{ "id": 3630653, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JAMES T. JOHNSON, Appellee", "name_abbreviation": "People v. Johnson", "decision_date": "2010-10-21", "docket_number": "No. 108253", "first_page": "478", "last_page": "497", "citations": [ { "type": "official", "cite": "238 Ill. 2d 478" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "388 Ill. App. 3d 199", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4283798 ], "weight": 3, "pin_cites": [ { "page": "203" }, { "page": "204" }, { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/388/0199-01" ] }, { "cite": "383 Ill. App. 3d 281", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4277683 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "285", "parenthetical": "Johnson I" }, { "page": "285", "parenthetical": "Carter, J., specially concurring" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/383/0281-01" ] }, { "cite": "229 Ill. 2d 681", "category": "reporters:state", "reporter": "Ill. 2d", "year": 2008, "pin_cites": [ { "parenthetical": "supervisory order" } ], "opinion_index": 0 }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "186" }, { "page": "185-87" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "225 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5704197 ], "weight": 7, "year": 2007, "pin_cites": [ { "page": "565" }, { "page": "565", "parenthetical": "ordinarily, the first step in a plain-error analysis is determining whether a clear and obvious error occurred" }, { "page": "565" }, { "page": "566" }, { "page": "566" }, { "page": "565" }, { "page": "565" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/225/0551-01" ] }, { "cite": "215 Ill. 2d 167", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4060336 ], "weight": 6, "year": 2005, "pin_cites": [ { "page": "186-87" }, { "page": "177" }, { "page": "177" }, { "page": "187" }, { "page": "193" }, { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/215/0167-01" ] }, { "cite": "235 Ill. 2d 478", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3625059 ], "weight": 13, "year": 2009, "pin_cites": [ { "page": "485" }, { "page": "496" }, { "page": "485" }, { "page": "490" }, { "page": "491" }, { "page": "492" }, { "page": "491-93" }, { "page": "494-96" }, { "page": "491-93" }, { "page": "491", "parenthetical": "noting that \"the trial court has broad discretion when responding to a jury that claims to be deadlocked, although any response should be clear, simple, and not coercive\"" }, { "page": "489" }, { "page": "488" }, { "page": "488" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/235/0478-01" ] }, { "cite": "185 Ill. 2d 81", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 122017 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ill-2d/185/0081-01" ] }, { "cite": "168 Ill. 2d 420", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 307268 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "460" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/168/0420-01" ] }, { "cite": "159 Ill. 2d 217", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 781322 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "227-28" }, { "page": "227-28" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/159/0217-01" ] }, { "cite": "137 Ill. 2d 65", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3251434 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "80-81" }, { "page": "82-83" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/137/0065-01" ] }, { "cite": "27 Ill. 2d 398", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5360433 ], "year": 1963, "pin_cites": [ { "page": "400-01" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/27/0398-01" ] }, { "cite": "238 Ill. 2d 74", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3630639 ], "year": 2010, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/238/0074-01" ] }, { "cite": "388 Ill. App. 3d 199", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4283798 ], "pin_cites": [ { "page": "203-04" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/388/0199-01" ] }, { "cite": "225 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5704197 ], "year": 2007, "pin_cites": [ { "page": "565" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/225/0551-01" ] }, { "cite": "235 Ill. 2d 478", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3625059 ], "weight": 4, "year": 2009, "pin_cites": [ { "page": "483" }, { "page": "494" }, { "page": "491-92" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/235/0478-01" ] }, { "cite": "185 Ill. 2d 81", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 122017 ], "year": 1998, "pin_cites": [ { "page": "162" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/185/0081-01" ] }, { "cite": "168 Ill. 2d 420", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 307268 ], "year": 1995, "opinion_index": 1, "case_paths": [ "/ill-2d/168/0420-01" ] }, { "cite": "159 Ill. 2d 217", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 781322 ], "year": 1994, "opinion_index": 1, "case_paths": [ "/ill-2d/159/0217-01" ] }, { "cite": "137 Ill. 2d 65", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3251434 