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  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD WALKER, Defendant-Appellant",
  "name_abbreviation": "People v. Walker",
  "decision_date": "1997-09-25",
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    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD WALKER, Defendant-Appellant."
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    "opinions": [
      {
        "text": "PRESIDING JUSTICE WOLFSON\ndelivered the opinion of the court:\nGerald Walker appeals two separate criminal convictions. One of them raises a serious question concerning the potential tainting of a jury by the unwarranted and indefensible remarks of a Chicago police officer in a criminal court elevator.\nWhile we strongly disapprove of what happened in that elevator, our examination of the record leads us to affirm the conviction in question.\nOn March 6,1996, in case No. 1 \u2014 96\u20141869, Walker was sentenced on two counts of aggravated criminal sexual assault and on separate armed robbery and aggravated kidnapping counts.\nOn September 26, 1996, in case No. 1 \u2014 96\u20143907, Walker was sentenced on two counts of aggravated criminal sexual assault and on separate armed robbery and aggravated kidnapping counts.\nThese two cases were consolidated for the purpose of appeal.\nFACTS\nA. No. 1 \u2014 96\u20141869\nOn February 18, 1993, Walker allegedly abducted a 16-year-old female off the street at gunpoint and sexually assaulted her in a nearby garage. Walker was placed under arrest and tried before a jury. On January 4, 1996, during the second day of trial, Walker\u2019s trial attorneys told the trial court they heard a Chicago police officer speak to several jurors near the elevator:\n\"Judge, after we broke for lunch, I and [co-counsel], we were standing waiting for the elevator and the sheriff came out. There was no one else in the hallway. The sheriff came out with the jury. An elevator came and we walked to the other side to allow the jury to take the elevator.\nThe sheriff asked three police officers, not involved in this case, no idea who they are to exit the elevator. And they were dressed in uniform, bulletproof vests, and they had there [szc] flashlights and everything. And as they walked out they made a joke at which everybody smiled; don\u2019t we get lunch, too.\nBut then one of the officers said oh, it\u2019s the jury. All we care is that you find them guilty. That\u2019s all we care about. Then another police officer said, you know, you are not supposed to be talking to them. It was all done in a joking kind of way and half the jury was on. Half the jury was still coming on. We could see them. They could see me and that was said and the doors shut.\nThe basis of that is that these police officers wear [szc] talking to a jury outside the courtroom and telling them this information. We would ask for a mistrial.\nAlternatively, we would ask that you, when the jury comes out, to admonish them that the only evidence they are supposed to listen to is the evidence they hear in this courtroom and not outside of this courtroom.\u201d\nThe trial court denied Walker\u2019s request for a mistrial and instead granted Walker\u2019s motion to admonish the jury about this incident. The court addressed the jury:\n\"All right. Folks, it\u2019s been brought to my attention that when you were being taken to lunch a police officer who had nothing to do with this case may have made some comments to you about the case in general about finding somebody guilty. I just want to remind you of a couple of things. Mr. Walker, as every person in the United States, has a presumption of innocence..\nThe burden is on the state to prove the defendant guilty beyond a reasonable doubt. The only evidence that you are to consider is evidence that you have heard from the jury stand, evidence that you will hear from the jury stand. Anything that takes place outside the courtroom you are to disregard completely.\nSo, I think you all know that anyway, but I just want to remind you.\u201d\nDefense counsel did not object to the admonition at the time. The trial proceeded.\nAt trial, the prosecution presented DNA evidence comparing semen samples taken from the victim immediately after the alleged rape with blood and saliva samples from Walker. The prosecution\u2019s criminologist testified that the semen samples matched Walker\u2019s samples. The criminologist further testified that the probability of another match for these samples was less than one billion to one. The prosecution also presented evidence that the victim identified Walker in a lineup.\nOn January 9, 1996, after the jury had deliberated for less than two hours, Walker was convicted. He was sentenced on two counts of aggravated criminal sexual assault to consecutive terms of 50 years each, a total of 100 years. Walker also was sentenced on separate armed robbery and aggravated kidnapping counts to terms of 50 years and 30 years respectively, concurrent with each other and the sexual assault counts. Walker\u2019s total sentence in this case was 100 years.