People v. Williams , 344 Ill. App. 3d 334 ( 2003 )

JUSTICE HOLDRIDGE

delivered the opinion of the court:

The defendant, Anthony J. Williams, was convicted of aggravated battery with a firearm following a jury trial and was sentenced to a term of 16 years’ imprisonment. On appeal, defendant maintains that the trial court erred: (1) in refusing to inquire into allegations of jury intimidation, and (2) in failing to admonish defendant regarding filing a motion for reconsideration of sentence. We affirm. As the parties are familiar with the facts herein, we will discuss the facts only as they relate to an understanding of our holding.

Defendant first maintains that the trial judge erred when he refused to inquire into allegations of jury fear and intimidation. He argues that this fear and intimidation may have affected his right to an impartial trial, and he asks this court to reverse his conviction and remand this cause for a new trial. The standard to be applied in determining whether to reverse a conviction based upon a tainted jury is whether it reasonably appears that at least some of the jurors have been influenced or prejudiced so that they cannot be fair and impartial. People v. Thomas, 296 Ill. App. 3d 489 (1998). The burden falls upon the party challenging the juror to show that the juror has a disqualifying state of mind; mere suspicion of partiality is not enough. Thomas, 296 Ill. App. 3d at 500. The trial judge has substantial discretion in determining whether an improper contact with a juror has caused prejudice to the defendant. People v. Burns, 304 Ill. App. 3d 1, 6 (1999). Only when a defendant is prejudiced is reversal required. Thomas, 296 Ill. App. 3d at 501. A verdict will not be set aside when it is obvious that no prejudice resulted from a communication to the jury. Burns, 304 Ill. App. 3d at 6.

In the instant matter, on the morning of the second day of trial, it came to the attention of the trial judge that a phone call had been made from the Knox County jail to the home of one of the jurors in the case on the night before. The trial judge held a hearing on the matter in which testimony was received from several witnesses. The evidence established that on the first night of the trial, a telephone call had been placed from the Knox County jail to the home of one of the jurors. The juror was not home at the time, but the juror’s mother took the call. The caller identified himself as “Jermaine” or “Jeremiah” and asked for the juror by first name. The juror knew the call came from the Knox County jail by the caller identification service on her telephone.

The juror informed the State’s Attorney’s office of the call but did not tell any of her fellow jurors about the call. She indicated to the court that she felt uncomfortable as a result of the call and, as a result, she no longer believed that she could be impartial. During her testimony, this juror also added that some of the other jurors discussed feeling uncomfortable the prior afternoon when walking out of the courtroom because people had lined up and watched or stared at the jurors as they left the courtroom.

Following the close of testimony, the defendant moved for a mistrial. The trial judge denied the motion for mistrial. However, he excused the juror who had received the telephone call from the jail. The trial judge indicated that the telephone call and the juror’s reaction to it was the basis for excusing the juror. The testimony regarding the conduct of the spectators, to which the excused juror had alluded in her testimony, had nothing to do with his decision. The trial judge further indicated that he would not question the other jurors, lest they incorrectly assumed that the spectators’ conduct had anything to do with the excusing of the one juror.

The defendant did not object to the trial judge’s decision not to call in the other jurors and question them regarding the spectators in the courthouse. When the jury returned, the trial judge told them that the one juror had been excused for personal reasons, and an alternate juror was appointed. The trial judge reaffirmed his ruling at the hearing on the defendant’s posttrial motion, noting that he had personally observed the demeanor of the spectators in the courtroom and noted no behavior that would give rise to a need for an inquiry into jury intimidation.

We find that the trial judge acted within his sound discretion when he refused to inquire into whether there was jury fear or intimidation. The trial judge held extensive hearings regarding the telephone call from the jail to the home of one of the jurors. Based upon the evidence adduced at those hearings, the trial judge found that juror was no longer able to render a fair verdict. In contrast, there was no credible evidence to conclude that any of the other jurors were fearful or intimidated by the spectators staring at those jurors as they left the courtroom. Indeed, the dismissed juror’s observation that some of the jurors felt “uncomfortable” fails to rise beyond the level of mere suspicion of partiality, which is insufficient where the burden is upon the defendant to show that a jury was tainted. Thomas, 296 Ill. App. 3d at 501.

