{ "id": 2943672, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL W. SCHAFF, Defendant-Appellant", "name_abbreviation": "People v. Schaff", "decision_date": "1993-06-10", "docket_number": "No. 1 \u2014 90\u20143190", "first_page": "547", "last_page": "553", "citations": [ { "type": "official", "cite": "248 Ill. App. 3d 547" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "71 Ill. App. 3d 815", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5582428 ], "pin_cites": [ { "page": "823" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/71/0815-01" ] }, { "cite": "14 Ill. 2d 52", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2770963 ], "pin_cites": [ { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/14/0052-01" ] }, { "cite": "96 Ill. App. 3d 774", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 12142206 ], "pin_cites": [ { "page": "779" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/96/0774-01" ] }, { "cite": "91 Ill. App. 3d 1085", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3151682 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/91/1085-01" ] }, { "cite": "196 Ill. App. 3d 30", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2490506 ], "pin_cites": [ { "page": "37" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/196/0030-01" ] }, { "cite": "333 Ill. 554", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5217353 ], "pin_cites": [ { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/ill/333/0554-01" ] }, { "cite": "126 Ill. App. 3d 477", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3597267 ], "weight": 2, "pin_cites": [ { "page": "481-82" }, { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/0477-01" ] }, { "cite": "53 Ill. 2d 62", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2927578 ], "weight": 2, "pin_cites": [ { "page": "76" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0062-01" ] } ], "analysis": { "cardinality": 636, "char_count": 14053, "ocr_confidence": 0.719, "pagerank": { "raw": 6.163059221613333e-08, "percentile": 0.3829593926132373 }, "sha256": "c3ce3109923b716fd7e1f35966bdc77b8a9596935e793da19df32845cd713b66", "simhash": "1:c2a2b5a69c0ccab5", "word_count": 2304 }, "last_updated": "2023-07-14T21:04:37.974036+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL W. SCHAFF, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE JOHNSON\ndelivered the opinion of the court:\nAfter a jury trial in the circuit court of Cook County, defendant, Paul Schaff, was convicted of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 \u2014 14(b)(l)), and criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 \u2014 13(a)(2)), of a seven-year-old boy. He was subsequently sentenced to a 10-year term in the Illinois Department of Corrections.\nOn appeal, defendant contends (1) the trial court\u2019s supplemental instruction to the jury was coercive and that the trial court\u2019s inquiry into the numerical breakdown of the jury during deliberations prejudiced him, and (2) the jury\u2019s awareness of extraneous prejudicial information denied him a fair trial.\nWe affirm.\nAt 4:30 p.m. on June 25, 1990, the first day of deliberations, the jury sent the trial judge a note stating, \u201cPlease provide us with available transcripts.\u201d The trial judge told the jury to continue with deliberations. The following day, June 26, 1990, at 8:05 a.m., the trial judge received another note from the jury which asked for the \u201clegal description or legal definition of reasonable doubt.\u201d The jury was again told to continue to deliberate. At 10:05 a.m., the jury sent another note inquiring as to options other than guilty or not guilty. The trial judge responded: \u201cPlease continue to deliberate.\u201d\nAt 11:40 a.m., defense counsel made a motion for a mistrial because the jury was under the misapprehension that it had to reach a verdict. Judge Pope, substituting for the judge who presided at trial, conferred with the absent judge, who instructed him that the jury should deliberate into the lunch hour. The motion for a mistrial was denied.\nAfter lunch, the court reconvened at 1:30 p.m. whereupon defense counsel again requested a mistrial. The jury was brought out and the foreperson stated that he did not believe it reasonably probable that a verdict could be reached. He also agreed that a further jury instruction would be of no assistance in arriving at a verdict. The trial court inquired into the number of ballots taken thus far and the foreperson indicated that six ballots had been taken. The trial court then asked for the numerical breakdown of the last ballot without providing an indication of which side was favored. The foreperson stated that the count was 7 to 5 and that further deliberations were not likely to result in a verdict.\nAt approximately 1:40 p.m., the trial judge gave the jury a supplemental instruction and asked the jury to resume deliberations. Defense counsel then made another motion for a mistrial. The motion was denied, and the trial judge stated that the jury was to deliberate until 3 p.m.\nAt 3:45 p.m., the judge who presided at trial had returned, and defense counsel requested a mistrial. The trial judge ordered that the jury be brought out so she could inquire as to its progress. The foreperson stated that the jury was still unable to reach a verdict. However, when asked if he felt that the jury was hopelessly deadlocked, he responded, \u201cI would like another half-hour or so.