APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JAMES P. FLANNERY, JR., JUDGE PRESIDING.
Released for Publication November 10, 1997.
Presiding Justice Wolfson delivered the opinion of the court. McNAMARA and Burke, JJ., concur.
The opinion of the court was delivered by: Wolfson
PRESIDING JUSTICE WOLFSON delivered the opinion of the court:
Gerald Walker appeals two separate criminal convictions. One of them raises a serious question concerning the potential tainting of a jury by the unwarranted and indefensible remarks of a Chicago police officer in a criminal court elevator.
While we strongly disapprove of what happened in that elevator, our examination of the record leads us to affirm the conviction in question.
On March 6, 1996, in case No. 1-96-1869, Walker was sentenced on two counts of aggravated criminal sexual assault and on separate armed robbery and aggravated kidnapping counts.
On September 26, 1996, in case No. 1-96-3907, Walker was sentenced on two counts of aggravated criminal sexual assault and on separate armed robbery and aggravated kidnapping counts.
These two cases were consolidated for the purpose of appeal.
On February 18, 1993, Walker allegedly abducted a 16-year-old female off the street at gun-point and sexually assaulted her in a nearby garage. Walker was placed under arrest and tried before a jury. On January 4, 1996, during the second day of trial, Walker's trial attorneys told the trial court they heard a Chicago police officer speak to several jurors near the elevator:
"Judge, after we broke for lunch, I and [co-counsel], we were standing waiting for the elevator and the sheriff came out. There was no one else in the hallway. The sheriff came out with the jury. An elevator came and we walked to the other side to allow the jury to take the elevator.
The sheriff asked three police officers, not involved in this case, no idea who they are to exit the elevator. And they were dressed in uniform, bullet proof vests, and they had there [sic] flashlights and everything. And as they walked out they made a joke at which everybody smiled; don't we get lunch, too.
But then one of the officers said oh, it's the jury. All we care is that you find them guilty. That's all we care about. Then another police officer said, you know, you are not supposed to be talking to them. It was all done in a joking kind of way and half the jury was on. Half the jury was still coming on. We could see them. They could see me and that was said and the doors shut.
The basis of that is that these police officers wear [sic] talking to a jury outside the courtroom and telling them this information. We would ask for a mistrial.
Alternatively, we would ask that you, when the jury comes out, to admonish them that the only evidence they are supposed to listen to is the evidence they hear in this courtroom and not outside of this courtroom."
The trial court denied Walker's request for a mistrial and instead granted Walker's motion to admonish the jury about this ...