People v. Collins , 351 Ill. App. 3d 175 ( 2004 )

JUSTICE GEOMETER

delivered the opinion of the court:

Following a jury trial in the circuit court of Lake County, defendant, Jamel L. Collins, was convicted of first-degree murder (720 ILCS 5/9 — 1(a)(1) (West 2000)). Defendant was sentenced to 35 years’ imprisonment. He now appeals, challenging both his conviction and his sentence. Defendant raises four issues. First, he contends that he was prejudiced when a juror visited the crime scene during the trial. Second, he alleges error in the trial court’s decision to permit the introduction of certain hearsay testimony.. Third, he asserts that his trial was unfairly prejudicial because (a) the court referred to the jurors by number rather than name and (b) certain comments the State made during argument fell outside the bounds of proper argumentation. Finally, he argues that his sentence is excessive. We agree with the first contention; thus, we reverse and remand for a new trial. As the second two issues raised by defendant are likely to recur on retrial, we will also address them. However, our disposition makes it unnecessary to address defendant’s argument regarding sentencing. The facts are relatively discrete as they relate to the issues, and we will address them in the context of defendant’s various arguments.

I. The Jury Foreman’s Independent Investigation of the Crime Scene

Defendant first claims he was prejudiced when the foreman of the jury visited the crime scene during the first day of testimony. Defendant raised this issue in a posttrial motion, and the trial court held an evidentiary hearing on the matter. During the hearing, a juror, Andrew Sawicki, testified that he was the foreman of the jury. As foreman, he led discussions in the jury room, but he denied using any knowledge he gained from visiting the scene in doing so. During the hearing, the judge asked Sawicki, “Did your visit to the crime scene on the second day of trial aid you in determining the guilt or innocence of the defendant?” Sawicki replied, “I would have to say yes.” Sawicki then added, “Yes, it did aid my — it didn’t help me sway one way or the other, it just helped me.” The court then inquired as to how the visit helped him, and he stated:

“The first day of the trial — I had never been in this experience before. And I’m just watching people being brought up. They’re telling their story about this event that occurred in about, you know, half a block. And all it’s going to be is this — what it looked like to me was an endless parade of people saying I was here, I did this, I was on the east side of that, then I went over to the west side of that. And I was trying to write it down and did not understand. I could not collect that data from what they were telling me. And I was afraid, because — this was a big decision that I was asked to make. If I just knew what it looked like. And then after that when people started talking, because I didn’t know — I thought the defense was going to have another parade of people coming on saying I was here, you were there. And I was afraid of that, and I just wanted to know what the stage was.

So I walked — I walked out, down the street, looked at it, and said fine, great, now I know where it is. When people say I was on here [sic], I know where it is and I’m — and the second day it was much more helpful for me because I can understand what — where people were on the scene.”

The court then asked, “Did that help you in determining the guilt or innocence of the defendant with respect to the murder charge?” Sawicki answered, “Yes, it did.” The State asked whether Sawicki had viewed photographs of the scene during the trial. He said, “No, I found them difficult to view.” Regarding an aerial photograph that was given to the jury during deliberations, Sawicki stated that it would not have been helpful while he was listening to witnesses and trying to remember what they said.

Defendant objected to this entire line of questioning as an impermissible inquiry into the mental processes of the jury. The trial court overruled the objection. The State did not object, and, in fact, posed the question, “[H]ow is [the impact of the extraneous information to be assessed] if jurors cannot be questioned as to their exact deliberation process?” On appeal, the State now reverses its course and argues that “Sawicki’s statement should not have been before the trial court.” Defendant does not contest the trial court’s decision to overrule his objection.

