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People v. Clayton

Court of Appeals of Illinois, Third District

December 18, 2019

MONROE P. CLAYTON, Defendant-Appellant.

          Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois. Circuit No. 17-CF-17 The Honorable Clark E. Erickson, Judge, presiding.

          JUSTICE McDADE delivered the judgment of the court, with opinion. Justices O'Brien and Lytton concurred in the judgment and opinion.


          McDADE JUSTICE

         ¶ 1 The defendant, Monroe P. Clayton, was convicted of first degree murder (720 ILCS 5/9-1(a)(1) (West 2014)) and was sentenced to life imprisonment. On appeal, he argues that: (1) his right to a unanimous jury verdict was violated when the circuit court dismissed a juror who had revealed his position on the merits of the State's evidence; and (2) his right to be present at a critical stage of his trial was violated when his presence at the inquiries into an alternate juror and a sitting juror was waived by defense counsel. We affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 On January 20, 2017, the State charged Clayton with two counts of first degree murder (720 ILCS 5/9-1(a)(1), (2) (West 2014)) based on the stabbing death of 83-year-old Zennia Young.

         ¶ 4 A jury trial was held over several days in April 2017. The State presented nine witnesses over the first three days of trial. Prior to the start of proceedings on the fourth day of trial, the first alternate juror approached the bailiff regarding an issue she had with another juror. She was taken into Judge Erickson's chambers with the attorneys and a court reporter. Once there, Judge Erickson stated that the defendant's presence had been waived; there is no indication from the record that this waiver had taken place in court and in Clayton's presence. The alternate juror stated that one of the seated jurors, Porto, "usually sleeps through most of the testimony" and that he had not taken any notes. After the alternate juror left his chambers, Judge Erickson recounted his own observation that during opening arguments, Porto "was leaning back, had his arms folded over his chest and head down." The judge suggested Porto be interviewed, but the prosecutor questioned whether bringing Porto in immediately after the alternate juror would reveal who was "ratting him out" and cause him to be upset with the alternate juror. Judge Erickson instead told the attorneys to watch Porto intermittently during the afternoon session.

         ¶ 5 The trial resumed and the State presented the live testimony of five more witnesses and a sixth by stipulation. After that testimony concluded, the courtroom was cleared and Judge Erickson called the attorneys back into his chambers. While in court with Clayton present, defense counsel waived his client's presence for the discussion. Judge Erickson stated that Porto appeared attentive during the deoxyribonucleic acid (DNA) expert's testimony, but for "50 to 65 percent of the time before that, whenever I glanced over, his eyes were closed, his arms were folded, his head was *** down to varying degrees." The prosecutor stated that at several points during the session, he saw Porto's "chin slump down toward his chest. I saw his chest rising and falling in slow, regular breathing patterns that indicated to me that he was sleeping." The prosecutor further opined that Porto "was sleeping for significant portions of the early afternoon," although he "seemed to perk up a good deal" after one of the recesses. Next, the prosecutor added:

"I also couldn't help but *** notice during others' examinations today, I mean, he - except for the DNA person, he rarely even looks at the witnesses. I mean, he's pretty much - you know, the head's slumped and looking straight forward. His eyes aren't even directed at the witness stand for the *** vast majority of the time that he's sitting there."

         Judge Erickson responded:

"I wonder if he's - well, I noticed that when the *** photographs were being passed around - I mean, again, my attention was drawn to him during opening statements - but I'm not sure he looked at any of the photographs. If he did, it was a *** glance out of the corner of his eye. I mean, he simply accepted a photograph and passed it on immediately, every single photograph."

         Next, Judge Erickson considered whether there were sufficient grounds to dismiss Porto and noted that he believed the State was leaning toward dismissal. The prosecutor said "[t]hat would be the -" and was interrupted by Judge Erickson before he could finish his sentence. At that point, defense counsel objected to the dismissal, and Judge Erickson stated he would question Porto the following day.

         ¶ 6 Before the trial resumed on the fifth day, Judge Erickson went into his chambers with the attorneys; again in chambers and without Clayton's presence, defense counsel waived his client's presence. Porto was brought in and, in response to questioning, stated that whenever he sits down, he gets sleepy. If he sits down at work over lunch, he will fall asleep. When asked how many times he had fallen asleep during the trial, Porto stated, "I don't know if I really fell asleep or just, like, I've got my eyes closed. I don't know if I'm actually sleeping." He admitted that he could have been sleeping, but he claimed that he would only fall asleep for seconds at a time. He stated that as far as he knew, he did not have a sleep disorder.

         ¶ 7 Porto admitted that he had his eyes closed for most of the trial, but he attributed that in part to the bright light coming through the window near him. Upon further questioning, he admitted that he may have fallen asleep once or twice for a couple of seconds. He did not believe he missed any evidence, adding that he felt it "seemed very repetitious." After Judge Erickson ...

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