\u201d The trial judge then asked him for the last count without indicating which side was favored. He stated that the count was 11 to 1. The jury was ordered to continue to deliberate and the motion for a mistrial was denied.\nAt this point, the record reflects that the jury had deliberated from 2 p.m. to 9 p.m. on June 25, 1990, allotting 1\u00bd hours for dinner. The next day, the jury commenced deliberations at approximately 8:15 a.m., and shortly before 4 p.m. it still had not reached a verdict. When the half-hour previously requested by the foreperson had expired, defense counsel made a motion for a mistrial. The trial judge denied the motion but stated, \u201cIf they have not reached a verdict by 4:30 p.m., I will declare a mistrial.\u201d\nAt 4:22 p.m., the jury requested new verdict forms to fill out and defense counsel made another motion for a mistrial. The motion was denied and the verdict forms were tendered to the jury at approximately 4:30 p.m. About 10 minutes later, the jury was brought out and defendant was found guilty of aggravated criminal sexual assault and criminal sexual assault.\nThe trial judge delayed sentencing defendant and granted him a continuance to investigate the jury\u2019s possible exposure to extraneous prejudicial information prior to the rendition of the verdict.\nAn evidentiary hearing was conducted on September 14, 1990, to determine whether the jury possessed unauthorized prejudicial information which may have affected the verdict. Defendant subpoenaed two jurors to testify at the hearing. Juror Virginia Beatty testified she informed the court, in writing, that some jurors may have been aware of similar charges pending against defendant during deliberations. At the end of the trial, she stated that another juror approached her and stated that she overheard something in the courtroom which suggested that there were additional charges against defendant. Beatty, testified that she believed the other juror\u2019s extraneous knowledge \u201chad not affected her [the juror\u2019s] perception of the whole matter.\u201d\nJuror Janet Johnson testified that prior to the trial\u2019s conclusion she overheard a child in the courtroom whisper to his mother, \u201c \u2018Is this something I\u2019ll have to go through[?],\u2019 something to that effect.\u201d After the trial ended, she spoke with another juror who overheard the same statement. Johnson testified that nothing she overheard was discussed during deliberations and that she did not associate the statement\u2019s significance with defendant. She further stated that she did not know if the statement even related to defendant.\nFollowing argument on both sides and after explicitly careful consideration, the trial court denied defendant\u2019s motion for a new trial. He was sentenced to a 10-year term of imprisonment in the Illinois Department of Corrections.\nOn appeal, defendant initially maintains that the trial court\u2019s supplemental instruction was coercive and prejudiced him. After the jury had taken six ballots, the foreperson expressed that he did not foresee a verdict resulting from continued deliberations. The trial court then gave the jury the following instruction:\n\u201cThe verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous. It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberation, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous, but do not surrender because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. You are not partisans. You are the judges, judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case.\u201d\nThe jury was directed to resume deliberations.\nIn People v. Prim (1972), 53 Ill. 2d 62, our supreme court promulgated an instruction to be given to a deadlocked jury in order to facilitate the arrival at a verdict. The instant instruction differs from the Prim instruction in only one respect. Here, the instruction omitted the phrase, \u201cBut do not surrender your honest conviction as to the weight or effect of evidence ***.\u201d (Prim, 53 Ill. 2d at 76.) Defendant\u2019s assertion of coercion is grounded in this omission. He postulates that the trial court\u2019s failure to recite the precise Prim language resulted in the jury\u2019s arrival at an unduly pressured verdict. We disagree.\nThe instruction, while admittedly not identical to the one set out in Prim, was wholly free of coercion. The trial court\u2019s instruction cautioned the jurors, similar to the verbatim Prim instruction, not to abandon their beliefs simply to return a verdict. This is the crucial part of the instruction. We are manifestly aware of the impropriety of the emergence of a verdict from an unjustly influenced jury. After a careful review of the language of the instruction, we find no abuse of discretion.\nFurther, we accord due consideration to the three hours which transpired between the time the instruction was given and the next time the jury was summoned to the courtroom. During that interval, the jury had not reached a verdict. While not dispositive of the issue, we believe that the failure of the jury to reach a verdict three hours after being given the supplemental instruction is some evidence that the instruction failed to improperly pressure the jury.\nDefendant also opines that he was prejudiced by the trial court\u2019s two inquiries into the numerical division of the jury. \u201cWhile it is error for the trial court to inquire into the numerical division of the jury [citation], it is not per se reversible error in Illinois.