Appeal from Circuit Court of Macon County No. 97CF377 Honorable James A. Hendrian, Judge Presiding.
The opinion of the court was delivered by: Justice McCULLOUGH
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
On March 21, 1997, Danny Comage was charged with unlawful posses- sion of a controlled substance (720 ILCS 570/402(c) (West 1996). After a jury trial on July 17, 1997, defendant was found guilty and on August 15, 1997, was sentenced to six years in the penitentiary.
All of the issues in this case revolve around the requirement that a defendant charged with unlawful possession of a controlled substance possess it knowingly (People v. Harris, 52 Ill. 2d 558, 560, 288 N.E.2d 385, 386-87 (1972)). Defendant argues, first, that the evidence was insufficient to support a conviction because this element was not proved beyond a reasonable doubt; second, that the trial court denied him his constitutional right to be present at all proceedings that involve his substantial rights (U.S. Const., amend. VI; Ill. Const. 1970, art. I, §8) when it answered the jury's question regarding this element without consulting him or his counsel; and third, that the trial court's answer to the jury question denied him his constitutional right to a fair trial (Ill. Const. 1970, art. I, §8). Because we find the trial court erred when it answered the jury's question without consulting him or his counsel, we reverse and remand for a new trial.
On January 18, 1997, Decatur police officer Neil Cline stopped defendant, Danny Comage, and took him to police headquarters for questioning in a matter unrelated to this appeal. Cline's patrol car was searched at police headquarters, and a pipe used for smoking crack cocaine was recovered from underneath the seat. Scott Hastings, another Decatur police officer, testified Comage told the police he had traded some compact discs for crack cocaine earlier that day. Comage also told Hastings the crack pipe belonged to him and he put it under the seat of the patrol car because he did not want to be charged with possession of drug paraphernalia.
The defense stipulated the pipe contained cocaine residue. Comage testified there was nothing visible to indicate there was still cocaine in the pipe. Both Hastings and Cline admitted there was no visible cocaine in the pipe, in either powder or rock form. Defendant testified he did not know the pipe contained cocaine, and he thought that once the cocaine was burned, it was eliminated. According to Hastings, Comage told him he did not use the pipe to smoke the cocaine he received that day, and Comage testified he had not used the pipe for almost a month.
On July 17, 1997, a jury trial was held, and the jury was given a set of instructions which stated, inter alia, that to convict defendant, it would have to find defendant knowingly possessed a substance containing cocaine. During jury deliberations, the jury sent a question to the trial Judge, written on the jury instruction itself. The above element was circled, and the word "knowingly" was underlined. At the bottom of the page, a juror wrote, "Can we have further explanation on this paragraph?" Beneath this question, the trial Judge wrote, "No, give the words their normal meaning. J.H." No further record was made of this question and response. The jury returned a guilty verdict at 3:30 p.m.
Defendant presents two closely related arguments. First, he argues he was denied his constitutional right to a fair trial (Ill. Const. 1970, art. I, §8) when the trial court refused to respond to the jury's question about the word "knowingly" as used in the jury instructions (see People v. Oden, 261 Ill. App. 3d 41, 45-46, 633 N.E.2d 1385, 1389 (1994)) and second that the trial court deprived him of his consti- tutional right to be present at proceedings that involved his substan- tial rights (U.S. Const., amend. VI; Ill. Const. 1970, art. I, §8) by responding to the jury's question ex parte (see People v. Childs, 159 Ill. 2d 217, 227, 636 N.E.2d 534, 538-39 (1994)).
A defendant is deprived of his constitutional right to be present when a Judge communicates with the jury after the jury has retired to deliberate, unless the communication is in open court with the defendant present. Childs, 159 Ill. 2d at 227, 636 N.E.2d at 538-39. The trial court erred under Childs. The State does not dispute that the trial court responded to the jurors' question without informing defendant or his counsel. The conviction may still be affirmed if the State demon- strates beyond a reasonable doubt that the ex parte communication was harmless. Childs, 159 Ill. 2d at 227, 636 N.E.2d at 539. When the trial court's decision not to answer a jury's question is clearly correct, a defendant is not prejudiced by his absence when the decision was made. People v. McDonald, 168 Ill. 2d 420, 460-61, 660 N.E.2d 832, 850 (1995).
Therefore, defendant's right to be present turns on the same question as defendant's fair trial argument: whether the trial court properly refused to explain the use of the word "knowingly." Defendant failed to raise this issue in a posttrial motion. Normally, this would mean the issue is waived on appeal. People v. Enoch, 122 Ill. 2d 176, 187, 522 N.E.2d 1124, 1130 (1988). However, the supreme court has recently held the waiver rule is inapplicable when a defendant is challenging ex parte communications between a Judge and jury, because the basis for the objection is the trial Judge's conduct. People v. Kliner, No. 81314, slip op. at 54 (December 3, 1998). Waiver is partic- ularly inappropriate here because defendant had no notice of the jury's question until the record was prepared for appeal.
When a jury raises an explicit question manifesting juror confusion on a substantive legal issue, the trial court is obligated to respond. However, a trial court has discretion to refuse to answer and should consider factors including whether the instructions are readily under- standable and sufficiently explain the relevant law, whether further instructions would serve no useful purpose or would potentially mislead the jury, whether the jury's inquiry involves a question of fact, or whether giving an answer would cause the court to express an opinion that would likely direct a verdict one way or another. Childs, 159 Ill. 2d at 228-29, 636 N.E.2d at 539.
The State argues the instructions already given were legally adequate, noting a court need not define the term "knowingly" in an original set of jury instructions because the term is within the jury's common knowledge. People v. Powell, 159 Ill. App. 3d 1005, 1013, 512 N.E.2d 1364, 1370 (1987). However, once a jury asks for clarification, the ultimate issue is not whether the instructions already given were legally proper, but whether they were clearly understandable to the jury. The very fact the jury asked the question shows at least some jurors did not find the instructions clear as applied to the facts of the case. Childs, 159 Ill. 2d at 231, 636 N.E.2d at 540. Even when a word or phrase has a plain meaning within the jury's common knowledge, the trial court has a duty to instruct a jury where clarification is requested. People v. Landwer, 279 Ill. App. 3d 306, 316, 664 N.E.2d 677, 684 (1996).
In People v. Brouder, 168 Ill. App. 3d 938, 523 N.E.2d 100 (1988), the defendant was charged with resisting arrest after he waved his arms, making it difficult for officers to handcuff him upon arrest. An element of the charge was that the defendant's resistance be knowing. The first district held the trial court erred by refusing to define the word "knowing" after the jury had twice specifically requested a defini- tion of "knowing resistance," reported its confusion regarding that word, and indicated it was at a "definite deadlock." Brouder, 168 Ill. App. 3d at 946, 523 N.E.2d at 105.
Here, as in Brouder, the jury's question related to a substantive issue of law. The Brouder court specifically concluded the definition of the term "knowing resistance" was an issue of law for purposes of the Childs standards. Brouder, 168 Ill. App. 3d at 948, 523 N.E.2d at 106. Other cases have similarly held an inquiry about the definition of a single word in a legal standard, without relating it to any particular fact of the case, is an issue of law. ...