People v. Miller

2017 IL App (1st) 143779

82 N.E.3d 217

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

v.Melvin MILLER, Defendant-Appellant.

No. 1-14-3779.

Appellate Court of Illinois, First District, Second Division.

Opinion filed June 27, 2017

Stephen L. Richards, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Eric Leafblad, Mary P. Needham, and Riebana E. Sachs, Assistant State's Attorneys, of counsel), for the People.

OPINION

PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion.

¶ 1 Defendant Melvin Miller was convicted by a jury of delivery of a controlled substance and sentenced to 12 years' incarceration. He argues on appeal that (i) the trial court failed to "conduct a meaningful inquiry" after a juror equivocated while answering a question posed during the jury polling after the guilty verdict, (ii) the prosecution failed to tender Miller's statement to police officers giving his name and date of birth, and (iii) the trial court erroneously refused his tendered jury instruction regarding prior inconsistent statements. Miller requests reversal of his conviction based on each of these alleged errors.

¶ 2 We affirm. First, while polling the jury, the trial court's response to a juror's equivocation did not prejudice Miller or affect the fairness of the trial or the integrity of the judicial process. Second, Miller forfeited the issue of whether the State violated the rules of discovery; moreover, Miller was not prejudiced by any nondisclosure of his "statement." Finally, Miller failed to show the trial judge abused her discretion in refusing a jury instruction on impeachment by prior inconsistent statements.

¶ 3 BACKGROUND

¶ 4 Chicago police officer Lazaro Altamirano, Detective Donald Clark and Sergeant Andrew Dakuras, team supervisor, were assigned to an eight-man undercover narcotics team conducting drug investigations in Chicago and suburbs. Altamirano was the "designated undercover officer" who used marked bills (prerecorded Chicago Police Department "1505" funds) to buy heroin from a suspected drug dealer. On November 14, 2012, the team conducted an undercover heroin purchase from Miller in the area of Iowa Street and Harding Avenue in Chicago. Dakuras recorded the serial numbers of a $10 bill and two $5 bills that Altamirano used in the "buy" by writing them on his palm.

¶ 5 Altamirano approached Miller and asked him for two "blows" (street slang for heroin). Miller went into a nearby house and returned with a small package. Altamirano paid him for the package with $20 in marked "1505" bills. Clark, the surveillance officer, watched the transaction from a distance 50 to 75 feet. After the buy, Clark radioed Dakuras that Miller was on the corner of Iowa Street and Lamon Avenue. Dakuras pulled up in an unmarked police car and saw Miller. Dakuras called Miller over. Dakuras got out of the car and made "small talk" with Miller about what he was doing, where he was going, and how long he had been on the corner. Dakuras asked Miller if he had any money, and Miller pulled out about $100 in various bills. Dakuras checked the serial numbers on all the bills and confirmed that three bills matched the "1505" funds Altamirano used in the buy. As Dakuras and Miller stood on the corner, Altamirano drove past and confirmed by radio that Miller was the individual who sold him the heroin.

¶ 6 Dakuras asked Miller his name and birthday, which Miller gave. At this point, defense counsel objected but was overruled, and the trial court denied counsel's request for a sidebar. Dakuras did not recall if Miller had identification or simply gave his name. Dakuras signed off on Clark's "Surveillance Supplementary Report" of the incident that stated Miller "was identified," but neither Clark nor Dakuras wrote in any report that Miller identified himself.

¶ 7 Miller was not arrested the same day as the "buy." Doing so would have exposed Altamirano as an undercover police officer. Instead, Dakuras returned to the police station and obtained Miller's photograph from police computer records by his name and birthday. According to Dakuras, "[w]hen you have been previously arrested, you are given an identification record number." The following exchange then ensued:

"MR. GASSMAN [defense counsel]: I will object again. This is coming out now for the first time.

THE COURT: That will be stricken. Counsel, you have had the photographs.

MR. GASSMAN: Not photographs, statements allegedly made by the suspect. It is coming out now for the first time.

THE COURT: Sustained. That will be stricken.

¶ 8 Dakuras created a photo array of six photos including Miller's. All the photos were of black males fitting Miller's general description. On the same day, Altamirano viewed the photo array and selected Miller as the person who sold him the heroin. In December 2012, Miller was arrested on a warrant.

¶ 9 The parties stipulated that the package Miller sold to Altamirano contained 0.4 grams of heroin. The State rested, and defense counsel moved for a mistrial based on the State's failure to disclose Miller's incriminating statement, specifically the "very damning identifying information"—his name and birth date. The trial court found that the reports tendered to the defense contained the identifying information as Dakuras testified.

¶ 10 The defense rested without calling any witnesses.

