2017 IL App (3d) 150550
Opinion filed November 30, 2017
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2017
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of the 14th Judicial Circuit,
Plaintiff-Appellee, ) Rock Island County, Illinois.
)
v. ) Appeal No. 3-15-0550
) Circuit No. 13-CF-1089
AARON D. HENDERSON )
) Honorable Michael F. Meersman,
Defendant-Appellant. ) Judge, Presiding.
_____________________________________________________________________________
JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
Justices Carter and O’Brien concurred in the judgment and opinion.
OPINION
¶1 Defendant, Aaron D. Henderson, appeals from his conviction for first degree murder and
his subsequent 40 year prison sentence. Specifically, he argues that the trial court (1) committed
reversible error when it conducted ex parte communications with the jury during deliberations,
(2) committed reversible error when it allowed the jury to observe audio and video evidence in
the courtroom during deliberations in the presence of only a representative of the State’s
Attorney’s office, (3) failed to conduct a preliminary inquiry into defendant’s pro se allegations
of ineffective assistance of counsel, and (4) abused its discretion in sentencing him to 40 years’
imprisonment. We reverse and remand for a new trial.
¶ 2 FACTS
¶3 In December 2013, defendant was charged, in relevant part, by information with first
degree murder (720 ILCS 5/9-1(a)(3) (West 2012)) for the death of Derek James Jackson based
on an accountability theory. Specifically, the charge alleged that defendant, while acting with
another for whose conduct he was legally responsible for, during the attempted commission of
robbery, shot Jackson with a firearm causing his death. The following month, defendant was
charged with a second count of first degree murder with a firearm (720 ILCS 5/9-1(a)(2) (West
2012); 730 ILCS 5/5-8-1(d)(iii) (West 2012)), for personally discharging the firearm that killed
Jackson.
¶4 Defendant’s trial took place over the course of four days in March 2015 during which the
following evidence was presented.
¶5 Alyson Schippers testified that she was Jackson’s girlfriend. Over her lunch hour on
December 17, 2013, she was with Jackson, Jackson’s three-year-old son Remy, Kameron
Bolden, and defendant, whom she knew by the nickname “Dewy.” She explained that Jackson
and defendant were “good friends” and that defendant was at Jackson’s house “a lot.” While on
her lunch break, Schippers overheard defendant and Jackson talking about Jackson purchasing a
gun from defendant and someone else. Schippers did not find this unusual because Jackson had
guns at his house and went to the shooting range. Jackson later picked her up from work, and
she, Jackson, and Remy returned to Jackson’s home where they spent the night. Schippers stated
that the three of them woke up the next morning around 10:30 to 11 a.m. Jackson had money lain
out on the dresser, which Schippers assumed was for the purchase of the gun. She was getting
Remy dressed while Jackson was getting ready for work when the telephone rang. According to
Schippers, Jackson answered the phone and then told her that Dewy was on his way. Jackson
asked her to turn on the music, and he went downstairs. She plugged her phone into the sound
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system. Jackson’s house was also equipped with an alarm system, and she heard a beep upstairs
which indicated the front door to the house had opened.
¶6 Approximately 5 to 10 minutes later, Schippers heard a gunshot. She went downstairs to
see what happened and saw Jackson lying on the ground as defendant, who was wearing a black
hoodie, was leaned over Jackson rifling through his pockets. Schippers was scared so she went
back upstairs and “took [her] phone off of the music” but then she “plugged it back in” because
she did not want “them” to come upstairs. Shortly thereafter, she saw two people “running up the
street.” Their back was to her and all she could see was that they “had dark clothes on, pants and
shirt.” Schippers ran downstairs to check on Jackson and saw that he had been shot and was
unresponsive. She called 911. A recording of the 911 call was published to the jury. During the
call, Schippers tells the operator that “Dewey” and “Kam” shot Jackson. Schippers further
testified that Jackson’s cell phone was never located nor was the cash he had set out to purchase
the gun.
