People v. Hollahan

2019 IL App (3d) 150556

Opinion filed June 20, 2019
_____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2019

PEOPLE OF THE STATE OF ILLINOIS ) Appeal from the Circuit Court
) of the 21st Judicial Circuit,
Plaintiff-Appellee, ) Kankakee County, Illinois,
)
v. ) Appeal No. 3-15-0556
) Circuit No. 09-CF-630
JOSEPH A. HOLLAHAN, )
) Honorable
Defendant-Appellant. ) Susan S. Tungate,
) Judge, Presiding.
_____________________________________________________________________________

JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
Justice McDade concurred in the judgment and opinion.
Justice Carter dissented, with opinion.
_____________________________________________________________________________

OPINION

¶1 After a jury trial, the defendant was convicted of aggravated driving while under the

influence of alcohol (Aggravated DUI) (625 ILCS 5/11-501(a)(2), (d)(1)(A), (d)(2)(A) (West

2008) and sentenced to a one-year term of imprisonment. He appeals his conviction, arguing

that the trial court committed reversible error when, in response to the jury’s request during

deliberations to view the videotape of the defendant’s field sobriety tests for a second time, the

trial court had the jury watch the video in the courtroom while the court, the defendant, the

attorneys for the defendant and the State, and two alternate jurors were present. The defendant
 also argues that the trial court improperly assessed a $500 public defender fee under section 113-

3.1 of the Illinois Code of Criminal Procedure (750 ILCS 5/113-3.1 (West 2008)) without

conducting a hearing on the defendant’s ability to pay, as required by the statute, and without

giving the defendant proper notice and an opportunity to be heard on the issue.

¶2 FACTS

¶3 The defendant was charged by indictment with aggravated DUI, a class 4 felony. The

offense was alleged to have occurred in Kankakee on August 29, 2009. Private counsel entered

an appearance for the defendant on January 19, 2010. However, on October 24, 2011, the trial

court appointed a public defender to represent the defendant because the defendant claimed he

had no money.

¶4 The defendant’s first trial ended in a mistrial. His subsequent jury trial commenced on

April 21, 2015. Illinois State Police Trooper Timothy Davis was the State’s only witness.

Davis testified that, at about midnight on August 29, 2009, he was in Kankakee traveling

northbound on Washington Avenue near Hickory Street when he saw a vehicle ahead of him

start to enter a left turn lane and then jerk back into its lane. The vehicle later stopped at a red

light. At that time, Davis observed that the vehicle’s rear license plate light was not operational

and that the rear license plate had a plastic cover on it. When the stoplight turned green, the

vehicle proceeded northbound, drove onto a double yellow line, then straddled a lane divider

line, and then failed to yield to a fire truck that was traveling southbound with its emergency

lights flashing.

¶5 At that time, Davis effected a traffic stop. Davis testified that the vehicle did not initially

pull over even though there was a stretch along the street where the driver could have done so.

After the vehicle stopped, Davis spoke to the defendant, who was the driver of the vehicle, and to

2
 a passenger who was in the front seat. When he spoke with the defendant, Davis detected a

strong odor of an alcoholic beverage on the defendant’s breath and noticed that the defendant

had glassy, bloodshot eyes and slightly slurred speech. Davis testified that the defendant told

him that he had drunk four beers.

¶6 Davis asked the defendant to perform three field sobriety tests: the Horizontal Gaze

Nystagmus test, the “walk and turn” test, and the “one leg stand” test. The defendant’s

performance of these tests were recorded on videotape. A redacted version of the recording was

copied to a DVD and played to the jury during the defendant’s trial without objection from the

defendant. Based on his scoring of the defendant’s performance on the three field sobriety tests,

and on his observations of the defendant’s driving and conduct, Davis concluded that there was

alcohol in the defendant’s system and that the defendant was impaired. Davis arrested the

defendant for DUI. Davis stated that, after the defendant was taken to jail, he refused to take a

breathalyzer and became belligerent.

¶7 Following Davis’s testimony, the State introduced an abstract of the defendant’s driving

record into evidence outside of the presence of the jury. The abstract showed numerous prior

traffic violations by the defendant, including a suspension of the defendant’s license in 1998 for

DUI in violation of section 11-501(a)(2) of the Illinois Vehicle Code (625 ILCS 5/11-501(a)(2)

(West 1998), and another conviction for the same offense in 2000.

