People v. Johnson ( 2020 )

Digitally signed by
Reporter of
Decisions
Reason: I attest to
Illinois Official Reports the accuracy and
integrity of this
document
Appellate Court Date: 2020.06.17
13:54:26 -05'00'
People v. Johnson, 2019 IL App (3d) 150352-BAppellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DARREN JOHNSON, Defendant-Appellant.
District & No. Third District
No. 3-15-0352
Filed December 5, 2019
Decision Under Appeal from the Circuit Court of Whiteside County, No. 14-CF-254;
Review the Hon. John L. Hauptman, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Michael J. Pelletier, Patricia Mysza, and Gilbert C. Lenz, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Terry Costello, State’s Attorney, of Morrison (Patrick Delfino,
Lawrence M. Bauer, and Dawn Duffy, of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel PRESIDING JUSTICE SCHMIDT delivered the judgment of the
court, with opinion.
Justices Carter and Holdridge concurred in the judgment and opinion.
OPINION
¶1 On July 22, 2014, Rock Falls police arrested defendant, Darren Johnson, for shoplifting
$76.91 worth of clothing from a local Walmart. The State charged defendant with retail theft
and burglary. After his first trial resulted in a hung jury, a second jury acquitted defendant of
retail theft but convicted him of burglary. The Whiteside County circuit court sentenced
defendant to eight years in prison. We reverse and remand for a new trial.
¶2 I. BACKGROUND
¶3 The State charged defendant by information with burglary and retail theft on July 23, 2014.
Defendant waived his right to counsel on August 26. His first trial resulted in a hung jury on
October 22. His second trial began on November 18. Before opening statements, the trial court
prohibited the jury from taking notes. The judge told the jury: “I do not allow note taking ***.
I am a firm believer *** in the collective memory of the jury. *** [A]nd I do not want you to
be distracted by note taking.”
¶4 During the State’s case, Amanda Peppers testified that she saw defendant and another man
inside the Rock Falls Walmart on July 22, 2014, while she was shopping with her nephew. The
two men “were kind of walking around with a bunch of stuff in their hands,” and “they would
kind of veer off in other directions” when Peppers approached them. As she left the store and
walked to her car, Peppers saw the two men retrieve backpacks from behind vending machines
outside the store’s entrance. The men removed stolen items that they concealed in their clothes
and placed them in the backpacks. Peppers called the police.
¶5 Before police arrived, Peppers saw the men walk toward a Coinstar machine in the store’s
vestibule. After the men briefly reentered the store without their backpacks, Peppers saw
defendant exit the store, retrieve his backpack, and walk toward the parking lot.
¶6 Officer James Hollaway of the Rock Falls Police Department testified that he responded to
Peppers’s call with Sergeant John Worcester and Officer Jarrett Ludwig at 7:16 p.m. While
Worcester and Ludwig walked toward the store’s entrance, Hollaway sat in the parking lot and
observed defendant retrieve his backpack from atop the Coinstar machine before he walked
toward the parking lot. Hollaway stopped defendant to ask him if he took items from the store
without paying for them; defendant lowered his head and answered “yes.”
¶7 Ludwig testified that he escorted defendant to the manager’s office inside the store. He
read defendant his Miranda rights with Worcester and Donna Courtney, the Walmart manager,
present. Ludwig searched defendant and found 14 items of girls’ clothing in his backpack and
on his person.
¶8 Courtney testified that defendant told her he took the clothes because his ex-girlfriend
prohibited him from seeing their daughter unless he bought her school clothes. Courtney
described defendant as “very distraught.” He offered to clean the windows, clean the floor, or
provide whatever labor necessary to repay the store for the stolen clothes. Courtney processed
a receipt showing the stolen items’ retail value totaled $76.91.
¶9 She also copied footage from six surveillance cameras onto a digital versatile disc (DVD).
None of the cameras covered the girls’ clothing section. The State played portions of the DVD
that contained footage from four of the six cameras. In relevant part, the video showed
defendant entering the vestibule area, placing a backpack on the Coinstar machine, and
-2-
retrieving his backpack when he left the store. Defendant elected not to testify on his own
behalf.
¶ 10 During the first day of deliberations, the jury sent the court four notes. The first note
requested to see Peppers’s written police statement (which the State did not admit into
evidence) and to review Courtney’s DVD. With the parties’ consent, the court declined the
jury’s requests. The second note requested Ludwig’s police report. The court declined the
jury’s request without objection. The third note reported that the jury reached a verdict on one
charge but remained split on the other.