The rule that precludes the inquiry into the mental processes of a jury is a rule of evidence rather than a substantive limitation on how a verdict can be impeached. See, e.g., People v. Holmes, 69 Ill. 2d 507, 511-16 (1978) (citing both Professor Wigmore’s treatise on the rules of evidence (8 J. Wigmore, Evidence 696 (McNaughton rev. ed. 1961)) and Federal Rules of Evidence 606(b) (Fed. R. Evid. 606(b))). As we will explain below, the trial court erred in admitting this evidence. However, it is well established that, absent an objection, otherwise inadmissible evidence is to be given its full probative effect. Jackson v. Board of Review of the Department of Labor, 105 Ill. 2d 501, 508 (1985) (“It is well established that when hearsay evidence is admitted without an objection, it is to be considered and given its natural probative effect”); People v. Marcotte, 337 Ill. App. 3d 798, 803 (2003) (“The defendant, however, did not object to Kunce’s statement as hearsay, or on any other grounds, either in court or in her posttrial motion. Because the defendant did not object to its admission, Kunce’s assertion that DCFS received the call could be considered by the judge and given its natural probative effect”); Bridgestone/Firestone, Inc. v. Doherty, 305 Ill. App. 3d 141, 149 (1999) (“Hearsay evidence admitted without objection may be considered and given its natural probative effect”). Moreover, the State argued that the trial court should consider Sawicki’s testimony, and it is thus precluded from arguing that this evidence was improperly admitted. See McMath v. Katholi, 191 Ill. 2d 251, 256 (2000) (“After inviting the trial court to rule on the admissibility of the evidence based on Rule 220, plaintiff is precluded from complaining now that the circuit court’s ruling was erroneous based on some other evidentiary rule”).

In Holmes, 69 Ill. 2d at 511, quoting People v. Holmes, 41 Ill. App. 3d 956, 969 (1976), the supreme court considered the rule that “ ‘a jury cannot impeach its verdict by either affidavit or testimony.’ ” It identified two general categories into which an attempt to impeach a verdict could fall. The first category involves instances where the attempt is based on the motives, methods, or processes the jury used to reach its conclusion. Holmes, 69 Ill. 2d at 511. The second involves attempts to show that some outside conditions or events have been brought to the attention of the jury. Holmes, 69 Ill. 2d at 512. Evidence of the first sort is inadmissible; evidence of the second type may be used to impeach a verdict. Holmes, 69 Ill. 2d at 511-12; see also People v. Hobley, 182 Ill. 2d 404, 458 (1998) (“In order to demonstrate such prejudice, jurors may testify as to the nature of outside influences or communications, but evidence relating to the effect of such influences on the mental processes of the jurors is inadmissible”).

Not every instance in which extraneous information reaches the jury constitutes reversible error. People v. Palmer, 125 Ill. App. 3d 703, 712 (1984). When such information reaches the jury, however, it is presumptively prejudicial (People v. Mitchell, 152 Ill. 2d 274, 341 (1992)), and a defendant need show only that the information relates directly to something at issue in the case and that it may have influenced the verdict (Birch v. Township of Drummer, 139 Ill. App. 3d 397, 409 (1985)). The burden then shifts to the State to demonstrate that the incident is harmless. People v. Harris, 123 Ill. 2d 113, 132 (1998); Birch, 139 Ill. App. 3d at 409. A verdict may stand only if it is “obvious” that no prejudice accrued to the defendant. Hobley, 182 Ill. 2d at 462.

Generally, the inquiry focuses on the relationship between the extraneous information and the issues at trial in a rather abstract sense. The Holmes court observed, “ ‘Because the actual effect of the conduct on the minds of the jury cannot be proved, the Illinois Supreme Court has held that the standard to be applied is whether the “conduct involved ‘such a probability that prejudice will result that it is [to be] deemed inherently lacking in due process.’ [Citation.]” [Citation.]’ ” Holmes, 69 Ill. 2d at 514, quoting United States ex rel. Tobe v. Bensinger, 492 F.2d 232, 237 (7th Cir. 1974).

However, in this case, we are presented with a rather unusual circumstance. Evidence concerning the effect of Sawicki’s visit on his determination was admitted into evidence without objection by, and with the encouragement of, the State. Under such circumstances, the evidence is to be given its natural probative effect (Jackson, 105 Ill. 2d at 508), and the State is precluded from complaining about an error it invited (McMath, 191 Ill. 2d at 256). In light of this evidence, we need not consider the effect that Sawicki’s visit to the scene might have had in an abstract or theoretical sense; we know exactly what the effect was because Sawieki told us.

