The opinion of the court was delivered by: Justice Kilbride
Docket Nos. 97235, 97258 cons.-Agenda 3-November 2004.
Defendant, Tyreese Roberts, was found guilty by a jury of two counts of first degree murder (720 ILCS 5/9-1(a)(1) (West 1996)) and two counts of aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 1996)). The circuit court of Cook County sentenced him to natural life imprisonment for each count of first degree murder and 20 years' imprisonment for each count of aggravated battery with a firearm.
 The appellate court reversed defendant's convictions and remanded the cause for a new trial, holding the trial court erred in replacing a discharged juror with an alternate after deliberations had begun. The appellate court did not address defendant's claim that the trial court erred in denying his motion to quash arrest and suppress evidence. No. 1-01-2612 (unpublished order under Supreme Court Rule 23).
We granted petitions for leave to appeal filed by both the State and defendant (177 Ill. 2d R. 315(a)), and the appeals were consolidated. In these appeals, we consider whether replacement of a discharged juror with an alternate after a case is submitted to the jury for deliberations is permissible under Illinois law. We hold postsubmission replacement of a juror is permissible under limited circumstances, and the decision whether to proceed in that manner is within the discretion of the trial court. Based on the facts of this case, we find the trial court abused its discretion in replacing a discharged juror with an alternate after deliberations began.
Defendant was charged with multiple offenses stemming from a drive-by shooting. The charges included the first degree murders of Salada Smith and Joshua Thomas and aggravated battery with a firearm of Robert Carr and Derrick Wandrick.
Prior to trial, defendant filed a motion to quash his arrest and suppress evidence. Defendant claimed that police officers lacked probable cause to arrest him and that a statement he made after the arrest should be suppressed as the fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 486, 9 L.Ed. 2d 441, 454, 83 S.Ct. 407, 416 (1963). Following a hearing, the trial court found the officers had probable cause to arrest defendant for the charged offenses and denied his motion.
Defendant's first jury trial resulted in guilty verdicts on two counts of first degree murder (720 ILCS 5/9-1(a)(1) (West 1996)) and two counts of aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 1996)), but the trial court later granted defendant's motion for a new trial because he did not receive a ballistics report used by the State at trial. Defendant's second trial ended in a mistrial because the jury was deadlocked.
This appeal is from defendant's convictions following his third jury trial. The jury for defendant's third trial was selected on Monday, March 19, 2001. Twelve jurors and two alternates were selected, and the jury began hearing evidence the next day. Prior to the presentation of evidence, the trial court instructed the jurors that they were prohibited from speaking to the parties or any of the witnesses, and they were required to report immediately any attempt to discuss the case with them to one of the deputies. The court also instructed the jurors to inform one of the deputies if they experienced any personal problems or were in doubt as to their rights or duties as jurors.
On the charges at issue, the evidence, in pertinent part, showed that a van approached Salada Smith, Joshua Thomas, Robert Carr and Derrick Wandrick as they were standing in a gas station parking lot at approximately 2 a.m. on June 22, 1997. Several gunshots were fired from the open sliding door of the van. Salada Smith and Joshua Thomas died as a result of the multiple gunshot wounds they suffered in this incident. Robert Carr and Derrick Wandrick survived their gunshot wounds.
Three witnesses at the scene were unable to identify the occupants of the van. Police officers were later informed that a person named Paris Williams may have been involved in these shootings. When the officers located Williams, he informed them defendant was one of the people involved in the shootings. The officers proceeded to defendant's residence and arrested him. After he was arrested, defendant gave a statement admitting he was the driver of the van.
According to the testimony of Paris Williams, the occupants of the van were part of a street gang. Defendant and Michael Phillips were two of the gang members present when the shooting was planned. The intended targets of the shooting were members of a rival gang.
On Wednesday, March 21, defendant called Michael Phillips to testify. Phillips testified he and defendant were friends and grew up together. Phillips admitted he was a gang member, but testified defendant did not belong to a gang. Phillips denied having any personal knowledge of this incident.
The jury began deliberations at approximately 4 p.m. on Thursday, March 22. The one remaining alternate juror was excused after being admonished by the court not to discuss the evidence or any aspect of the case with anyone. Sometime between 5:45 and 6 p.m. that day, the jury sent a note to the court stating:
***, one of our jurors, was contacted by Michael Phillips on Tuesday outside of the courtroom prior to his appearance in court.
She brought this to our attention and we are bringing it to you for a decision on what course of ...