FIFTH DIVISION December 4, 2009
1-07-3244
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 01 CR 19273 ) ALFREDO RAMOS, ) The Honorable ) James B. Linn, Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE TOOMIN delivered the opinion of the court:
In this appeal, we determine whether the trial court’s impromptu comments to the jury
served to encourage superficial deliberations, minimize the State’s burden of proof, or hasten the
jury’s verdict. Alfredo Ramos was convicted of two counts of first degree murder and sentenced
to a term of natural life in prison. On appeal, defendant contends the State’s closing argument as
well as the trial judge’s comments to the jury denied him a fair trial. He does not challenge the
sufficiency of the evidence or the sentence imposed. For the reasons explained herein, we affirm
defendant’s conviction and sentence. 1-07-3244
BACKGROUND
Defendant and his codefendant, Marcos Ramirez, were charged by indictment with the
first degree murders of Marcos Rodriguez and Oscar Gutierrez Suarez1. Following separate,
simultaneous jury trials, defendant was convicted and subsequently sentenced to serve a term of
natural life imprisonment.
The events giving rise to the prosecution occurred on July 10, 2001, when Marcos
Rodriguez and Oscar Gutierrez Suarez were shot in a Burger King parking lot in Chicago.
Rodriguez and Suarez were passengers in a vehicle driven by Julio Avila. Suarez and Avila were,
at that time, narcotics dealers. Earlier that week, on July 7, 2001, Suarez approached Avila
looking to sell a kilogram of cocaine. Avila knew an individual by the name of “Nok” who might
be interested in purchasing it. Nok agreed to purchase the kilogram in exchange for $14,000 and
two laptop computers. At the time of the exchange, Nok did not give Avila any money. Instead,
the two men agreed to meet the next day. The following day Nok gave Avila $2,000 and told him
he would give him an additional $3,000 and the two laptops on July 9, 2001.
Suarez, along with Marcos Rodriguez and Gladys Torres, picked up Avila from his job at
about 11:30 p.m. on July 9, 2001. Avila had not previously met the two passengers. In turn,
Avila spoke with Nok, who told him that someone else would be delivering the $3,000. Suarez
then received a call on his cellular phone from a person calling on behalf of Nok. They agreed to
1 Given the scope of defendant’s appeal, we limit our discussion to the evidence
implicated by the assignments of error. Additional facts relevant to our analysis will be provided
as necessary. We likewise note that Ramirez is not a party to the present appeal.
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meet near Foster and Pulaski. Suarez received another call; Avila took the call and agreed to
meet the caller in Chicago’s Wicker Park neighborhood. Avila asked for and received a number
to call on arrival in Wicker Park. Rodriguez wrote the pager number down on a one-dollar bill as
Avila repeated it from the caller. They sent a page and received a call back directing them to the
parking lot in the rear of a Burger King restaurant on North Milwaukee Avenue.
Once the car was parked, Avila stepped out of the car so he could be recognized. During
his last conversation with the caller about the meeting, Avila mentioned that he was wearing an
“Ecko” T-shirt so the caller could identify him. Avila walked toward Honore Street and stood on
the sidewalk where he saw a person standing next to a pay phone. This person, identified as
Marcos Ramirez, walked past Avila, who then began to walk back toward the Burger King
parking lot. Avila then saw another man approaching from the drive-thru lane, who Avila thought
was the person he was meeting to get the $3,000. This individual, identified as defendant,
increased his pace, drew a gun, aimed, and fired at Avila. Defendant continued to fire into the
victims’ vehicle five or six times. Avila began to run away and defendant followed. When Avila
turned he could see the gun pointed at him, but he never heard any additional shots. Defendant
then fled in another direction.
Gladys Torres climbed into the front seat of the vehicle and began to drive to get help for
Rodriguez and Suarez, who had been shot by defendant. She drove down North Avenue until she
encountered a police car. Shortly thereafter, Avila returned to the area in a taxicab. Both Torres
and Avila spoke with detectives on the scene and at Area 5 police headquarters. Based on these
conversations and evidence recovered at the scene, detectives traced the pager number written on
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the dollar bill to Ramirez. After Ramirez’s photograph was placed in a photo array, he was
identified by Avila. In turn, the detectives located Ramirez and took him into custody. Utilizing
information obtained from Ramirez, detectives began to look for defendant. Following his arrest,
defendant was identified by both Torres and Avila in a lineup.
