{ "id": 140285, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN L. SPARKS, Defendant-Appellant", "name_abbreviation": "People v. Sparks", "decision_date": "2000-06-15", "docket_number": "No. 4\u201498\u20140857", "first_page": "268", "last_page": "276", "citations": [ { "type": "official", "cite": "314 Ill. App. 3d 268" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "353 N.E.2d 79", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "pin_cites": [ { "page": "82", "parenthetical": "where court had bailiff tell jury that court would not discuss matter with it, court's actions were not so much a communication as a refusal to communicate" } ], "opinion_index": 0 }, { "cite": "40 Ill. App. 3d 771", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2965450 ], "year": 1976, "pin_cites": [ { "page": "775", "parenthetical": "where court had bailiff tell jury that court would not discuss matter with it, court's actions were not so much a communication as a refusal to communicate" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/40/0771-01" ] }, { "cite": "224 N.E.2d 252", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "pin_cites": [ { "page": "256", "parenthetical": "no error where court, through the bailiff, advised jury to read instructions" } ], "opinion_index": 0 }, { "cite": "36 Ill. 2d 492", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5377680 ], "year": 1967, "pin_cites": [ { "page": "498-99", "parenthetical": "no error where court, through the bailiff, advised jury to read instructions" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/36/0492-01" ] }, { "cite": "626 N.E.2d 1114", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "1121" } ], "opinion_index": 0 }, { "cite": "254 Ill. App. 3d 497", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2980313 ], "year": 1993, "pin_cites": [ { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/254/0497-01" ] }, { "cite": "391 N.E.2d 162", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "pin_cites": [ { "parenthetical": "same" } ], "opinion_index": 0 }, { "cite": "72 Ill. App. 3d 483", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5581816 ], "year": 1979, "pin_cites": [ { "parenthetical": "same" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/72/0483-01" ] }, { "cite": "439 N.E.2d 521", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "restraint of two minutes" } ], "opinion_index": 0 }, { "cite": "108 Ill. App. 3d 708", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3013785 ], "year": 1982, "pin_cites": [ { "parenthetical": "restraint of two minutes" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/108/0708-01" ] }, { "cite": "417 N.E.2d 647", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "pin_cites": [ { "page": "651", "parenthetical": "restraint of three or four seconds" } ], "opinion_index": 0 }, { "cite": "93 Ill. App. 3d 475", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3130657 ], "year": 1981, "pin_cites": [ { "page": "479", "parenthetical": "restraint of three or four seconds" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/93/0475-01" ] }, { "cite": "636 N.E.2d 534", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "539" } ], "opinion_index": 0 }, { "cite": "159 Ill. 2d 217", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 781322 ], "year": 1994, "pin_cites": [ { "page": "228-29" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/159/0217-01" ] }, { "cite": "692 N.E.2d 1129", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "1144", "parenthetical": "\"A defendant may not be heard to complain of errors which he injected into his own trial. [Citation.] *** [I]t would be manifestly unfair for a party to obtain a second trial on the basis of error which he injected into the proceedings\"" } ], "opinion_index": 0 }, { "cite": "181 Ill. 2d 249", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821403 ], "year": 1998, "pin_cites": [ { "page": "283", "parenthetical": "\"A defendant may not be heard to complain of errors which he injected into his own trial. [Citation.] *** [I]t would be manifestly unfair for a party to obtain a second trial on the basis of error which he injected into the proceedings\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0249-01" ] }, { "cite": "178 N.E.2d 389", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "pin_cites": [ { "page": "391" } ], "opinion_index": 0 }, { "cite": "23 Ill. 2d 280", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2797074 ], "year": 1961, "pin_cites": [ { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/23/0280-01" ] }, { "cite": "456 N.E.2d 44", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "pin_cites": [ { "page": "46" } ], "opinion_index": 0 }, { "cite": "98 Ill. 2d 45", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3121756 ], "year": 1983, "pin_cites": [ { "page": "50" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/98/0045-01" ] }, { "cite": "606 N.E.2d 