¶7 Nicholas Pauley, a police officer with the city of Rock Island, testified that he responded
to the scene of the shooting. Upon arriving at the scene, he entered the house and saw that
personnel from the Rock Island fire department were treating Jackson’s apparent head wound.
Pauley then secured the scene. He located three spent shell casings in the vicinity, one in the
kitchen and two in the dining room, which he marked with a piece of paper. Pauley was also
present during the execution of a search warrant at defendant’s residence. During that search, he
collected a pair of black jeans and other clothing.
¶8 Ellen Chapman, a forensic scientist with the Illinois State Police, testified that she tested
the pockets of the black jeans collected from defendant’s residence. According to Chapman, the
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right front pocket of the jeans tested positive for gunshot residue. She further testified that the
gunshot particles could be the result of being in the same environment as the discharged firearm.
¶9 Garrett Alderson, a criminalist with the Rock Island police department, testified that he
was dispatched to the scene of the shooting to take photographs and collect evidence. He
collected four shell casings and two bullets from the scene. The next day, he returned to the
residence and collected a third bullet from the residence and a fourth bullet from Jackson’s body
that was recovered during autopsy. Alderson stated the shell casings collected from the scene
were 40-caliber TulAmmo Smith & Wesson casings. He also participated in the execution of the
search warrant at defendant’s residence. At that residence, Alderson collected some of
defendant’s clothing. He also took possession of money that had been seized from defendant and
turned over to the Rock Island police department. Alderson found a potential blood stain on the
money but no latent fingerprints. He then returned the money to a detective to enter into
evidence.
¶ 10 Mark Staes, a police officer for the city of Rock Island, testified that he was dispatched to
the scene of the shooting. Schippers let him in the back door of the residence. After securing the
residence, he took Schippers and Remy into an upstairs bedroom. At that point, Schippers told
him that Jackson had been on the phone with defendant and then, shortly thereafter, he let
defendant and another person into the house. A few minutes later, she heard what she thought
were two gunshots. She went downstairs and saw defendant going through Jackson’s pockets.
Schippers showed him a picture of defendant on her cell phone.
¶ 11 Ranzan Ahmad testified that he was the owner of the 11th Street Mart in Rock Island.
The market was equipped with a video surveillance system, which was working on December
18, 2013. He turned the surveillance video over to the police.
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¶ 12 Timothy Metzger, a police detective with the city of Rock Island, testified that he
collected surveillance videos recorded by the 11th Street Mart convenient store, which was near
Jackson’s house. He reviewed the videos and located footage of defendant. Redacted portions of
the surveillance video were published to the jury. The video begins at 11:33 a.m. on December
18, 2013, and it depicts defendant and Bolden walking across 11th Street into a parking lot,
which is located near Jackson’s house. Approximately eight to nine minutes later, defendant and
Bolden again appear on the video. Metzger described the clothes defendant was wearing as blue
jeans, a black “leather-ish looking” coat, a “[g]rayish colored stocking cap,” and white tennis
shoes. He described Bolden’s clothing as dark colored jeans with a white T-shirt “hanging out
underneath” a “gray or purplish hoodie” under a “darker or black outer coat.”
¶ 13 Chad Sowards, a police detective with the city of Rock Island, testified that he responded
to the scene of the shooting and interviewed Schippers. During that interview, Schippers told him
that defendant was at the residence during the shooting and that she observed him going through
Jackson’s pockets afterwards. Sowards then executed an arrest warrant for defendant at
defendant’s girlfriend’s residence in Davenport, Iowa. At the time of his arrest, defendant was
wearing a white hooded sweatshirt and maroon jeans. Sowards stated that defendant waived his
Miranda rights and agreed to speak to the police. According to Sowards, defendant told him that
he was at his residence from 3 p.m. on December 17, 2013, when he was dropped off by Jackson
and Schippers, until 3 p.m. on December 18, 2013, when his girlfriend picked him up and took
him to her house. Sowards further testified that defendant told him the last time he had been at
Jackson’s home was December 17, 2013. Sowards’s interview of defendant was recorded and the
recorded interview was published to the jury.