What Sawieki told us is that his trip to the scene aided him in determining guilt or innocence. While he attempted to downplay the effect of his investigation, saying it did not sway him one way or the other, it nevertheless had an impact upon his decision. There is simply no way for matters outside the record to properly bear upon the rendering of a verdict. Because Sawieki acknowledged that the visit had some effect on the ultimate determination of guilt or innocence, we will not inquire further into exactly how his view of the scene impacted upon his verdict. We observe that, despite Sawicki’s statement that the visit did not sway him, there are a myriad of subtle ways that it could have affected his verdict. Presumably, he believed that visiting the scene would serve some purpose. He stated that he was having trouble understanding where people were during the incident. Since he considered this information important, it is likely that he used it for something. A likely use would seem to be evaluating the credibility of witnesses in terms of how good a view they had of the events. If so, this creates another problem. See Brown v. Johnson, 92 Ill. App. 3d 1095, 1100 (1981).

In its brief, the State contends that there is no problem involving defendant’s inability to confront Sawieki in open court to test the knowledge he gained from his visit. We disagree. A police officer testified that the area had not changed between the date of the incident and the time of Sawicki’s investigation. However, we note that a number of variables exist that could have affected witnesses’ perceptions of the events despite the fact that the scene had not changed. These things include lighting, weather, pedestrian traffic, and vehicular traffic. In short, the scene that Sawicki viewed was almost assuredly not the same as it was on the night of the incident.

Consequently, we must reverse and remand for a new trial. As noted above, the burden shifts to the State to show lack of prejudice once a defendant shows that the extraneous information that reached the jury related to something at issue in the trial. Harris, 123 Ill. 2d at 132. Here, the information related directly to something at issue; it related to the entire incident itself and also likely to the credibility of witnesses. Given Sawicki’s testimony, the State has not sustained, and probably could not sustain, its burden of demonstrating that defendant suffered no prejudice.

Before concluding, we will briefly address two points the State raises in attempting to show lack of prejudice. First, the State contends that Sawicki’s investigation did not prejudice defendant because any information he garnered was cumulative of photographs of the scene. In Birch, 139 Ill. App. 3d at 409, the court held, “A verdict in a civil case ordinarily need not be set aside because the jurors made an unauthorized visit to the scene of an accident where the visit disclosed nothing about the location not accurately depicted by photographs, maps, diagrams, or the like lawfully admitted into evidence.” That the scene was “accurately depicted,” at least for Sawicki’s purposes, is belied by his testimony that photographs available to him during trial were “difficult to view” and that those available during deliberations came too late to assist him. Again, the State bears the burden of showing lack of prejudice. We cannot pretend that the pictures introduced at trial dispelled any prejudice accruing to defendant when Sawicki flatly testified that they were inadequate. Pointing to these pictures is not sufficient to sustain the State’s burden in light of his testimony. Second, we attach no significance to the fact that Sawicki did not inform other jurors of his investigation until after they reached a verdict. Sawicki was a juror, and his personal verdict was necessary to convict defendant. See People v. Pittman, 326 Ill. App. 3d 297, 300 (2001) (unanimous verdict required to support a conviction).

II. Hearsay and the State of Mind Exception

The second issue defendant raises is likely to recur if this case is retried; therefore, we will address it briefly. Defendant contends that the hearsay testimony of Scott Holbert, who stated that he heard the victim state “I’m all about a fair fight” and “I don’t want to get stabbed” between the time of the initial confrontation between defendant and the victim and the time of the stabbing, should not have been admitted. Pertinent to the instant case, our supreme court has stated, “Statements that indicate the declarant’s state of mind are admissible as exceptions to the hearsay rule when the declarant is unavailable to testify, there is a reasonable probability that the proffered hearsay statements are truthful, and the statements are relevant to a material issue in the case.” People v. Caffey, 205 Ill. 2d 52, 91 (2001).