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/ill-2d/137/0065-01" ] }, { "cite": "422 U.S. 35", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9571 ], "weight": 3, "year": 1975, "pin_cites": [ { "page": "39" }, { "page": "6" }, { "page": "2095" } ], "opinion_index": 1, "case_paths": [ "/us/422/0035-01" ] }, { "cite": "169 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 909174 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "17" }, { "page": "17" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/169/0001-01" ] }, { "cite": "229 Ill. 2d 584", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3615113 ], "year": 2008, "pin_cites": [ { "page": "593" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/229/0584-01" ] }, { "cite": "53 Ill. 2d 62", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2927578 ], "year": 1972, "opinion_index": 1, "case_paths": [ "/ill-2d/53/0062-01" ] }, { "cite": "194 Ill. 2d 186", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1096308 ], "year": 2000, "pin_cites": [ { "page": "222" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/194/0186-01" ] }, { "cite": "214 Ill. 2d 106", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8450701 ], "year": 2005, "pin_cites": [ { "page": "121" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/214/0106-01" ] }, { "cite": "105 Ill. App. 3d 892", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5470037 ], "year": 1982, "pin_cites": [ { "page": "894" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/105/0892-01" ] }, { "cite": "333 Ill. 554", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5217353 ], "year": 1929, "pin_cites": [ { "page": "561" } ], "opinion_index": 1, "case_paths": [ "/ill/333/0554-01" ] } ], "analysis": { "cardinality": 1101, "char_count": 33302, "ocr_confidence": 0.841, "pagerank": { "raw": 8.312562676374759e-08, "percentile": 0.4799274011728097 }, "sha256": "f49d1fa1bb5f59e1e5f879bd02baf975062d6516a4296b1e65d74f8179cbf389", "simhash": "1:9b6a7527560ef1ac", "word_count": 5449 }, "last_updated": "2023-07-14T20:45:32.940545+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JAMES T. JOHNSON, Appellee." ], "opinions": [ { "text": "JUSTICE KILBRIDE\ndelivered the judgment of the court, with opinion.\nChief Justice Fitzgerald and Justices Thomas, Gar-man, and Karmeier concurred in the judgment and opinion.\nJustice Burke dissented, with opinion, joined by Justice Freeman.\nOPINION\nThe issue in this appeal is whether defendant\u2019s forfeiture of his challenge to the trial court\u2019s ex parte communication should be excused under either prong of plain-error analysis. The appellate court determined that defendant\u2019s claim was reviewable under the second prong of the plain-error doctrine because the error was sufficiently serious to deny him a fair trial. 388 Ill. App. 3d 199, 203 (Johnson II). For the reasons that follow, we reverse the appellate court\u2019s judgment.\nI. BACKGROUND\nThe State charged defendant, James T. Johnson, with one count of criminal sexual abuse, a Class A misdemeanor (720 ILCS 5/12 \u2014 15(c) (West 2004)), alleging that on May 23, 2005, defendant knowingly had sexual intercourse with the victim, A.C., when she was between 13 and 17 years old, and defendant was less than 5 years older than A.C. Defendant\u2019s first jury trial in the circuit court of Will County resulted in a deadlocked jury, and the court declared a mistrial. The State then retried defendant.\nAt defendant\u2019s second jury trial, A.C. testified that she was born on November 12, 1990, and defendant was born on March 29, 1988. On the date of the incident, May 23, 2005, A.C. was 14 years old and had been dating defendant, who was 17 years old, for less than one year. Although it was a regular school day, A.C. did not report for school that morning. Instead, A.C. went to defendant\u2019s house and defendant called her school to report falsely she was sick. A.C. and defendant watched television together until defendant\u2019s mother left for work. After defendant\u2019s mother departed, A.C. and defendant had sexual intercourse.\nLater, A.C. heard her mother knocking on the front door of defendant\u2019s house. Rather than answering the door, A.C. and defendant went to a second-story back room and waited for A.C.\u2019s mother to leave. Less than an hour later, A.C. heard her mother and father return to defendant\u2019s house. A.C. and defendant again did not respond and waited for her parents to leave. A.C.\u2019s father returned to the house a second time, but left after receiving no response from anyone inside. Thereafter, A.C. and defendant left and went to a friend\u2019s house, staying there for two or three hours before returning to defendant\u2019s house.\nLater that evening, at approximately 5:30 p.m., a police officer arrived at defendant\u2019s house looking for A.C. A.C. left with the officer, who drove her to her parents\u2019 home. A.C.\u2019s mother then took her to the police station, where A.C. told officers she had sexual intercourse with defendant that morning. A.C. also went to a hospital for an examination and later learned that she was pregnant.