People v. Flores

2021 IL App (1st) 192219

202 N.E.3d 311

460 Ill.Dec. 769

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Jesse FLORES, Defendant-Appellant.

No. 1-19-2219

Appellate Court of Illinois, First District, SECOND DIVISION.

Filed September 30, 2021

James E. Chadd, Douglas R. Hoff, Miriam Sierig, of State Appellate Defender's Office (Alison Golisch, law student), of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (John E. Nowak, Enrique Abraham, and Matthew Connors, Assistant State's Attorneys, of counsel), for the People.

OPINION

JUSTICE HOWSE delivered the judgment of the court, with opinion.

¶ 1 Defendant Jesse Flores was charged with possessing contraband in a penal institution. He was tried by a jury and found guilty of the charged offense. Following the jury's verdict, the defense requested that the jury be polled. The trial court polled the jury but only asked 11 of the 12 jurors to verbally confirm their verdict. Defendant did not object to the court's polling of the jury and did not raise the issue in a posttrial motion. On appeal, defendant raises the jury-polling error for the first time and argues that he is entitled to a new trial. We conclude that defendant has forfeited the error for review and that he is not entitled to relief under the plain error doctrine. Accordingly, we affirm.

¶ 2 BACKGROUND

¶ 3 Defendant was charged with possessing contraband in a penal institution after prison guards found defendant in possession of a prison shank. At trial, the State produced compelling evidence that defendant was guilty of the charged offense. The jury deliberated for under an hour and found defendant guilty. All 12 jurors signed the verdict form to signify their finding that defendant was guilty beyond a reasonable doubt.

¶ 4 After the verdict was announced, the defense asked the trial court to poll the jury. The trial court asked 11 of the jurors to confirm that the guilty verdict was the verdict that each individual juror had selected. Defendant did not object to the court's poll of the jury. Neither the State nor the defense alerted the trial court to the fact that it only polled 11 of the 12 jurors.

¶ 5 A month after trial, the defense filed a motion for a new trial but indicated that it was waiting for trial transcripts and would likely need to amend the motion for a new trial once it received the transcripts. Later, defendant received the trial transcripts, made amendments to the motion for a new trial, and filed the amended motion. Defendant raised at least nine grounds for a new trial, but he did not mention any potential error in the polling of the jury. The trial court denied the motion for a new trial and sentenced defendant to seven years in prison. Defendant filed this appeal predicated solely on the jury-polling issue, and he claims that he is entitled to a new trial.

¶ 6 ANALYSIS

¶ 7 Defendant argues that he was denied the right to ensure that the jury's verdict was unanimous when the trial court only polled 11 of the 12 jurors. Defendant points out that the right to have the jury polled is an absolute right in Illinois under which jurors are given the right to express disagreement with the verdict or change their mind, citing People v. Kellogg , 77 Ill. 2d 524, 527-530, 34 Ill.Dec. 163, 397 N.E.2d 835 (1979). Defendant contends that by only asking 11 of the 12 jurors to confirm their verdict, the trial court failed to examine "each juror" as required by our supreme court's precedent ( id. ) and, as a result, he was not afforded his "right to ensure unanimous agreement in the verdict against him."

¶ 8 Defendant, however, concedes that he failed to object to the trial court's jury poll and that he is raising the issue for the first time on appeal. He urges us to review the issue under the plain error doctrine, which permits us, under certain circumstances, to review issues that would otherwise be forfeited for review.

¶ 9 If a defendant either fails to object to an error at trial or fails to raise the issue in a posttrial motion, the issue is forfeited for appellate review. People v. Johnson , 238 Ill. 2d 478, 484, 345 Ill.Dec. 632, 939 N.E.2d 475 (2010). An exception to the forfeiture rule exists for situations in which the alleged error rises to the level of "plain error." People v. Roman , 2013 IL App (1st) 102853, ¶ 19, 371 Ill.Dec. 608, 990 N.E.2d 796. The plain error doctrine allows this court to consider unpreserved errors when either (1) the evidence is close, regardless of the seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence. People v. Herron , 215 Ill. 2d 167, 186-87, 294 Ill.Dec. 55, 830 N.E.2d 467 (2005). Here, defendant argues that we should review the issue under the second prong of plain error review—that there was an error so serious that it affected the fairness of defendant's trial and challenges the integrity of the judicial process. See id. at 187, 294 Ill.Dec. 55, 830 N.E.2d 467.

¶ 10 Defendant argues that a jury-polling error falls under second-prong plain error review because our courts have recognized a defendant's "substantial right" to poll the jury, citing People v. Wheat , 383 Ill. App. 3d 234, 237, 321 Ill.Dec. 635, 889 N.E.2d 1195 (2008). Defendant contends that regardless of whether a jury-polling error is preserved for review, a violation of the "absolute right" to poll the jury mandates a new trial, citing People v. DeStefano , 64 Ill. App. 2d 389, 408-09, 212 N.E.2d 357 (1965). He posits that "reversal is required when the polling is insufficient in any way *** because the record must establish that the verdict was unanimous and unhampered by the pressures of the jury room."