1167", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1169" } ], "opinion_index": 0 }, { "cite": "153 Ill. 2d 195", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738895 ], "year": 1992, "pin_cites": [ { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/153/0195-01" ] }, { "cite": "721 N.E.2d 1172", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "parenthetical": "Myerscough, J., dissenting" } ], "opinion_index": 0 }, { "cite": "308 Ill. App. 3d 1008", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 261306 ], "year": 1999, "pin_cites": [ { "parenthetical": "Myerscough, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/308/1008-01" ] }, { "cite": "679 N.E.2d 1266", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "1269" } ], "opinion_index": 0 }, { "cite": "288 Ill. App. 3d 102", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1597006 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "107" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/288/0102-01" ] }, { "cite": "713 N.E.2d 532", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "537" } ], "opinion_index": 0 }, { "cite": "186 Ill. 2d 450", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243932 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "461" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0450-01" ] }, { "cite": "670 N.E.2d 638", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1996, "pin_cites": [ { "parenthetical": "Williams II" }, { "page": "654-55" }, { "page": "655" } ], "opinion_index": 0 }, { "cite": "173 Ill. 2d 48", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 147596 ], "weight": 3, "year": 1996, "pin_cites": [ { "parenthetical": "Williams II" }, { "page": "81-83" }, { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/173/0048-01" ] }, { "cite": "641 N.E.2d 296", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "311-12", "parenthetical": "Williams I" }, { "page": "313" } ], "opinion_index": 0 }, { "cite": "161 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 783181 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "38-39", "parenthetical": "Williams I" }, { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/161/0001-01" ] }, { "cite": "268 N.E.2d 695", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1971, "pin_cites": [ { "page": "698, 700" }, { "page": "698, 700" } ], "opinion_index": 0 }, { "cite": "47 Ill. 2d 510", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2903225 ], "weight": 3, "year": 1971, "pin_cites": [ { "page": "516, 519" }, { "page": "516, 519" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0510-01" ] }, { "cite": "690 N.E.2d 128", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "134" } ], "opinion_index": 2 }, { "cite": "294 Ill. App. 3d 496", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 35381 ], "year": 1998, "pin_cites": [ { "page": "505" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/294/0496-01" ] }, { "cite": "709 N.E.2d 969", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "973", "parenthetical": "\"However, including in this evidentiary balancing process a fact which will never be admitted makes no sense\"" } ], "opinion_index": 2 }, { "cite": "304 Ill. App. 3d 177", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 564598 ], "year": 1999, "pin_cites": [ { "page": "183", "parenthetical": "\"However, including in this evidentiary balancing process a fact which will never be admitted makes no sense\"" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/304/0177-01" ] }, { "cite": "713 N.E.2d 532", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "538" } ], "opinion_index": 2 }, { "cite": "186 Ill. 2d 450", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243932 ], "year": 1999, "pin_cites": [ { "page": "464" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/186/0450-01" ] } ], "analysis": { "cardinality": 988, "char_count": 19945, "ocr_confidence": 0.741, "pagerank": { "raw": 7.984716434871802e-08, "percentile": 0.46365772676322053 }, "sha256": "78be7496d672b40dc79e66924f078bd3d9acf69ece20e673f1f2463639c66a16", "simhash": "1:fe0adc7b7744edf0", "word_count": 3357 }, "last_updated": "2023-07-14T20:48:47.280070+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. JOHN L. SPARKS, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE COOK\ndelivered the opinion of the court:\nA jury acquitted defendant John Sparks of home invasion and found him guilty of unlawful restraint (720 ILCS 5/10 \u2014 3(a) (West 1998)). In September 1998, the trial court sentenced him to three years in prison. Sparks appeals, contending that the trial court erred in its handling of (1) his impeachment with prior convictions and (2) a jury question. We affirm.