{ "id": 3216297, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY GALLANO, Defendant-Appellant", "name_abbreviation": "People v. Gallano", "decision_date": "2004-12-30", "docket_number": "No. 1-03-1432", "first_page": "941", "last_page": "958", "citations": [ { "type": "official", "cite": "354 Ill. App. 3d 941" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "680 N.E.2d 1383", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "1389" } ], "opinion_index": 0 }, { "cite": "176 Ill. 2d 523", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544906 ], "year": 1997, "pin_cites": [ { "page": "535" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/176/0523-01" ] }, { "cite": "792 N.E.2d 1163", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "1194" }, { "page": "1194" } ], "opinion_index": 0 }, { "cite": "205 Ill. 2d 52", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1302618 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "101" }, { "page": "101" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/205/0052-01" ] }, { "cite": "606 N.E.2d 363", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "367" }, { "page": "367" } ], "opinion_index": 0 }, { "cite": "238 Ill. App. 3d 457", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5156036 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "463" }, { "page": "463" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/238/0457-01" ] }, { "cite": "410 U.S. 284", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11957222 ], "weight": 9, "year": 1973, "pin_cites": [ { "page": "300-01" }, { "page": "311-12" }, { "page": "1048-49" }, { "page": "300-01" }, { "page": "311-12" }, { "page": "1048-49" } ], "opinion_index": 0, "case_paths": [ "/us/410/0284-01" ] }, { "cite": "429 N.E.2d 470", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "pin_cites": [ { "page": "475" } ], "opinion_index": 0 }, { "cite": "87 Ill. 2d 134", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3030472 ], "year": 1981, "pin_cites": [ { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/87/0134-01" ] }, { "cite": "488 N.E.2d 995", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1986, "pin_cites": [ { "page": "1000" }, { "page": "999" }, { "page": "999" }, { "page": "1000" } ], "opinion_index": 0 }, { "cite": "111 Ill. 2d 58", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166591 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "68" }, { "page": "66" }, { "page": "66" }, { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0058-01" ] }, { "cite": "793 N.E.2d 571", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "587" } ], "opinion_index": 0 }, { "cite": "205 Ill. 2d 411", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1302603 ], "year": 2002, "pin_cites": [ { "page": "436" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/205/0411-01" ] }, { "cite": "121 Wash. App. 747", "category": "reporters:state", "reporter": "Wash. App.", "case_ids": [ 863847 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/wash-app/121/0747-01" ] }, { "cite": "997 P.2d 1", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 11528624 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "8" }, { "page": "8" } ], "opinion_index": 0, "case_paths": [ "/p2d/997/0001-01" ] }, { "cite": "745 N.E.2d 31", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 2001, "pin_cites": [ { "parenthetical": "citing, in dicta, the holding in Symington with approval" }, { "page": "34, 37" }, { "page": "39" }, { "page": "41" } ], "opinion_index": 0 }, { "cite": "319 Ill. App. 3d 810", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1527798 ], "weight": 5, "year": 2001, "pin_cites": [ { "parenthetical": "citing, in dicta, the holding in Symington with approval" }, { "page": "811, 815" }, { "page": "818" }, { "page": "821" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/319/0810-01" ] }, { "cite": "823 F.2d 591", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 4330982, 1736470 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "596" }, { "page": "596" } ], "opinion_index": 0, "case_paths": [ "/us-app-dc/262/0183-01", "/f2d/823/0591-01" ] }, { "cite": "116 F.3d 606", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11978316 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/f3d/116/0606-01" ] }, { "cite": "195 F.3d 1080", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1738197 ], "weight": 4, "year": 1999, "pin_cites": [ { "page": "1087" }, { "page": "1085" }, { "page": "1085" } ], "opinion_index": 0, "case_paths": [ "/f3d/195/1080-01" ] }, { "cite": "809 N.E.2d 107", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "114" } ], "opinion_index": 0 }, { "cite": "209 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5461909 ], "year": 2004, "pin_cites": [ { "page": "560" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0551-01" ] }, { "cite": "612 N.E.2d 7", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "9" } ], "opinion_index": 0 }, { "cite": "243 Ill. App. 3d 167", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5110671 ], "year": 1993, "pin_cites": [ { "page": "169" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/243/0167-01" ] }, { "cite": "161 N.E.2d 325", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1959, "pin_cites": [ { "page": "331" } ], "opinion_index": 0 }, { "cite": "17 Ill. 2d 287", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5334608 ], "year": 1959, "pin_cites": [ { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/17/0287-01" ] } ], "analysis": { "cardinality": 1523, "char_count": 42563, "ocr_confidence": 0.734, "pagerank": { "raw": 5.8447377132187834e-08, "percentile": 0.36304606948127094 }, "sha256": "e25bf8e0ac9ed1ff96ac371a56d040733841d42ebbaf777d9111d8af6e32edaf", "simhash": "1:8eea403167046c51", "word_count": 7332 }, "last_updated": "2023-07-14T16:31:29.254043+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. TIMOTHY GALLANO, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE THEIS\ndelivered the opinion of the court:\nFollowing a jury trial, defendant Timothy Gallano was convicted of first-degree murder and concealment of a homicidal death and sentenced to concurrent prison terms of 60 years and 5 years, respectively. He contends on appeal that (1) he was denied his right to a unanimous jury verdict when the trial court dismissed a juror during deliberations after the juror had expressed to the court his reasonable doubt as to defendant\u2019s guilt; (2) the trial court erred in allowing a witness to invoke his fifth amendment right against self-incrimination without conducting a hearing to determine whether he had a valid basis for invoking that right; and (3) his 60-year sentence for first-degree murder was excessive. For the following reasons, we reverse defendant\u2019s convictions and remand for a new trial.