¶8 The defendant testified that, shortly before he was pulled over by Davis on August 29,

2009, he jerked his car back from the left turn lane because he was giving his passenger a ride to

an unfamiliar address and he realized that he was about to make a wrong turn. He stated that he

did not yield to the fire truck because it had just “whipped” around the corner, giving the

defendant no time to react. The defendant claimed that he pulled over right away when he saw

3
 the police lights. He stated that he refused to take the breathalyzer test at the jail because he was

already under arrest.

¶9 After closing arguments, the trial court instructed the jury on the applicable law. The

court admonished the jurors that “[l]awyers, parties, and witnesses are not permitted to speak

with you about any subject, even if unrelated to the case, until after the case is over and you are

discharged from your duties as jurors.” After the jury instructions, but prior to the start of the

jury’s deliberations, the trial court informed the jury that the bailiff could not discuss the case

with the jurors, offer his opinion as to the facts or the law, or demonstrate the use of any exhibit,

and he admonished the jurors not to ask the bailiff to do any of these things.

¶ 10 The jury then retired to deliberate. Shortly thereafter, the jury asked to watch the

videotape of the defendant’s traffic stop again. The trial court decided to show the video to the

jury in the courtroom because the court did not have the “arrangement” necessary to allow the

jury to view the video in the jury room. The court also decided to allow the defendant, the

attorneys for the defendant and the State, and two alternate jurors to remain in the courtroom

while the jury watched the video. The defendant’s counsel did not object to this procedure.

Before the jury was brought back into the courtroom, the trial court admonished the defendant,

the attorneys, and the alternate jurors that the jury would be watching the video and that “[n]o

one will have any conversation.” After the jury was brought back into the courtroom, the trial

court addressed the jurors, stating:

“Please come in and have a seat, we will not be talking to you other than to get

the video, period. *** The jury has requested to see the video again. We do not

have an arrangement to show it to you in your deliberation room. I have

4
 instructed everyone to not say a word and we will play the video for you. If you

need to have the sound adjusted or anything that we can do, all right?”

¶ 11 After watching the video, the jury returned to the jury room to resume deliberations. Less

than an hour later, the jury found the defendant guilty.

¶ 12 During the sentencing hearing, the State asked that the defendant be assessed a $500

public defender fee under section 113-3.1 of the Illinois Code of Criminal Procedure (750 ILCS

5/113-3.1 (West 2008)). The trial court imposed the fee requested by the State without

conducting a hearing on the defendant’s ability to pay such a fee. The trial court sentenced the

defendant to a one-year term of imprisonment. The defendant filed a timely motion to reconsider

his sentence, which the trial court denied.

¶ 13 This appeal followed.

¶ 14 ANALYSIS

¶ 15 1. The jury’s viewing of the video during deliberations

¶ 16 The defendant argues that the trial court committed reversible error when, in response to

the jury’s request during deliberations to see the video a second time, the trial court had the jury

watch the video in the courtroom while the court, the defendant, the attorneys for the defendant

and the State, and two alternate jurors were present.

¶ 17 Because the defendant did not object to the procedure employed by the trial court or raise

the issue in a posttrial motion, he asks us to review the issue under the plain error doctrine. The

State argues that plain error review is unavailable here because the defendant “acquiesced to” the

procedure chosen by the trial court, thereby inviting any error resulting from that procedure and

forfeiting appellate review of any such error. As the State correctly notes, where a party

acquiesces in proceeding in a given manner, “he is not in a position to claim he was prejudiced

5
 thereby.” People v. Villarreal, 198 Ill. 2d 209, 227 (2001). However, plain-error review is

forfeited only if the defendant invites the error or affirmatively agrees to the procedure he later

challenges on appeal. People v. Harding, 2012 IL App (2d) 101011, ¶ 17. 1 Merely failing to

object to a procedure proposed by the trial court or by the opposing party does not amount to

invited error. People v. Coan, 2016 IL App (2d) 151036, ¶ 24 (rejecting the State’s invited error

argument where the State tendered the jury instruction at issue and the defendant failed to

object); Harvey, 211 Ill. 2d at 384–87 (rejecting the State's argument that one of the defendants

invited error by failing to object to the use of certain evidence at trial). If the mere failure to

object amounted to invited error, plain error review would never be available and the plain error

rule would be rendered a nullity.

¶ 18 In this case, although defense counsel failed to object when the video was shown to the

jury in the presence of the trial court, the parties and their counsel, and the alternate jurors, he did

not request or expressly agree to that procedure. Accordingly, we may review the procedure

employed by the trial court for plain error.

¶ 19 In addressing claims of error under the plain error doctrine, we employ a two-part

analysis. The first step in the analysis is to determine whether a “plain error” occurred. People v.