\nOn cross-examination, A.C. testified that she voluntarily had intercourse with defendant and he never forced her to do anything. A.C. reported she cared for defendant at the time and she continued to care for him after the incident. A.C. also stated that her parents were angry at her and defendant, and they refused to let A.C. see defendant.\nThe State next called Lockport police detective William Sheehan, who interviewed defendant at the police department. During that interview, defendant admitted having sexual intercourse with A.C. on May 23, 2005. The State introduced defendant\u2019s birth certificate and then rested its case against defendant. The defense rested without presenting any evidence.\nFollowing closing arguments, the jury found defendant guilty of criminal sexual abuse. After dismissing the jurors, the trial judge explained to the parties a note he received from the jury during its deliberations, as follows:\n\u201cApproximately 30 minutes ago, 40 minutes ago, I received a note, this note[,] from the jurors. \u2018Our desicion [sic] is 11 to 1, we need advise/help [sic].\u2019 My response to that was, \u2018continue deliberating.\u2019 This was not on the note when I received it, this writing on the bottom here.\u201d\nThe writing on the bottom of the note referenced by the judge indicated, \u201cWe have one not guilty who will not change. 11 vote guilty.\u201d\nDefense counsel responded \u201cokay\u201d to the information about the jury note, but did not object to the trial court\u2019s response. Nor did defendant raise a claim based on the jury note in his posttrial motion for a new trial.\nOn direct appeal, however, defendant challenged the trial court\u2019s answer to the jury note, arguing that the court\u2019s response in defendant\u2019s absence denied his right to be present and his right to counsel at a critical stage in the proceedings. The State countered that defendant forfeited his claim by failing to preserve it with a timely objection and posttrial motion. The State further argued defendant could not demonstrate plain error to excuse his forfeiture.\nRejecting the State\u2019s plain-error argument, the appellate court reversed defendant\u2019s conviction, holding that the trial court\u2019s ex parte communication with the jury deprived defendant of his constitutional rights to be present and to counsel and the State failed to show defendant was not prejudiced by the court\u2019s communication. People v. Johnson, 383 Ill. App. 3d 281, 285 (2008) (Johnson I). Justice Carter specially concurred, agreeing that defendant\u2019s conviction should be reversed but contending that the court should have reviewed his claim for plain error, with the burden of persuasion on defendant. Johnson I, 383 Ill. App. 3d at 285 (Carter, J., specially concurring).\nThis court denied the State\u2019s petition for leave to appeal. Instead, we issued a supervisory order directing the appellate court to vacate and \u201creconsider its judgment, in a published opinion, in light of the rule that in a plain-error analysis, the burden of persuasion is on the defendant.\u201d People v. Johnson, 229 Ill. 2d 681 (2008) (supervisory order).\nOn remand, the appellate court again reversed defendant\u2019s conviction, concluding that the trial court\u2019s ex parte response to the jury note deprived defendant of his constitutional right to be present during all critical proceedings. Johnson II, 388 Ill. App. 3d at 204. Accordingly, the appellate court found that defendant satisfied his burden under plain-error analysis to show the trial court\u2019s ex parte communication with the jury prejudiced him. Johnson II, 388 Ill. App. 3d at 203. This court allowed the State\u2019s petition for leave to appeal. 210 Ill. 2d R. 315.\nII. ANALYSIS\nThe primary issue in this case is whether the trial court\u2019s improper ex parte communication with the jury about the note is reviewable as plain error. When, as here, a defendant fails to object to an error at trial and include the error in a posttrial motion, he forfeits ordinary appellate review of that error. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Consequently, as the parties agree, defendant forfeited, or procedurally defaulted, his challenge to the trial court\u2019s ex parte communication with the jury about the note by failing to object and raise his claim in a posttrial motion.\nUnder Illinois\u2019s plain-error doctrine, however, a reviewing court may consider a forfeited claim when:\n\u201c(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 seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant\u2019s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.\u201d People v. Piatkowski, 225 Ill. 2d 551, 565 (2007), citing People v. Herron, 215 Ill. 2d 167, 186-87 (2005).\nThe doctrine is intended to ensure that a defendant receives a fair trial, but it does not guarantee every defendant a perfect trial. Herron, 215 Ill. 2d at 177. Rather than operating as a general savings clause, it is construed as a narrow and limited exception to the typical forfeiture rule applicable to unpreserved claims. Herron, 215 Ill. 2d at 177.