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¶ 14 Herve Denain, a crime scene technician for the Davenport, Iowa police department
testified that the Rock Island police department had requested him to assist with collecting
evidence from a Davenport residence. He collected $227 in cash and a cell phone, both of which
were located behind a couch.
¶ 15 Richard Nahnybida, a forensic computer examiner with the Davenport police department,
testified that he assisted the Rock Island police department with its investigation of Jackson’s
homicide. He examined a cell phone and extracted 102 photographs from the phone and memory
card. Several of the photographs were entered into evidence. One of the photos was of a left hand
with a tattoo on the wrist holding a Glock pistol.
¶ 16 Jennifer MacRitchie, a forensic scientist with the Illinois State Police, testified that one of
the dollar bills seized from defendant contained a spot of blood, which she swabbed. Debra
Minton, a forensic scientist specializing in deoxyribonucleic acid (DNA) analysis, testified that
the blood stain collected from the dollar bill matched Jackson’s DNA profile.
¶ 17 Dustin Johnson, a forensic scientist specializing in firearms identification, testified that
the four shell casings recovered from Jackson’s residence were all fired from the same gun, most
likely a 40-caliber Glock or an older Smith & Wesson. He also testified that three of the four
bullets recovered from the house and Jackson’s body were fired from the same gun. The fourth
bullet was too damaged to be identified or eliminated as having been fired from the same gun.
However, he stated that bullets could have only been fired from a .40-caliber or 10-millimeter
Glock pistol. Although he had not been provided with the gun that shot the bullets, he stated that
a Glock 23 fires a .40-caliber Smith & Wesson bullet.
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¶ 18 Mark Peters, a forensic pathologist, testified that he conducted the autopsy on Jackson
and determined that he had been shot three times, twice in the head and once in the left upper
arm.
¶ 19 Scott Preston testified that he worked for U.S. Cellular and that defendant’s phone
records show he made four calls to Jackson’s phone between 11 a.m. and 12 p.m. on December
18, 2013.
¶ 20 The State rested; defense counsel made a motion for a directed verdict, which the trial
court denied.
¶ 21 Kamren Bolden, defendant’s cousin, testified for the defense. He was 16 years old when
Jackson was shot. Bolden stated that, on December 17, 2013, he, defendant, and Jackson spent
time at Jackson’s tattoo shop and then they all went to the mall to get something to eat, after
which Jackson dropped him and defendant back off at defendant’s house. According to Bolden,
he spent the night at defendant’s house and woke up around 8 a.m. on December 18, 2013. Later
that morning, he and defendant were in the basement when defendant’s younger brother, Aaryis,
said that Yolanduis McDuffie, “Blackie,” was there. Bolden knew McDuffie from “the
neighborhood.” He and defendant left defendant’s to walk to Jackson’s house to buy cannabis
while McDuffie and Aaryis stayed home. Before going to Jackson’s, they stopped at a
convenience store. While they were walking, they ran into Aaryis and McDuffie. Defendant told
Aaryis to leave and not to follow them.
¶ 22 Bolden stated that he, McDuffie, and defendant then went to Jackson’s house. They
knocked on the door and Jackson let them inside. They walked into the kitchen, at which point
McDuffie pulled out a black gun and said, “Y’all know what it is. Everybody, get the fuck
down.” Bolden and defendant dropped to the floor; he heard a gunshot. Bolden jumped up and
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ran out of the house. Defendant met up with him, and they started walking down the street as
they were both distraught and nervous. Bolden walked to a friend’s house; defendant went his
own way.
¶ 23 Bolden testified he spoke to the police three or four times and he lied to them the first
time and told them he was not at Jackson’s house because he was scared. The second time he
spoke to the police he told the truth. No one promised anything in exchange for his testimony; he
did not fabricate the story to save his cousin.