The defendant maintains that People v. Peters, 33 Ill. App. 3d 284 (1975), People v. Flores, 128 Ill. 2d 66 (1989), and People v. Staten, 143 Ill. App. 3d 1039 (1986), all support his allegation that the trial court erred in not inquiring further into jury intimidation as a result of the one juror’s observation that spectators staring made several jurors “uncomfortable.” We disagree. In fact, when the cited cases are contrasted to the instant matter, the reasonableness of the trial court’s decision in the instant matter is reinforced. In Peters, as the jurors walked across a parking lot, two men spoke to the jurors and repeated the words “not guilty” three times. Another man said to the jurors “not guilty, not guilty and I know one of the women on the jury.” Peters, 33 Ill. App. 3d at 288. In Flores, the jury sent a note to the trial judge along with the verdict form. In the note, the jurors expressed “their apprehension that security in the courtroom was inadequate.” Flores, 128 Ill. 2d at 97. In Staten, the jurors had been waiting in a courthouse doorway when the jurors were threatened with death by a group of young men milling about the courthouse. One of the men yelled out that if he had a gun, he would kill all of the jurors. Staten, 143 Ill. App. 3d at 1056. Juxtaposed against the direct threats upon the lives and safety of the jurors present in Peters, Flores, and Staten, in the instant matter the defendant can only posit speculation that some of the jurors were “uncomfortable” with being stared at by some of the spectators in and outside the courtroom. Other than this mere speculation, there is no evidence the jurors were prejudiced against the defendant or that they could not be impartial. Accordingly, we find that the trial court did not abuse its discretion in denying defendant’s allegation of jury intimidation.

The defendant next maintains on appeal that the trial judge erred by failing to admonish him of his appeal rights pursuant to Supreme Court Rule 605(a) (188 Ill. 2d R. 605(a)). Defendant correctly states that the trial judge did not admonish him that he must file a motion to reconsider his sentence in the trial court to preserve any sentencing issues for appellate review. The defendant asks this court to remand the cause for the trial judge to properly admonish the defendant.

Our review of the legal questions regarding supreme court rule compliance is de novo. People v. Hall, 198 Ill. 2d 173, 177 (2001). Here, there is no question that the trial court did not give the defendant the admonishments required under Rule 605(a). The question before us is not whether strict or substantial compliance with the rule is required. The question we must answer is whether this lack of any compliance with Rule 605(a) requires remand under the particular facts of this case. We hold that it does not.

The failure of a trial court to properly admonish a defendant as required by supreme court rule, standing alone, does not automatically establish grounds for reversing the judgment or vacating a plea. People v. Davis, 145 Ill. 2d 240, 250 (1991), citing People v. Cohn, 91 Ill. App. 3d 209, 213 (1980). Whether reversal and remand are required depends “on whether real justice has been denied or whether [the] defendant has been prejudiced by the inadequate admonishment.” (Emphasis added.) Davis, 145 Ill. 2d at 250, citing People v. Dudley, 58 Ill. 2d 57, 60-61 (1974); see also People v. Hayes, 336 Ill. App. 3d 145, 151, 782 N.E.2d 787, 792 (2002); People v. Blankley, 319 Ill. App. 3d 996, 1007 (2001); People v. Wilson, 295 Ill. App. 3d 228, 235 (1998).