\nOn April 6, 1998, Raphaela Brown was watching television in the living room of her single-level residential home in Decatur, Illinois. Brown\u2019s steel front door was open, but her screen door was closed. Sparks appeared at Brown\u2019s door and began demanding money because he felt that Brown had cheated him on a drug deal. Brown testified that Sparks opened her door and entered her home, grabbing her and dragging her outside. Both Sparks and Tina Vording (his girlfriend, who claimed to have been watching from across the street) maintain that Sparks did not enter but merely yelled through the screen door and that Brown came out of the house of her own accord.\nIn any event, a struggle between Sparks and Brown occurred outside. Brown then ran to a neighbor\u2019s house and began to bang on his door and yell for help. Her neighbor, John Robinson, testified that Sparks continued to grab and pull at Brown while she was on his porch, preventing her from entering. Robinson eventually let Brown into his house and called police. Sparks left the scene.\nA responding police officer noted that Brown had three bleeding cuts on her inner elbow, a cut on her hand, and redness about her neck. Brown says that she injured her hand when grabbing her screen door as Sparks pulled her from her home. Sparks claims that Brown injured herself on the sidewalk pavement while they struggled.\nI. IMPEACHMENT OF SPARKS THROUGH THE INTRODUCTION OF A PRIOR CONVICTION\nSparks argues both that the jury was improperly informed of one of his prior criminal convictions and that the manner in which such information was presented was improper. We address both contentions in turn.\nAfter Sparks testified, the following discussions were held outside the presence of the jury:\n\u201cMR. CURRENT [(State\u2019s Attorney)]: Your Honor, we would offer People\u2019s [e]xhibit[ ] [Nos.] 1 through 3 into evidence as rebuttal. People\u2019s exhibit [No.] 1, being an authenticated copy of conviction indicating the [defendant was convicted of a felony in the [c]ircuit [c]ourt of Macon County on Januaiy 13th of 1992 in case [No.] 91 \u2014 CF\u2014645. People\u2019s [e]xhibit[ ] [Nos.] 2 and 3, being authenticated copies of conviction indicating that in each cause [defendant was convicted of a felony offense on March 16th of 1989. We believe that all three of these convictions fit within the parameters of [People v. Montgomery, 47 Ill. 2d 510, 268 N.E.2d 695 (1971)]. We are specifically asking the [c]ourt to address \u00a1the third prong of [.Montgomery] and find that the probative value is not substantially outweighed by the danger of unfair prejudice.\nTHE COURT: Mr. Rau.\nMR. RAU [(Defense counsel)]: Your Honor, I would object to the admissions to [sic] People\u2019s [e]xhibit[ ] [Nos.] 1, 2, and 3. I would suggest the probative value is outweighed \u2014 or the prejudicial value is outweighed by the probative value [sic] in this cause. I would further suggest that if the [c]ourt does allow some of the exhibits to be published, that the court limit the publication of one of the three, and further, just say that he has a prior felony conviction.\nTHE COURT: The [c]ourt is going to admit People\u2019s [exhibit No.] 1, and I am going to deny [Nos.] 2 and 3. I don\u2019t think we need more than one conviction for the \u2014 to show the prior conviction with regard to credibility. And I will allow People\u2019s [exhibit No.] 1 ***.\u201d\nSparks first contends that the trial court did not properly determine that his prior convictions were allowable to impeach his credibility. The Supreme Court of Illinois adopted (then-proposed) Federal Rule of Evidence 609 (see 28 U.S.C. app. Fed. R. Evid. 609 (1994)) in Montgomery. For the purpose of attacking a witness\u2019 credibility, evidence of a prior conviction is admissible only if (1) the crime was punishable by death or imprisonment in excess of one year or (2) the crime involved dishonesty or false statement regardless of the punishment. Montgomery, 47 Ill. 2d at 516, 519, 268 N.E.2d at 698, 700. In either case, however, the evidence is inadmissible if the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice. Montgomery, 47 Ill. 2d at 516, 519, 268 N.E.2d at 698, 700.\nTwo decades after handing down the Montgomery decision, the supreme court expressed dissatisfaction with its implementation by the lower courts. In People v. Williams, 161 Ill. 2d 1, 38-39, 641 N.E.2d 296, 311-12 (1994) (Williams I), the court found after review of the case law \u201ca regression toward allowing the State to introduce evidence of virtually all types of felony convictions for the purported reason of impeaching a testifying defendant.\u201d But while the court \u201c[could not] countenance *** further erosion\u201d of the rule, it nonetheless found that the trial court\u2019s erroneous admission of such evidence in that case had not resulted in prejudice great enough to warrant reversal. Williams I, 161 Ill. 2d at 41, 641 N.E.2d at 313.\nJust two years later, ensuing confusion among the lower courts prompted the supreme court to address the issue yet again in People v. Williams, 173 Ill. 2d 48, 670 N.E.2d 638 (1996) (Williams II). The Williams II court emphasized the importance of conducting the balancing test of probative value versus unfair prejudice before admitting prior convictions for impeachment purposes and reiterated its commitment to the overall Montgomery framework, as established. Williams II, 173 Ill. 2d at 81-83, 670 N.E.2d at 654-55.