Piatkowski, 225 Ill. 2d 551, 564–65, 565 (2007). The word “plain” here “is synonymous with

‘clear’ and is the equivalent of ‘obvious.” ’ Id. at 565 n. 2. If we determine that the trial court

committed a clear or obvious (or “plain”) error, we then proceed to a second step, which is to

1
See also People v. Harvey, 211 Ill. 2d 368, 385 (2004); People v. Carter, 208 Ill. 2d 309, 319
(2003) (“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.”) (emphasis added); People v. Smith,
406 Ill. App. 3d 879, 886-87 (2010) (“The purpose of the invited error doctrine is to prevent a defendant
from unfairly receiving a second trial based on an error which he injected into the proceedings.”)
(emphasis added); Villarreal, 198 Ill. 2d at 227-28 (holding that the defendant could not attack verdict
forms he submitted at trial on appeal); People v. Patrick, 233 Ill. 2d 62, 77 (2009) (holding that the
defendant invited the alleged error by tendering the jury instruction he later challenged on appeal).
6
 determine whether the error is reversible. Plain errors are reversible only when (1) “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) the 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.” Piatkowski, 225 Ill. 2d at 565; People v. Herron,

215 Ill. 2d 167, 179 (2005).

¶ 20 In this case, the trial court plainly erred by having the jury watch the video in the

courtroom in the presence of the trial court, the prosecutor, the defendant, and defense counsel.

It is a basic principle of our justice system that jury deliberations shall remain private and secret.

People v. Johnson, 2015 IL App (3d) 130610, ¶ 17. The primary purpose of this rule is to

protect the jurors from improper influence. United States v. Olano, 507 U.S. 725, 737–738

(1993); Johnson, 2015 IL App (3d) 130610, ¶ 17. Accordingly, although the trial court has the

discretion to determine whether to grant a jury’s request to review evidence and the manner in

which such evidence may be viewed by the jury (People v. McKinley, 2017 IL App (3d) 140752,

¶ 16), a trial court abuses its discretion if allows the jury to review evidence in a manner that

results in an improper influence upon the jury’s deliberations (see Olano, 507 U.S. at 738

(internal quotation omitted); McKinley, 2017 IL App (3d) 140752, ¶ 16). Courts review an

improper intrusion upon jury deliberations for its prejudicial impact (Johnson, 2015 IL App (3d)

130610, ¶¶ 17-19) and will reverse only if the intrusion “affect[ed] the jury's deliberations and

thereby its verdict” (Olano, 507 U.S. at 738). An improper intrusion upon jury deliberations by a

third party is prejudicial when it impedes or inhibits the jurors’ deliberations. See, e.g., Olano,

507 U.S. at 738 (noting that the presence of alternate jurors in the jury room during juror

deliberations could prejudice the defendant if the presence of the alternates “exert[s] a chilling

7
 effect” on the jurors or “operate[s] as a restraint upon the regular jurors' freedom of expression

and action”).

¶ 21 The presence of the trial court, the defendant, the prosecutor, and defense counsel during

jury deliberations in this case clearly inhibited the jurors’ deliberations and restrained their

freedom of expression and action. As Justice McDade correctly noted in her dissent in Johnson,

“it is hard to imagine a more intrusive, more chilling presence in the deliberations than the

opposing parties—the defendant with his attorney and the State in the person of the State's

Attorney—and the trial judge.” Johnson, 2015 IL App (3d) 130610, ¶ 49 (McDade, J.,

dissenting). The State’s attorney, the defendant, and the defendant’s counsel each has a direct

interest in the outcome of the litigation. Moreover, the trial court serves as an authoritative

figure who presides over the litigation. The presence of these parties during jury deliberations is

inherently intimidating to jurors and would almost certainly have inhibited their deliberations

while the video was being played. It is extremely unlikely that any juror would have felt free to

discuss the details of the video and its possible impact on his or her decision in the presence of

these parties. Johnson, 2015 IL App (3d) 130610, ¶ 52 (McDade, J., dissenting) (noting that

jurors would have felt inhibited from discussing a video played in the presence of the prosecutor,

the defendant, and defense counsel for fear that any discussion of the video “may result in

criticism of judgment from the[se] non-neutral parties and counsel”); see also id. ¶ 53 (McDade,

J., dissenting) (“It is naïve *** to assume that a normal citizen/juror is not somewhat nervous

when attempting to carry out [his or her] fact-finding function in the presence of the judge”

during deliberations).