\nBACKGROUND\nThe following facts were adduced at defendant\u2019s trial. Arlene Bravo testified that on September 20, 1999, her daughter, Stacy Bravo, left their home at 9:30 p.m. to work at a local bar and that was the last time Arlene saw Stacy alive. Stacy\u2019s brother, John Bravo II, testified that he was introduced to defendant in early September 1999 as Stacy\u2019s boyfriend. On September 25, 1999, John became alarmed when Stacy did not appear at her cousin\u2019s wedding. The following Tuesday, John saw defendant in the parking lot of a local bar in Blue Island getting out of Stacy\u2019s car. When John asked defendant about Stacy\u2019s whereabouts, defendant told John that he had seen Stacy the Friday before the wedding, that she had gone to a party with a girlfriend and never came back, and Stacy lent him the car to run errands before she went to the party with her girlfriend.\nThe next day, John went with his father to Jack Moretti\u2019s house, where defendant was living at the time, to pick up Stacy\u2019s car. John asked defendant again if he had heard anything from Stacy and defendant replied that he had not heard anything and had not seen her since the Thursday before the wedding. John confronted defendant with the discrepancy because defendant had previously told John that the last time he saw Stacy was the Friday before the wedding. Defendant responded that he could not remember if it was Thursday or Friday and could not remember the girlfriend\u2019s name that she went out with that night. John further testified on cross-examination that he was aware of Stacy\u2019s drug problem and that he knew she had received treatment through a drug rehabilitation program. He denied that she ever acted aggressively or violently when he observed her using drugs.\nHope Bravo, Stacy\u2019s former sister-in-law, testified that the Wednesday before the wedding, on September 22, 1999, she was working at a local bar in Blue Island. At about midnight, she saw someone driving by the bar in Stacy\u2019s car. Hope thought it was unusual because Stacy should have been working at that hour. Shortly thereafter, defendant came into the bar, flailing his arms around, asking, \u201cWhere is Stacy?\u201d in an animated voice. Hope thought it was odd that defendant did not know where Stacy was because he and Stacy were inseparable. When Hope said to defendant, \u201cWhat did you do to her?\u201d he was extremely nervous and sweating. Defendant looked her in the eye and began to cry. He kept repeating, \u201cI am sorry. I am so sorry.\u201d Defendant kissed Hope on the forehead and immediately left the bar, got into Stacy\u2019s car, and drove off. On cross-examination, Hope testified that she did not contact police after defendant left the bar. She also testified that she was familiar with Jack Moretti. He was known around town because of his appearance, which she likened to Jerry Garcia. On occasion, she saw Moretti and defendant at the bar where Stacy worked. Hope saw Moretti driving Stacy\u2019s car the week after defendant spoke to Hope.\nArlene Bonta testified that she lived on a farm in Mokena, Illinois. She had known defendant for about 25 years, and he had lived with her from 1993 to 1994. In the fall of 1999, Bonta received a telephone call from defendant, asking her if he could store a motorcycle frame and some parts in her barn. Two weeks after the phone call, defendant arrived at Bonta\u2019s farm with a motorcycle frame and a blue barrel. The barrel was too heavy for defendant to carry and Bonta\u2019s son helped defendant move the barrel into the barn. After the barrel was unloaded from defendant\u2019s trailer, Bonta\u2019s dog was sniffing the barrel. Bonta\u2019s son also testified that the barrel had an odor. Defendant told them that the dog was probably sniffing the barrel because a dead possum was thrown in there by his girlfriend who was not happy with him. Bonta further testified that defendant returned to her farm in the summer of 2000 with Moretti, whom she described as \u201cscary looking.\u201d At that time, they picked up the motorcycle frame, but left the barrel behind.\nSergeant Tom Wetherald of the Illinois State Police testified that on January 31, 2002, he was assigned to assist with the missing persons case of Stacy Bravo. He accompanied Moretti, who was in custody at that time for passing bad checks, to Moretti\u2019s residence in Blue Island. When Wetherald entered the basement, he saw what he believed to be dried blood on the walls and the floorboards. The material on the floorboards was later determined to be human blood. On February 4, 2002, Wetherald and other officers took defendant into custody and accompanied him . to the Bonta farm, where Wetherald observed a blue plastic 55-gallon drum. The drum was then taken to the coroner\u2019s office.\nIllinois State Police biologist Dan Gandor testified that he took DNA samples from the floorboards in the basement of Moretti\u2019s residence, as well as swabs from Arlene and John Bravo. The parties stipulated that the blood on the floorboards belonged to the biological daughter of Arlene and John to a degree of 99.99% certainty.