\nIn evaluating the trial court\u2019s methods in the instant case, we are guided by the rationale of Williams II. There, the court found no reason to suppose that the trial court had failed to conduct the proper balancing test. The court noted the trial court\u2019s awareness of the issue stemming from the fact that the parties had referred to the balancing test in their arguments. The court therefore declined to find error, although the trial court had not expressly articulated its employment of the test. Williams II, 173 Ill. 2d at 83, 670 N.E.2d at 655.\nWe reach the same conclusion here. The record indicates that the trial court was abundantly aware of the need to perform the Montgomery balancing; both sides had articulated same. Indeed, the trial court expressly refused to admit two of Sparks\u2019 three prior convictions, citing the desirability of admitting only one with regard to Sparks\u2019 credibility. The trial court\u2019s actions were well within its discretion.\nBut Sparks also complains of the method employed in conveying this information to the jury. The trial court said this (apparently forgetting about the entire matter until during the State\u2019s closing arguments):\n\u201c[Prosecutor]: When you go back to the jury room, you have to decide who to believe and who not to believe, and one of the factors you can consider is that [Sparks] is a convicted felon.\nTHE COURT: That has not been read to them yet. I am sorry. I should have read that earlier.\nThe [c]ourt has admitted an exhibit outside the presence of the jury, and that exhibit shows that the defendant was convicted of a felony on January 13, 1992.\u201d\nThe court therefore informed the jury of the fact that Sparks had been convicted of a felony, but not of the nature of the specific charge (burglary). This has come to be known as the \u201cmere-fact\u201d method of informing the jury of a witness\u2019 prior conviction(s).\nThe supreme court recently addressed mere-fact impeachment in People v. Atkinson, 186 Ill. 2d 450, 713 N.E.2d 532 (1999), rev\u2019g 288 Ill. App. 3d 102, 679 N.E.2d 1266 (1997). The trial court in Atkinson had been faced with the defendant\u2019s request that the mere-fact method be employed in his case. The trial judge refused. This court reversed and remanded for a new trial, determining that the trial judge had abused his discretion by refusing to employ the method. Atkinson, 288 Ill. App. 3d at 107, 679 N.E.2d at 1269. After review, the supreme court concluded that the Montgomery rule should not be altered by the mere-fact approach and that trial courts should not consider that method of impeachment. Atkinson, 186 Ill. 2d at 461, 713 N.E.2d at 537.\nThe precedential value of Atkinson has been the subject of some dispute. See People v. Dixon, 308 Ill. App. 3d 1008, 721 N.E.2d 1172 (1999) (Myerscough, J., dissenting). For the purposes of the case at bar, we give deference to the Atkinson opinion and assume that the trial court erred in using the mere-fact approach. For the reasons stated, we nonetheless decline to grant Sparks a new trial.\nWe reiterate our finding that the trial court quite properly concluded, pursuant to its Montgomery analysis, that evidence of one of Sparks\u2019 prior convictions should be allowed for the purpose of impeachment. That being the case, Sparks requested the mere-fact method for its admission. Sparks now claims that he deserves a new trial because the court acceded to his request. We cannot agree. Obviously an accused may not ask the trial court to proceed in a certain manner and then contend in a court of review that the order that he asked for and obtained was in error. People v. Lowe, 153 Ill. 2d 195, 199, 606 N.E.2d 1167, 1169 (1992). The issue is not waiver, it is estoppel, predicated upon policy concerns and the fair administration of justice. To hold otherwise would encourage defendants to become duplicitous. Thus, where \u201c \u2018a defendant *** invites *** the admission of evidence, even though it he improper, he cannot complain.\u2019 \u201d (Emphasis added.) People v. Payne, 98 Ill. 2d 45, 50, 456 N.E.2d 44, 46 (1983), quoting People v. Burage, 23 Ill. 2d 280, 283, 178 N.E.2d 389, 391 (1961); see also People v. Cortes, 181 Ill. 2d 249, 283, 692 N.E.2d 1129, 1144 (1998) (\u201cA defendant may not be heard to complain of errors which he injected into his own trial. [Citation.] *** [I]t would be manifestly unfair for a party to obtain a second trial on the basis of error which he injected into the proceedings\u201d). Any error here was made at the behest of Sparks himself and cannot furnish a basis for reversal.