During the course of custodial questioning, defendant gave an oral statement to
investigators inculpating himself in the shooting. According to defendant, he and his cousin,
Ramirez, were going to set someone up, take $3,000 from him, and split the proceeds. Ramirez
told defendant they would meet the man, who would be wearing an “Ecko” T-shirt at the Burger
King on Milwaukee Avenue in Wicker Park. Ramirez provided him with a loaded .380-caliber
handgun. Defendant walked through the drive-thru lane toward the individual in the “Ecko” shirt
who had just gotten out of a car, pulled his pistol, and demanded money. He claimed the man in
the “Ecko” shirt yelled to the passengers in the vehicle, “oh, shit, get the cannon.” According to
defendant, he then saw the male in the passenger seat reach beneath the driver’s seat. Defendant
began to fire at the vehicle until he was out of bullets. He denied ever seeing the passenger with a
gun.
Defendant did not testify. Following arguments and instructions, the jury returned a
verdict of guilty. Thereafter, he was sentenced to a term of natural life. He now appeals.
ANALYSIS
As noted, defendant does not challenge the sufficiency of the evidence. Instead, his
arguments urging reversal are based upon the contention that he was denied a fair trial by virtue
of the State’s closing argument and certain comments made by the trial judge to the jury.
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Defendant concedes these claimed errors were not objected to at trial or specifically raised in his
posttrial motion2. The State argues they are thereby forfeited3. Defendant responds that the
“plain-error” doctrine applies and permits review.
It is axiomatic that a defendant must object contemporaneously as well as in a posttrial
motion in order to preserve issues for our review. People v. Lewis, 234 Ill. 2d 32, 40, 912 N.E.2d
1220, 1225 (2009); see also 725 ILCS 5/116-1 (West 2006). Ordinarily, failure to do so would
operate to forfeit the claim on appeal, however, forfeiture is not an absolute bar to our review.
Established precedent instructs that the rules of forfeiture present limitations on the parties and
not on the reviewing court. People v. Davis, 213 Ill. 2d 459, 470, 821 N.E.2d 1154, 1161
(2004). Moreover, Supreme Court Rule 615(a), known as the “plain-error” doctrine carves out
an exception to permit review of issues otherwise procedurally defaulted. Lewis, 234 Ill. 2d at 42,
2 Defendant raised a general objection in his posttrial motion to the closing arguments and
singled out an aspect not raised on appeal. However, general objections in a posttrial motion are
not sufficient to preserve an issue for appeal, even if a contemporaneous objection was made at
trial. See People v. Robinson, 238 Ill. App. 3d 48, 56, 606 N.E.2d 122, 128 (1992). As noted,
there was no objection interposed during trial. 3 Both parties discuss the issues presented in terms of “waiver.” Noting that these
matters are more correctly viewed as “forfeitures” or “procedural defaults,” in that they could
have been raised, but were not, we utilize those terms instead. See People v. Blair, 215 Ill. 2d
427, 443-44, 444 n.2, 831 N.E.2d 604, 615, 615 n.2 (2005) (addressing the proper usage of terms
“forfeit,” “waive,” and “procedurally default”).
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912 N.E.2d at 1226-27; 134 Ill. 2d R. 615(a). As our supreme court observed in People v.
Piatkowski:
“[T]he plain-error doctrine 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 serousness of the error, or (2) a clear or obvious error
occurs 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, 870 N.E.2d 403, 411 (2007),
citing People v. Herron, 215 Ill. 2d 167, 186-87, 830 N.E.2d 467, 479 (2005).
Manifestly, “Any error, defect, irregularity, or variance which does not affect substantial
rights shall be disregarded.” 134 Ill. 2d R. 615(a). “Essentially, the fairness of the trial must be
undermined.” People v. Keene, 169 Ill. 2d 1, 17, 660 N.E.2d 901, 910 (1995). Defendants bear
the burden of persuasion under each prong of the doctrine. People v. Naylor, 229 Ill. 2d 584,
593, 893 N.E.2d 653, 659 (2008). Where a defendant is unable to establish plain error, it is
incumbent upon us to honor the procedural default. Keene, 169 Ill. 2d at 17, 660 N.E.2d at 910.