¶ 11 Jury Instructions

¶ 12 At the jury instruction conference, the defense requested an impeachment instruction (Illinois Pattern Jury Instructions, Criminal, No. 3.11 (2d ed. 1981)) based on an inconsistent statement made on a former occasion that was not consistent with the witness's testimony in this case. The trial court denied the instruction after finding no perfection of impeachment at trial.

¶ 13 Jury Polling

¶ 14 The trial court polled the jury after its guilty verdict, asking "was this then and is this now your verdict." Eight jurors answered "yes" until the ninth juror was questioned:

"THE COURT: [Mr. Juror], was this then and is this now your verdict forepersons? [Mr. Juror]. Is [Mr. Juror] here? Was this then and is this your verdict? [Mr. Juror], you have to answer yes or no.

[JUROR]: That's now my verdict.

THE COURT: Okay. I am going to ask that you continue your deliberations, ladies and gentlemen.

[JUROR]: I said that's now my verdict.

THE COURT: That's now your verdict.

[JUROR]: Now.

THE COURT: I meant when you signed it and is it now."

With that, the trial court moved to the next juror.

¶ 15 The jury convicted Miller of one count of delivery of a controlled substance; he was later sentenced to 12 years' incarceration.

¶ 16 ANALYSIS

¶ 17 Jury Polling

¶ 18 A defendant's right to poll the jury is a "substantial" right. People v. Townsend , 5 Ill.App.3d 924, 925, 284 N.E.2d 414 (1972) ; see also People v. McGhee , 2012 IL App (1st) 093404, ¶ 15, 358 Ill.Dec. 46, 964 N.E.2d 715 (criminal defendant's right to poll jury has long been recognized in Illinois and is rooted in Illinois common law). The purpose of polling a jury is to ensure unanimity and determine whether the verdict was freely and voluntarily reached. People v. Wheat , 383 Ill.App.3d 234, 237, 321 Ill.Dec. 635, 889 N.E.2d 1195 (2008).

¶ 19 Illinois courts have consistently held that the manner in which jury polls are conducted is within the discretion of the trial court and whether a juror freely assented to a verdict in a poll is a question of fact for the trial court to decide. People v. Herron , 30 Ill.App.3d 788, 791-92, 332 N.E.2d 623 (1975) ; see also Wheat , 383 Ill.App.3d at 238, 321 Ill.Dec. 635, 889 N.E.2d 1195 ; People v. Bennett , 154 Ill.App.3d 469, 477-78, 107 Ill.Dec. 431, 507 N.E.2d 95 (1987) ; People v. Chandler , 88 Ill.App.3d 644, 650, 44 Ill.Dec. 314, 411 N.E.2d 283 (1980). If a juror indicates some hesitancy or ambivalence in answering, the trial court has the duty to ascertain the juror's intent. People v. Kellogg , 77 Ill.2d 524, 528, 34 Ill.Dec. 163, 397 N.E.2d 835 (1979). The most frequent question used to poll jurors is " ‘Was this then and is this now your verdict?’ " Id .

¶ 20 Miller first argues that the trial court did not conduct an adequate inquiry of a juror who did not directly answer "yes or no" when asked "was this then and is this now your verdict?" Additionally, Miller claims error when, immediately after the juror answered, the trial court threatened to continue deliberations ("I am going to ask that you continue your deliberations, ladies and gentlemen.").

¶ 21 The State responds that Miller forfeited the issue because, even though his posttrial motion raised the issue, he did not contemporaneously object to the trial court's conduct.

¶ 22 Relying on People v. McLaurin , 235 Ill.2d 478, 337 Ill.Dec. 221, 922 N.E.2d 344 (2009), Miller urges us to relax the forfeiture rule first enunciated in People v. Sprinkle , 27 Ill.2d 398, 189 N.E.2d 295 (1963), where the defense counsel made no objection when the trial court conducted witness examinations during the defendant's jury trial and implied its own opinions of the case and the witnesses. In Sprinkle , the supreme court granted review of the defendant's claims and held "a less rigid application of the rule requiring timely and proper objection and preservation of rulings thereon should prevail where the basis for the objection is the conduct of the trial judge than is otherwise required." Id . at 401, 189 N.E.2d 295. The Sprinkle court observed that by objecting "to a comment or question by the judge," the lawyer may be "viewed with considerable suspicion and skepticism by the very group whom [the lawyer] is trying to convert to his [or her] client's view of the facts." Id . at 400, 189 N.E.2d 295. But in McLaurin , the supreme court noted: "[t]hat we have seldom applied Sprinkle to noncapital cases further underscores the importance of uniform application of the forfeiture rule except in the most compelling of situations." McLaurin , 235 Ill.2d at 488, 337 Ill.Dec. 221, 922...