¶ 22 Any reasonable doubt on this question was removed by the trial court’s statement to the

jury in this case. After the jury was brought back into the courtroom to watch the video in the

8
 presence of the parties and their counsel, the judge made the following statement to the jury: “I

have instructed everyone to not say a word and we will play the video for you. If you need to

have the sound adjusted or anything that we can do, all right?” This statement conveyed several

things to the jury. First, it suggested that no one (including any juror) was to speak while the

video was being played. Although the trial court did not explicitly bar the jurors from speaking,

the court’s statement to the jury created the impression that the video would be played in silence,

and the court did not explicitly give the jurors permission to break that silence by discussing the

video while it was being played. In addition, the trial court’s statement informed the jurors that

they would not have the ability to control the playing of the video. The trial court told the jury

that “we will play the video for you” and suggested that “we” (not the jurors themselves) could

adjust the sound if necessary. The court did not give the jurors the opportunity to pause the

video or replay any parts they might have wanted to view or discuss in greater detail. This

further inhibited the jury’s deliberative process. In sum, the procedure employed by the trial

court effectively precluded the jurors from engaging in any deliberations while the video was

being shown and likely limited their ability to focus sufficiently on the particular portions of the

video that gave them concern.

¶ 23 We acknowledge that our appellate court has declined to find reversible error under

similar circumstances in three prior decisions. See, e.g., People v. Lewis, 2019 IL App (4th)

150637-B, ¶¶ 97-100 (finding no error where the trial court allowed a 911 recording to be

replayed for the jury in the courtroom in the presence of the parties during deliberations);

Johnson, 2015 IL App (3d) 130610, ¶¶ 20-21 (finding no prejudicial error where the trial court

refused to allow the jury to take a surveillance videotape into the jury room and instead had the

jury review the video in the courtroom during deliberations in the presence of the judge, the

9
defendant, the State’s attorney, and defense counsel); People v. Rouse, 2014 Il App (1st) 121462,

¶¶ 78-79 (finding no error where the trial court allowed the jury to view surveillance footage in

the presence of both parties and the trial judge during deliberations). 2 We find those decisions to

be wrongly decided and we decline to follow them. In finding no error in Johnson and Rouse,

our appellate court relied principally upon the facts that: (1) the third parties who were present

when the video was replayed for the jury were instructed not to communicate with the jurors

while the video was being played (Johnson, 2015 IL App (3d) 130610, ¶ 20), and they made no

attempt to do so (id.; see also Rouse, 2014 IL App (1st) 121462, ¶ 79); and (2) after reviewing

the video in the courtroom, the jurors returned to the jury room where they resumed private and

unfettered deliberations (Johnson, 2015 IL App (3d) 130610, ¶ 20; Rouse, 2014 IL App (1st)

121462, ¶ 79). However, neither of those facts eliminated or mitigated the prejudicial impact

upon deliberations that occurred while the jurors were viewing the video. In each case, the jurors

had no opportunity to discuss the video as they were viewing it or to pause or replay any portions

of the video that they found of particular importance. (Indeed, in Rouse, the trial court instructed

the jury that they court not engage in any deliberations or have any discussions about what they

were watching while the recording was played.) Accordingly, in each case, the procedure

employed by the trial court directly impeded the jury’s deliberations. The mere fact that the jury

could have discussed the video later in the jury room is immaterial. In each case, the jury was

2
In McKinley, a majority of the court found that the trial court erred by allowing the prosecutor,
the defendant, defense counsel, and the bailiff to be present while the jury viewed a videotape during its
deliberations. McKinley, 2017 IL App (3d) 140752, ¶¶ 32-36 (O’Brien, J., specially concurring); id. ¶¶
38-44 (Holdridge, J., dissenting). However, the defendant failed to raise the issue before the trial court,
and Justice O’Brien found that the trial court’s error did not rise to the level of reversible plain error. Id. ¶
36 (O’Brien, J., specially concurring). Justice Carter found no error (McKinley, 2017 IL App (3d) 140752
¶¶ 22-23) and no reversible plain error (id. ¶ 25-27). Accordingly, the majority affirmed the defendant’s
conviction in McKinley.
10
 prevented from controlling the video, from freely discussing it, and from debating any issues

relating to the video while they were watching it.