\nB. No. 1 \u2014 96\u20143907\nOn February 25, 1993, Walker allegedly abducted a 15-year-old female at gunpoint off the street and sexually assaulted her in his car. Walker was arrested, and in his initial presentence investigation, Walker declined to provide certain background psychological and physiological information until he conferred with an attorney.\nWalker was tried before a jury. At this trial, the prosecution also presented DNA evidence comparing semen samples taken from the victim immediately after the alleged rape with blood and saliva samples from Walker. The prosecution\u2019s criminologist again testified that the semen samples matched Walker\u2019s samples. The criminologist further testified that the probability of another match for these samples was less than one billion to one. The prosecution also presented evidence that the victim identified Walker in a lineup. On July 31, 1996, after the jury had deliberated for about one hour, Walker was convicted.\nBefore sentencing, the court noted that page two of the presentence investigation was not completed. During a short recess, Walker spoke with Edward Palma, supervisor of adult probation, who took handwritten notes to complete page two of Walker\u2019s presentence investigation report. Palma\u2019s note states under \"PHYSIOLOGICAL .INFORMATION\u201d: \"Blackout seizures \u2014 11/2 years \u2014 Due to stress/ tension (per physician) \u2014 Medication taken \u2014 Unknown.\u201d The court then asked the parties if they requested any changes to the report. Both defense counsel and the prosecutor declined to make any changes. The court did not conduct a fitness hearing.\nOn September 26, 1996, Walker was sentenced on two counts of aggravated criminal sexual assault to consecutive terms of 60 years each, a total of 120 years. He also was sentenced on separate armed robbery and aggravated kidnapping counts to terms of 60 years and 30 years respectively, concurrent with each other and with the sexual assault counts. Walker\u2019s total sentence in this case was 120 years.\nISSUES\n1. In No. 1 \u2014 96\u20141869, is Walker entitled to a new trial because he was prejudiced by the Chicago police officer\u2019s extrajudicial statement in the presence of some jurors, despite the trial court\u2019s subsequent admonishment to the jury?\n2. In No. 1 \u2014 96\u20143907, is Walker entitled to a new trial because he was denied effective assistance of counsel when his attorney failed to demand a fitness hearing based upon the presentence investigation report, which disclosed Walker\u2019s use of unknown medication?\n3. Is Walker entitled to resentencing in No. 1 \u2014 96\u20143907 if he receives a new trial in No. 1 \u2014 96\u20141869?\nOPINION\nA. No. 1 \u2014 96\u20141869\nExtrajudicial communications to jurors \"are controlled by the command of the Sixth Amendment, made applicable to the States through the Due Process Clause of the Fourteenth Amendment.\u201d Parker v. Gladden, 385 U.S. 363, 364, 17 L. Ed. 2d 420, 422, 87 S. Ct. 468, 470 (1966). \"[T]he 'evidence developed\u2019 against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant\u2019s right of confrontation, of cross-examination, and of counsel.\u201d Turner v. Louisiana, 379 U.S. 466, 472-73, 13 L. Ed. 2d 424, 429, 85 S. Ct. 546, 549 (1965). However, when the defendant cannot demonstrate any apparent injury or prejudice resulting from an extrajudicial communication to jurors by a third person, the jury\u2019s verdict will not be set aside. People v. Rettig, 50 Ill. 2d 317, 278 N.E.2d 781 (1972); People v. Kawoleski, 313 Ill. 257, 145 N.E. 203 (1924).\nIn Parker, a bailiff assigned to a sequestered jury spoke about the defendant to a juror in the presence of other jurors, stating, \"Oh that wicked fellow, he is guilty.\u201d Parker, 385 U.S. at 363, 17 L. Ed. 2d at 422, 87 S. Ct. at 470. On another occasion, the bailiff spoke to a different juror about convicting the defendant, saying, \"If there is anything wrong *** the Supreme Court will correct it.\u201d Parker, 385 U.S. at 364, 17 L. Ed. 2d at 422, 87 S. Ct. at 470. Additionally, at least one regular or alternate juror overheard the bailiffs statements.\nThe Court held these statements violated the sixth amendment\u2019s guarantee of a trial by an impartial jury. Parker, 385 U.S. at 364, 17 L. Ed. 2d at 422, 87 S. Ct. at 470. The Court characterized the bailiffs statements as \"private talk,\u201d intended to sway the jury by \"outside influence.\u201d Parker, 385 U.S. at 364, 17 L. Ed. 2d at 422, 87 S. Ct. at 470. However, contrary to Walker\u2019s contention, the Court did not create a per se rule that such statements necessarily prejudice criminal defendants and always entitle them to a new trial.