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May 19, 1994


McMORROW, Harrison, Heiple

The opinion of the court was delivered by: Mcmorrow

JUSTICE McMORROW delivered the opinion of the court:

On May 11, 1990, a jury in the circuit court of Cook County found defendant guilty of murder and armed robbery. The court sentenced defendant to concurrent terms of life imprisonment for the murder and 60 years for armed robbery. The appellate court reversed defendant's conviction, holding that the trial court's ex parte instruction to the jury during its deliberations was reversible error. (230 Ill. App. 3d 993.) We granted the State's petition for leave to appeal (134 Ill. 2d R. 315).


The charges arose from the fatal shooting of Jerry Nichols on February 4, 1987. The following evidence was adduced at trial. Khaled Ayyash testified that he was serving some customers in his family's grocery at approximately 9 p.m. when he noticed Nichols, who worked as a security guard in the store, and a man whom he identified in a lineup and in court as defendant walking toward him. Defendant was closely behind and to the left of Nichols, and was holding what appeared to be a long, black gun in his hand. Nichols said, "Kelly [Ayyash's nickname] this is a holdup," and defendant told Ayyash to open the cash register. Because the register was not cleared of amounts Ayyash had been ringing up, it would not open. Defendant then unsuccessfully attempted to open the register by "jamming" on it with his left hand. At that point, Nichols turned and grabbed defendant in a bear hug, and the two men began to wrestle. During the struggle, Nichols tripped and fell onto his back and defendant fell on top of him. Ayyash then heard a shot but did not see a gun being fired. Defendant arose slowly with the gun Nichols carried at work in his hand. Defendant then pointed the gun toward Ayyash and ordered him to open the cash register. When it still would not open, defendant picked it up and threw it to the floor. After emptying the money drawer, defendant walked Ayyash to the store's other cash register, which Ayyash opened. Defendant took the money and then jumped over the counter and fled from the store. When Ayyash checked on Nichols, who lay motionless in the aisle, he noticed the gun he had seen in defendant's hand prior to the struggle on the floor. The gun was later determined to be a "BB" gun. Ayyash picked it up and then called the police. On cross-examination, Ayyash stated that Nichols was 6 feet 2 inches or 6 feet 3 inches and weighed between 220 and 240 pounds. Ayyash reported that $700 had been stolen. A responding police officer testified that Ayyash described the offender as being 28 to 30 years of age, 5 feet 8 inches or 5 feet 9 inches tall and weighing between 130 and 150 pounds.

Officer Patrick O'Donovan testified that some bystanders directed him and his partner to the house where the bystanders thought the offender lived. As O'Donovan approached defendant's house he saw a man (defendant) who fit the description of the offender exiting the enclosed front porch. When O'Donovan identified himself as a police officer, defendant ran back into the porch. As O'Donovan ascended the front stairs he heard glass breaking. When he looked inside the porch area, he saw defendant banging on the front door of the house and the door's glass falling outward. O'Donovan approached defendant with his revolver drawn and placed him under arrest. Defendant had blood on his face, neck and hands. O'Donovan seized a .38-caliber revolver defendant had thrown down and $128. Defendant was transported to the hospital for treatment of injuries to his hands and face before being questioned at the police station.

An autopsy revealed that Nichols weighed 288 pounds and that he died of a .38-caliber contact gunshot wound in the stomach. It also revealed that Nichols' blood-alcohol level was 0.096.

Detective Ross Horne testified that defendant made a statement to him in which he admitted entering the store to rob it. According to Horne, defendant stated that when he entered the store he saw two men, one white and one black. Defendant put a BB gun into the black man's side and ordered the clerk to open the cash register. As he was hitting the keys of the cash register, the black man drew a weapon and they began struggling. When they fell to the floor, the gun went off. Defendant arose, picked up the gun, told the clerk that he wanted the money and then fled. He injured his hands and face when he broke the glass storm door trying to reenter his house. A few hours later, defendant repeated his oral statement to Assistant State's Attorney Paula Becker in Horne's presence. Defendant declined to make his statement in the presence of a court reporter or to sign a written statement. Becker asked Horne to leave the room for a few minutes, during which time defendant told Becker that he had not been mistreated or threatened by the police.

Defendant testified that he had known Nichols for 10 to 15 years. They saw each other almost every day and often socialized together. Nichols was 6 feet 3 inches tall and weighed approximately 260 pounds; defendant was 5 feet 8 inches tall and 189 pounds. Nichols had told him he once killed a man and had been in fights with other men. Defendant had witnessed one such fight, and had often seen Nichols with a .38-caliber gun and a knife in his possession.