¶ 24 Moreover, our appellate courts’ decisions in Lewis, Rouse, and Johnson fail to

acknowledge that the mere presence of the trial judge, the parties, and their attorneys during jury

deliberations improperly intrudes upon the privacy of jury deliberations and has an inherently

intimidating and inhibiting effect upon such deliberations. See Johnson, 2015 IL App (3d)

130610, ¶ 52 (McDade, J., dissenting); McKinley, 2017 IL App (3d) 140752, ¶¶ 32-35 (O’Brien,

J., specially concurring). Such intrusions on the jurors’ ability to freely discuss and debate the

evidence should be deemed presumptively prejudicial. See Olano, 507 U.S. at 739

(acknowledging that “[t]here may be cases” where an intrusion upon jury deliberations by third

parties “should be presumed prejudicial,” and ruling that such intrusions are prejudicial when

they “exert[] a chilling effect” on the jurors or “operate as a restraint upon the regular jurors'

freedom of expression and action.” (Internal quotation marks omitted); see also Johnson, 2015

IL App (3d) 130610, ¶ 52 (McDade, J., dissenting). 3

¶ 25 In Johnson and Lewis, our appellate court suggested that replaying a video or audio

recording for the jury during deliberations in the presence of the parties, their counsel, and the

trial court was not prejudicial error because the jury had already reviewed the recording under

identical circumstances during the trial. Johnson, 2015 IL App (3d) 130610, ¶ 20; Lewis, 2019

3
In Olano, the United States Supreme Court declined to presume prejudice where two alternate
jurors were present throughout the jury’s deliberations but there was no showing that the alternate jurors
either participated in or “chilled” the jury’s deliberations. Olano, 507 U.S. at 739. However, Olano is
distinguishable. The alternate jurors in Olano were neutral, disinterested parties who were
“indistinguishable from the 12 regular jurors” until the close of trial. Id. at 740. The third parties who
were present during the jury deliberations in this case were very different. The parties and their counsel
had a direct interest in the outcome of the case, and the trial court was an authoritative, intimidating figure
who was not a finder of fact and did not share the same standing as the jurors. See Johnson, 2015 IL App
(3d) 130610, ¶ 50 (McDade, J., dissenting). Accordingly, the argument for presuming prejudice in this
case is far more compelling than it was in Olano.
11
 IL App (4th) 150637-B, ¶ 98. In Lewis, our appellate court went so far as to state that “[w]hen a

deliberating jury returns to the courtroom and, in the presence of the judge, the parties, the

lawyers, and court personnel listens again, in silence, to an audio recording, the jury does

nothing different from what it did before, when the recording originally was played.” Lewis,

2019 IL App (4th) 150637-B, ¶ 98. However, a jury’s viewing of a video recording during trial

is critically different from its viewing of that same recording during deliberations. Unlike public

trials, jury deliberations must occur in privacy and secrecy. Johnson, 2015 IL App (3d) 130610,

¶ 17. Once deliberations begin, the jurors must be shielded from any outside influences that

improperly impede or inhibit their deliberations. Olano, 507 U.S. at 737–738; Johnson, 2015 IL

App (3d) 130610, ¶ 17. If a trial court fails to protect the jurors from such influences (as in this

case), it commits reversible error. Olano, 507 U.S. at 738; Johnson, 2015 IL App (3d) 130610,

¶¶ 17-19.

¶ 26 Our appellate court has also suggested that the trial court’s authority to allow a

deliberating jury to review audio or video evidence in the presence of the parties, their attorneys,

and the trial judge flows directly from the trial court’s discretion to manage its courtroom.

McKinley, 2017 IL App (3d) 140752, ¶ 22 (“the mode and manner in which a circuit court allows

a jury to review a piece of evidence *** [such as a video recording] falls directly within the

scope of the court’s inherent authority to control its courtroom”); see also Lewis, 2019 IL App

(4th) 150637-B, ¶ 99. We disagree. Although a trial court generally has discretion to determine

whether to grant a jury’s request to review evidence and the mode and manner in which such

evidence may be viewed by the jury, the court abuses its discretion and commits reversible error

if it allows the jury to review evidence in a manner that improperly inhibits the jury’s

deliberations. Olano, 507 U.S. at 738 (internal quotation omitted); see also McKinley, 2017 IL

12
 App (3d) 140752, ¶ 41 (Holdridge, J., dissenting); see generally McKinley, 2017 IL App (3d)

140752, ¶ 16.