\nMoreover, our review of the record reveals that the error was harmless. First, we note that Sparks\u2019 testimony was cumulative of Vording\u2019s. Sparks and Vording testified nearly identically. The jury was therefore presented with that version of events independently of any prejudicial effect that the error may have had. The evidence amply supported the jury\u2019s rejection of that version. Second, the juiy actually acquitted Sparks on the count of home invasion. This verdict is inconsistent with the underlying concern of the prior convictions rule; namely, that a jury may become so impassioned upon hearing of a defendant\u2019s criminal history as to convict on character, not on evidence. Acquittal is not the action of a jury so disposed.\nII. THE TRIAL COURT\u2019S HANDLING OF A QUESTION POSED BY THE JURY DURING DELIBERATIONS\nAfter the jury retired to deliberate its verdict, it sent a written note to the court, stating:\n\u201cYour honor[,] the jury wishes a more detailed] explanation of unlawful restraint? Time limit? We believe the witness was grabbed. What is the time limit for restraint? What qualifies for restraint?\u201d\nUpon receiving the note, the following discussion was held:\n\u201cTHE COURT: Here is the question that the jurors sent out, and I will give it to both counsel at the same time and give you an opportunity to read it.\nIt would be the position of the [c]ourt that there is no magical time limit on the term \u2018restraint\u2019 that the term \u2018restraint\u2019 is a common term which they should understand, and they need to go back themselves and make the determination on that issue; that there is no easy answer I can give them on ***.\nMR. RAU [(Defense counsel)]: I would suggest that the [c]ourt say, \u2018You have the instructions.\u2019 \u2018You must deliberate make, your judgment based on\u2019 \u2014 there is no definition for whatever \u2014 .\nTHE COURT: There is no definition that we have for what they are asking. The term they are asking in my opinion, in the [c]ourt\u2019s opinion, is a common term which the average person should comprehend or understand.\nMR. CURRENT [(Prosecutor)]: I agree with that answer.\nMR. RAU: I wouldn\u2019t tell them it\u2019s a common answer. I don\u2019t think that\u2019s appropriate, and I would object to that. What I think you ought to do is just simply tell them they have the instructions.\nTHE COURT: We\u2019ll show your objection. I do not agree with defense counsel, and we will show your input on the record.\nMR. RAU: Okay.\nTHE COURT: Have Ted bring in only the foreperson.\u201d\nThe foreperson was then apparently brought into the courtroom. However, although defense counsel had been present at all times, the prosecutor raised concern that Sparks himself should be in attendance. The foreperson was therefore apparently led back out of the courtroom until Sparks was brought in, whereupon the court continued:\n\u201cTHE COURT: Please be seated.\nMr. Foreman, I have received your question for the jury and basically, I am not going to give you any additional detail, explanation of unlawful restraint. In your instructions, you have the definition, and it tells what unlawful restraint is. It is my position as a trial judge that these are words which should be understood by an ordinary average person. And you twelve jurors are simply going to have to discuss the matter and make that determination. I can\u2019t think of anything additional that I can give you that would assist you in making that determination. I think the wording in the instruction is fairly clear, and I think that just using your average common sense, that the twelve of you should be able to resolve the issue.\nThank you.\nTHE FOREPERSON: Yes, Your Honor.\u201d\nThese events prompt Sparks to make two contentions on appeal: that the trial judge should have answered the jury\u2019s question and that the trial court improperly spoke to only the foreperson.\nA trial court has a duty to provide instruction to the jury where it has posed an explicit question or requested clarification on a point of law. People v. Childs, 159 Ill. 2d 217, 228-29, 636 N.E.2d 534, 539 (1994). We construe the jury\u2019s question here to be whether the offense of unlawful restraint includes a time element and, if so, the parameters of same. Because this question does not regard a finding of fact, or ask the trial court to apply such fact to the law, the question was one of pure law and the trial court therefore had a duty to accurately instruct the jury.\nIf a party is actually restrained without legal authority, the duration of the restraint, however short, is inconsequential. People v. Jones, 93 Ill. App. 3d 475, 479, 417 N.E.2d 647, 651 (1981) (restraint of three or four seconds); see also People v. Kuykendall, 108 Ill. App. 3d 708, 439 N.E.2d 521 (1982) (restraint of two minutes); People v. Satterthwaite, 72 Ill. App. 3d 483, 391 N.E.2d 162 (1979) (same). The jury should have been accordingly informed. But it follows directly from the law that no prejudice to Sparks occurred. In the worst case, the jury adduced duration as an additional element of the offense. As. the offense actually contains no such element, Sparks stood only to gain by any higher burden employed. (Indeed, we note that Sparks himself urged the trial court to leave the jury ignorant of the law.) No reversible error occurred.