¶ 24 Bolden further testified that defendant and Jackson were friends, he never heard them
fight, and he never heard defendant talk about robbing Jackson. Bolden was surprised about the
shooting. He pleaded guilty to lying to police and served a term in the Illinois Department of
Corrections (DOC).
¶ 25 On rebuttal, Detective Sowards testified that, the first time he interviewed Bolden,
Bolden denied any knowledge of the shooting. During the second interview, Bolden told him the
version of events, which was substantially the same as his trial testimony. During the third
interview, Bolden told him that defendant hugged him and told him to keep his mouth shut.
¶ 26 Following closing arguments, the jury began deliberating. Sometime later, while in the
midst of its deliberations, the trial court brought the parties and the jury into the courtroom
because the jury had a question regarding an instruction. The court read them an instruction,
which had inadvertently been excluded; the jury resumed deliberations.
¶ 27 Later, the jury again returned to the courtroom with a request to review video and audio
evidence. Neither the State nor the defense was present during this request. During this
interaction, the trial court addressed the jury, in relevant part, as follows:
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“I hear there’s a couple things you wish to view. I’ve got Ms. Bernard here
from the State. Obviously, there’s nobody else in here. I would just ask
that [you do] not discuss the case with yourselves as long as Ms. Bernard
is here in. So you can watch whatever you guys want to watch. She’s
obviously the one who seems to know how to run things because nobody
else does. And whatever you want to watch, just let her know.”
After some discussion regarding the actual evidence the jury wished to see and hear, the court
stated,
“Well, I’ll let you guys talk to Becky because we are out of here. Like I
said, I just want to make sure you don’t talk about the case because,
technically, [she is an] employee of the State’s Attorney’s office. You
know, normally you get to sit here and discuss it, if you watch it, and if
you want to watch any more if you want to watch it two or three times, I’ll
keep her here as long as you guys want it.”
After a short recess, the court and the jury reconvened, and the jurors requested to watch the
video of defendant’s confession. The court announced, “Ms. Bernard is back, present. There is
nobody else in the courtroom.” The court also asked the jury to “decide as a group as to whether
or not you feel that you would like to take a break and come back tomorrow morning and
continue your deliberations, or if you wanted us to order you dinner and keep deliberating
tonight. That, too, is entirely up to you.” The court informed the jury that, when it got to about 5
p.m., it would send the bailiff in to ask what they want to do. The court stated “it’s not my goal
to lock you in there and force something out of you if you truly think you would like to take a
break and start tomorrow refreshed again. That’s entirely your decision.”
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¶ 28 After another recess, the parties returned to the courtroom because the jury had indicated
it had reached a verdict. Prior to bringing the jury back in, the trial court informed the parties that
the jury had, on two different occasions, “wanted to watch audio or visual evidence that had been
submitted” and that it “didn’t feel it necessary to contact either of the attorneys at that time.” The
court further explained that Ms. Bernard came in and hooked everything up and that the jury was
told not to discuss anything in front of Ms. Bernard. The court also noted that the jury was
supervised by the bailiffs at all times. The jury was then called into the courtroom. It found
defendant guilty of first degree murder under an accountability theory and not guilty of first
degree murder as the principal.
¶ 29 On April 27, 2015, defense counsel filed a motion for judgment notwithstanding the
verdict and, alternatively, for a new trial, followed by an amended motion on June 2, 2015.
Following a June 5, 2015, hearing, the trial court denied both motions and then proceeded to the
sentencing hearing. At the sentencing hearing, Jackson’s mother read a statement in aggravation
and defendant’s family presented letters in mitigation. The State recommended a sentence of 50
years’ imprisonment while defense counsel asked for the minimum sentence. Thereafter, the
court noted it had considered the factors in aggravation and mitigation and sentenced defendant
to 40 years’ imprisonment followed by 3 years’ mandatory supervised release (MSR).