\nDoug Hoglund, deputy chief of the Blue Island police department, testified that he had information that Moretti and defendant were involved in Stacy\u2019s disappearance and that Moretti\u2019s arrest for possession of stolen checks led police to defendant. Moretti consented to a search of his home, where the police recovered explosives, drag paraphanalia, marijuana, shotguns, ammunition, mercury, and a passport. Defendant did not reside there at the time these items were discovered. Hoglund further testified that he interviewed defendant following his arrest. After advising defendant of his rights, defendant agreed to speak with him. Defendant was informed that the police were investigating Stacy\u2019s disappearance. According to Hoglund, defendant initially told him that he and Stacy were no longer dating and that he did not know of her whereabouts. When Hoglund told defendant that police had information that defendant did know what happened to Stacy, defendant \u201chung his head\u201d and began to cry.\nDefendant then told Hoglund that he was living with Stacy in September 1999. When she arrived home from work one morning, they had an argument and Stacy pointed a gun at him. He took the gun away from her and shot her in the head more than once. After he shot Stacy, Moretti came out of a bedroom where he had been sleeping. He and Moretti put Stacy\u2019s body into a large plastic bag and left it in the trunk of Stacy\u2019s car for a few days. They then put the body into a blue 55-gallon plastic drum, filled it with cement and put motorcycle parts on top of it. A few days later, defendant took the barrel to the Bonta farm. Defendant then accompanied the officers to the Bonta farm, where the barrel was discovered.\nAssistant State\u2019s Attorney Terry Reilly testified that on February 5, 2002, he interviewed defendant in the presence of Officer Hoglund. Defendant gave a videotaped statement after being advised of and waiving his rights. ASA Reilly testified that there was a difference in the oral statement that defendant gave to Hoglund and the videotaped statement he later made. Reilly stated that in the oral statement to Hoglund, defendant said that he took the gun away from Stacy and shot her several times. When he spoke with Reilly in the videotaped statement, defendant said that Stacy had the gun, there was a straggle for it, and the gun went off. Reilly also testified that defendant told him that he did not mean for the incident to happen.\nForensic pathologist Bryan Mitchell testified that on February 5, 2002, he conducted an autopsy of Stacy Bravo\u2019s body. Stacy died as a result of multiple gunshot wounds to the head, causing laceration of the brain and fracturing of the skull. His examination revealed a gunshot entrance wound on \u201cthe right side of the head just above and behind the right ear.\u201d The path of the bullet was from back to front. There were no exit wounds. He observed a keyhole-shaped wound suggesting that there had been more than one bullet that entered the area. Mitchell removed what appeared to be five pieces of bullet jacketing and two pieces of lead from the skull. He explained that when multiple bullets are fired into the same area, the bullets will collide into each other, causing the bullets to fragment inside the skull. According to Mitchell, the gun was fired right up against her head. He had no opinion as to whether the wounds were a result of a struggle or an execution. With the exception of the skull, he found no evidence of injury to any other part of her body.\nWetherland testified for the defense regarding a report that he generated during the investigation. Therein, he stated that \u201c \u2018[defendant\u2019s] initial statements indicated that Bravo was shot during a struggle with [defendant].\u2019 \u201d The parties also stipulated that Stacy received outpatient drug treatment and counseling between April 1997 and October 1997, and that during that time, she attended 30 counseling sessions.\nDefendant testified that he met Stacy and Moretti through mutual friends. While defendant lived in Bourbonnais, he would often stay with Moretti at his apartment. According to defendant, he \u201clooked up\u201d to Moretti, but soon realized he was a drug dealer who was \u201cnot on the level.\u201d Defendant did not do drugs because he had a commercial driver\u2019s license and was required to participate in drug screening. Defendant had known Stacy for six months before the shooting. She would often stay overnight at Moretti\u2019s place. They very seldom had disputes, and when they did, they talked very easily and openly about them. Defendant stated that he found out that Stacy was taking drugs. They discussed the problem, and she agreed that she would not do them anymore. According to defendant, Moretti made Stacy sell cocaine at her workplace and Stacy was not happy with that arrangement. Defendant testified that he confronted Moretti about the situation, and Moretti told him it was none of his business. According to defendant, Moretti was always asking Stacy about money, and at the time of her death, she owed Moretti $4,000.\nDefendant further testified that on September 20, 1999, he was at Stacy\u2019s parents\u2019 house earlier in the day. Stacy went to her pool league and a friend of his picked him up. At about 10 p.m., he was sitting in the basement watching television. Moretti was in the next room asleep. Stacy came home with another woman and went into Moretti\u2019s room. They had a conversation, but he could not hear what they were discussing. Then Stacy came out and had a conversation with the woman. The two women were smoking marijuana. At some point, the other woman left. Stacy was upset and was acting out of character. He had only seen her behave that way once before when she and Moretti got into a verbal confrontation and she threw some bottles around the bar.