Necessarily, we must first determine whether an error actually occurred. Lewis, 234 Ill.
2d at 43, 912 N.E.2d at 1227, citing People v. Walker, 232 Ill. 2d 113, 124, 902 N.E.2d 691, 697
(2009). We, therefore, turn to the substance of each issue. Walker, 232 Ill. 2d at 125, 902
N.E.2d at 697; Lewis, 234 Ill. 2d at 43, 912 N.E.2d at 1227.
Defendant’s first claim of error focuses upon what he perceives as a prejudicial comment
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made by the prosecutor during the opening phase of the State’s closing argument. While
discussing accountability, the prosecutor told the jury that the law recognizes that sometimes
criminals work together. According to defendant, in the absence of any evidence of any prior
criminal record, the appellation served to “inflame the passions and prejudice of the jury” against
him, and spoke to his propensity to commit crimes. The State counters that the comment evinced
nothing more than a general explanation of the law of accountability.
In People v. Nicholas, our supreme court explained:
“ ‘The purpose of closing arguments is to give the parties a final opportunity
to review with the jury the admitted evidence, discuss what it means, apply the
applicable law to that evidence, and argue why the evidence and law compel a
favorable verdict.’ ” People v. Nicholas, 218 Ill. 2d 104, 121, 842 N.E.2d 674, 685
(2005), quoting T. Mauet & W. Wolfson, Trial Evidence §14.1, at 439 (2d ed. 2001).
Accordingly, prosecutors are afforded wide latitude to comment on the relevant evidence as well
as any fair and reasonable inferences therefrom. Nicholas, 218 Ill. 2d at 121, 842 N.E.2d at 685.
“However, it is improper for the prosecutor to suggest that a defendant has been engaged in other
criminal activity for which he is not on trial.” People v. Fleming, 91 Ill. App. 3d 99, 109, 413
N.E.2d 1330, 1337 (1980). Reversible error may be found in a closing argument where the
defendant can establish that but for the particular comment, the verdict would have been different.
People v. Leger, 149 Ill. 2d 355, 399, 597 N.E.2d 586, 606 (1992). Where confronted with the
legal question of whether a prosecutor’s comments warrant the grant of a new trial, our review is
de novo. People v. Wheeler, 226 Ill. 2d 92, 121, 871 N.E.2d 728, 744 (2007).
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When reviewing comments made during closing arguments, we must consider the entirety
of the argument, placing the complained-of comments in proper context. Nicholas, 218 Ill. 2d at
122, 842 N.E.2d at 685. Analytical hindsight demonstrates that statements made with no purpose
other than to inflame the jury are improper and constitute error. People v. Tiller, 94 Ill. 2d 303,
321, 447 N.E.2d 174, 183 (1982). Yet, only those comments that cause substantial prejudice to
the defendant will result in a reversal. People v. Buss, 187 Ill. 2d 144, 244, 718 N.E.2d 1, 55
(1999); see also People v. Linscott, 142 Ill. 2d 22, 28, 566 N.E.2d 1355, 1358 (1991).
We now consider the precise comment of the prosecutor complained of by defendant:
“Now, you may be wondering if it matters whose idea it was in the first place
to go there and the shooting. Absolutely not. And that’s because the law recognizes
the concept of teamwork.
The law recognizes that sometimes criminals work together, and that it’s
easier for criminals sometimes to get a job done when there’s two of them.”
As a threshold matter, we must clarify that defendant’s rendition of the prosecutor’s comment is
incomplete and lacking adequate context. At this point of her argument, the prosecutor was in
the midst of discussing the facts adduced at trial and marshaling the law to be applied by the jury
instructions. Her explanation continued beyond the portion complained of by defendant:
“And you’re going to get an instruction on this, and the instruction is about
accountability, and what the instruction reads is that, ‘A person is legally responsible
for the conduct of another person when, either before or during the commission of an
offense and with the intent to promote or facilitate the commission of an offense he
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knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the
planning or commission of the offense. The word conduct includes any criminal act
done in furtherance of this planned and intended act.’ ”
The assistant State’s Attorney then applied the law of accountability to defendant’s case,
without objection, eventually weaving it into the language of the jury instructions. After giving
these comments proper context, we perceive no impropriety. They were clearly offered as a
general explanation of the rationale behind the law of accountability and its application to the facts
at bar. We discern nothing from the argument suggesting that generic use of the word “criminal”
referred to defendant. Consequently, we find that this claim of error is without merit. Therefore,
the plain-error doctrine is not applicable and the procedural default must be honored. Keene, 169
Ill. 2d at 17, 660 N.E.2d at 910.