\nA defendant seeking plain-error review has the burden of persuasion to show the underlying forfeiture should be excused. Herron, 215 Ill. 2d at 187. The ultimate question of whether a forfeited claim is reviewable as plain error is a question of law that is reviewed de novo. People v. McLaurin, 235 Ill. 2d 478, 485 (2009).\nOn appeal, the State acknowledges that the trial court erred when it responded to the jury note without consulting the parties, citing People v. Kliner, 185 Ill. 2d 81 (1998), People v. McDonald, 168 Ill. 2d 420 (1995), and People v. Childs, 159 Ill. 2d 217 (1994). Nonetheless, the State argues that defendant forfeited appellate review of that error by failing to object at trial and raise the error in a posttrial motion. The State further argues that the forfeited issue is not reviewable as plain error because the evidence of defendant\u2019s guilt was not closely balanced and the error was not serious enough to deny defendant a fair trial. The State contends that the substance of the trial court\u2019s response to \u201ccontinue deliberating\u201d was appropriate and did not impact the fairness of defendant\u2019s trial.\nDefendant concedes he forfeited his claim, but argues it is reviewable under both prongs of plain-error analysis. Defendant argues the evidence is closely balanced and the trial court\u2019s error involved his substantial constitutional right to be present with counsel at all critical proceedings, implicating the fundamental fairness and integrity of his trial. Defendant also argues the substance of the trial court\u2019s communication is irrelevant to a plain-error analysis. Alternatively, defendant maintains a more lenient standard of procedural default should apply when, as here, the basis for the defendant\u2019s claim is the trial judge\u2019s erroneous conduct.\nBecause the State concedes that the trial court\u2019s ex parte communication in this case was error, this appeal focuses on the two-prong test governing a plain-error analysis. See, e.g., Piatkowski, 225 Ill. 2d at 565 (ordinarily, the first step in a plain-error analysis is determining whether a clear and obvious error occurred). Under the first prong, the defendant must show that the evidence was \u201cso closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error.\u201d Piatkowski, 225 Ill. 2d at 565. As this court has explained, \u201c[w]hen error occurs in a close case, we will opt to \u2018err on the side of fairness, so as not to convict an innocent person.\u2019 \u201d Piatkowski, 225 Ill. 2d at 566, quoting Herron, 215 Ill. 2d at 193. The question of whether the evidence is closely balanced is distinct from a challenge to the sufficiency of the evidence. Piatkowski, 225 Ill. 2d at 566. Defendant was accused of committing criminal sexual abuse by knowingly having sexual intercourse with A.C. when she was between 13 and 17 years old and he was less than 5 years older than A.C. See 720 ILCS 5/12\u2014 15(c) (West 2004).\nHere, it is undisputed that on May 23, 2005, the victim, A.C., was 14 years old, and defendant was 17 years old. A.C. also testified for the State, explaining that she had consensual sexual intercourse with defendant at his home that day. Detective Sheehan testified that defendant admitted to having intercourse with A.C. that day. Defendant did not present evidence or witnesses in his defense, nor did he testify.\nWe reject defendant\u2019s characterization of the evidence as closely balanced for the purpose of plain-error analysis. To the contrary, in our view, the strength of the evidence is overwhelming. A.C. testified that she and defendant had sexual intercourse and defendant admitted the same to Detective Sheehan. Neither A.C.\u2019s nor Detective Sheehan\u2019s testimony was substantively impeached or otherwise contested on that issue. In addition, the ages of A.C. and defendant were not disputed. Accordingly, defendant\u2019s forfeiture may not be excused under the first prong of the plain-error test.\nWe next consider the second prong of plain-error analysis, requiring defendant to show that, despite forfeiture, the error was \u201cso serious that it affected the fairness of [his] trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.\u201d Piatkowski, 225 Ill. 2d at 565. Under the second prong, the strength of the State\u2019s evidence is immaterial because prejudice to the defendant is presumed based on the importance of the right involved. Herron, 215 Ill. 2d at 187.\nThis court recently considered a trial court\u2019s ex parte communication with a jury under a plain-error analysis. See McLaurin, 235 Ill. 2d at 496. The McLaurin defendant challenged the trial court\u2019s discussion of several jury notes with counsel in defendant\u2019s absence, and the court\u2019s decision to instruct a bailiff to enter the jury room and tell the jury to continue deliberating. The defendant, however, did not object at trial and did not raise his claims in a posttrial motion, thus forfeiting review on appeal. McLaurin, 235 Ill. 2d at 485.