Defendant first argues that the victim’s state of mind was not relevant to any material issue in the case; hence, the statement should have been excluded on relevancy grounds. However, it seems obvious to us that evidence pertaining to the state of mind of a victim when a defendant argues self-defense is relevant to the extent it bears upon who was the aggressor. See People v. Salazar, 126 Ill. 2d 424, 482 (1988) (Clark, J., dissenting, joined by Stamos, J.) (“I would agree with the majority that most of the testimony by the victim’s wife was relevant as bearing on the victim’s state of mind on the day in question; particularly in light of the defendant’s claim that the victim was the aggressor and had been drinking”).

Defendant also argues that the statement did not bear sufficient indicia of reliability to be admissible. Defendant misconstrues this requirement. The majority of his argument is focused on attacking Holbert’s credibility. Holbert, however, testified in open court, subject to cross-examination. His credibility could thus be tested and assessed by the jury. The proper inquiry focuses upon the probability that the statement is truthful, that is, are there sufficient indicia of reliability regarding the statement such that it accurately reflects the victim’s state of mind? See Caffey, 205 Ill. 2d at 92 (“Defendant points to the above-mentioned corroborative portions of Pettaway’s testimony as support for the truthfulness of Ward’s hearsay statement. These facts do indicate that Ward possibly wanted to buy drugs from defendant. However, they do not indicate the reliability of Ward’s statement to Pettaway; they do not add up to a reasonable probability of the truthfulness of Ward’s statement”). Accordingly, defendant’s argument is ill-taken. Nothing we say here precludes defendant from attacking the reliability of the statement on some other, proper ground when this case is retried.

III. The Atmosphere of the Trial

Defendant also contends that the atmosphere of the trial was prejudicial to him for two reasons. First, he argues that the Lake County practice of referring to jurors by number rather than name constituted error. He also complains of certain remarks made by the State during argument.

Not disclosing the names of jurors during a trial can be problematic. See United States v. Mansoori, 304 F.3d 635, 649-52 (7th Cir. 2002). Doing so may undermine the presumption of innocence by intimating that a defendant is a dangerous person. Mansoori, 304 F.3d at 650. The State counters that it is Lake County’s practice to refer to jurors by number in all trials, which negates the inference that defendant is in some way dangerous. Moreover, the State points out, the jury was not truly anonymous, since the parties were given forms that Usted each juror’s name and town of residence. We agree with the State that these facts do negate the Inference that defendant is a dangerous person. However, they do so only if the jury is aware of them. Hence, it would be good practice for trial courts to insure that juries are made aware of these facts in this and all trials.

As for defendant’s second contention, we agree that the State, at times, approached the bounds of improper argumentation. Some of defendant’s complaints are ill founded. For example, the State referred to defendant as a “schoolyard bully.” Defendant reads this statement literally, arguing that it was improper because there was no evidence regarding defendant’s school disciplinary record. We take it, and beheve that it was intended, as a metaphor. Evidence in the record did show behavior on defendant’s part that could be characterized as bullying. On the other hand, the State’s description of defendant as wearing beads and a blue bandana appears to us to be an attempt to imply that defendant was involved in a gang. Evidence of gang membership is not admissible unless it is related in some way to the crime charged (People v. Alvarez, 344 Ill. App. 3d 179, 190 (2003)); a fortiori, it should not arise in argument unless relevant to something at issue in the case. Argument calculated solely to inflame the passions of the jury is improper. People v. McCollum, 239 Ill. App. 3d 593, 598 (1992). We caution the State that such comments can constitute reversible error. See, e.g., People v. Clark, 335 Ill. App. 3d 758, 764-68 (2002).

IV CONCLUSION

In light of the foregoing, the judgment of the circuit court of Lake County is reversed. We remand this matter for a new trial.

Reversed and remanded.

McLAREN, J., concurs.