dissenting:
Defendant, a high school student, was charged with criminal sexual abuse after he and his girlfriend, a fellow student and minor, engaged in consensual sex. A trial commenced on September 29, 2005. The jury retired to deliberate at 1:30 p.m. on September 30. At 4:05 p.m., the jury advised the court it was unable to reach a verdict. The trial court continued the case to October 3. On October 3, the jury continued to deliberate.1 At 10:54 a.m., the jury advised the court it was, in the words of the court, “hopelessly deadlocked.” The trial court declared a mistrial.
A second trial commenced on April 19, 2006. The jury retired to deliberate at 2:14 p.m. At 4:17 p.m., the jury returned a guilty verdict. In the intervening time, the jury sent two notes to the trial judge. Within IV2 hours of retiring to deliberate, the jury sent a note stating: “Our desicion [sic] is 11 to 1, we need advise/help [sic].” The trial judge responded: “Continue deliberating.” At 4:17 p.m., 30 to 40 minutes later, according to the trial judge’s statement on the record, the jury returned its verdict. Thereafter, the trial judge advised the parties of the jury’s note. At this time, the court also advised the parties there was additional writing at the bottom of the note which had not been there when he first received the note. This writing stated: “We have one not guilty who will not change. 11 vote guilty.”
There is a second note from the jury in the record. This note, dated April 19, 2006, states, “What are the possible sentences for crimial [sic] sexual abuse?” The trial judge responded to this note, stating, “You should not be concerned with the possible punishment or sentence for the offense charged during your deliberations.” The trial judge never advised the parties of this note or his response.
Relying on People v. McLaurin, 235 Ill. 2d 478 (2009), the majority concludes there was no reversible error in this case even though the trial judge responded to the jury’s notes without contacting or consulting with either defendant or his attorney. I disagree with this conclusion and the majority’s reliance on McLaurin and therefore dissent.
In McLaurin, the jury sent five notes to the trial judge during deliberations. The first note requested certain evidence. The jury sent a second note, stating it was deadlocked 8-4. The trial court, after consulting with both counsel, instructed the jury to continue deliberating. The jury then sent a third note, stating it was deadlocked 7-5. Before the court answered the third note, the jury sent another note again stating it was deadlocked 7-5. The jury, at this time, also requested to review certain testimony. The trial court provided the jury with the testimony and ordered the jury members to keep deliberating. Shortly thereafter, the jury returned a guilty verdict. Importantly, defense counsel was present and participated in the discussing concerning each of these notes. McLaurin, 235 Ill. 2d at 483.
On appeal, the defendant argued that his personal right to be present, under both the Illinois and federal constitutions, had been violated because he was absent from the conversations in which the jury notes were discussed. Noting the defendant failed to object at trial or raise the claim in his posttrial motion, we found the claim was reviewable only under the plain-error doctrine. Relying on People v. Bean, 137 Ill. 2d 65 (1990), we reasoned that the defendant’s absence did not have an effect on any of his substantial rights and, therefore, no plain error occurred.
Notably, the defendant in McLaurin relied upon People v. Childs, 159 Ill. 2d 217 (1994), and People v. McDonald, 168 Ill. 2d 420 (1995), to support his contention that he was entitled to a new trial. However, we found both cases factually distinguishable. As we explained, in McLaurin, “defendant’s counsel was present when the court considered the jury’s notes,” while in Childs and McDonald, “the person actually representing the defendant was absent.” McLaurin, 235 Ill. 2d at 494.
In McLaurin, the defendant’s attorney was present and participated in the discussions concerning each of the jury’s notes and the trial court’s responses. Here, in contrast, neither defendant nor his attorney was present. Neither defendant nor his attorney was informed of the jury’s note regarding its deadlock until after the jury had reached its verdict and been discharged, and they were never informed of the second note at all. Thus, unlike McLaurin, neither defendant nor his attorney was afforded an opportunity to take action necessary to secure defendant’s rights. Because McLaurin is distinguishable from the present case, I do not find it helpful in addressing defendant’s contentions.
The United States Supreme Court has held that it is error for a trial judge to respond to jury communications without the presence of either the defendant or his counsel. Rogers v. United States, 422 U.S. 35, 39, 45 L. Ed. 2d 1, 6, 95 S. Ct. 2091, 2095 (1975). Ordinarily, the State bears the burden of establishing whether the error was harmless beyond a reasonable doubt. See People v. Kliner, 185 Ill. 2d 81, 162 (1998). However, in this case, defendant failed to preserve his claim of error in his post-trial motion. Accordingly, in order to prevail, defendant must satisfy the plain-error rule, which allows a reviewing court “to consider unpreserved error when (1) 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) 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.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). “Essentially, the fairness of the trial must be undermined.” People v. Keene, 169 Ill. 2d 1, 17 (1995). The defendant bears the burden of persuasion under each prong of the doctrine. People v. Naylor, 229 Ill. 2d 584, 593 (2008). If the defendant is unable to establish plain error, the procedural default must be honored. Keene, 169 Ill. 2d at 17.