\nBefore rejecting the defendant\u2019s argument that his forfeited claim should be reviewed as plain error as a violation of his substantial right to be present, this court observed that, \u201calthough criminal defendants have a \u2018general right to be present\u2019 at every stage of the trial, \u2018the broad \u201cright to be present at trial\u201d is not itself a substantial right under the Illinois Constitution.\u2019 \u201d McLaurin, 235 Ill. 2d at 490, quoting People v. Bean, 137 Ill. 2d 65, 80-81 (1990). Instead, the right to be present is a \u201clesser right\u201d that is intended to secure the substantial rights of a defendant, such as the right to confront witnesses, the right to present a defense, or the right to an impartial jury. In McLaurin, the defendant did not show that any of those underlying substantive rights had been violated. McLaurin, 235 Ill. 2d at 491. Likewise, this court observed that \u201cthe federal \u2018right of presence\u2019 is not itself an express constitutional right\u201d before similarly determining that the defendant\u2019s federal right was not violated. McLaurin, 235 Ill. 2d at 492, quoting Bean, 137 Ill. 2d at 82-83.\nThis court was not persuaded by the defendant\u2019s argument that he was denied an opportunity to provide his own answers to the jury\u2019s note, finding the defendant\u2019s failure to challenge the substance of the trial judge\u2019s responses significant. Noting that a trial court has broad discretion to respond to a jury note indicating a deadlocked jury, we concluded that the court\u2019s responses to \u201ckeep on deliberating with an open mind\u201d and \u201ckeep on deliberating\u201d were properly clear, simple, and not coercive. Thus, after reviewing the record, this court found that the defendant was not denied a fair trial by his absence from the discussion of the jury notes. McLaurin, 235 Ill. 2d at 491-93.\nThis court also rejected the defendant\u2019s argument, based on the decisions in People v. McDonald, 168 Ill. 2d 420 (1995), and People v. Childs, 159 Ill. 2d 217 (1994), that his mere absence from the discussion of the jury notes required a new trial, regardless of the substance of the ex parte communication. Recognizing a defendant\u2019s right to appear and participate in person and by counsel at all proceedings involving his substantial rights, we nonetheless observed that Childs and McDonald further held that a defendant was not entitled to a new trial based on errors impacting that right unless he suffered actual prejudice. This court also noted that both defendants in Childs and McDonald properly preserved their claims of error, thus requiring the State to show that the errors were nonprejudicial under a harmless-error analysis. In contrast, the McLaurin defendant failed to preserve his claim, and, thus, he had the burden of persuasion in a plain-error analysis. Ultimately, this court concluded that defendant did not satisfy his burden. McLaurin, 235 Ill. 2d at 494-96.\nIn our view, McLaurin is dispositive on the issue of whether defendant\u2019s claim in this case is reviewable as plain error under the second prong. Defendant argues that his forfeited claim qualifies for review as second-prong plain error because the trial court\u2019s ex parte response to the jury\u2019s note was an error serious enough to deny him a fair trial, regardless of the substance of that communication. In McLaurin, however, we considered an almost identical ex parte response and concluded it did not deny the defendant a fair trial for purposes of plain-error review. McLaurin, 235 Ill. 2d at 491-93.\nFurthermore, defendant is essentially arguing that his right to a fair trial was per se impacted based solely on the trial court\u2019s ex parte communication with the jury. Defendant contends that the substance of the communication is irrelevant to a plain-error analysis. Although this court historically required a new trial whenever any ex parte communication occurred between the trial judge and the jury, regardless of its substance, we have expressly moved away from such a rule. See Childs, 159 Ill. 2d at 227-28 (detailing \u201cevolution\u201d of this court\u2019s handling of ex parte communications between trial judge and jury). In fact, as we explained in Childs, an ex parte communication now serves as grounds for a new trial only if it results in injury or prejudice to the defendant. Childs, 159 Ill. 2d at 227-28; see also McDonald, 168 Ill. 2d at 460. Simply put, a nonprejudicial ex parte communication is insufficient to impact the fairness of a defendant\u2019s trial.\nThus, as the State argues, when a defendant forfeits his challenge to a trial court\u2019s ex parte communication with the jury, it is necessary to consider the substance of that communication to determine whether it constitutes plain error. Here, as in McLaurin, the trial judge simply told the jurors to \u201ccontinue deliberating,\u201d a clear and noncoercive response well within his discretion. See McLaurin, 235 Ill. 2d at 491 (noting that \u201cthe trial court has broad discretion when responding to a jury that claims to be deadlocked, although any response should be clear, simple, and not coercive\u201d).