Next, defendant maintains the State’s rebuttal closing argument improperly shifted the
burden of proof. Fundamental precedent dictates that it is reversible error for the State to attempt
to shift the burden of proof to the defendant. Leger, 149 Ill. 2d at 399, 597 N.E.2d at 606.
Nonetheless, during rebuttal, prosecutors are entitled to respond to comments made by the
defendant “which clearly invite a response.” People v. Kliner, 185 Ill. 2d 81, 154, 705 N.E.2d
850, 887 (1998). As with other aspects of argument, rebuttal must be considered in context with
the other portions, including defendant’s. Kliner, 185 Ill. 2d at 154, 705 N.E.2d at 887.
Accordingly, we have carefully reviewed the defendant’s arguments and the State’s
response. Defendant’s closing argument initially revisited a theme from his opening statement,
namely that “this is probably a case that’s beyond a television show.” From there, the argument
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addressed the believability of Gladys Torres’ account of the day. Counsel first states, “And they
want you to believe that, what is this, Snow White and Doc meet the drug dealers? This is
preposterous.” He then described her account as “starting to sound corny or preposterous.”
Likewise, Torres’ claim that she would never forget the shooter’s face was likewise deemed
“ludicrous.”
Additionally, the believability of Julio Avila’s testimony was challenged on multiple fronts.
Specifically, counsel questioned Avila’s description of having sidestepped a bullet fired by
defendant. Counsel then added, “He didn’t sidestep any bullet. You want to believe that, then
maybe I am the king of England, that you’re sidestepping bullets.” He then rhetorically posed the
following, “What was [Avila] trying to be? A bullfighter with a gun? That doesn’t play. He’s a
[liar]. Julio’s coming in here lying through his teeth.”
The argument then shifted to the conduct of the investigators. Defendant questioned
police record keeping and challenged the manner in which defendant’s statement was elicited.
Specifically, defendant argued it was unbelievable that he confessed after he was given a Bible
while he was in custody, in part because Detective Bella testified he had never seen something like
that happen. Consequently, defendant asserted, “I can bet you they never handed him this Bible
and he never gave it up.” Defendant also criticized the fact that the statement was not
memorialized in any way other than the notes and recollections of the investigators and the
assistant State’s Attorney. Likewise, defendant observed, “They allege they have an oral
statement based on some sort of religious experience.”
Given the nature and extent of the defendant’s accusations, the prosecutor’s responses
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were clearly within the realm of invited comment:
“This defendant (indicating) gave a statement to the police. This defendant
(indicating) chose how that statement should be memorialized. So how do you know
that what he said was true? Well, Detective Bella got on the stand and told you what
was said.
***
Look to the contents of this defendant’s statement. If, in fact, he didn’t say
those things, then all this other evidence that corroborates it must have been
manufactured, and you know that’s not the case.
You heard from [Assistant State’s Attorney] Iris Ferosie. Iris came in here
and she told you what this defendant (indicating) said to her when she was at the
police station that evening. Now, either he said those things or there’s some grand
conspiracy going on to put a case on for [defendant], and you know that’s not the
case, ladies and gentlemen. And how do you know that? Because you’ve got all this
other evidence that corroborates what Iris Ferosie and Detective Bella told you he
(indicating) said.”
Defendant claims this “amounted to an accusation of a conspiracy” and encumbered him with the
burden to show the “State’s witnesses had conspired to frame him.” Likewise, it “suggested to
the jury that in order to acquit Ramos of the charged offenses, they must conclude that the State’s
witnesses had lied and conspired against him and *** that it was his burden to prove the frame
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up.”
