Appeal from the Circuit Court of St. Clair County. No. 86-CF-891. Honorable Richard A. Aguirre, Judge, presiding.
The Honorable Justice Lewis delivered the opinion of the court: Maag, P.j., and Hopkins, J., concur.
The opinion of the court was delivered by: Lewis
JUSTICE LEWIS delivered the opinion of the court:
Defendant, William Gramc, appeals from the denial of his postconviction petition after an evidentiary hearing to reverse his conviction for aggravated criminal sexual assault. On appeal, he contends only that he was denied his constitutional right to be present at all crucial stages of the proceedings, as he was not present or consulted when the court addressed a note from the deliberating jury. Defendant maintains that he was prejudiced by being absent, because he thereby lost an opportunity to have the jury instructed on the lesser offense of criminal sexual assault, which instruction he asserts was supported by the evidence.
The facts are simple and brief. While the jury was deliberating, the following occurred in the judge's chambers out of the hearing of the jury:
"The Court: Let the record show the bailiff has handed me a question that the jurors gave him. It reads, can we find the defendant guilty of rape without the weapon part? I am suggesting that I would just tell them they have everything they need before them to reach a decision, and they should re-read their instructions. Anything
Mr. Haida [assistant State's Attorney]: I don't think you can say anything else.
Mr. Gomric [defense counsel]: I agree.
The Court: Anybody have any problem with that?
The Court: Anybody have any problem with the bailiff telling them or you want me to bring them into court?
Mr. Gomric: Can we write a written response to that. Lot of times in the--
The Court: Yes, it wouldn't hurt. Why don't you do it on the bottom of this. Put down, you have all the instructions before you with which you are to reach a decision. You ...