¶ 11 The jury’s final note reported that the jury reached an impasse; the jury again requested to
review Courtney’s DVD to help resolve the deadlock. Without objection, the court again
declined the jury’s request to review the DVD. The court also issued a Prim instruction (see
People v. Prim, 53 Ill. 2d 62, 71-76 (1972)). At 10:20 p.m. on November 19, the court sent the
jury home.
¶ 12 Proceedings resumed at 9 a.m. the following morning. At 10:30 a.m., the jury returned its
verdict. It found defendant not guilty of retail theft but guilty of burglary. The court appointed
posttrial counsel pursuant to defendant’s request.
¶ 13 The court denied defendant’s posttrial motion before his sentencing hearing on March 27,
2015. Although burglary is a Class 2 felony with a three-to-seven-year sentencing range (720
ILCS 5/19-1(b) (West 2014); 730 ILCS 5/5-4.5-35(a) (West 2014)), the court sentenced
defendant as a Class X offender because his criminal record contained prior theft and burglary
felony convictions within 20 years. 730 ILCS 5/5-4.5-95(b) (West 2014). The court sentenced
defendant to eight years in prison. It denied defendant’s motion to reconsider his sentence on
May 13, 2015.
¶ 14 On appeal, defendant raised four challenges. The first two challenges attacked the
sufficiency of the State’s evidence on both burglary elements—entering the store without
authority and intending to commit theft therein (720 ILCS 5/19-1 (West 2014)). Defendant
also sought a new trial because the court violated section 115-4(n) of the Code of Criminal
Procedure of 1963 (Code) (725 ILCS 5/115-4(n) (West 2014)) when it prohibited jurors from
taking notes during trial. Finally, he asks this court to reduce his monetary assessments from
$557 to $490 because the trial court “failed to grant the mandatory $5-per-day credit against
three [assessments].”
¶ 15 Before we address defendant’s arguments, we must provide further procedural history. In
our prior decision, we reversed defendant’s burglary conviction, finding that, even assuming
defendant entered the store without intent to shoplift, defendant was not guilty of burglary.
2018 IL App (3d) 150352, ¶¶ 25-36. We did not reach defendant’s three remaining issues. Id.
¶¶ 14, 38. The supreme court reversed and remanded the case, directing us to address the
remaining issues. People v. Johnson, 2019 IL 123318, ¶ 47. And so we do.
¶ 16 II. ANALYSIS
¶ 17 Juror Note Taking
¶ 18 Defendant argues that the trial court committed reversible error by refusing to allow jurors
to take notes. Before opening statements, the trial court told the jury:
“I, I do not allow note taking and I have a, I have a reason for this. I am a firm
believer in the ability of jurors to remember the testimony and I, I am a firm believer
-3-
in the collective memory of the jury. That’s why we have 12 people, I mean it’s, it’s
meant to be give and take and that sort of thing, and my concern about taking notes is
that sometimes people are so busy concentrating on taking, on writing down what was
said that they may miss something else that was said. Or, somebody might be worried
that, well, this lady or this man took better notes than me. Well that’s what the whole
process is about, is to work through these things collectively, and I do not want you to
be distracted by note taking.”
¶ 19 Section 115-4(n) of the Code states, inter alia: “The members of the jury shall be entitled
to take notes during the trial, and the sheriff *** shall provide them with writing materials for
this purpose.” (Emphasis added.) 725 ILCS 5/115-4(n) (West 2014). This statutory provision
is mandatory. People v. Strong, 274 Ill. App. 3d 130, 135-37 (1995). It is a measure to protect
defendants’ constitutional rights to fair trials. It is also the jurors’ right. See People v. Layhew,
139 Ill. 2d 476, 492-93 (1990). Trial courts lack discretion to ignore this direct mandate.
¶ 20 We must still decide whether this error was harmless or denied defendant a fair trial. See
Strong, 274 Ill. App. 3d at 135-37. In Strong, the reviewing court found the error to be harmless
because only one juror requested to see the trial transcript and the evidence of the defendant’s
guilt was “overwhelming.” Id.
¶ 21 That is not the case here. Jury deliberations took several hours. The jury submitted four
notes requesting to review evidence. One note stated the jury was “deadlocked without
reviewing the evidence.” By the jury’s own description, it did not find defendant’s guilt
“overwhelming.” Instead, the jury could not reach a decision. The court’s error was therefore
not harmless beyond a reasonable doubt. It clearly impacted defendant’s right to receive a fair
trial. For this reason, we remand for a new trial. This disposition leaves us with no need to
address defendant’s other issues.
¶ 22 III. CONCLUSION
¶ 23 For the foregoing reasons, we reverse the judgment of the circuit court of Whiteside County
and remand for a new trial.
¶ 24 Reversed and remanded.
-4-