We disagree. The State’s rebuttal closing was comprised significantly of responses to
defendant’s argument. Neither the portions quoted in the brief nor the complete argument
demonstrates any impropriety. Instead, the State responded fairly to the defendant’s accusations.
See Kliner, 185 Ill. 2d at 154, 705 N.E.2d at 887; People v. Evans, 209 Ill. 2d 194, 225, 808
N.E.2d 939, 956 (2004) (prosecutor’s provoked response in rebuttal cannot be basis for claim of
a denial of a fair trial); People v. Hall, 194 Ill. 2d 305, 346, 743 N.E.2d 521, 545 (2000) (attack
on thoroughness of investigation invited a response). Moreover, defendant’s account of the
argument is misleading.
Review of the omitted portions reveals additional support for the propriety of the State’s
argument. The gist of the remaining argument was that the aspects of the case challenged by
defendant did not represent the entire universe of the evidence against him. Instead, there was
additional evidence sufficient to convict defendant.
Defendant’s interpretation of the prosecutor’s comment about the manufacturing of
evidence was likewise lacking its proper context. There, the prosecutor was directing the jury to
the evidence corroborating the State’s theory of the case and encouraging the jurors to use their
common sense in evaluating the testimony and the evidence. See Evans, 209 Ill. 2d at 225, 808
N.E.2d at 956
We discern nothing from the State’s argument that served to shift the burden to defendant
to establish a conspiracy against him or show that witnesses lied. Instead, the prosecutor
succinctly demonstrated why and how the State proved its case based on physical and testimonial
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evidence. Furthermore, the comments were invited by the defense’s closing argument that the
State’s witnesses could not and should not be believed. See Hall, 194 Ill. 2d at 346, 743 N.E.2d
at 545. The argument never approached the position that defendant had to prove the State’s
witnesses were lying or had fabricated evidence in order for defendant to be acquitted.
Consequently, we find no impropriety in any aspect of the State’s initial and rebuttal closing
arguments. Again, having found no error, we must honor the procedural default. See Keene, 169
Next, defendant contends the trial court’s remarks to the jury “conveyed to the jury that
the State’s burden of proof was merely a minor detail and, as such, they did not have to analyze
the evidence very carefully in order to reach a verdict.” Defendant points to the duration of the
jury’s deliberations as support for his argument that the trial judge’s comments hastened the jury’s
verdict and denied him a fair trial. Here again, it is instructive to put the judge’s statements in
their proper context. The comments at issue here were made following the court’s instructions on
the law:
“Ladies and gentlemen, I’ve been telling you repeatedly over the last three
days not to talk about this case. That time is obviously now over. It’s expected that
you will talk to each other whatever length you feel is necessary to reach your
verdicts.
As I have told you before, I will tell you again, there are no time limits or
expectations as to how much time this ought to take. You’ll take whatever time you
feel is necessary to reach your verdicts.
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When you do go back to deliberate, you’ll have in your possessions the
instructions of law I’ve just recited to you. If you think it’s helpful to review and
peruse the law, it’s available to you throughout. Whether you do so or how you do
so will be up to you.
You will have also some exhibits which will go back as well. If you think it’s
helpful in your deliberations to review and peruse the exhibits, they will be available
to you throughout the course of deliberations. Whether you use them or how you use
them again will be up to you.
I will arrange with the deputy to have some food and drinks served to you.
Whether you partake of that or not and how you work with your deliberations will be
up to you. It’s perfectly [sic] to eat and deliberate at the same time.”
Mindful of the forfeiture considerations discussed herein, our earlier observations must be
modified given the practical practical considerations of objecting to a judge’s comments to the
jury. See People v. Sprinkle, 27 Ill. 2d 398, 189 N.E.2d 295 (1963) (recognizing the practical
difficulties of contemporaneous objections to a trial judge’s conduct); People v. Sims, 192 Ill. 2d
592, 736 N.E.2d 1048 (2000) (same, relying on Sprinkle analysis). Sprinkle and Sims guide us
that “we will not rigidly apply the waiver rule” under these circumstances. People v. Woolley,
205 Ill. 2d 296, 302, 793 N.E.2d 519, 522 (2002); People v. Vaughn, 354 Ill. App. 3d 917, 926,
821 N.E.2d 746, 754 (2004) (less rigid application of waiver rule for claims of potential judicial
misconduct), citing People v. Davis, 185 Ill. 2d 317, 343, 706 N.E.2d 473, 485 (1998), and
People v. Williams, 173 Ill. 2d 48, 85, 670 N.E.2d 638, 656 (1996). Therefore, we consider
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defendant’s claim on its merits.