¶ 27 In Lewis, our appellate court also ruled that “[a]llowing a deliberating jury to listen to a

recording again in the courtroom instead of the jury room avoids problems with equipment and

the skills necessary to operate the equipment” *** “and also minimizes the risk of breakage or

the erasure of the recording.” (Internal quotation marks omitted.) Lewis, 2019 IL App (4th)

150637-B, ¶ 97. For this reason, among the other reasons discussed above, the Lewis court ruled

categorically that allowing the jury to hear a recording again in the courtroom during

deliberations in the presence of the parties, their counsel, and the trial judge is not prejudicial

error (provided that the jury has been instructed not to deliberate during the playing of the

recording and the third parties are instructed not to communicate with the jurors or otherwise

influence them). Id. (“we now reject outright the argument that this procedure is *** erroneous,

let alone structurally erroneous”); see also id. at ¶ 99 (“we conclude that if a jury, during its

deliberations, requests to see or hear a recording again, the trial court need not send the recording

and equipment into the jury room but instead may, in its discretion, have the jury brought back

into the courtroom for a replaying of the recording”). The Lewis court further ruled that, “if the

court chooses to have the recording replayed in the courtroom, the court, parties, and counsel

must be present to view or hear the evidence, and the court should instruct the jury not to discuss

the evidence while in the courtroom.” Id. We find these rulings in Lewis to be both erroneous

and troubling. As an initial matter, we find it difficult to believe that, with all of the digital and

other “user-friendly” technology currently available (such as laptop computers and tablets, to

name only a few), a trial court cannot arrange for the jury to view video or audio evidence in the

jury room without risking the destruction of evidence or other technical difficulties. The fact that

13
 this problem recurs so often in this State is inexplicable. In our view, if a trial court decides to

grant a jury’s request to review audio or video evidence during deliberations, the only acceptable

practice is to arrange for the jury to view the evidence at issue in private, preferably by bringing

a laptop, tablet, or some similar device into the jury room. The Lewis court’s ruling will make

that less likely to occur.

¶ 28 But even if, for some reason, a video or audio recording must be played for a deliberating

jury in the courtroom, the jury should view the video in private, not in the presence of the parties,

their attorneys, or the trial judge. In ruling otherwise, the Lewis court appeared to assume that

anything that occurs in the courtroom, even jury deliberations, is a “court proceeding” requiring

the presence of the judge and the parties. See Lewis, 2019 IL App (4th) 150637-B, ¶ 99. We

disagree. As noted above, jury deliberations must be conducted privately and in secret so as to

insulate the jury from improper influence. Olano, 507 U.S. at 737-38. The parties have no right

to be present for such deliberations, regardless of where they occur. The mere fact that a portion

of jury deliberations occurs in the courtroom does not transform those deliberations into a public

trial proceeding. See generally People v. Gore, 2018 Il App (3d) 150627, ¶¶ 33-35 (ruling that a

criminal defendant’s right to a public trial does not apply to a portion of the proceedings wherein

the trial court answers questions posed by the jury during deliberations); see also State v.

Magnano, 326 P.3d 845, 851 (Wash. App. 2014) (trial court did not violate the defendant’s

public trial right when it closed the courtroom while a 9-1-1- recording was replayed to the jury

during jury deliberations in order to protect the secrecy of the jury’s deliberations). Nor does it

entitle the defendant or any other third party to be present during those deliberations. The

defendant has the right to be present and to participate in any communication between the trial

judge and the jury that occurs after deliberations have begun. People v. Coleman, 391 Ill. App.

14
 3d 963 (2009). This includes the right to be present for any arguments as to whether the trial

court should grant a deliberating jury’s request to review video or audio evidence. However,

once a trial court decides to grant the jury’s request, the jury should be allowed to view any such

evidence in private because the viewing constitutes a part of the jury’s deliberations. The

defendant has no right to be present at that time.

¶ 29 Moreover, we find that the procedure employed by the trial court in this case amounted to

structural error, and is therefore reversible under the plain error doctrine. A structural error is

“a systemic error” which serves to “erode the integrity of the judicial process and undermine the

fairness of the defendant's trial.” (Internal quotation marks omitted.) People v. Thompson, 238

Ill. 2d 598, 613–14 (2010). “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.” Thompson, 238 Ill. 2d at 609; see also People v. Henderson, 2017 IL App (3d)

150550, ¶ 47; People v. Matthews, 2017 IL App (4th) 150911, ¶ 43. As noted above, the

presence of the parties, their attorneys, and trial judge during jury deliberations was inherently

intimidating and necessarily impeded or inhibited the jurors’ free discussion and deliberation as

the video was being shown to them. This inhibiting effect upon the jurors’ deliberations was

exacerbated by the trial court’s assertion of control over the playing of the video and by its

statement to the jury, which suggested that the jurors were not free to talk as the video was being

played. Anything that intrudes upon the privacy of jury deliberations and impedes or inhibits

impedes the jurors’ freedom of expression and action during deliberations in this manner renders