\nAccording to defendant, Stacy then walked up to him with a notebook in one hand and a gun in the other hand. She pointed the gun at defendant about two feet away from him. Defendant reached up and grabbed the hand holding the gun. He pushed Stacy back into some chairs in front of a workbench. \u201cIt seemed like when she hit the chairs, the gun went off.\u201d He did not know how many times it went off. His hand was never on the trigger. After the gun discharged, Moretti came in and told defendant they had to get rid of the body because Moretti had drugs in the house and did not want the police there. Defendant did not want to have anything to do with hiding the body. He reluctantly agreed to help Moretti put Stacy\u2019s body into a plastic bag and they placed her in the trunk of her car. According to defendant, Moretti cleaned the blood off the basement floor and was upset because defendant did not help him.\nDefendant drove to see his friend who was a training officer for the Mokena police department. He was not at home. Defendant attempted to contact him four or five times over a period of time to no avail. The body remained in the trunk of the car for a few days. He and Moretti then placed the body into a 55-gallon plastic drum belonging to Moretti. They filled it with cement and motorcycle parts and left it on the side of the house for a few days. It was defendant\u2019s idea to bring the drum to the Bonta farm. Defendant further testified that he did not intend to shoot Stacy and did not have the gun in his hand until after she had been shot. He believed the gun was the same one that he had seen Moretti with in the past for protection.\nFollowing deliberations, the jury found defendant guilty of first-degree murder and concealment of a homicidal death. He was subsequently sentenced to a concurrent prison term of 60 years and 5 years, respectively. His motions for a new trial and for resentencing were denied.\nANALYSIS\nA. Discharge of Juror Litke\nDefendant contends that he was denied his right to a fair trial when the trial court dismissed a juror during deliberations who had expressed reasonable doubt. The following facts are relevant to a disposition of this issue. Prior to trial, the court conducted voir dire by questioning potential jurors, and by giving the State and defense an opportunity to submit questions and exercise challenges. Each juror was asked, \u201c[W]ere you ever arrested, charged with, or convicted of a crime other than a minor traffic offense?\u201d\nDuring the process, the State made challenges for cause as to potential jurors who were untruthful with respect to their criminal backgrounds. The trial court granted the State\u2019s motion to dismiss two potential jurors for cause. Thereafter, the State also made a motion to dismiss prospective juror Todd Atkins because, although he admitted that he had an arrest for mob action in 1986, in March of 1996, he was also charged with battery, and in January 1997, he was charged with delivery of cannabis. The trial court denied the motion for cause, stating \u201c[h]e did indicate sufficiently he has been in fact arrested. The fact that he has many, many more is, well, just icing on the cake.\u201d He was then dismissed by the State on a peremptory challenge.\nAfter 12 jurors were empaneled, the court sought three alternate jurors. The prospective alternates were asked, \u201c[W]ere any of you or anyone close to you ever a victim of a crime before?\u201d Prospective alternate Frank Litke was questioned individually by the court as follows:\n\u201cA. [Mr. Litke] My son\u2019s mother was murdered. My two sons. Twelve years ago.\nQ. Was anyone arrested as a result of that?\nA. Yes.\nQ. Were you in any part of the court proceedings in any way, sir, such as a witness?\nA. No.\nQ. Now the fact that someone who was related closely was the victim of a homicide in the past, would that have any bearing or impact upon you whether or not you could be a fair and impartial juror in this case, sir?\nA. No.\nQ. If you were selected as a juror in this case, Mr. Litke, could you rule only according to the evidence you hear, the law that I would give you, be able to give both sides here a fair trial?\nA. Yes.\u201d\nThe court next asked the panel: \u201c[W]ere any of you or anyone close to you ever arrested for, charged with, or convicted of a crime other than a minor traffic offense?\u201d Mr. Litke apparently raised his hand and stated as follows:\n\u201cQ. And Mr. Litke?\nA. Well, I got to go back to the \u2014 my children were kidnapped, too, eight years ago, by some in-laws.\nQ. In-laws, that goes back to the victim question.\nA. Yes.\nQ. The in-laws, were there criminal charges placed on them?\nA. No. I went to the Supreme Court of Montana. I had to go through two states. They were trying to, they put a false front of like they had any kind of custody rights to my children.\nQ. I understand, this was a\u2014\nA. Eight year process.\nQ. \u2014a custody situation which was bordered on the criminal, is that what you consider it to be?\nA. Yes. They took advantage of their mother\u2019s death and shipped them out of State real fast before I could find out what\u2019s going on.\nQ. Would this have any bearing on you, again, Mr. Litke, whether you would be fair and impartial in this case?\nA. No.\u201d\nLater, the court questioned each potential alternate individually. Litke indicated that he was 35, married and unemployed with three children. He stated that he would not give a police officer any more or less weight than any other witness, and that he did not hold any bias or prejudice against a person charged with a crime. He was then asked about his ability to be fair and impartial and whether he could sign a guilty or not guilty verdict form. He responded that he could be fair and impartial, and could sign a guilty or not guilty form depending on whether the State proved defendant\u2019s guilt beyond a reasonable doubt. The court went on to question other potential alternates and then Litke volunteered the following information:\n\u201cA. But you passed up, when I was 18 years old, I pleaded guilty to taking a survey lens out of the back of a pickup truck.