Generally, trial judges are afforded discretion in matters concerning jury management and
a trial court’s conduct on such issues are reviewed for abuses of discretion. People v. Roberts,
214 Ill. 2d 106, 121, 824 N.E.2d 250, 259 (2005). Yet, where an alleged error implicates
defendant’s right to a fair trial, the question is a legal one which we review de novo4. Vaughn,
354 Ill. App. 3d at 926, 821 N.E.2d at 754 (de novo review of claimed denial of right to testify);
People v. Stevens, 338 Ill. App. 3d 806, 810, 790 N.E.2d 52, 55-56 (2003) (de novo review of
claimed denial of right to give closing argument). Consequently, we review this claim de novo.
Unquestionably, “[t]he integrity of the jury’s verdict must be protected from coercion,
duress or influence.” People v. Patten, 105 Ill. App. 3d 892, 894, 435 N.E.2d 171, 172 (1982).
Yet, reversal is required only “when, taken in context and considering all the circumstances of the
case, [the trial court’s] supplemental instruction to a jury has the effect of coercing jurors into
surrendering views conscientiously held.” People v. Gregory, 184 Ill. App. 3d 676, 680-81, 540
N.E.2d 854, 857 (1989); People v. Friedman, 144 Ill. App. 3d 895, 904, 494 N.E.2d 760, 765
(1986) (verdict was “likely *** impermissibly hastened” coming five minutes after trial judge’s
remark about sequestration).
4 Notably, the cases cited by defendant provide examples of situation where de
novo review is appropriate (Branson v. Department of Revenue, 168 Ill. 2d 247, 254, 659 N.E.2d
951, 965 (1995) (statutory interpretation), and People v. Saunders, 288 Ill. App. 3d 523, 525,
680 N.E.2d 790, 791 (1997) (application of statutory privilege)), but do not illuminate the proper
standard of review in the case sub judice.
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Having reviewed the transcript in toto, defendant’s portrayal of the remarks is at best
incomplete and at worst blatantly misleading. In considering this claim of error, the words penned
by our supreme court long ago in People v. Golub clearly resonates:
“A verdict should express the deliberate judgment of the jury. The juror, as well as the
judge, 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. The trial judge’s remarks of which plaintiff in error complains did
not, either expressly or by implication, indicate that the jury should reach a particular
conclusion.” People v. Golub, 333 Ill. 554, 561, 165 N.E. 196, 199 (1929).
We are similarly guided by People v. Chapman, a more recent supreme court case addressing the
timing of a Prim instruction. People v. Chapman, 194 Ill. 2d 186, 221-22, 743 N.E.2d 48, 70
(2000). In Chapman, the defendant claimed error based on the trial court’s refusal to give a Prim
instruction at the outset of the jury’s deliberations. As described by the Chapman court:
“The 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
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because of the opinion of fellow jurors or for the mere purpose of returning a
verdict.” Chapman, 194 Ill. 2d at 222, 743 N.E.2d at 70.
But for the unanimity and reexamination components, the words of the trial judge in the
proceedings below are in harmony with the rationale of Prim. Notably, the Chapman court
determined the giving of such an instruction was left to the trial court’s discretion. Chapman, 194
Ill. 2d at 222, 743 N.E.2d at 70.
Having found no Illinois cases directly on point, and none cited by the parties, we find the
rationale of Chapman applicable to the present case. Accordingly, we perceive that the
touchstone for judging the court’s comments below is to determine whether, based on the “
‘totality of circumstances, the language used actually coerced or interfered with the deliberations
of the jury to the prejudice of the defendant.’ ” People v. Love, 377 Ill. App. 3d 306, 316-17, 878
N.E.2d 789, 799 (2007), quoting People v. Branch, 123 Ill. App. 3d 245, 251, 462 N.E.2d 868,
873 (1984).