\nAfter carefully reviewing McLaurin, we find no reason to depart from its reasoning and similarly conclude that the trial court\u2019s ex parte response to the jury to \u201ccontinue deliberating\u201d did not deny defendant a fair trial. Because the error was not \u201cso serious that it affected the fairness of the defendant\u2019s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence,\u201d it is not reviewable as second-prong plain error. Piatkowski, 225 Ill. 2d at 565. Having determined that defendant\u2019s forfeited claim does not qualify for plain-error review under either prong, we hold that there is no basis to excuse its forfeiture.\nNor are we persuaded by defendant\u2019s alternative argument that the forfeiture rule should be relaxed because the procedural default involves the trial judge\u2019s conduct, citing People v. Sprinkle, 27 Ill. 2d 398, 400-01 (1963). We rejected this same argument in McLaurin, concluding the defendant failed to present a sufficiently compelling reason to justify relaxing the forfeiture rule. McLaurin, 235 Ill. 2d at 489. More recently, in the context of discussing Sprinkle, this court explained that excusing forfeiture based on the trial judge\u2019s conduct \u201cis warranted when the trial court has overstepped its authority in the presence of the jury or when counsel is effectively prevented from objecting as any objection would have \u2018fallen on deaf ears.\u2019 \u201d People v. Hanson, 238 Ill. 2d 74, 118 (2010), quoting McLaurin, 235 Ill. 2d at 488.\nHere, as we have already determined, the trial court did not overstep its authority by instructing the jury to \u201ccontinue deliberating.\u201d Although defendant may have been precluded from objecting to the trial court\u2019s initial ex parte communication when it was issued because he was not present, he did have the opportunity to object when the court later informed his counsel of that communication. Nothing in the record indicates that an objection would have been ignored by the trial court. Defendant, however, failed to object at that time and later failed to raise the claim in a posttrial motion. As McLaurin observed, \u201c[flailure to raise claims of error before the trial court denies the court the opportunity to correct the error immediately and grant a new trial if one is warranted, wasting time and judicial resources.\u201d McLaurin, 235 Ill. 2d at 488, citing Enoch, 122 Ill. 2d at 185-87. We find no justification for relaxing the forfeiture rule in this case.\nIII. CONCLUSION\nWe conclude that defendant has failed to meet his burden to show that his forfeited claim should be reviewed as plain error under either prong of plain-error analysis. We find no basis to excuse its forfeiture or to relax the forfeiture rule. Accordingly, we reverse the judgment of the appellate court and affirm the circuit court\u2019s judgment.\nAppellate court judgment reversed; circuit court judgment affirmed.", "type": "majority", "author": "JUSTICE KILBRIDE" }, { "text": "JUSTICE BURKE,\ndissenting:\nDefendant, a high school student, was charged with criminal sexual abuse after he and his girlfriend, a fellow student and minor, engaged in consensual sex. A trial commenced on September 29, 2005. The jury retired to deliberate at 1:30 p.m. on September 30. At 4:05 p.m., the jury advised the court it was unable to reach a verdict. The trial court continued the case to October 3. On October 3, the jury continued to deliberate. At 10:54 a.m., the jury advised the court it was, in the words of the court, \u201chopelessly deadlocked.\u201d The trial court declared a mistrial.\nA second trial commenced on April 19, 2006. The jury retired to deliberate at 2:14 p.m. At 4:17 p.m., the jury returned a guilty verdict. In the intervening time, the jury sent two notes to the trial judge. Within IV2 hours of retiring to deliberate, the jury sent a note stating: \u201cOur desicion [sic] is 11 to 1, we need advise/help [sic].\u201d The trial judge responded: \u201cContinue deliberating.\u201d At 4:17 p.m., 30 to 40 minutes later, according to the trial judge\u2019s statement on the record, the jury returned its verdict. Thereafter, the trial judge advised the parties of the jury\u2019s note. At this time, the court also advised the parties there was additional writing at the bottom of the note which had not been there when he first received the note. This writing stated: \u201cWe have one not guilty who will not change. 11 vote guilty.\u201d\nThere is a second note from the jury in the record. This note, dated April 19, 2006, states, \u201cWhat are the possible sentences for crimial [sic] sexual abuse?\u201d The trial judge responded to this note, stating, \u201cYou should not be concerned with the possible punishment or sentence for the offense charged during your deliberations.\u201d The trial judge never advised the parties of this note or his response.