\nQ. Alright, I\u2019m sorry, I guess I just left that open out there. I went with the other individuals.\nQ. Alright, when you were 18, obviously, the matter is all done with in court at this time. The fact that you were once arrested and convicted of an offense in the past have any bearing or impact upon you whether or not you could be fair and impartial?\nA. No.\u201d\nThe State had no questions for the potential alternates. The State used its one and only peremptory challenge on prospective alternate Catrina Stubbs. The defense used its one and only peremptory challenge on prospective alternate Patricia Jaroszewski. Litke was then empaneled as the first alternate juror. Subsequently, in the middle of the trial, one of the 12 jurors informed the court that she was having difficulty securing child care and did not foresee the problem resolving. The trial court excused the juror and replaced her with alternate Litke.\nOn March 28, 2003, at the close of the case, the alternate jurors were dismissed and the 12 jurors began deliberating at 2:55 p.m. At about 6:10 p.m., approximately three hours later, the court received a note from the jury room as follows:\n\u201cI Frank D. Litke, Jr., do not feel comfortable signing a guilty verdict of first or second degree murder and everyone else does. My mind cannot be changed because I feel some reasonable doubt.\u201d\nThe note was signed by Litke and the jury foreman, Joi Bauers. After receiving the note from the trial court, the State proceeded to construct a background check of Litke \u201cbased on our suspicions after his name came out, that he was a holdout and hearing what he had said about his \u2014 the mother or, sorry, the mother of his children being murdered.\u201d Based upon the information it received, the State argued that Litke lied during the course of voir dire and moved to have Litke dismissed from the jury. The defense objected. The court expressed concern regarding the potential perjury and then granted the State\u2019s request that the jurors stop deliberating.\nThe State then indicated that its research revealed information based upon statements Litke gave during voir dire regarding his supreme court case in Montana. That case was a published opinion and indicated that Mr. Litke was arrested on January 3, 1988, and subsequently incarcerated in Arizona state prison as a result of a revocation of probation for a previous theft conviction. Litke was imprisoned for that offense for five years from March 1988 to January 1993.\nIn addition, the State conducted a Federal Bureau of Investigation search which indicated that Litke had been arrested seven times. On February 23, 1987, he was arrested for violation of a court order and armed burglary. The State further informed the court that it had contact with the Maricoppa County prosecutor\u2019s office in Arizona. Through Litke\u2019s state identification, it was discovered that he was arrested in July 1987 for assault and interference with judicial procedure. In December 1987, he was arrested for theft. On February 20, 1987, he was arrested for criminal trespass, and February 14, 1987, he was arrested for interference with judicial process and armed robbery. On April 25, 1987, he was charged with a violation of his probation and sentenced to five years\u2019 imprisonment. Mr. Litke was also arrested in January 1988 for burglary tool possession and on August 6, 1987, for obstruction of court, kidnapping, and aggravated serious injury. The charges were later dropped after he aided in the case as a State\u2019s witness.\nBased upon Litke\u2019s untruthfulness, the State argued that he could not be trusted to follow his oath and moved to excuse Litke from the jury. In response, the defense reminded the court that it refused to dismiss prospective juror Atkins for cause when he was not forthcoming with all of his prior arrests. The court stated that instance \u201cwas nothing of the magnitude and degree of what I have heard regarding Mr. Litke.\u201d\nThe court then reopened the voir dire of Litke. The following questions and answers were given:\n\u201cQ. During voir dire examination, you made several statements to the judge when he gave you questions, correct?\nA. Yes.\nQ. And you indicated that you were involved in a child custody dispute, correct?\nA. Yes.\nQ. And this child custody dispute originated out of \u2014 was filed in Montana, correct?\nA. And Arizona first.\nQ. Arizona first. Then the case ended up in Montana, correct?\nA. Yes.\nQ. Is that yes?\nA. Yes.\nQ. In Montana, the Supreme Court of Montana heard this case and published an opinion, correct?\nA. Yes.\nQ. And when they did that, your name is Frank D. Litke, correct? A. Junior, yes.\nQ. Frank D. Litke, Jr., okay. And in that case what happened was your children [were] taken while you were in prison in Arizona, correct?\nA. Yes.\nQ. In fact, you were in Arizona prison for five years, correct?\nA. Yes.\nQ. Okay. And that was for violation of a theft charge, correct?\nA. Yes.\nQ. And besides that charge, you had six other arrests in the state of Arizona, correct?\nA. Yes.\nQ. Besides that one?\nA. Yes.\nQ. And you served your prison sentence from \u2014 you were admitted to the Arizona Department of Corrections on March 11, 1988, correct, approximately that time?\nA. Yes.\nQ. And then you were released January 2, 1993, correct?\nA. Yes.\nTHE COURT: Mr. Litke, you are excused from this jury, sir.\u201d\nAt that time, the jury was informed that one of its members was dismissed. The jurors were sent home over the weekend and were admonished not to discuss the case with anyone and to return on Monday. The court additionally entered an order requiring the sheriff to contact the alternate jurors who had been previously released and to have them return to court on Monday and not discuss the case with anyone.