Viewed against the totality of the facts and circumstances, we are unable to perceive how
the judge’s commentary served to hasten the jury’s deliberations, tended to minimize the State’s
burden, or encouraged superficial deliberations. Rather, they constituted practical guidance and a
summary of the previously given instructions; effectively shorthand descriptions of what the jury
would have during deliberations and the freedom to incorporate those items during the process.
No fewer than three sentences were directed to the open-ended duration of deliberations.
Additionally, the record reveals two instances, after the jury was selected where the trial judge, in
responding to scheduling questions from the jurors, emphasized that the juries would have all the
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time they needed to deliberate.
Specifically addressing the instructions on the law that would accompany the jury when
they retired, the judge stated: “Whether you use them or how you use them again will be up to
you.” Defendant attaches particular significance to this comment. We do not perceive it to be of
such moment. Rather, our experience instructs that this statement was reasonable and utterly
understandable to this jury as it would have been to any jury. See People v. Lozada, 211 Ill. App.
3d 817, 822, 570 N.E.2d 737, 740 (1991) (“the test of the correctness of an instruction is not
what meaning the ingenuity of counsel can attribute to it, but how and in what sense, under the
evidence before them, ordinary persons acting as jurors will understand the instruction”). This
appears little more than a recognition that, within the parameters of the instructions, the jury is
free to deliberate in its own way.
Defendant points to the duration of the deliberations to support a hastening influence by
the trial judge. Yet, one could just as reasonably conclude that the verdict was hastened by the
significant and compelling evidence of defendant’s guilt. We do not perceive it is our place to
determine what is the proper duration of time for deliberations. Moreover, defendant’s argument
presents a logical fallacy of the post hoc ergo propter hoc variety we are not prepared to credit.
In effect, defendant contends, because the deliberations were – in his view – short or hasty, they
were hastened by the remarks of the trial judge. We disagree with the premise and the
conclusion.
We find no error in the remarks of the trial court prior to deliberations. They were
reasonable, commonsense guideposts for the jury. Not a single scintilla of influence or coercion is
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evident from the judge’s words. Consequently, we find no error.
For the foregoing reasons, we affirm defendant’s conviction and sentence. We likewise
grant the State’s motion for fees, in the amount of $150, for defending this appeal and for oral
argument.
Affirmed.
FITZGERALD SMITH and HOWSE, JJ., concur.
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Plea se Use REPORTER OF DECISIONS – ILLINOIS APPELLATE COURT Following (Front Sheet to be Attached to Each Case) Form:
THE PEOPLE OF THE STATE OF ILLINOIS, Complete TITLE Plaintiff-Appellee, of Case v. ALFREDO RAMOS, Defendant-Appellant.
Docket No. No. 1-07-3244 COURT Appellate Court of Illinois First District, FIFTH Division
Opinion December 4, 2009 Filed (Give month, day and year)
JUSTICE TOOMIN delivered the opinion of the court: JUSTICES FITZGERALD SMITH and HOWSE, JJ. concur [s]
dissent[s]
APPEAL from Lower Court and Trial Judge(s) in form indicated in the margin: the Circuit Ct. of Cook County, Chancery Div. The Honorable James B. Linn, Judge Presiding.
Indicate if attorney represents APPELLANTS or APPELLEES and include For attorneys of counsel. Indicate the word NONE if not represented. APPELLANTS, John Doe, of Attorneys for Plaintiff-Appellee-People of the State of Illinois:Anita Alvarez Chicago. State’s Attorney County of Cook For APPELLEES, Room 309-Richard J. Daley Center, Smith and Smith Chicago, IL 60602 of Chicago, Of counsel: James E. Fitzgerald, Alan Spellberg, Sally Dilgart, Jackie Thursby-Elvekrog Joseph Brown, (of Counsel) Attorneys for Defendant-Appellant-Alfredo Ramos: Michael J. Pelletier Also add State Appellate Defender attorneys for third-party Patricia Unsinn appellants or Deputy Defender appellees.
20 1-07-3244
Kari K. Firebaugh Assistant Appellate Defender Office of the State Appellate Defender 203 North LaSalle Street - 24th Floor Chicago, IL 60601