15
 the trial an unreliable means of determining guilt or innocence. We decline to follow prior

decisions of our appellate court that hold or suggest otherwise. 4

¶ 30 The dissent correctly notes that an intrusion into a jury’s deliberations constitutes

reversible error only if the defendant is prejudiced by the intrusion. Infra ¶ 40. However, the

dissent assumes that a defendant may establish such prejudice under the circumstances presented

in this case only by showing either that: (1) one of the non-jurors that was present during the

jury’s deliberations “engaged in a prejudicial communication with [a] juror about a matter

pending before the jury”; or that (2) “improper extraneous information reached the jury.” Infra ¶

40. We disagree. As shown above, the mere presence of the trial judge, the parties, and their

attorneys during jury deliberations improperly intrudes upon the privacy of jury deliberations and

has an inherently intimidating and inhibiting effect upon such deliberations. Such intrusions on

the jurors’ ability to freely discuss and debate the evidence should be deemed presumptively

prejudicial (See Olano, 507 U.S. at 739), regardless of whether they involve any express

communications or the transmission of “extraneous information.” Moreover, the prejudice

created by the presence of the trial judge, the parties, and their attorneys during jury deliberations

was compounded in this case by the trial judge’s comments to the jurors and the procedure

subsequently employed by the court, both of which effectively denied the jury the ability to

control the video, to comment on any portion of the video, or to deliberate about what they were

watching as the video was being shown. This impeded the jury’s deliberations on a matter of

4
In finding no structural error under circumstances similar to those presented here, our appellate
court cited Thompson for the proposition that structural errors have been found “only in a limited class of
cases” and suggested that only the six types of errors expressly referenced in Thompson may be
considered structural. Matthews, 2017 IL App (4th) 150911, ¶¶ 43-44. However, in People v. Clark,
2016 IL 118845, ¶ 46 our supreme court noted that it has not restricted structural plain error in this
manner. See also People v. Sanders, 2016 IL App (3d) 130511, ¶¶ 16-17.
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 obvious concern to the jury, thereby prejudicing the defendant. Accordingly, the trial court

committed reversible error.

¶ 31 2. The Public Defender Fee

¶ 32 The defendant also argues that the trial court erred by assessing a $500 public defender

fee under section 113-3.1 of the Illinois Code of Criminal Procedure (750 ILCS 5/113-3.1 (West

200)) without conducting a hearing on the defendant’s ability to pay that fee, as required by the

statute, and without providing him with adequate notice that it planned to assess such a fee. The

defendant contends that, if this court affirms his conviction, it should vacate the public defender

fee outright. The State confesses error on this issue but argues that we should remand for a

hearing on the defendant’s ability to pay the public defender fee rather than vacate the fee

outright. Because we are reversing defendant’s conviction and remanding for a new trial, we

need not address whether the public defender fee imposed as a part of defendant’s sentence

should be vacated, with or without a hearing on remand.

¶ 33 CONCLUSION

¶ 34 For the reasons set forth above, we reverse the judgment of the circuit court of Kankakee

County and remand for a new trial.

¶ 35 Reversed; cause remanded.

¶ 36 JUSTICE CARTER, dissenting.

¶ 37 I respectfully dissent from the ruling and analysis expressed in the majority opinion in the

present case. I would find that defendant has failed to establish that either error or plain error

occurred here. See People v. McLaurin, 235 Ill. 2d 478, 497 (2009) (“[T]he key question in

determining whether an ‘intrusion’ into the jury room constitutes error is whether the defendant

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 was prejudiced by the intrusion.”); Johnson, 2015 IL App (3d) 130610, ¶ 19 (“[W]e review

outside jury intrusions for prejudicial impact.”).

¶ 38 The issue of whether evidentiary items should be taken to jury room during deliberations

is a matter within the discretion of the trial court, and the trial court’s decision on the matter is

not reversed absent an abuse of discretion to the prejudice of the defendant. People v. Williams,

97 Ill. 2d 252, 292 (1983). Similarly, the mode and manner in which a trial court allows a jury to

review a piece of evidence during jury deliberations falls within the scope of the court’s inherent

authority to manage its courtroom and is a matter of the court’s discretion. McKinley, 2017 IL

App (3d) 140752, ¶ 22. See also Lewis, 2019 IL App (4th) 150637-B, ¶ 97 (holding that where a

deliberating jury requests to have an audio or video recording played again, the trial court has

discretion to either send the evidence to the jury room or bring the jury into the courtroom to

play the recording); Rouse, 2014 IL App (1st) 121462, ¶ 78 (holding that it was within the trial

court’s discretion to allow the jury to view a video recording in the presence of both parties and

the judge).