¶ 30 On June 10, 2015, defendant filed a series of pro se motions, including a “petition for
post-conviction relief for ineffective [sic] assistance,” a “motion for notwithstanding the
verdict,” and a “motion for reconsideration and new trial.” On June 11, 2015, defense counsel
filed a motion to withdraw and requested that a conflict attorney be appointed to represent
defendant’s interests. On that same day, defense counsel also filed a motion to reconsider
defendant’s sentence.
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¶ 31 On July 29, 2015, the trial court conducted a hearing on the pending motions. The court
denied all defense motions.
¶ 32 This appeal followed.
¶ 33 ANALYSIS
¶ 34 On appeal, defendant argues that the trial court (1) committed reversible error when it
conducted ex parte communications with the jury during deliberations, (2) committed reversible
error when it allowed the jury to observe audio and video evidence in the courtroom during
deliberations in the presence of a representative of the State’s Attorney’s office, (3) failed to
conduct a preliminary inquiry into defendant’s pro se allegations of ineffective assistance of
counsel, and (4) abused its discretion in sentencing him to 40 years’ imprisonment.
¶ 35 Because we find the second issue dispositive, we address it first. Specifically, defendant
argues that the procedure used by the trial court in allowing the jury to observe video and audio
evidence in the courtroom, while in the midst of deliberations and in the presence of a
representative of the State’s Attorney office, “chilled jury deliberations and prevented jurors
from speaking freely regarding the evidence.”
¶ 36 Defendant acknowledges that he did not preserve this issue for appeal since he neither
objected at trial nor included the issue in a posttrial motion. See People v. Enoch, 122 Ill. 2d 176,
186 (1988) (to preserve an error for appellate review, a defendant must raise the issue at trial and
in a posttrial motion). Nonetheless, he contends that this court may review the issue for plain
error. The State disagrees, asserting that plain-error review is not appropriate because defense
counsel acquiesced in the procedure used by the trial court by not objecting once the events were
brought to his attention. “Under the doctrine of invited error, an accused may not request to
proceed in one manner and then later contend on appeal that the course of action was in error.”
11
People v. Carter, 208 Ill. 2d 309, 319, (2003). This is so because “permit[ting] a defendant to use
the exact ruling or action procured in the trial court as a vehicle for reversal on appeal ‘would
offend all notions of fair play’ [citation], and ‘encourage defendants to become duplicitous.’ ”
People v. Harvey, 211 Ill. 2d 368, 385 (2004) (quoting People v. Villarreal, 198 Ill. 2d 209, 227
(2001) and People v. Sparks, 314 Ill. App. 3d 268, 272 (2000)). The record here, however,
illustrates that defense counsel had no opportunity to object to the procedure the court used to
allow the jury to review the audio and video evidence as he was not even aware of the jury’s
request until the parties reconvened upon the jury reaching its verdict. Thus, we reject the State’s
contention that defendant invited the error here. Accordingly, we will address defendant’s
contention of plain error.
¶ 37 “The plain-error doctrine permits a reviewing court to by-pass normal rules of forfeiture
and consider ‘[p]lain errors or defects affecting substantial rights *** although they were not
brought to the attention of the trial court.’ ” People v. Eppinger, 2013 IL 114121, ¶ 18 (quoting
Ill. S. Ct. R. 615(a)). The first step in a plain-error analysis is to determine whether a clear and
obvious error occurred. Id. ¶ 19. If a clear and obvious error occurred, we then consider whether
either of the two prongs of the plain-error doctrine has been satisfied. People v. Sargent, 239 Ill.
2d 166, 189-90 (2010).
