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September 30, 1996


Appeal from the Circuit Court of Cook County. Honorable Daniel Kelley, Judge Presiding.

The Honorable Justice Greiman delivered the opinion of the court: Cerda, J., and Gallagher, J., concur.

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

Defendant appeals his jury convictions for attempted first degree murder and aggravated discharge of a firearm, raising a variety of issues. For the reasons that follow, we affirm defendant's conviction for aggravated discharge of a firearm and reverse the conviction for attempted murder by reason of the response by the trial court to an inquiry from the jury.

The following represents the facts relevant to defendant's appeal. In June of 1994, Tommy Selover (Selover) and Jason Tomes (defendant) agreed to become roommates in a basement apartment owned by Selover's father. Defendant was required to submit a $100 security deposit and pay his share of the rent and utilities. Approximately three weeks later, Selover "evicted" defendant because defendant was dealing drugs out of the apartment.

On July 4, 1994, defendant and Jose Ortiz entered Selover's apartment and demanded return of defendant's security deposit. Defendant was armed with a shotgun. Selover refused and defendant struck him in the face with the stock of the shotgun. Selover filed a police report.

On August 26, 1994, at approximately 1 a.m., Selover was watching television at his girlfriend Rosalinda's second-floor apartment. Ishmel Garcia called Rosalinda's name from the street below. Rosalinda opened the window and Garcia asked to use her bathroom. Rosalinda reluctantly obliged. Selover went downstairs to open the door for Garcia. As Selover unlocked the door, Garcia and defendant "rushed in" and confronted Selover.

Defendant grabbed Selover by the neck, threw him against the wall and demanded his money. He also suggested that it would be imprudent for Selover to testify in court. Defendant lifted up his shirt and removed a .38-caliber handgun from his waistband. Garcia was also armed with a .38.

Rosalinda heard the struggle below and, from the second-floor landing, observed defendant and Garcia, both of whom were armed with handguns, confronting Selover. Defendant held Selover by the neck with one hand and the gun in his free hand. Rosalinda heard defendant tell Selover that he "owed him money." Garcia then told Rosalinda that they "wanted" Selover and that she had "nothing to do with it." Rosalinda retreated into her apartment and phoned the police.

Defendant then aimed and fired the gun in the direction of Selover's head. Selover turned his head, and the bullet entered the wall behind him. Rosalinda heard the shot from her apartment. Defendant and Garcia each struck Selover and fled the building. Selover observed three additional men leave with defendant and Garcia, one of whom Selover identified as Jose Ortiz.

Chicago police officer Oswald responded to Rosalinda's call and observed what he believed to be a bullet hole approximately 75 inches off the ground in the hallway wall. After photographing the hole, Officer Oswald attempted to dig the bullet out of the wall, but discontinued his efforts after determining that recovery of the bullet would require extensive demolition, and, given the lateness of the hour and the building's other occupants, he decided such work was best done later in the morning.

Later that day, police evidence technician Goodson returned to the scene and recovered a bullet from the wall. Goodson photographed the scene and bullet, which he believed to be a .38 caliber. Defendant was arrested in connection with the alleged assault and shooting. At the time of his arrest, defendant was not wearing a shirt and no weapon was recovered.

At trial, defendant called Dunia Rodriquez, who testified to knowing both Selover and defendant and to observing Selover display signs of anger toward defendant. Defendant also called Detective Mannion. Mannion testified to Selover's statement that defendant choked him, hit him on the head with a handgun, kicked him in the side and then fired a shot at his head. Mannion did not order a gun residue test to be done on defendant. Mannion testified that such a test would have been rendered inconclusive if defendant had washed his hands following the shooting.

Lastly, defendant called Officer Reina, who testified that no search was made for defendant's clothing at the time of his arrest. (The implication being that since Selover stated that defendant lifted up his shirt to remove the gun, and was arrested without a shirt, Selover's statement is unreliable.)

The jury found defendant guilty of attempted first degree murder and aggravated discharge of a firearm. The trial court sentenced defendant to 12 years' imprisonment. Defendant now appeals.

Initially, we address defendant's contention that the trial court's response to the jury's note denied him a fair trial. During deliberations, the jurors sent a note to the trial court stating that they had reached a decision on the aggravated discharge of a firearm charge, but were "split" on the charge of attempt murder. The note asked if the charge of aggravated discharge of a firearm could "stand on itself." The trial court responded with a note, stating "please continue to deliberate on the charge of attempt first degree murder." Subsequently, defendant was found guilty of both offenses. Defendant maintains that the trial court's response was inadequate and misleading.

Defendant suggests that the trial court's response "implied that the jury must find the Defendant guilty of attempt first degree murder in order for their verdict on the aggravated discharge of a firearm charge to stand." This is a persuasive interpretation. Generally, a trial court has a duty to instruct the jury where clarification is requested and juror confusion is evident, whether or not the jury was properly instructed originally. People v. Childs, 159 Ill. 2d 217, 228, 201 Ill. Dec. 102, 636 N.E.2d 534 (1994). However, a trial court may exercise its discretion and properly decline to answer a jury's inquiries where the instructions are readily understandable and sufficiently explain the relevant law, where further instructions would serve no useful purpose or would potentially mislead the jury, when the jury's inquiry involves a question of fact, or if the giving of an answer would cause the court to express an opinion that would likely direct a verdict one way or another. People v. Reid, 136 Ill. 2d 27, 39, 143 Ill. Dec. 239, 554 N.E.2d 174 (1990). The failure to answer or the giving of a response that provides no answer to the particular question of law posed has been held to be prejudicial error. E.g., People v. Shannon, 206 Ill. App. 3d 310, 151 Ill. Dec. 221, 564 N.E.2d 198 (1990); People v. Bryant, 176 Ill. App. 3d 809, 126 Ill. Dec. 222, 531 N.E.2d 849 (1988).

In Childs, the jury wanted to know whether the defendant could be found guilty of armed robbery and either voluntary or involuntary manslaughter, or if a finding of guilty of armed robbery mandated a guilty of murder verdict. Childs, 159 Ill. 2d at 229. The trial court replied, without consulting defense counsel, "you have received your instructions as to the law, read them and continue to deliberate." Childs, 159 Ill. 2d at 225. The supreme ...

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