People v. Parker

2019 IL App (3d) 170108

134 N.E.3d 964

434 Ill.Dec. 78

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

v.Valerie A. PARKER, Defendant-Appellant.

Appeal No. 3-17-0108

Appellate Court of Illinois, Third District.

Opinion filed July 26, 2019

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

¶ 1 Defendant, Valerie A. Parker, appeals her conviction for aggravated driving under the influence of alcohol (DUI). Specifically, defendant argues that second-prong plain error occurred "where an Assistant State's Attorney and two court bailiffs were present when the jury viewed evidence during deliberations outside of the presence of the parties and the court." We affirm.

¶ 2 I. BACKGROUND

¶ 3 The State charged defendant with aggravated DUI ( 625 ILCS 5/11-501(a) (West 2014)) in that she drove a motor vehicle while under the influence of alcohol and had at least two prior convictions for DUI. The State also charged defendant with driving while her license was revoked (id. § 6-303(a)).

¶ 4 Defendant pled guilty to driving while her license was revoked, and the matter proceeded to a jury trial on the charge of aggravated DUI. During the trial, Assistant State's Attorney Thomas Dennis appeared on behalf of the State.

¶ 5 During jury deliberations, the jury requested to watch a DVD video recording that had previously been played during the trial. The following exchange occurred:

"THE COURT: Okay. It's about 9:15 * * *. [Defendant] appears personally today with Mr. Bembenek, her lawyer. Mr. Dennis is the Assistant State's Attorney. The jury has resumed deliberations, and they have given us the question. May we please see the video. Mr. Dennis, what's your position on that?

MR. DENNIS: I believe that the jury should be able to review the video. It was admitted into evidence and published to the jury. I do believe they should be able to review that.

THE COURT: Mr. Bembenek?

MR. BEMBENEK: I have no objection to the jury's request, Your Honor.

THE COURT: Okay. How are we going to get them to get it set up back there?

MR. DENNIS: I believe the laptop is still set up, Your Honor, but the DVD is in the court file.

THE COURT: Here's the DVD. That's what I mean. Who's going to go show them how to do it?

THE CLERK: I think [Assistant State's Attorney Mara Mishler] could, since she was not really involved in the—

MS. MISHLER: And I would just say, both bailiffs need to be present while I'm in there. Insurance that I'm not a crook.

THE COURT: That's fine. Mara Mishler will, unless somebody else has a better idea, under the watchful eye of the bailiffs, go get it set up for them in the jury room. Anything else to place of record?

MR. DENNIS: No, Your Honor.

MR. BEMBENEK: No, Your Honor."

¶ 6 At approximately 9:50 a.m., the jury submitted another question. The jury asked why a video of defendant exiting a car was unavailable. On the agreement of the parties, the court submitted a written answer to the jury stating: "The evidence received by the Court has concluded and the jury should consider the evidence so received * * *."

¶ 7 The jury found defendant guilty of aggravated DUI. The circuit court sentenced defendant to an agreed sentence of 24 months' probation and 90 days' incarceration in the county jail on the charge of aggravated DUI and 10 days' incarceration in the county jail on the charge of driving while her license was revoked.

¶ 8 II. ANALYSIS

¶ 9 Defendant argues that second-prong plain error occurred "where an Assistant State's Attorney and two court bailiffs were present when the jury viewed evidence during deliberations outside of the presence of the parties and the court." Defendant contends that the presence of Assistant State's Attorney Mishler and the two bailiffs had a chilling effect on the jurors while they viewed the DVD during deliberations. Defendant also argues that their presence "prevented jurors from speaking freely about the evidence." We find that defendant has not shown that the procedure employed by the court constituted clear error. Alternatively, even if we were to find that the procedure constituted error, it would not rise to the level of plain error.

¶ 10 Defendant concedes that she forfeited this issue by failing to object at trial or raise the issue in a posttrial motion. However, defendant requests that we review the issue under the second prong of the plain error doctrine. Under the second prong of the plain error doctrine, a reviewing court may consider an unpreserved error when "a clear or obvious error occurred 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, 312 Ill.Dec. 338, 870 N.E.2d 403 (2007). The burden of persuasion remains with the defendant under both prongs of the plain error test. People v. Lewis , 234 Ill. 2d 32, 43, 332 Ill.Dec. 334, 912 N.E.2d 1220 (2009). The first step in plain error review is determining whether a clear or obvious error occurred. Id.