¶ 11 We have previously examined the issue of whether a jury-polling error constitutes the type of error we will address under second-prong plain error review. In answering that question, we have stated that "polling the jury on request, while mandatory, is not so fundamental that the failure to do so affects the fairness of a defendant's trial and challenges the integrity of the judicial process." People v. McGhee , 2012 IL App (1st) 093404, ¶ 26, 358 Ill.Dec. 46, 964 N.E.2d 715, appeal denied , No. 113975, 360 Ill.Dec. 317, 968 N.E.2d 1070 (Ill. May 30, 2012) ). We reached that holding in McGhee despite the trial court conducting no jury poll at all even though the defendant requested one.

McGhee , 2012 IL App (1st) 093404, ¶ 17, 358 Ill.Dec. 46, 964 N.E.2d 715. Here, the trial court conducted the jury poll consistent with defendant's request but inadvertently neglected to consult one juror.

¶ 12 In People v. Sharp , 2015 IL App (1st) 130438, 389 Ill.Dec. 370, 26 N.E.3d 460, abrogated on other grounds by People v. Veach , 2017 IL 120649, ¶ 39, 417 Ill.Dec. 718, 89 N.E.3d 366, we addressed a situation very similar to the one presented in this case. In Sharp , the defendant requested that the jury be polled, but the trial court inadvertently only polled 10 of the 12 jurors. Sharp , 2015 IL App (1st) 130438, ¶ 111, 389 Ill.Dec. 370, 26 N.E.3d 460. The defense did not object to the incomplete polling at trial or in a posttrial motion. Id. We reviewed the claim for plain error and held that the error did not amount to second-prong plain error. Id. ¶ 112. We explained that the trial court's "failure to poll the jury on defendant's request is not the kind of error that mandates reversal regardless of whether the defendant was prejudiced by the error because it does not affect the fairness of a defendant's trial or challenge the integrity of the judicial process." Id. ; see also People v. McDonald , 168 Ill. 2d 420, 462, 214 Ill.Dec. 125, 660 N.E.2d 832 (1995), abrogated on other grounds by People v. Clemons , 2012 IL 107821, 360 Ill.Dec. 293, 968 N.E.2d 1046 ("We therefore reject defendant's contention that the purportedly improper polling of a juror amounted to plain error.").

¶ 13 Contrary to the two cases discussed above, this court recently addressed the scenario presented in this case when it decided People v. Jackson , 2021 IL App (1st) 180672, 446 Ill.Dec. 549, 170 N.E.3d 1075, appeal allowed , No. 127256, 447 Ill.Dec. 703, 175 N.E.3d 71 (Ill. Sept. 29, 2021). In Jackson , the trial court polled 11 of the jurors, but failed to inquire of the twelfth. Jackson , 2021 IL App (1st) 180672, ¶ 11, 446 Ill.Dec. 549, 170 N.E.3d 1075. The defendant did not object at the time the error occurred, nor did he raise the issue in a posttrial motion. Id. ¶¶ 11 -12. The Jackson court found that the error was forfeited, but it found that the incomplete jury poll was an error "serious enough to be considered second-prong plain error." Id. ¶ 19.

¶ 14 In reaching the holding in Jackson , the court found that failing to poll the entire jury constitutes second-prong plain error. Id. The court concluded that once a jury poll is sought by a defendant, every juror must be afforded the opportunity to disavow the verdict form. Id. ¶ 31. The Jackson court held that "a complete and proper jury poll [is] essential to a fair criminal trial" ( id. ¶ 35 ) and that polling the jury "is a right central enough to the proper functioning of our criminal justice system that the error alone is prejudicial" ( id. ¶ 39 ). Accordingly, the Jackson court found that the defendant was entitled to a new trial as a result of the trial court only polling 11 of the 12 jurors. Id. ¶ 3.

¶ 15 The fundamental right that lies underneath the dispute in this appeal is that a defendant cannot be convicted unless the jury delivers a unanimous verdict against him. People v. Brown , 2013 IL App (2d) 110327, ¶ 19, 370 Ill.Dec. 508, 988 N.E.2d 706 (the right to a unanimous verdict is among the most fundamental rights in Illinois). The right to poll the jury is a long-accepted procedure we have adopted as a substantial right to safeguard the unanimity in the jury's verdict. See McGhee , 2012 IL App (1st) 093404, ¶ 25, 358 Ill.Dec. 46, 964 N.E.2d 715. The right to poll the jury is not...