\nRelying on People v. McLaurin, 235 Ill. 2d 478 (2009), the majority concludes there was no reversible error in this case even though the trial judge responded to the jury\u2019s notes without contacting or consulting with either defendant or his attorney. I disagree with this conclusion and the majority\u2019s reliance on McLaurin and therefore dissent.\nIn McLaurin, the jury sent five notes to the trial judge during deliberations. The first note requested certain evidence. The jury sent a second note, stating it was deadlocked 8-4. The trial court, after consulting with both counsel, instructed the jury to continue deliberating. The jury then sent a third note, stating it was deadlocked 7-5. Before the court answered the third note, the jury sent another note again stating it was deadlocked 7-5. The jury, at this time, also requested to review certain testimony. The trial court provided the jury with the testimony and ordered the jury members to keep deliberating. Shortly thereafter, the jury returned a guilty verdict. Importantly, defense counsel was present and participated in the discussing concerning each of these notes. McLaurin, 235 Ill. 2d at 483.\nOn appeal, the defendant argued that his personal right to be present, under both the Illinois and federal constitutions, had been violated because he was absent from the conversations in which the jury notes were discussed. Noting the defendant failed to object at trial or raise the claim in his posttrial motion, we found the claim was reviewable only under the plain-error doctrine. Relying on People v. Bean, 137 Ill. 2d 65 (1990), we reasoned that the defendant\u2019s absence did not have an effect on any of his substantial rights and, therefore, no plain error occurred.\nNotably, the defendant in McLaurin relied upon People v. Childs, 159 Ill. 2d 217 (1994), and People v. McDonald, 168 Ill. 2d 420 (1995), to support his contention that he was entitled to a new trial. However, we found both cases factually distinguishable. As we explained, in McLaurin, \u201cdefendant\u2019s counsel was present when the court considered the jury\u2019s notes,\u201d while in Childs and McDonald, \u201cthe person actually representing the defendant was absent.\u201d McLaurin, 235 Ill. 2d at 494.\nIn McLaurin, the defendant\u2019s attorney was present and participated in the discussions concerning each of the jury\u2019s notes and the trial court\u2019s responses. Here, in contrast, neither defendant nor his attorney was present. Neither defendant nor his attorney was informed of the jury\u2019s note regarding its deadlock until after the jury had reached its verdict and been discharged, and they were never informed of the second note at all. Thus, unlike McLaurin, neither defendant nor his attorney was afforded an opportunity to take action necessary to secure defendant\u2019s rights. Because McLaurin is distinguishable from the present case, I do not find it helpful in addressing defendant\u2019s contentions.\nThe United States Supreme Court has held that it is error for a trial judge to respond to jury communications without the presence of either the defendant or his counsel. Rogers v. United States, 422 U.S. 35, 39, 45 L. Ed. 2d 1, 6, 95 S. Ct. 2091, 2095 (1975). Ordinarily, the State bears the burden of establishing whether the error was harmless beyond a reasonable doubt. See People v. Kliner, 185 Ill. 2d 81, 162 (1998). However, in this case, defendant failed to preserve his claim of error in his post-trial motion. Accordingly, in order to prevail, defendant must satisfy the plain-error rule, which allows a reviewing court \u201cto 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 seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant\u2019s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.\u201d People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). \u201cEssentially, the fairness of the trial must be undermined.\u201d People v. Keene, 169 Ill. 2d 1, 17 (1995). The defendant bears the burden of persuasion under each prong of the doctrine. People v. Naylor, 229 Ill. 2d 584, 593 (2008). If the defendant is unable to establish plain error, the procedural default must be honored. Keene, 169 Ill. 2d at 17.\nDefendant argues that the trial judge\u2019s actions undermined the fairness of his trial under the second prong of the plain-error rule because he did not have the opportunity to request an instruction pursuant to People v. Prim, 53 Ill. 2d 62 (1972). A Prim instruction \u201cinforms 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 because of the opinion of fellow jurors or for the mere purpose of returning a verdict.\u201d People v. Chapman, 194 Ill. 2d 186, 222 (2000). Defendant argues that the trial judge\u2019s direction to \u201ckeep deliberating\u201d failed to properly convey the notion that jurors should not change their opinions solely for the purpose of returning a verdict.\nGenerally, trial judges are afforded discretion in matters concerning jury management. People v. Roberts, 214 Ill. 2d 106, 121 (2005). Nevertheless, it goes without saying that the integrity of a jury verdict \u201cmust be protected from coercion, duress or influence.