Defendant argues that the trial judge’s actions undermined the fairness of his trial under the second prong of the plain-error rule because he did not have the opportunity to request an instruction pursuant to People v. Prim, 53 Ill. 2d 62 (1972). A Prim instruction “informs the jury of the requirement that the verdict be unanimous; that the jury has a duty to deliberate; that jurors must impartially consider the evidence; and that jurors should not hesitate to reexamine their views and change their opinions if they believe them to be erroneous, provided the change is not solely because of the opinion of fellow jurors or for the mere purpose of returning a verdict.” People v. Chapman, 194 Ill. 2d 186, 222 (2000). Defendant argues that the trial judge’s direction to “keep deliberating” failed to properly convey the notion that jurors should not change their opinions solely for the purpose of returning a verdict.
Generally, trial judges are afforded discretion in matters concerning jury management. People v. Roberts, 214 Ill. 2d 106, 121 (2005). Nevertheless, it goes without saying that the integrity of a jury verdict “must be protected from coercion, duress or influence.” People v. Patten, 105 Ill. App. 3d 892, 894 (1982). This court has recognized that a “verdict should express the deliberate judgment of the jury. The juror *** has an independent duty to perform, and he ought to be left free to pronounce his own conviction. A verdict hastened by the action of the judge, however worthy the motive, cannot be the result of that deliberation which the law guarantees. Remarks by a trial judge calculated to effect the rendition of a verdict without affording the jury an opportunity for careful consideration are unwarranted and often lead to great abuse. Whether the error is harmless or prejudicial depends upon the facts of the case.” People v. Golub, 333 Ill. 554, 561 (1929).
Defendant argues that counsel’s absence prevented the defense from requesting a Prim instruction. According to defendant, the trial judge’s direction to “keep deliberating” failed to convey to jurors the unanimity and reexamination components that are also the duties of a juror. More importantly, the trial judge’s direction failed to instruct jurors that a change of opinion should not occur solely because of the opinion of fellow jurors or for the mere purpose of returning a verdict. Notably, this court’s decision in McLaurin did not address any argument considering the absence of a Prim instruction— another distinguishing factor in this case that the majority overlooks. See McLaurin, 235 Ill. 2d at 491-92.
I find defendant’s contentions persuasive and agree with the appellate court’s conclusion:
“We find that Johnson has sustained his burden and established that the trial court’s ex parte communication with the jury prejudiced him. Johnson’s absence at this critical stage in the proceedings denied him direct knowledge of what was said and done in response to the jury’s question and deprived him of the opportunity to make objections and take any actions necessary to secure his rights. The State speculates that the trial court would have refused a request by Johnson for a Prim instruction because of the short duration the jury had deliberated before sending its note and because the trial court failed to give the instruction at Johnson’s first trial. The State also points out that Johnson never asked for a Prim instruction at his first trial and, based on the similarities between the first and second trials, no prejudice could be said to have resulted from the ex parte communication. The State’s speculation is unpersuasive. Johnson was deprived of his right to be present when the jury note was presented and we cannot guess what response he may have had to it. Because the trial court’s ex parte communication deprived Johnson of his constitutional right to be present at all critical stages of the proceedings against him, we reverse his conviction and remand.” Johnson II, 388 Ill. App. 3d at 203-04.
The jury in defendant’s first trial deadlocked, prompting a mistrial. At defendant’s second trial, the jury sent two notes, one of which stated that the members of the jury were deadlocked and one of which asked what punishment would be imposed on defendant. These notes clearly indicate that the jury had serious concerns about this case and were troubled about the ramifications of its decision. In these circumstances, the judge should have been particularly mindful of the need to protect defendant’s right to be present.
In my view, the adversary process ceased to function in this case when the trial court failed to inform defendant or his attorney of the jury’s notes, an event that may have significantly affected the ability of one member of the jury to act impartially and on his or her own accord to reach a decision. Given the importance of the rights involved and the facts presented in this case, I believe defendant has met his burden of showing that he suffered prejudice. I therefore dissent.
JUSTICE FREEMAN joins in this dissent.
The record does not disclose what time the jury resumed deliberations. The docket entry from September 30 states court was to resume at 9:30 a.m.