In the instant matter, we find that defendant has not been denied real justice, nor has he been prejudiced by the trial court’s admittedly inadequate admonishment of the steps necessary to take an appeal to challenge his sentence. Defendant has not been denied real justice by the lack of the trial court’s admonishment regarding the steps necessary to challenge his sentence on appeal for the simple reason that the defendant did not challenge his sentence in this appeal. We searched in vain for a reported case similar to the instant matter, i.e., a defendant who did not appeal his sentence, but sought remand to the trial court for the proper admonishment of the steps necessary had he wished to appeal his sentence. But see People v. Jamison, 181 Ill. 2d 24, 26 (1998) (remand necessary where defendant appealed sentence of death); People v. Little, 318 Ill. App. 3d 75, 77 (2001) (remand necessary where defendant argued on appeal that his sentence was excessive); People v. Mazar, 333 Ill. App. 3d 244, 245 (2002) (remand necessary where defendant “appeals from the circuit court’s sentencing order on his convictions”).

Likewise, we find that defendant was not prejudiced by the trial court’s failure to properly admonish defendant of the steps necessary to challenge his sentence on appeal. Since defendant raised no challenge to his sentence in this appeal, his ability to raise a sentencing issue on appeal was not compromised or limited by the actions of the trial court. Thus, defendant suffered no prejudice from the lack of proper admonishment. To require remand in the instant matter, so defendant could hear the steps necessary to challenge an issue that he has no basis to challenge, would elevate form over substance without serving the ends of real justice. For this exercise in futility, we see no need.

We are aware that a trial court’s failure to give proper admonishments under Rule 605(b) to a defendant entering a plea of guilty will “routinely” result in a remand for proper admonitions. People v. Little, 318 Ill. App. 3d 75, 79 (2001). See also People v. Doguet, 307 Ill. App. 3d 1, 6-7 (1999). We also note that our supreme court requires remand when the trial court has failed to strictly comply with the Rule 605(b) admonishments regarding appeals following a plea of guilty. People v. Jamison, 181 Ill. 2d 24, 27 (1998).

However, a careful reading of Jamison, Little, Doguet and other cases dealing with the admonishments under Rule 605(b) shows that remand is not required simply because the rule was violated. Rather, these courts found that failure to admonish a defendant under Rule 605(b) is prejudicial and violates fundamental fairness because of the corollary relationship of Rule 605(b) to Rule 604(d). As the Little court noted:

“Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)) defines the procedure a defendant must follow when appealing from a judgment entered on a guilty plea, and Rule 605(b) provides the admonitions the trial judge must give a defendant when imposing a sentence on the guilty plea. Rule 605(b) complements Rule 604(d) and serves as a corollary to the requirements of Rule 604(d). People v. Jamison, 181 Ill. 2d 24, 27 (1998).

Strict compliance with Rule 604(d) is a condition precedent to a defendant’s appeal, and a defendant waives issues regarding his guilty plea if he does not follow the rule. Jamison, 181 Ill. 2d at 28. Therefore, fundamental fairness entitles a defendant to a remand for the proper admonitions under Rule 605(b) if the trial court (1) fails to deliver the admonitions (Jamison, 181 Ill. 2d at 29-30) or (2) delivers inaccurate admonitions (People v. Winston, 316 Ill. App. 3d 618, 620 (2000); People v. Doguet, 307 Ill. App. 3d 1, 6-7 (1999)).” Little, 318 Ill. App. 3d at 79.

In other words, when a trial court fails to issue the admonishments required under Rule 605(b), a defendant’s appeal rights under Rule 604(d) are compromised. In such situations, remand is necessary, not simply because of the failure to strictly comply with the Rule 605(b) per se, but because failure to comply with Rule 605(b), in light of the restrictions placed upon the defendant by Rule 604(d), is prejudicial and violates concepts of “fundamental fairness.” Little, 318 Ill. App. 3d at 79. In matters regarding Rule 605(a), however, there is no corollary rule imposing strict compliance upon the defendant. Thus, where a trial court has improperly admonished a defendant as to the steps necessary to challenge a sentence imposed after a plea of not guilty, a reviewing court will look to whether real justice has been denied or whether the defendant has been prejudiced by the lack of proper admonishment. Where, as here, the defendant has not challenged his sentence in his appeal, we see no denial of real justice.

For the foregoing reasons, the judgment of the circuit court of Knox County is affirmed.

Affirmed.

SCHMIDT, J., concurs.