\nOn Monday, the State argued that the reason it made its motion for Litke to be removed was that \u201cMr. Litke would be manifestly biased in this case; that being the fact that not only did he lie about his background, but included within his background were material elements that could be a bias for both possibly the defense and the State in this case.\u201d Defendant then objected to the case continuing and stated that he was renewing his motion for a mistrial. The court, in considering defendant\u2019s motion for a mistrial, stated in pertinent part:\n\u201cIt was the Court\u2019s position that Mr. Litke was not truthful to the Court. Now if Mr. Litke, as my question to him did indicate this, the Court would have, in fact, been able to question him as well as each of the sides here whether or not because of his extensive background, not only being in the penitentiary, but his extensive arrest background and other problems whether that would have any affect [sic] upon him being a fair juror. This Court as well as the parties were deprived of this because Mr. Litke \u2014 because of his untruthfulness and deceit, and, as such, the Court felt obligated to remove him from the jury. Now, this by itself does not warrant a mistrial at this juncture, and the Court will deny a mistrial at this juncture.\u201d\nJanet Streck, a released alternate juror, returned to court on Monday as the court requested. She told the court that she had not discussed the case with anyone. She then took her oath. The court instructed the jury that Litke had been released from his duty as a juror, but that the reason for his dismissal \u201chas nothing to do with the case or any prior deliberations.\u201d He then asked the remaining 11 jurors if any of them could not continue to deliberate in light of anything that Litke may have said or done during deliberations. None of the jurors raised his hand. The court then informed the jurors that Ms. Streck would now be deliberating with them and that they were to begin their deliberations anew. The jury deliberated for IV2 hours before it returned with a guilty verdict for first-degree murder and concealment of homicidal death.\nIn Illinois, a defendant has a right to a unanimous jury verdict, lb. Const. 1970, art. I, \u00a7 13; 725 ILCS 5/115\u20144 (West 2002); People v. Lobb, 17 Ill. 2d 287, 298, 161 N.E.2d 325, 331 (1959) (\u201cThe right of trial by jury as it existed at common law is the right to have the facts in controversy determined, under the direction and superintendence of a judge, by the unanimous verdict of twelve impartial jurors who possess the qualifications and are selected in the manner prescribed by law\u201d); People v. Scott, 243 Ill. App. 3d 167, 169, 612 N.E.2d 7, 9 (1993).\nDefendant argues that the discharge of juror Litke after it was known that he was the lone holdout juror violated defendant\u2019s right to a unanimous verdict because the dismissal allowed the State to obtain a conviction despite its failure to persuade all of the jurors that defendant violated the law. We review claims of manifest constitutional error de novo. People v. Burns, 209 Ill. 2d 551, 560, 809 N.E.2d 107, 114 (2004). Defendant cites several federal cases in support of his argument. These cases hold that the trial court must not replace a deliberating juror if the request for discharge stems from the juror\u2019s minority views or doubts regarding the sufficiency of the evidence. United States v. Symington, 195 F.3d 1080 (9th Cir. 1999); United States v. Thomas, 116 F.3d 606 (2d Cir. 1997); United States v. Brown, 823 F.2d 591 (D.C. Cir. 1987); see also People v. Hayes, 319 Ill. App. 3d 810, 821 n.3, 745 N.E.2d 31, 42 n.3 (2001) (citing, in dicta, the holding in Symington with approval).\nThe test articulated in Symington is as follows: \u201c[I]f the record evidence discloses any reasonable possibility that the impetus for a juror\u2019s dismissal stems from the juror\u2019s views on the merits of the case, the court must not dismiss the juror. Under such circumstances, the trial judge has only two options: send the jury back to continue deliberating or declare a mistrial.\u201d Symington, 195 F.3d at 1087. (Emphasis in original.) In Symington, the court explained that \u201c[t]he reason for this prohibition is clear: \u2018To remove a juror because he is unpersuaded by the Government\u2019s case is to deny the defendant his right to a unanimous verdict.\u2019 \u201d Symington, 195 F.3d at 1085, quoting Thomas, 116 F.3d at 621. If a court could discharge on that basis, then the right to a unanimous verdict would be illusory. Brown, 823 F.2d at 596.\n\u201cA discharge of this kind would enable the government to obtain a conviction even though a member of the jury that began deliberations thought that the government had failed to prove its case. Such a result is unacceptable under the Constitution.\u201d Brown, 823 F.2d at 596.\nSeveral state courts have also expressed caution about allowing a trial court to discharge a juror during deliberations when done in a manner that \u201cappears to facilitate the rendering of a guilty verdict.\u201d Garcia v. People, 997 P.2d 1, 8 (Colo. 2000). In Garcia, the court stated \u201c[w]henever it appears that a jury may he reconstituted in order to reach a particular result, the guarantee of a fair and impartial jury is meaningless to a defendant and creates unwarranted mistrust and suspicion among members of the public.\u201d Garcia, 997 P.2d at 8. See generally State v. Elmore, 121 Wash. App. 747, 90 P.3d Ill. (2004).