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People v. Smith

March 30, 2001


The opinion of the court was delivered by: Justice McBRIDE

Appeal from the Circuit Court of Cook County Honorable Dennis J. Porter, Judge Presiding.

Following a jury trial on remand from this court, defendant- appellant, Jeffrey Smith, was found guilty of attempted murder and was sentenced to 30 years' imprisonment on June 25, 1998. Defendant appeals the verdict contending that the trial court denied him his due process right to be present when the court responded to a note the jury sent out during deliberations. Further, defendant claims that the trial court's response to the note was legally insufficient. He also maintains that the 30-year sentence imposed on him for attempted murder was excessive. The State claims all issues have been waived because defendant failed to object at the time of the alleged error and failed to raise the issues in a posttrial motion.

Detailed facts related to defendant's criminal conduct were set out by this court in our order of May 31, 1996, People v. Smith, No. 1- 94-1756 (unpublished under Supreme Court Rule 23). We state only those facts relevant to the issues raised by this appeal. Defendant's attempted murder conviction arises out of a gang-related drive-by- shooting that resulted in the death of a young man and severe injury to a young woman on October 22, 1991. The shooting occurred in the area of 79th Street and Eggleston in Chicago. The evidence at trial established that defendant was the driver of the vehicle used in the drive-by- shooting, which was a measure of retaliation against rival gang members who had thrown bricks and bottles at defendant's car earlier that day. The record reveals that up to 20 gunshots from semi-automatic weapons were fired by passengers inside defendant's automobile. While no gang members were injured as a result of the shooting, Robert Foreman, Jr., age 21, suffered a fatal gunshot wound to the chest and Meeka Johnson, age 17, suffered a severe abdominal injury.

At the close of evidence, the jury was given instructions for the crimes of first degree murder with respect to Robert Foreman, Jr., and attempted first degree murder with respect to Meeka Johnson. During jury deliberation on April 13, 1998, the jury sent a note to the judge asking "can the [defendant] be charged or found with a lesser charge (2nd degree/involuntary)." Both defense counsel and defendant were absent from the courtroom at the time the note was sent out, while the assistant State's Attorneys were physically present in the courtroom. Upon receipt of the note, the trial judge contacted defense counsel via telephone and asked him how he wished to respond to the note. Counsel for both parties and the trial judge agreed on a response and ultimately sent it to the jury. The response stated: "The law applicable to the case is contained in the instructions you have been given. You are to follow those instructions."

Before actually giving the above response, the trial judge indicated that defendant should be made aware of the note sent from the jury and asked defense counsel how defendant should be notified. Defense counsel said that he would like to talk to defendant. Pursuant to that request, the judge arranged for a private phone line so that defendant could discuss the contents of the note with counsel. The judge further made himself available to defense counsel in the event that he wished to make changes to the response based upon counsel's conversation with defendant. Defense counsel stated that he had no objection to the language used in the response. The following day, the jury found the defendant guilty of attempted first degree murder and not guilty of the murder charge.

At a subsequent hearing the trial judge sentenced defendant to 30 years' imprisonment. Before imposing sentence, the judge noted that defendant's conduct caused a severe amount of injury and a great deal of suffering. The judge also said that a sentence of 30 years was a necessary deterrent to others. Further, the judge observed that defendant set in motion the drive-by-shooting which caused one death and injury to another person. The judge noted in mitigation that defendant had no prior criminal history, had a good school record, and had adjusted well to prison. Thereafter, defendant was sentenced to 30 years' imprisonment.

We now turn to the question of whether defendant has waived review of the trial judge's response to the jury's note on the basis that defense counsel failed to object to the alleged error or to properly raise such error in a posttrial motion. The State claims that because defense counsel neither made an objection at the time of the alleged error nor stated the reason as a basis for error in a posttrial motion, the question has been waived on review. People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988); People v. Williams, 173 Ill. 2d 48, 85, 670 N.E.2d 638 (1996); and People v. Reid, 136 Ill. 2d 27, 38, 554 N.E.2d 174 (1990). We note that defense counsel did not object to the response given to the jury at the time of the alleged error. Further, defendant did not file any posttrial motion contending that defendant's absence from the courtroom during the drafting of the response note constituted grounds for a new trial. In Reid, our supreme court stated:

"If a party fails to object at trial or to raise the issue in its post-trial motion, the party effectively waives the issue for appellate review. [Citation.] Where a defendant acquiesces in the circuit court's answer to the jury's question, the defendant cannot later complain that the circuit court abused its discretion. [Citations.] These waiver rules serve at least two purposes. First, timely objections allow the circuit court to promptly correct any error. [Citation.] Second, a party who fails to object cannot obtain the advantage of receiving a reversal by failing to act. [Citation.]" Reid, 136 Ill. 2d at 38.

In this case, when the note in question was sent from the jury, the trial judge contacted defendant's counsel via telephone. The assistant State's Attorneys remained with the judge and the following conversation, in relevant part, took place while defendant and his counsel were absent from the court room:

"THE COURT: Jeffery Smith. Are you there Mr. Heaston [defense attorney]?


THE COURT: Can you hear us all right?


THE COURT: All right. The note reads: Can the [defendant] be charged or found with a lesser charge" (2nd degree/involuntary)[?]

MR. HEASTON: I got that message.

THE COURT: Okay. How do you want me to answer this?

MR. HEASTON: Well Judge, I think that's a question of law. That certainly was a given. I didn't proffer that because I didn't think that second degree would pertain to this case.

THE COURT: I agree with you. So how do you want me to answer this?

MR. HEASTON: I don't know. What do you suggest?

THE COURT: Well, let's see. State, how do you want me to answer this?

MR. MURPHY [Assistant State's Attorney]: The answer is, no, isn't it?


MR. HEASTON: I don't have a pat answer or any thing, judge. I just feel that maybe you should say something to the effect that they have to follow the law as instructed.


THE COURT: I can -- I suppose I can go out in the courtroom and read [defendant] the note and then let you [Mr. Heaston] ...

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