315), and consolidated their causes.

The defendants' first contention in their appeal before this court is that the trial court erred in refusing to ask certain supplemental questions proposed by their defense counsel during the voir dire of prospective jurors. Specifically, the defendants argue that the Will County circuit court Judge who tried the instant case erred by not following the ruling set forth in the third district appellate court opinion of People v. Zehr (1982), 110 Ill. App. 3d 458, which held that questions tendered by defense counsel concerning the State's burden of proof, the presumption of innocence, and the defendant's right to forego testimony on his behalf, are proper subjects for the voir dire inquiry. At the time of the defendants' trial, the petition for leave to appeal from Zehr had been granted and the case was pending before our court. After the defendants' trial, we affirmed the appellate court's holding in Zehr (People v. Zehr (1984), 103 Ill. 2d 472), and, thereafter, in People v. Britz (1986), 112 Ill. 2d 314, we held that our earlier decision in Zehr was to be given prospective application only. Although the defendants are mindful of our holding in Britz, they nevertheless argue that since the " Zehr rule" was the applicable law on voir dire in the third district appellate court at the time of the defendants' trial, the Will County Judge trying their case was bound by that decision, and his failure to apply the appellate court's holding in Zehr constitutes reversible error.

The State counters the defendants' argument in two ways. First, the State maintains that an appellate court decision is not binding on the trial courts, including trial courts within its own district, so long as that decision is the subject of a petition for leave to appeal which is pending in our court. The State alternatively argues that because the Zehr rule was given prospective application by this court in Britz, the defendants should not now receive de facto retroactivity by means of the Zehr appellate court opinion. The State reasons that pursuant to Britz, the effective date of the " Zehr rule" is the date of the release of the Zehr opinion by our court, specifically March 23, 1984 (Zehr, 103 Ill. 2d 472), and that since jury selection in the instant case began in May 1983, Zehr is therefore inapplicable.

It is fundamental in Illinois that the decisions of an appellate court are binding precedent on all circuit courts regardless of locale. (People v. Thorpe (1977), 52 Ill. App. 3d 576, 579.) In taking this principle one step further, it is the defendants' contention here that in those instances where two or more appellate districts are in conflict, as was the situation after the appellate court for the third district authored Zehr, the circuit court is bound by the decisions of the appellate court within its own district. (See, e.g., Garcia v. Hynes & Howes Real Estate, Inc. (1975), 29 Ill. App. 3d 479, 482.) This, then, is the basis for the defendants' argument that the trial court in the instant case was bound by the Zehr appellate court opinion, and erred by not applying the Zehr holding during the voir dire of prospective jurors. However, in light of our subsequent decision in Britz, which held the " Zehr rule" prospective only from the date our Zehr opinion was released, we hold here that these defendants were not prejudiced, and even assuming arguendo the trial court did err by failing to follow the appellate court's ruling in Zehr, this was not reversible error. To rule otherwise at this time would deprive Britz of all meaning and render the holding there a virtual nullity. Stated another way, if we were to apply the Zehr appellate court opinion prospectively at this time, we would, in essence, be applying our Zehr holding retroactively in violation of Britz. We will not do indirectly what we have refused to do directly. Further, by granting these defendants a new trial, we would be unfairly discriminating against other similarly situated defendants who were also tried within this same 18-month period between the appellate court's ruling in Zehr and our ruling in Zehr, but who happened to be tried outside the third district. We therefore reject the defendants' argument here and reaffirm our earlier decision in Britz which held the ruling in Zehr prospective only.

We additionally hold, as a matter of public policy, that the precedential effect of an appellate court opinion is not weakened by the fact that a petition for leave to appeal has been granted and is pending in that case, and trial courts are bound by that appellate court ruling until this court says otherwise. (See, e.g., Lakeside Community Hospital v. Tahoe Regional Planning Agency (D. Nev. 1978), 461 F. Supp. 1150; El-Ra-Sul v. State (Fla. App. 1984), 456 So. 2d 1244; In re Weltman (S.D.N.Y. 1924), 2 F.2d 759.) As Justice Learned Hand stated regarding the application of a Federal decision in which the United States Supreme Court had granted certiorari : "It is true that certiorari has been granted to this decree [citation], but it stands as law for me." (In re Weltman (S.D.N.Y. 1924), 2 F.2d 759, 760.) We suggest that in a situation where a petition for leave to appeal has been granted, trial courts, although bound to follow that appellate court opinion, should, nevertheless, apply the holding in that opinion with caution and carefully track that decision until this court has rendered its ruling on the matter.