\nWe agree that where the record shows any reasonable possibility that the impetus for a juror\u2019s dismissal during deliberations stems from his views regarding the sufficiency of the evidence, the dismissal of that juror constitutes error. This rule of law ensures that a defendant\u2019s constitutional right to a unanimous jury verdict is protected and guarantees that a juror will not be excused in a manner that appears to facilitate or manipulate the rendering of a guilty verdict. Thus, the question for our consideration must be whether there was a reasonable possibility that the impetus for Mr. Litke\u2019s discharge arose from his views regarding his reasonable doubt and the possibility of a hung jury.\nThe State maintains that the impetus for Litke\u2019s dismissal was solely due to his untruthfulness during voir dire. The record in the present case belies such a conclusion and the State\u2019s assertion places the cart before the horse. During deliberations, Litke sent a note to the trial court which was also signed by the jury foreman. The note explicitly revealed that he was the lone holdout juror and that his mind could not be changed because he had \u201creasonable doubt.\u201d Once the note was revealed to the parties, the record indicates that the State then proceeded to construct a background check of Litke \u201cbased on [its] suspicions after his name came out, that he was a holdout and hearing what he had said about his \u2014 the mother or, sorry, the mother of his children being murdered.\u201d (Emphasis added.) The State conceded, both in the record and at oral argument on appeal, that the impetus for its investigation into Litke\u2019s background was the knowledge that Litke was the lone holdout juror. Thus, it was not until it was aware of Litke\u2019s status as the lone holdout juror that it sought to research his criminal record, which it could have done during voir dire.\nWhere the State used its resources to prevent a hung jury, it facilitated the rendering of a guilty verdict, and there was more than a reasonable possibility that the impetus for Litke\u2019s dismissal stemmed from his views regarding the sufficiency of the evidence. Once Litke\u2019s status as a holdout juror was revealed, the trial court had two choices: (1) send the jury back to continue deliberating; or (2) declare a mistrial. However, under these unusual circumstances, once the trial court was made aware of Litke\u2019s untruthfulness, and the court determined in its discretion that Litke should be discharged for cause, the court\u2019s only option was to declare a mistrial.\nThe State maintains that defendant was not prejudiced by the removal and replacement procedures followed by the trial court, citing Hayes, 319 Ill. App. 3d 810, 745 N.E.2d 31, in support. During jury deliberations in Hayes, one of the jurors indicated that he was unable to understand English well and had difficulty following the testimony. The trial court replaced that juror with an alternate, and the defendant argued on appeal that the law did not permit the replacement of a juror during deliberations. Hayes, 319 Ill. App. 3d at 811, 815, 745 N.E.2d at 34, 37. The appellate court held that, under these facts, the substitution procedures were permissible. Hayes, 319 Ill. App. 3d at 818, 745 N.E.2d at 39.\nInitially, defendant does not dispute that once Litke was removed, the trial court followed the proper procedures in substituting alternate juror Streck. Furthermore, Hayes is distinguishable for the very reason that it did not involve the circumstances we are faced with here with respect to a holdout juror. Indeed, in Hayes, the court noted that each case must be determined on its own facts and that \u201cunder different circumstances, a mistrial may be necessary.\u201d Hayes, 319 Ill. App. 3d at 821, 745 N.E.2d at 41, citing Symington, 195 F.3d at 1085. Accordingly, for all of the foregoing reasons, on this record, we are compelled to reverse defendant\u2019s conviction and remand for a new trial.\nB. Exclusion of Alonzo Pratt\u2019s Testimony\nDespite the necessity for a new trial, we will address the issue involving the exclusion of Alonzo Pratt\u2019s testimony as it is an issue that is likely to arise on retrial. Defendant contends that the trial court erred when it allowed Pratt, a potential witness for the defense, to invoke his fifth amendment right against self-incrimination where it failed to conduct a proper hearing to determine whether, in fact, Pratt had a valid basis for invoking that right.\nThe following facts are pertinent to a disposition of this issue. Prior to trial, defendant informed the trial court that he intended to call Pratt to testify and sought to preclude Pratt from exercising his fifth amendment right to avoid testifying at defendant\u2019s trial. Alternatively, defense counsel sought to admit Pratt\u2019s affidavit taken by an investigator which stated as follows:\n\u201cSome time in February, 2002, I met Jack Moretti when he was placed in division eleven. After some time, Jack Moretti started talking to me about his case and about a homeless wimp-type guy he had taken under his wing in Blue Island, Illinois. Jack Moretti told me that he had recruited a girl to sell cocaine for him out of a bar in Blue Island. Jack Moretti told me that he was f-cking this girl and that after a while, she owed him money as a result of her selling cocaine for him. Jack Moretti told me that this girl took a liking to the homeless wimp-type guy he had taken under his wing, and this caused him to become jealous of the homeless wimp-type guy. Jack Moretti told me that he was also jealous of the homeless wimp-type guy because the homeless wimp-type guy was a motorcycle mechanic, something that he always aspired to. Jack Moretti further told me he had an impotency problem and that this girl was f-cking the homeless wimp-type guy because he himself could not get hard with her.\nJack Moretti told me that one night, while he and this girl were arguing over money in his apartment, he convinced her to pull a gun on the homeless wimp-type guy to scare him. Jack Moretti told me that this girl did as he instructed her to do, and she was then shot and killed in his apartment that night. Jack Moretti told me that after the girl was shot, he suggested to the homeless wimp type-guy that they get the body out of his apartment and bury it somewhere. Jack Moretti told me that he wanted to get the body out of his apartment because he didn\u2019t want the police coming into his apartment and finding his guns and his drugs.