¶ 39 Here, defendant essentially argues that the mode and manner in which the trial court

allowed the jury to view the video constituted error because the presence of the judge, the

attorneys, the defendant, and the two alternate jurors had a chilling effect on jury deliberations.

Defendant’s claim that the jury was exposed to improper information or influence is comparable

to the body of law regarding impeachment of a jury verdict. A jury verdict may not be

impeached by an affidavit or testimony from a juror regarding the motive, method, or process by

which the jury reached its verdict. See, e.g., People v. Hobley, 182 Ill. 2d 404, 457 (1998).

However, a jury verdict may be impeached based on evidence of improper extraneous influences

on the jury. Id. at 458. Where a defendant seeks to impeach a jury verdict based on an outside

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 influence or communication, reversal is not warranted unless the defendant was prejudiced. See

id.; People v. Harris, 123 Ill. 2d 113, 132 (1988); People v. Holmes, 69 Ill. 2d 507, 514-19

(1978); People v. Willmer, 396 Ill. App. 3d 175, 181 (2009); People v. Collins, 351 Ill. App. 3d

175, 179 (2004). See also People v. Kuntu, 188 Ill. 2d 157, 162 (1999) (holding that a letter sent

from a juror to a state’s attorney after the trial indicating that the juror had a personal relationship

with the state’s attorney was not conclusive evidence that the defendant’s right to a fair trial had

been prejudiced); Parker v. Gladden, 385 U.S. 363, 365 (1966) (holding that reversal was

warranted where a bailiff told jurors that the defendant was guilty because the bailiff’s

statements were prejudicial and violated the defendant’s constitutional rights).

¶ 40 Generally, a rebuttable presumption of prejudice arises when a defendant shows that a

third party has communicated with a juror about a matter pending before the jury or that the jury

has been exposed to improper extraneous information that relates directly to something at issue

in the case that may have influenced the verdict. Harris, 123 Ill. 2d at 132; Collins, 351 Ill. App.

3d at 179-80; Willmer, 396 Ill. App. 3d at 181. While allegations of prejudicial outside

influences are sufficient to raise a presumption of prejudice and shift the burden to the State,

allegations that a juror “may have been exposed to extraneous information of an unknown

nature” are not sufficient to raise a presumption of prejudice. People v. Williams, 209 Ill. 2d 227,

242 (2004). When a defendant has made a showing sufficient to raise a presumption of prejudice,

the State may rebut the presumption by showing that the improper communication or extraneous

information was harmless. Harris, 123 Ill. 2d at 132; Hobley, 182 Ill. 2d at 462; Collins, 351 Ill.

App. 3d at 179-80. However, when the issue is unpreserved—as in the instant case—the burden

of establishing prejudice remains on the defendant and does not shift to the State. McLaurin, 235

Ill. 2d at 497-98. See also Olano, 507 U.S. at 740-41.

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¶ 41 Applying the above principles to the instant case, the defendant has not shown that either

the trial judge, the attorneys, the defendant, or the alternate jurors engaged in a prejudicial

communication with any juror about a matter pending before the jury or that improper

extraneous information reached the jury. At most, defendant has shown that the procedure the

court employed to play the video during jury deliberations created a situation where it was

possible for one of those persons to have an improper communication with the jury. The mere

possibility of an improper communication, however, is insufficient to show that defendant was

prejudiced. As such, I would find that defendant has not shown that the court abused i1ts

discretion by using the procedure which it followed in the present case. With all due respect, I

believe the majority’s position on this issue is a radical departure from the traditional way

reviewing courts have treated questions involving the integrity of jury deliberations.

¶ 42 I recognize that I concurred in the judgment and opinion in Henderson, 2017 IL App (3d)

150550, ¶ 46, in which we held that error occurred where the trial court allowed the jury to

review evidence in the presence of an employee of the State’s Attorney’s office and a court

bailiff. Id. Upon further consideration of this issue, I do not believe that the presence of the

employee of the State’s Attorney’s office and the bailiff, without more, showed that defendant

was prejudiced. However, I would still find that error occurred in Henderson because the trial

court failed to consult the parties regarding the jury’s request to review the evidence or the mode

and manner in which the court would allow the evidence to be reviewed.

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