Defendants further argue, in the alternative, that the prospective application rule of our Zehr holding announced in Britz should be reconsidered in light of Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708. We find no merit to the defendants' argument because at the time Britz was decided this court correctly followed the applicable law on retroactivity as articulated by the United States Supreme Court in a series of cases beginning with Linkletter v. Walker (1965), 381 U.S. 618, 14 L. Ed. 2d 601, 85 S. Ct. 1731. (See, e.g., United States v. Peltier (1975), 422 U.S. 531, 45 L. Ed. 2d 374, 95 S. Ct. 2313; Desist v. United States (1968), 394 U.S. 244, 22 L. Ed. 2d 248, 89 S. Ct. 1030; Stovall v. Denno (1967), 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967; Johnson v. New Jersey (1965), 384 U.S. 719, 16 L. Ed. 2d 882, 86 S. Ct. 1772.) Prior to Griffith, it was clear that "where the Court had expressly declared a rule of criminal procedure to be a 'clear break with the past,' Desist v. United States, 394 U.S. at 248, it almost invariably has gone on to find such a newly minted principle nonretroactive." (United States v. Johnson (1982), 457 U.S. 537, 549, 73 L. Ed. 2d 202, 213, 102 S. Ct. 2579, 2587.) In the instant case, because Zehr had overturned a longstanding practice to which this court had not spoken, but which a nearly unanimous body of lower court authority had approved (see People v. Phillips (1st Dist. 1981), 99 Ill. App. 3d 362; People v. Lowe (5th Dist. 1975), 30 Ill. App. 3d 49; People v. Stewart (4th Dist. 1973), 12 Ill. App. 3d 226), it represented a "clear break" with the past. (See United States v. Peltier (1975), 422 U.S. 531, 45 L. Ed. 2d 374, 95 S. Ct. 2313; Stovall v. Denno (1967), 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967.) Although Griffith subsequently overturned the "clear break" exception, Griffith was not the law on retroactivity at the time this court decided Britz. We do not read Griffith as requiring us to reconsider our earlier holding in Britz.

The defendants' next argument involves the trial court's handling of alleged juror misconduct. The facts pertinent to this issue are as follows. During voir dire prospective juror Beverly Nilo informed the court that her brother-in-law, Ronald Fleming, was a counselor at Stateville prison. She told the court that, because of an on-going family dispute, she had not spoken to him much during the past three years and certainly not about his work.

After Nilo was accepted and sworn as a juror, but before the jury selection process was completed, the prosecutor advised the court and defense counsel that he had learned that Fleming had been approached by defendants Wilson and Collins at the penitentiary and was asked about his relationship with juror Nilo. In light of this communication, Ronald Fleming was subjected to an in camera examination by the court and counsel.

At the in camera hearing Fleming reported that Nilo had telephoned him at home, apparently on the day after she was selected and sworn for jury service. Nilo asked Fleming whether he knew anything about a 1981 murder at Stateville. Fleming told Nilo that he knew of two murders, one in Unit C and another in Unit B -- West. He recalled telling Nilo that the B -- West killing was committed by "five guys with a baseball bat," and that he knew the defendants on trial. Nilo then reportedly told Fleming that she had been selected for the jury in that case and had been instructed by the Judge not to discuss the case with anyone. According to Fleming, he told Nilo that she should not be talking to him. Their conversation then ceased, but not before Fleming had advised Nilo to report their conversation to the court.

Fleming further told the court that, later that same week, he was approached at the prison by defendants Collins, Wilson and Harris. Wilson asked Fleming if he knew Nilo. After Fleming acknowledged that he did, Wilson told him about some personal information Nilo had disclosed on voir dire. Wilson told Fleming that the defense wanted to keep Nilo as a juror, but that the State had struck her from the panel.

Thereafter, Fleming had his wife telephone Nilo to find out whether she remained on the jury. Nilo responded that she was still on the jury and that she had not told the court about her earlier communication with Fleming because she was afraid of being found in contempt of court. Fleming's wife also told Nilo that the defendants had spoken to Fleming about Nilo's participation as a juror in the case.

At the Conclusion of Fleming's in camera interview all three defendants moved for a mistrial. The State opposed the motion, and instead moved to dismiss Nilo. Defense counsel resisted Nilo's dismissal and then moved to re- voir dire the jurors already selected to ascertain whether Nilo had discussed her conversation with any of them. When the trial Judge expressed a willingness to discharge Nilo, defense counsel then requested that Nilo be allowed to remain on the jury. The trial court thereafter ruled that, based on the in camera disclosures by Fleming, the incident did not warrant a mistrial or dismissal of juror Nilo, nor a re- voir dire of the other jurors.

On appeal, the defendants argue that the extraneous communication between Nilo and Fleming was presumptively prejudicial, requiring further investigation, and that since no inquiry into the matter was directed to either Nilo or the other jurors, the defendants are entitled to a new trial.