¶ 38 “Plain-error review is appropriate under either of two circumstances: (1) when ‘a clear or
obvious error occurred and the evidence is so closely balanced that the error alone threatened to
tip the scales of justice against the defendant, regardless of the seriousness of the error’; or (2)
when ‘a clear or obvious error occurred and that error is so serious that it affected the fairness of
the defendant’s trial and challenged the integrity of the judicial process, regardless of the
closeness of the evidence.’ ” Eppinger, 2013 IL 114121, ¶ 18 (quoting People v. Piatkowski, 225
12
Ill. 2d 551, 565 (2007). The burden of persuasion falls on defendant. People v. Johnson, 238 Ill.
2d 478, 485 (2010). We review de novo the ultimate question of whether a forfeited error is
reviewable as plain error. Id.
¶ 39 We begin by noting that it is a basic tenet of our criminal justice system that
“deliberations of the jury shall remain private and secret.” (Internal quotation marks omitted.)
United States v. Olano, 507 U.S. 725, 737 (1993). The primary purpose of this “ ‘cardinal
principle’ ” is to protect the jury’s deliberations from improper influence. Id. at 737-38. We also
note that the issue here does not call into question the trial court’s decision to allow the jury to
review the requested audio and video evidence, which is a matter within the court’s discretion.
See People v. Kliner, 185 Ill. 2d 81, 163 (1998). Rather, the issue concerns the procedure used
by the court in allowing the jury to review the evidence during deliberations.
¶ 40 This court recently addressed situations similar to the one at issue here in People v.
McKinley, 2017 IL App (3d) 140752, and People v. Johnson, 2015 IL App (3d) 130610. At issue
in McKinley was whether the trial court abused its discretion by allowing the jury, while in the
midst of deliberations, to watch a videotape of the defendant’s traffic stop in the courtroom and
in the presence of a judge, the prosecutor, defense attorney, defendant, and a bailiff. McKinley,
2017 IL App (3d) 140752, ¶ 11. In answering the question, the majority found guidance in
Olano, 507 U.S. at 737-38, our decision in Johnson, 2015 IL App (3d) 130610, and People v.
Rouse, 2014 IL App (1st) 121462.
¶ 41 At issue in Olano was “whether the presence of alternative jurors during jury
deliberations was a ‘plain error’ that the court of appeals was authorized to correct under Federal
Rule of Criminal Procedure 52(b).” Olano, 507 U.S. at 727. Specifically, in that case, the trial
court allowed two alternate jurors to retire with the jury and stay with it throughout deliberations,
13
although the court instructed the alternates that they could not actually participate in the
discussions. Id. The Court noted while the presence of third parties during jury deliberations
could impinge on the privacy of the deliberations, reversal was warranted only if the defendant
suffered prejudice as a result of the intrusion. Id. at 737-38. The Court then noted that the
presence of alternative jurors during jury deliberations could prejudice a defendant because the
alternates may have actually participated in the deliberations verbally or via their body language,
or their presence could have exerted a “ ‘chilling’ ” effect on the jurors. Id. at 739. Ultimately,
the Court found the defendant failed to establish prejudice and noted, “Nor do we think that the
mere presence of alternate jurors entailed a sufficient risk of ‘chill’ to justify a presumption of
prejudice on that score.” Id. at 741.
¶ 42 In Johnson, this court considered whether the trial court’s decision allowing the jury to
review video evidence during deliberations and in the presence of the judge, prosecutor,
defendant, and defense counsel was presumptively prejudicial because the presence of the above
“parties impaired the jury’s ability to deliberate and thoroughly examine the evidence.” Johnson,
2015 IL App (3d) 130610, ¶ 14. In a divided opinion, the majority concluded that viewing the
video in the courtroom and in the presence of others was not prejudicial because “[n]othing in
the record suggest[ed] that the judge, the prosecutor, or defense counsel affected the jury’s
ability to analyze the video evidence.” Id. ¶ 20.
¶ 43 In Rouse, the defendant argued that the trial court’s decision requiring the jury to watch
video evidence in front of the parties and the judge “ ‘infringed upon the sanctity and privacy
that is so critical to jury deliberations.’ ” Rouse, 2014 IL App (1st) 121462, ¶ 73. The court
disagreed, noting that “No one communicated with the jurors while they viewed the recording.