\u201d People v. Patten, 105 Ill. App. 3d 892, 894 (1982). This court has recognized that a \u201cverdict should express the deliberate judgment of the jury. The juror *** 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.\u201d People v. Golub, 333 Ill. 554, 561 (1929).\nDefendant argues that counsel\u2019s absence prevented the defense from requesting a Prim instruction. According to defendant, the trial judge\u2019s direction to \u201ckeep deliberating\u201d failed to convey to jurors the unanimity and reexamination components that are also the duties of a juror. More importantly, the trial judge\u2019s direction failed to instruct jurors that a change of opinion should not occur solely because of the opinion of fellow jurors or for the mere purpose of returning a verdict. Notably, this court\u2019s decision in McLaurin did not address any argument considering the absence of a Prim instruction\u2014 another distinguishing factor in this case that the majority overlooks. See McLaurin, 235 Ill. 2d at 491-92.\nI find defendant\u2019s contentions persuasive and agree with the appellate court\u2019s conclusion:\n\u201cWe find that Johnson has sustained his burden and established that the trial court\u2019s ex parte communication with the jury prejudiced him. Johnson\u2019s absence at this critical stage in the proceedings denied him direct knowledge of what was said and done in response to the jury\u2019s question and deprived him of the opportunity to make objections and take any actions necessary to secure his rights. The State speculates that the trial court would have refused a request by Johnson for a Prim instruction because of the short duration the jury had deliberated before sending its note and because the trial court failed to give the instruction at Johnson\u2019s first trial. The State also points out that Johnson never asked for a Prim instruction at his first trial and, based on the similarities between the first and second trials, no prejudice could be said to have resulted from the ex parte communication. The State\u2019s speculation is unpersuasive. Johnson was deprived of his right to be present when the jury note was presented and we cannot guess what response he may have had to it. Because the trial court\u2019s ex parte communication deprived Johnson of his constitutional right to be present at all critical stages of the proceedings against him, we reverse his conviction and remand.\u201d Johnson II, 388 Ill. App. 3d at 203-04.\nThe jury in defendant\u2019s first trial deadlocked, prompting a mistrial. At defendant\u2019s second trial, the jury sent two notes, one of which stated that the members of the jury were deadlocked and one of which asked what punishment would be imposed on defendant. These notes clearly indicate that the jury had serious concerns about this case and were troubled about the ramifications of its decision. In these circumstances, the judge should have been particularly mindful of the need to protect defendant\u2019s right to be present.\nIn my view, the adversary process ceased to function in this case when the trial court failed to inform defendant or his attorney of the jury\u2019s notes, an event that may have significantly affected the ability of one member of the jury to act impartially and on his or her own accord to reach a decision. Given the importance of the rights involved and the facts presented in this case, I believe defendant has met his burden of showing that he suffered prejudice. I therefore dissent.\nJUSTICE FREEMAN joins in this dissent.\nThe record does not disclose what time the jury resumed deliberations. The docket entry from September 30 states court was to resume at 9:30 a.m.", "type": "dissent", "author": "JUSTICE BURKE," } ], "attorneys": [ "Lisa Madigan, Attorney General, of Springfield, and James W. Glasgow, State\u2019s Attorney, of Joliet (Michael A. Scodro, Solicitor General, and Michael M. Glick and Charles Redfern, Assistant Attorneys General, of Chicago, and Patrick Delfino, Terry A. Mertel and Gary E Gnidovec, of the Office of the State\u2019s Attorneys Appellate Prosecutor, of Ottawa, of counsel), for the People.", "Michael J. Pelletier, State Appellate Defender, Robert Agostinelli, Deputy Defender, and Melissa Anne Maye, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee." ], "corrections": "", "head_matter": "(No. 108253.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JAMES T. JOHNSON, Appellee.\nOpinion filed October 21, 2010.\nLisa Madigan, Attorney General, of Springfield, and James W. Glasgow, State\u2019s Attorney, of Joliet (Michael A. Scodro, Solicitor General, and Michael M. Glick and Charles Redfern, Assistant Attorneys General, of Chicago, and Patrick Delfino, Terry A. Mertel and Gary E Gnidovec, of the Office of the State\u2019s Attorneys Appellate Prosecutor, of Ottawa, of counsel), for the People.\nMichael J. Pelletier, State Appellate Defender, Robert Agostinelli, Deputy Defender, and Melissa Anne Maye, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee." }, "file_name": "0478-01", "first_page_order": 490, "last_page_order": 509 }