It is well settled in Illinois that any communication with a juror during trial about a matter pending before the jury is deemed presumptively prejudicial to a defendant's right to a fair trial. Although this presumption of prejudice is not conclusive, the burden rests upon the State to establish that such contact with the jurors was harmless to the defendant. (Remmer v. United States (1954), 347 U.S. 227, 229, 98 L. Ed. 654, 655, 74 S. Ct. 450, 451; see People v. Rettig (1972), 50 Ill. 2d 317; People v. Buckhana (1981), 99 Ill. App. 3d 889.) A verdict will not be set aside where it is obvious that no prejudice resulted from a communication to the jury, either by the court or by third persons outside the presence of the defendant. (People v. Mills (1968), 40 Ill. 2d 4.) The trial court has substantial discretion in determining whether an improper contact with a juror has caused prejudice to the defendant. See People v. Buckhana (1981), 99 Ill. App. 3d 889; see also United States v. Delaney (8th Cir. 1984), 732 F.2d 639.

Upon our review of the record in this case we find no abuse of discretion in the trial court's refusal to discharge juror Nilo, or in its failure to conduct a further investigation into this matter by reopening the voir dire of either juror Nilo or the other jurors. Regarding the court's refusal to discharge Nilo, the defendants in this case cannot be permitted to assume positions on appeal wholly inconsistent with their strategy at trial. (Cf. People v. Spears (1986), 112 Ill. 2d 396, 405 (stating that it would be "manifestly unfair" to allow the State to create a position on appeal inconsistent with its position at trial); see also Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147.) As stated earlier, the trial Judge indicated a willingness to discharge Nilo, but that proposal was staunchly rejected by defense counsel and the motion for a mistrial was withdrawn. Defense counsel appeared to take an all or nothing stand in order to retain Nilo and avoid a mistrial. Clearly, because defense counsel by their own actions contributed to the trial court's decision to deny the dismissal of juror Nilo, we decline to find any error here.

Regarding the trial court's refusal to reopen the voir dire of juror Nilo, while we agree that the better practice would have been for the trial court in this instance to have interviewed her again regarding her conversation with Fleming, we nevertheless fail to find that these defendants were prejudiced by the court's failure to do so. Initially, we note that during the voir dire of juror Nilo, she candidly revealed to the trial court her relationship with Fleming. Clearly, this is not a situation such as in People v. Mitchell (1984), 121 Ill. App. 3d 193, cited by the defendants, where a prospective juror lied under oath. Additionally, the trial court here had no reason to believe that the matter was not fully and frankly related by Fleming. Both the trial court and defense counsel indicated that they believed Fleming's account of what happened and that Fleming's statements to Nilo in no way prejudiced her. Finally, the facts disclosed to Nilo through her communication with Fleming did not touch on any issue crucial to the determination of guilt or innocence. The information that the victim was killed by "five guys with a baseball bat" was essentially the same information contained in the indictment on file with the circuit clerk and was a matter of public record. Just as in the context of pretrial publicity, a potential juror need not be totally ignorant of the facts of the case. (See People v. Silagy (1987), 116 Ill. 2d 357; People v. Sanchez (1986), 115 Ill. 2d 238.) Defense counsel agreed with the trial court that a juror who obtained this same information from a newspaper article could be permitted to serve. (See People v. Sanchez (1986), 115 Ill. 2d 238.) In short, Nilo learned nothing more than the allegations in the indictment which were later proven beyond a reasonable doubt.

We further find no abuse of discretion in the trial court's refusal to interview the other jurors to determine whether Nilo had communicated any information to them regarding her conversation with Fleming. In contrast to United States v. Brantley (11th Cir. 1984), 733 F.2d 1429, cited by the defendants, there is absolutely no indication in the record that Nilo relayed the fact or substance of her extraneous conversation to the other jurors. It must be presumed that, absent a showing to the contrary, the jury followed the Judge's instructions and reached a verdict based solely on the evidence placed before it. (See People v. Silagy (1987), 116 Ill. 2d 357.) We find no basis in the record for second-guessing the trial court's judgment on whether to risk tainting the entire jury by reopening voir dire on the mere speculation that Nilo's extraneous communication with Fleming might have been relayed to the other jurors. Because the trial court was in a better position to evaluate the candor and truthfulness of Fleming, and had the opportunity to view the demeanor of juror Nilo during voir dire, we cannot say that the trial court abused its discretion in closing the investigation into possible juror misconduct following its interrogation with Fleming and denying the defendants' motion for a mistrial.

The defendants next argue that the trial court committed reversible error when it interfered on two occasions with the cross-examination of prosecution witness Rodriguez. The first such instance cited by the defendants occurred during the defendants' initial cross-examination of Rodriguez. Defense counsel was attempting to attack Rodriguez' credibility on grounds of bias favorable to the State resulting from an early release in exchange for Rodriguez' testimony at the defendants' trial. The following colloquy ensued:

"Q. As far as you know, Mr. Rodriguez, if you had not cooperated in this case your maximum out-date was December of 1983, wasn't it?

A. No sir.

PROSECUTOR: I object to that, sir.

THE COURT: The objection is sustained.

MR. STONE: What is the basis of the objection, Judge?

PROSECUTOR: The basis of the objection is Mr. Stone knows everyone is entitled to do half that time and get out statutorily. He is telling the witness he had to do the whole six years, giving ...

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