\nRather, the Court focused on the \"official character of the bailiff \u2014 as an officer of the court as well as the State,\u201d the constant contact between the bailiff and the jury due to sequestration, and the considerable length of deliberations, 26 hours, indicating a difference of opinion among the jurors. Parker, 385 U.S. at 365, 17 L. Ed. 2d at 423, 87 S. Ct. at 470. Most importantly, the Court found evidence of actual prejudice in the testimony of a juror who admitted the bailiffs statements \"must have influenced\u201d her decision to convict the defendant. Parker, 385 U.S. at 365 n.3, 17 L. Ed. 2d at 423 n.3, 87 S. Ct. at 470-71 n.3.\nIn Rettig, a deputy sheriff assigned to a jury spoke with several jurors about their lunch immediately before deliberations. The deputy sheriff, who also was a witness in the case, spoke to the jurors again during deliberations, explaining that the trial judge would not answer a question posed by the jury. The court held the extrajudicial communication did not prejudice the defendant. Rettig, 50 Ill. 2d at 320. The court found no prejudice because the deputy sheriff\u2019s statements during brief encounters with the jury were not \"manifestly calculated to influence the jury\u2019s decision.\u201d Rettig, 50 Ill. 2d at 319.\nThe court also found that the deputy sheriff\u2019s testimony against the defendant was neither crucial nor controverted. Rettig, 50 111. 2d at 320. The court declined to presume extrajudicial statements by a deputy sheriff to the jury are prejudicial as a matter of law. The Parker decision, said the court, \"does not in any way diminish the need for showing that the rights of a defendant were prejudiced\u201d by the extrajudicial statements. Rettig, 50 111. 2d at 319. See also Waller v. Bagga, 219 111. App. 3d 542, 579 N.E.2d 1073 (1991) (holding that a bailiff\u2019s comments that \"this case shouldn\u2019t be here\u201d did not reflect a \"manifest tendency to sway\u201d a civil jury against the plaintiff).\nIn Kawoleski, a deputy sheriff assigned to a jury made a remark while near the entire jury that \"it should not take more than two or three minutes to convict that bird.\u201d 313 Ill. at 258. The defendant\u2019s lawyer brought this remark to the trial court\u2019s attention after the jury convicted the defendant. The court, reversing the conviction, held this remark was prejudicial to the defendant because it was \"calculated to prejudice defendant with the jury.\u201d Kawoleski, 313 Ill. at 258.\nUnlike the deputy sheriffs in Parker, Rettig, and Kawoleski, the Chicago police officer in the instant case was not assigned to the case and did not appear at trial. Unlike the bailiff in Parker, the police officer here did not shepherd a sequestered jury for more than a week. Aside from his incidental contact with only part of the jury near the elevators, the police officer was unknown to this jury.\nThough the statements by the deputy sheriff in Rettig were harmless, the unfortunate statements by the police officer here, however flippant, may have been calculated to influence the jury\u2019s verdict. However, unlike the deputy sheriffs in Parker and Kawoleski, the police officer had not seen the defendant\u2019s trial and had no apparent basis for his remark, other than a general animus against criminal defendants. Additionally, unlike the trial court in Kawoleski, the trial court here immediately and effectively admonished the jury. Not only did the trial court instruct the jury to disregard the police officer\u2019s statements, but also to remember the defendant\u2019s presumption of innocence. Tellingly, in Parker, the Court found evidence the bailiff\u2019s statements influenced at least one juror\u2019s decision. Here, the record is devoid of any evidence showing the police officer\u2019s statement actually influenced the jury.\nThe defendant\u2019s attorney asked for a mistrial or, alternatively, for an admonition to the jury. The court did admonish the jury. Defense counsel did receive what she asked for. The defendant may not ask the trial court to admonish the jury regarding extrajudicial statements and then assign as error the court\u2019s failure to declare a mistrial for these same statements. Cf. People v. Miller, 120 Ill. App. 3d 495, 457 N.E.2d 1373 (1983). The jury presumably followed the court\u2019s instructions and based its verdict on the evidence. See People v. Harris, 123 Ill. 2d 113, 526 N.E.2d 335 (1988); People v. Mitchell, 152 Ill. 2d 274, 604 N.E.2d 877 (1992). The State\u2019s evidence was overwhelming. In a closer case, the outcome well might be different.\nWe note defense counsel never asked that jurors be questioned, individually or as a group, as to whether they heard the remarks in the elevator and, if so, whether the remarks had any impact. While the trial judge could have made the inquiry anyway, and perhaps he should have, the lawyers certainly did not communicate any sense of urgency. Walker cannot show prejudice from this extrajudicial communication and is not entitled to a new trial.