¶ 11 "It is a basic principle of our justice system that jury deliberations shall remain private and secret." People v. Johnson , 2015 IL App (3d) 130610, ¶ 17, 399 Ill.Dec. 236, 46 N.E.3d 274. "The primary purpose of this honored rule is to protect the jurors from improper influence." Id. The presence of a third party during jury deliberations impinges on the privacy and secrecy of deliberations, but it does not warrant reversal if no harm resulted from the intrusion. Id.

¶ 12 Here, the crux of defendant's argument is that the presence of Mishler and the bailiffs during the jury's review of evidence constituted clear error. However, the record does not establish that Mishler and the bailiffs remained in the jury room while the jury viewed the DVD. Rather, the court directed Mishler to deliver the DVD to the jury room and "get it set up for them." The court did not tell Mishler or the bailiffs to remain in the jury room while the jury viewed the DVD, and nothing in the record indicates that they remained in the jury room. We construe this ambiguity in the record against defendant. People v. Hunt , 234 Ill. 2d 49, 58, 333 Ill.Dec. 58, 914 N.E.2d 477 (2009) ("The appellant bears the burden of presenting an adequate record to support its claim of error. [Citation.] Any doubts stemming from an inadequate record will be construed against the appellant."). We do not find that Mishler and the bailiffs entering the jury room to merely set up the DVD on the computer constituted clear error.

¶ 13 Even if we were to find that error occurred when the circuit court allowed Mishler and the two bailiffs to enter the jury room and set up the DVD, this would not rise to the level of second-prong plain error. Any error that may have resulted from Mishler's and the bailiffs' brief entry into the jury room for the limited purpose of setting up the DVD on the computer was not "so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process." Piatkowski , 225 Ill. 2d at 565, 312 Ill.Dec. 338, 870 N.E.2d 403.

¶ 14 In reaching our holding, we reject defendant's reliance on our prior decision in People v. Henderson , 2017 IL App (3d) 150550, 419 Ill.Dec. 90, 92 N.E.3d 501. In Henderson , the jury requested to view video and audio evidence during deliberations. Id. ¶ 27. The circuit court discussed the request with the jury outside the presence of the State and the defense. Id. The record in Henderson showed that the video and audio recordings were played in the presence of an employee of the state's attorney's office and a bailiff. Id. ¶¶ 27-28. The court told the jury to tell the employee what they wanted to watch and that the court would keep the employee there as long as the jury wanted to view the evidence. Id. ¶ 27. The court did not advise the parties of the jury's request or the procedure the court had employed until after the jury had reached a verdict. Id. ¶ 28. We found that the procedure for viewing the audio and video recordings employed in Henderson constituted second-prong plain error. Id. ¶ 48. We reasoned:

"[W]e find that allowing a representative of the State to be in the room while the jury reviews evidence, without any prior notice to defendant, to be so far beyond the pale of what is expected in a criminal jury trial as to ‘erode the integrity of the judicial process.’ " Id. (quoting People v. Herron , 215 Ill. 2d 167, 186, 294 Ill.Dec. 55, 830 N.E.2d 467 (2005) ).

¶ 15 The instant case is distinguishable from Henderson in two significant respects. First, as we have discussed, the record in this case does not establish that Mishler and the bailiffs remained in the jury's presence while the jury watched the DVD. Second, unlike in Henderson , both parties were present while the court discussed the jury's request and the court's proposed procedure of having Mishler set up the DVD in the jury room. We note that the State argues that defendant invited the alleged error by failing to object to the court's proposed procedure of having Mishler enter the jury room or propose a different procedure where the court gave defense counsel the opportunity to do so. However, because we have found that defendant cannot establish error, let alone a claim of second-prong plain error, we do not address the State's invited error argument.

¶ 16 III. CONCLUSION

¶ 17 For the foregoing reasons, we affirm the judgment of the circuit court of Tazewell County.

¶ 18 Affirmed.

Justice Holdridge concurred in the judgment and opinion.

Justice Carter specially concurred, with opinion.

Justice Holdridge also specially concurred, with opinion.

¶ 19 JUSTICE CARTER, specially concurring:

¶ 20 I agree with the majority that defendant has failed to establish that either error or plain error occurred in this case. In determining that defendant failed to establish error, the lead opinion relies on the fact that the record does not show whether...