\u201d (People v. Griggs (1984), 126 Ill. App. 3d 477, 481-82.) The trial court inquired as to the numerical breakdown, which was 7 to 5, before the jury was given a supplemental instruction at approximately 1:40 p.m. The trial court then ordered the jury to continue with deliberations.\nAt about 3:45 p.m., the trial court asked the foreperson if he felt that the jury was hopelessly deadlocked, and the foreperson responded that he \u201cwould like another half-hour or so.\u201d The trial court then requested the numerical division of the jury without inquiring as to which side was favored. The count was 11 to 1. The jury was directed to continue with deliberations. At 4:38 p.m., the jury returned guilty verdicts.\nWe believe that the trial judge\u2019s inquiries to the jury were not prejudicial. \u201cWhether error is harmless or prejudicial depends upon the facts of the case.\u201d (People v. Golub (1929), 333 Ill. 554, 561.) Here, there was no threat of sequestration, the supplemental instruction was not coercive, and no time limit was placed on the jury for reaching a verdict. Furthermore, as the trial judge was never aware of which side the jury favored, we believe the inquiry was hannless. People v. Logston (1990), 196 Ill. App. 3d 30, 37.\nBelatedly, the request for the numerical breakdown alone does not constitute prejudice. Instead, defendant must actively demonstrate that this request hastened or interfered with the verdict. (People v. Griggs (1984), 126 Ill. App. 3d 477, 482; see People v. Green (1980), 91 Ill. App. 3d 1085.) Defendant has failed to make this demonstration. Upon examination of the numerical breakdown inquiries correlative to the totality of the court\u2019s conduct (People v. Sanchez (1981), 96 Ill. App. 3d 774, 779), we find no prejudice.\nSecond, defendant contends that the jury\u2019s awareness of other similar charges against him precluded his right to a fair trial.\nAfter the trial judge was apprised of the possibility that the jury was improperly influenced by information not in evidence, she conducted a presentencing, evidentiary hearing to determine whether jurors were tainted by unauthorized information which affected their perception of the case.\nDefendant subpoenaed two jurors to testify at the hearing and, after their testimony concluded, the trial judge was convinced that defendant\u2019s right to a fair trial was preserved. Juror Virginia Beatty testified that another juror told her of the similar charges against defendant after the trial had ended. She stated that she did not believe the other juror considered those charges during deliberations. Juror Janet Johnson testified that, in the courtroom, she overheard a boy ask his mother, \u201cIs this something I\u2019ll have to go through[?]\u201d or words to that effect. She stated that she did not discuss this statement with any members of the jury prior to reaching a verdict. She also stated that she did not consider the statement during deliberations and that she did not even know if the statement pertained to defendant. The trial judge characterized the boy\u2019s statement as \u201cpretty innocuous\u201d and was generally satisfied that the jury was not prejudiced.\nThe determination of whether the jury was influenced by extraneous information is entirely within the province of the trial court which must infer, in view of the instant facts and circumstances, whether a fair trial has been impeded. This finding will hot be disturbed absent an abuse of discretion. (People v. Malmenato (1958), 14 Ill. 2d 52, 63.) The testimony given at the evidentiary hearing clearly establishes that the jury was not improperly influenced by extraneous information. One juror was not even aware of the information until after the conclusion of the trial and the other simply overheard a statement from a boy to his mother in the courtroom which did not facially bear any relation to defendant. At the hearing, defendant did not offer any additional evidence of prejudice.\nBased on the evidence presented we do not believe the trial judge abused her discretion in finding that defendant\u2019s right to a fair trial was safeguarded. \u201cTo warrant a reversal, it must reasonably appear that at least some of the jurors have been so influenced or prejudiced that they cannot be fair and impartial.\u201d (People v. Collins (1979), 71 Ill. App. 3d 815, 823.) We believe that the evidence convincingly establishes the jury\u2019s impartiality The trial court\u2019s resolution of this issue was not improper and was in complete accord with the evidence adduced.\nFor the aforementioned reasons, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nJIGANTI, P.J., and CAHILL, J., concur.", "type": "majority", "author": "JUSTICE JOHNSON" } ], "attorneys": [ "Stephen M. Komie and Robert S. Bailey, both of Komie & Associates, of Chicago, for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and David Stabrawa, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL W. SCHAFF, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1 \u2014 90\u20143190\nOpinion filed June 10, 1993.\nStephen M. Komie and Robert S. Bailey, both of Komie & Associates, of Chicago, for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and David Stabrawa, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0547-01", "first_page_order": 567, "last_page_order": 573 }