After viewing the recording, the jury returned to the jury room to deliberate. Under the record
14
before us, we find no indicia of prejudice or anything improper having occurred during the
replay of the surveillance footage.” Id. ¶ 79.
¶ 44 Ultimately, the McKinley majority found that the trial court’s decision, allowing the jury
to view the video in the courtroom and in the presence of a judge, prosecutor, defense attorney,
defendant, and bailiff did not create a chilling effect on the jury where the record contained no
evidence that the presence of third parties in the courtroom affected the jury in any way.
McKinley, 2017 IL App (3d) 140752, ¶ 23.
¶ 45 We find the above cases distinguishable from the one at bar. In Olano, the alternate jurors
present during the jury’s deliberations had no obvious ties to the prosecution or the defense.
Further, in McKinley, Johnson and Rouse, all parties, including the defendants and their
respective counsel, were present in the courtroom while the jury reviewed the video evidence.
Thus, if any indication of impropriety did exist, the judge or one of the parties would have
noticed and any evidence of prejudicial impact would likely have been found in the respective
records.
¶ 46 In this case, however, the jury reviewed evidence while in the presence of an employee of
the State’s Attorney’s office and a court bailiff. While the record indicates the trial court
instructed the jury that it should not discuss the case in front of the State employee the first time
the jury requested to review evidence, no similar instruction was given during the jury’s second
request to review evidence. Further, even if the jury did not discuss the case while in the
presence of the bailiff or the employee of the State’s Attorney office, we simply have no way of
determining what affect their presence had on the jury. As defendant notes, the employee of the
State’s Attorney’s office or the bailiff could have frowned at a piece of evidence or scoffed at
defendant’s testimony. However, neither the judge, nor defendant, nor defense counsel was
15
present to oversee the interaction and to observe any impropriety. Thus, we find the trial court
committed a clear error by allowing the jury to review the video and audio evidence in this
manner.
¶ 47 Having found a clear and obvious error, we now consider whether the error rises to the
level of plain error. Under the second prong of the plain-error doctrine, a “defendant must
demonstrate not only that a clear or obvious error occurred [citation], but that the error was a
structural error [citation].” Eppinger, 2013 IL 114121, ¶ 19. Structural errors are those which
“erode the integrity of the judicial process and undermine the fairness of the defendant’s trial.”
People v. Herron, 215 Ill. 2d 167, 186, (2005). “An error is typically designated as structural
only if it necessarily renders a criminal trial fundamentally unfair or an unreliable means of
determining guilt or innocence.” People v. Thompson, 238 Ill. 2d 598, 609.
¶ 48 Based on the record before us, we cannot say with any degree of confidence that the
procedure employed by the trial court in this case did not affect the jury’s deliberations or result
in bias. On the other hand, we can say with absolute certainty that allowing the jury to review
evidence in the courtroom during deliberations and only in the company of an employee of the
State’s Attorney’s office and a court bailiff rendered defendant’s trial “fundamentally unfair” and
“an unreliable means of determining guilt.” That is, we find that allowing a representative of the
State to be in the room while the jury reviews evidence, without any prior notice to defendant, to
be so far beyond the pale of what is expected in a criminal jury trial as to “erode the integrity of
the judicial process.” Herron, 215 Ill. 2d at 186. Accordingly, we find second prong plain error.
We reverse defendant’s conviction and sentence and remand for a new trial.
¶ 49 Having reversed defendant’s conviction and sentence due to the aforementioned error, we
need not consider defendant’s remaining contentions on appeal.
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¶ 50 CONCLUSION
¶ 51 For the foregoing reasons, we reverse the judgment of the circuit court of Rock Island
County and remand for further proceedings.
¶ 52 Reversed; cause remanded.
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