\nB. No. 1 \u2014 96\u20143907\nAn ineffective assistance of counsel claim is generally measured against the two-part standard of Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), and People v. Altanese, 104 Ill. 2d 504, 473 N.E.2d 1246 (1984). Under Strickland, a defendant must establish counsel\u2019s performance fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel\u2019s errors, the fact finder would have reached a different result. People v. Rice, 257 Ill. App. 3d 220, 226, 628 N.E.2d 837, 841 (1993). Walker contends his attorney\u2019s failure to request a fitness hearing under section 104 \u2014 21(a) of the Illinois Code of Criminal Procedure (725 ILCS 5/104 \u2014 21(a) (West Supp. 1997)) constituted ineffective assistance and warrants a new trial.\nA defendant is considered unfit to stand trial if he is unable to understand the nature and purpose of proceedings against him or to assist in his defense because of mental or physical problems. Rice, 257 Ill. App. 3d at 223. A defendant who is unfit to stand trial cannot be convicted consistent with due process. People v. Guttierez, 271 Ill. App. 3d 301, 648 N.E.2d 928 (1995). If a bona fide doubt as to a defendant\u2019s fitness has been raised, the trial court must conduct a fitness hearing. People v. Eddmonds, 143 Ill. 2d 501, 578 N.E.2d 952 (1991).\nFormerly, section 104 \u2014 21(a) of Code of Criminal Procedure expressed the General Assembly\u2019s conclusion that the influence of psychotropic medication on the defendant during trial always casts a bona fide doubt on the defendant\u2019s fitness. People v. Gevas, 166 Ill. 2d 461, 655 N.E.2d 461 (1995). Section 104 \u2014 21(a) stated as follows: \"A defendant who is receiving psychotropic drugs or other medications under medical direction is entitled to a hearing on the issue of his fitness while under medication.\u201d 725 ILCS 5/104 \u2014 21(a) (West 1992).\nThis statute was amended, effective December 31, 1996, and now states: \"A defendant who is receiving psychotropic drugs shall not be presumed unfit to stand trial solely by virtue of the receipt of those drugs or medications.\u201d 725 ILCS 5/104 \u2014 21(a) (West Supp. 1997).\nWe note that in a recent decision the Illinois Supreme Court, addressing the former statute, turned away from the remedy of automatic reversal in cases where a defendant received psychotropic drugs during his trial. People v. Burgess, 176 Ill. 2d 289, 303, 680 N.E.2d 357, 363 (1997).\nIn Burgess, the court analyzed the defendant\u2019s conduct at trial. It found there was nothing in the record to suggest he was unfit for trial or that the drugs he received had any effect on his fitness. A new trial was denied.\nIn the case before us, there is no need to inquire into the applicability of recent legislation or into the impact of Burgess on cases where a defendant is found to have been taking psychotropic drugs during trial and/or sentencing. Here, there is no evidence Walker was taking psychotropic drugs at trial or at sentencing. The defendant\u2019s brief statement in the presentence investigation report is vague, equivocal, and without factual support. No drug is named. No time frame is indicated. This is not enough to raise a question under the 1992 statute, even if it were applicable to this case.\nA fitness hearing under section 104 \u2014 21(a) was not necessary, and Walker\u2019s attorney was not required to request such a hearing. Walker can meet neither the performance nor the prejudice prong of Strickland and is not entitled to a new trial on his ineffective assistance claim.\nBecause Walker is not entitled to a new trial in No. 1 \u2014 96\u20143907, we do not have to address the sentencing issue raised in the briefs.\nCONCLUSION\nWalker\u2019s convictions and sentences in both Nos. 1 \u2014 96\u20141869 and 1 \u2014 96\u20143907 are affirmed.\nAffirmed.\nMcNAMARA and BURKE, JJ., concur.",
        "type": "majority",
        "author": "PRESIDING JUSTICE WOLFSON"
      }
    ],
    "attorneys": [
      "Rita A. Fry, Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellant.",
      "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Veronica X. Calderon, and Mary L. Boland, Assistant State\u2019s Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD WALKER, Defendant-Appellant.\nFirst District (4th Division)\nNos. 1 \u2014 96\u20141869, 1 \u2014 96\u20143907 cons.\nOpinion filed September 25, 1997.\nRita A. Fry, Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Veronica X. Calderon, and Mary L. Boland, Assistant State\u2019s Attorneys, of counsel), for the People."
  },
  "file_name": "0500-01",
  "first_page_order": 518,
  "last_page_order": 526
}