On the day of the shooting, Nichols came to the house where defendant lived with his parents and asked to borrow $50, promising to return it later that day. Nichols had borrowed money from defendant numerous times and had always repaid the loans. Later that evening, defendant walked to the store where Nichols worked to find out why he had not yet returned the $50. Defendant had been to the store many times in the past. On the way, he saw some children shooting at school windows with a BB gun. He scolded them and then paid them $5 to give him the gun.

When defendant arrived at the store, there were 8 to 10 customers inside. The BB gun was in his pocket when he walked past the cash registers to the counter where Nichols was standing. Defendant told Nichols that he needed the money. Nichols was angry that defendant came to where he worked asking for the money, but defendant persisted that he needed it. Nichols then turned and walked toward the cash register. Defendant followed, believing that Nichols was going to repay him. The BB gun was still in defendant's pocket. When they reached the cash register, Nichols turned around and pointed a gun at him. Defendant grabbed the barrel of Nichols' gun and they began wrestling. Nichols was holding the handle of the gun and defendant was twisting the barrel away from himself so as not to be shot. Despite the disparity in their sizes, defendant was able to "hold his own" for several minutes. As they were struggling, they fell to the floor, and Nichols' gun went off. Defendant picked it up and put it in his pants pocket because Nichols was moving and he was afraid Nichols would shoot him. Defendant then went to the other end of the counter near the cash register and asked Ayyash for the money Nichols owed him. Ayyash said he had nothing to do with that. Defendant attempted to open the register by hitting on the keys. Finally, he threw the cash register to the floor and removed $30 to $40. Ayyash then opened the second cash register, from which defendant took approximately $60. Before leaving the store, defendant noticed that Nichols seemed to be conscious and did not appear to be bleeding. He assumed that the BB gun fell out of his pocket during his struggle with Nichols.

Defendant returned home but decided to go out again. As he exited the door he saw the police. He tried to reenter the house but the door had locked behind him. He was knocking on the glass when it shattered onto the floor. An officer came up on the porch, pushed him down to the floor and put his feet on defendant's hands while holding a gun to his head. He sustained cuts on his hands and a cut across his eyebrow from the impact when his head hit the floor. Defendant was treated a hospital emergency room and then returned to the police station where he was placed in an interview room and questioned. Defendant related what had occurred and denied having gone to the store to rob it. Horne accused him of lying, slapped him, and threatened to beat the truth from him. Horne also punched defendant on the side of the head and squeezed his injured hand. Finally, defendant agreed to repeat Horne's version of the shooting to the assistant State's Attorney. Horne was present during the entire interview with the assistant State's Attorney. Defendant testified that he went to the store only to find out why Nichols had not returned his money; he had no intention of robbing it. He was in fear for his life when Nichols pointed the gun at him, and the shooting was an accident.

It was stipulated that the decedent, Nichols, pleaded guilty to voluntary manslaughter in 1967 and to unlawful possession of a weapon in 1983. It was also stipulated that defendant had past convictions for armed robbery, burglary and possession of burglary tools.

At the close of the evidence, the jury was given instructions which had been agreed upon by the parties. The instructions included two packets of verdict forms. The first packet contained four verdict forms: "Guilty of Murder," "Guilty of Voluntary Manslaughter," "Guilty of Involuntary Manslaughter," and "Not Guilty of The Murder, Voluntary Manslaughter and Involuntary Manslaughter of Jerry Nichols." The second packet contained two verdict forms: "Guilty of Armed Robbery" and "Not Guilty of Armed Robbery." The jury was instructed on murder during the course of a forcible felony, but no verdict form was submitted as to felony murder.

During deliberations, the jury posed a question to the court by means of a note given to the trial court's bailiff. The bailiff telephoned the Judge at the restaurant where he was dining with the assistant State's Attorneys and read the note to him. The note read: "Can the defendant be guilty of armed robbery and voluntary or involuntary manslaughter or must murder be the only option with armed robbery?" The trial Judge instructed his deputy to give the jury the following response: "You have received your instructions as to the law, read them and continue to deliberate." The Judge then informed the prosecutors of the question and the response he gave to it. No effort was made to contact the defense attorneys even though one of them had left a number where he could be reached.

When court reconvened and the Judge informed defense counsel of the note and his response, counsel objected to the court's failure to contact him concerning the jury's question and to the content of the court's response to it. The trial Judge explained his actions, stating:

"That was a very difficult question for me to answer because the instructions include felony murder, murder and commission of armed robbery. They include involuntary, they include voluntary manslaughter and involuntary manslaughter. It was very difficult because I didn't quite know exactly what they were asking. I didn't want to mislead anyone, so my response to the jury was you have received your instructions as to the law, read them and continue to deliberate.

If I'd given any other answer, * * * I would have contacted both the State's Attorney and defense counsels. I figured as long as I was not responding to that question it wasn't necessary for me to contact--

In the opinion of the Court, the only answer that was fair to all sides was you have received instructions as to the law, read them, continue to deliberate. You ...

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