Appeal from the Circuit Court of Winnebago County. No. 00--CF--1928 Honorable Timothy R. Gill, Judge, Presiding.
The opinion of the court was delivered by: Justice O'malley
Defendant, Cedric E. Hunter, appeals his conviction of forgery (720 ILCS 5/17--3(a)(1) (West 2000)). On appeal, defendant contends that (1) the evidence was insufficient to convict him beyond a reasonable doubt; (2) the jury was prejudicially tainted by the comment of a potential juror in open court; and (3) he was prejudiced by the State's improper argument, which shifted the burden of proof to defendant. We affirm.
Defendant was indicted on one count of forgery. The indictment alleged that on May 25, 2000, defendant knowingly and with the intent to defraud delivered a check that was capable of defrauding another to Teresa Smithee of the Kishwaukee Currency Exchange in Rockford. After discovery and several pretrial motions, the case proceeded to a jury trial on January 10, 2001. During jury selection, the first panel of four jurors was selected and removed from the courtroom. While the next panel of four jurors was being selected, the trial court had the following exchange with potential juror Joseph Gaziano:
"THE COURT: You are a corrections officer employed by Winnebago County, is that correct?
THE COURT: Is the fact that you are employed in that capacity going to have any bearing upon your ability to be fair and impartial in this case?
JUROR GAZIANO: I can't really say. I know [defendant]. I've known him for a while. I don't know.
JUROR GAZIANO: I can see how it would, yes." The trial court immediately excused Gaziano. The second panel of four jurors was completed and then the trial court began questioning the last panel, whereupon it adjourned for the day.
When voir dire resumed, juror Linda Emberson was questioned. Defendant's counsel asked whether juror Emberson had formed any opinions regarding defendant. She indicated that she did not want to explain her opinion regarding Gaziano's comment in the presence of the other jurors. The following conversation with the trial court and counsel then occurred outside the presence of the other jurors:
"JUROR EMBERSON: One of the jurors that was questioned was a correctional officer. And he had stated--I do not know what the correct words that he stated. But he had stated that he had a couple of incidences [sic] or running into with [defendant]. And he didn't say that it was like a basketball game, so I--he led me to believe that this might not be the first time that [defendant] has been in court. And that doesn't--I don't have any opinion about you. And I believe I could be a fair juror. I'm very honest. And I believe in the facts have to be presented in order-- his right is he is innocent until proven guilty, and I believe that. It would not sway my decision one way or the other. It was just more information than I thought I should have.
THE COURT: I believe his comment, and counsel you can correct me, based on our recollections, but my recollection of that is that the potential juror said that he knew [defendant]. I don't think he said more than that. I think he said he knew [defendant].
MR. MORRISON [DEFENSE COUNSEL]: I thought that he said that he had known him for a while, was what I remember him saying.
JUROR EMBERSON: I'm sorry. I took it that he had--see I don't remember what he said. But the way I took it, and maybe it was my thinking that he's a correction officer-
MS. LARSON [ASSISTANT STATE'S ATTORNEY]: Sure.
JUROR EMBERSON: But I don't feel in any way that you, you know, are a bad person. And I'm not judging you. I just felt at the time he was saying that he was a correction officer and he had several contacts with him.
THE COURT: Would that make any difference in your ability to be impartial in this case?
JUROR EMBERSON: No. No. It would not. I just wanted to let you know that this was information that I thought I was given that I shouldn't have been.
JUROR EMBERSON: But, no, I do feel that I could be fair. And I am an honest person. I only base things on facts.
THE COURT: Counsel, do either of you have any other questions on this subject that you want to broach with Miss Emberson outside ...