\nWe also disapprove of the trial court\u2019s action in summoning the foreperson alone back to the courtroom. Addressing the entire jury in open court, with the defendant present, is the proper procedure. People v. Tirado, 254 Ill. App. 3d 497, 505, 626 N.E.2d 1114, 1121 (1993). Nonetheless, we find that the court\u2019s actions here did not rise to the level of error. First, unlike the authorities he cites, Sparks and his attorney were present throughout the exchange. Second, the trial court did not give the foreperson substantive instructions. The court\u2019s refusal to further instruct the jury was not particularly susceptible to misinterpretation. Cf. People v. Adams, 36 Ill. 2d 492, 498-99, 224 N.E.2d 252, 256 (1967) (no error where court, through the bailiff, advised jury to read instructions); People v. Jones, 40 Ill. App. 3d 771, 775, 353 N.E.2d 79, 82 (1976) (where court had bailiff tell jury that court would not discuss matter with it, court\u2019s actions were not so much a communication as a refusal to communicate).\nWe affirm the judgment of the trial court.\nAffirmed.", "type": "majority", "author": "PRESIDING JUSTICE COOK" }, { "text": "GASMAN, J.,\nconcurs.", "type": "concurrence", "author": "GASMAN, J.," }, { "text": "JUSTICE MYESSCOUGH,\nspecially concurring in part and dissenting in part:\nI specially concur in part, and I respectfully dissent in part. Although the trial judge was certainly aware of the Montgomery balancing test, the record gives no indication that he conducted any balancing test, let alone a meaningful balancing test. The judge did not conclude that the probative value would outweigh the prejudice. Moreover, had the court conducted the meaningful balancing test, it most likely would have concluded that the probative value of admission of the conviction set forth in exhibit No. 1, burglary, a crime similar to those for which defendant was on trial \u2014 home invasion and unlawful restraint \u2014 would not outweigh the prejudice to defendant. The trial judge instead merely opted for the easy alternative \u2014 use of the mere-fact approach \u2014 obviating the need for the Montgomery balancing test.\nThis court has previously recognized that to properly apply the Montgomery standard the trial court must consider the evidence that the jury will actually receive. People v. Holloman, 304 Ill. App. 3d 177, 183, 709 N.E.2d 969, 973 (1999) (\u201cHowever, including in this evidentiary balancing process a fact which will never be admitted makes no sense\u201d). Moreover, the supreme court later rejected use of the mere-fact approach. People v. Atkinson, 186 Ill. 2d 450, 464, 713 N.E.2d 532, 538 (1999). Accordingly, the trial court, in this case, committed plain error when it utilized the mere-fact approach.\nFurther, defendant did not forfeit his right to object to use of the prior convictions or the use of the mere-fact approach by suggesting that the mere-fact approach be used in the alternative, nor is he estopped from raising the issue. At the time that defendant argued in the alternative, the supreme court had not spoken to the issue in Atkinson, and this court recommended use of the mere-fact method. The defendant should not be penalized by this change in the law since Atkinson must be applied retroactively. People v. Corrie, 294 Ill. App. 3d 496, 505, 690 N.E.2d 128, 134 (1998).\nNonetheless, I concur with the majority that this error was harmless.\n\u201c[T]he jury actually acquitted Sparks on the count of home invasion. This verdict is inconsistent with the underlying concern of the prior convictions rule; namely, that a jury may become so impassioned upon hearing of a defendant\u2019s criminal history as to convict on character, not on evidence. Acquittal is not the action of a jury so disposed.\u201d (Emphasis in original.) 314 Ill. App. 3d at 273.\nFor this reason, I agree that the judgment of the trial court should be affirmed.", "type": "concurring-in-part-and-dissenting-in-part", "author": "JUSTICE MYESSCOUGH," } ], "attorneys": [ "Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Lawrence R. Fichter, State\u2019s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Linda Susan McClain, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN L. SPARKS, Defendant-Appellant.\nFourth District\nNo. 4\u201498\u20140857\nOpinion filed June 15, 2000.\nMYERSCOUGH, J., specially concurring in part and dissenting in part.\nDaniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nLawrence R. Fichter, State\u2019s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Linda Susan McClain, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0268-01", "first_page_order": 286, "last_page_order": 294 }