\nJack Moretti told me he had worked as a snitch for the Blue Island Police Department for a long time. Jack Moretti told me that everything he told the police about the shooting of the girl in his apartment that night was bullshit. Jack Moretti told me that he lied to the police, that he put a case on the homeless wimp-type guy to help himself in his own fraud and drug cases that are pending. Jack Moretti told me that he lied about the homeless wimp-type guy and will continue to lie about him in order to get all the help he can in his own cases. Jack Moretti told me he expects to get immunity in exchange for his testimony against the homeless wimp-type gray [sic].\u201d\nDefendant asserts that Moretti\u2019s statement to Pratt supports defendant\u2019s theory of self-defense. We need not address the issue of whether Pratt could properly invoke the fifth amendment right because defendant\u2019s offer of proof as to his potential testimony would have been inadmissable hearsay at trial and would not have fallen within a recognized exception. The admission of evidence is within the sound discretion of the trial court and should not be reversed absent a clear showing of abuse of discretion. People v. Tenney, 205 Ill. 2d 411, 436, 793 N.E.2d 571, 587 (2002); People v. Bowel, 111 Ill. 2d 58, 68, 488 N.E.2d 995, 1000 (1986). Illinois has long held that \u201c[generally an extrajudicial declaration not under oath, by the declarant, that he, and not the defendant on trial, committed the crime is inadmissible as hearsay though the declaration is against the declarant\u2019s penal interest.\u201d Bowel, 111 Ill. 2d at 66, 488 N.E.2d at 999, citing People v. Tate, 87 Ill. 2d 134, 143, 429 N.E.2d 470, 475 (1981). An exception to this rule exists where justice requires that the declaration be admitted. Bowel, 111 Ill. 2d at 66, 488 N.E.2d at 999.\nIn Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973), the United States Supreme Court held that a declaration against penal interest is admissible where there is sufficient indicia of trustworthiness in that (1) the statement was made spontaneously to a close acquaintance shortly after the crime occurred; (2) the statement was corroborated by other evidence; (3) the statement was self-incriminating and against the declarant\u2019s interest; and (4) there was adequate opportunity for cross-examination of the declarant. Chambers, 410 U.S. at 300-01, 35 L. Ed. 2d at 311-12, 93 S. Ct. at 1048-49. These four factors are to be used to determine whether the declaration was made under circumstances that provide considerable assurances of reliability by \u201cobjective indicia of trustworthiness\u201d rather than used as requirements of admissibility. Bowel, 111 Ill. 2d at 67, 488 N.E.2d at 1000, citing Chambers, 410 U.S. at 300-01, 35 L. Ed. 2d at 311-12, 93 S. Ct. at 1048-49.\nJust as all four factors are not required to be present to find a statement trustworthy, the existence of one or more of the factors does not make a statement necessarily trustworthy. People v. Carson, 238 Ill. App. 3d 457, 463, 606 N.E.2d 363, 367 (1992). Ultimately, it is for the trial court to determine by the totality of the circumstances whether it considers the hearsay statement to be trustworthy. Carson, 238 Ill. App. 3d at 463, 606 N.E.2d at 367.\nHere, it would not have been an abuse of discretion for the trial court to find that the statement did not have considerable assurances of reliability. The statement was not made spontaneously to a close acquaintance shortly after the crime occurred. Rather, the crime occurred in September 1999, and the statement was made a year and a half after the crime in February 2002, to a stranger in jail. With respect to the second factor, the statement does not corroborate defendant\u2019s self-defense theory that the gun went off accidentally. While the statement that Moretti convinced Stacy to pull a gun on defendant and to try and scare him with it was corroborated by defendant\u2019s testimony that Stacy pulled a gun on him, it does not corroborate defendant\u2019s theory that the gun went off accidentally. Moretti makes no indication that he was present or witnessed the gun being discharged. Defendant testified at trial that Moretti was sleeping prior to the shooting and only came out of the room after Stacy was shot. Moretti\u2019s statement to Pratt is also inconsistent with the forensics, which indicate multiple shots fired to the back of the head behind the ear at close range.\nWith respect to the third Chambers factor, a declaration against penal interest is one that would be admissible against the declarant in a criminal prosecution; it need not be a confession, but must involve exposure to criminal liability. 2 J. Strong, McCormick on Evidence \u00a7 319(b), at 323-24 (5th ed. 1999). While Moretti\u2019s statement to Pratt does implicate him in the concealment of the body, there is nothing in the statement by Moretti implicating him in the murder. With respect to the fourth Chambers factor, Moretti was not available for cross-examination by the State as he invoked his fifth amendment right. \u201cAlthough the general practice is to speak loosely of unavailability of the witness, the critical factor is actually the unavailability of the witness\u2019 testimony. Witnesses may be physically present in court but their testimony nevertheless unavailable.\u201d 2 J. Strong, McCormick on Evidence \u00a7 253, at 127 (5th ed. 1999). A witness\u2019 exercise of a privilege satisfies the requirement of unavailability. People v. Caffey, 205 Ill. 2d 52, 101, 792 N.E.2d 1163, 1194 (2001). Accordingly, a declarant who asserts his fifth amendment right not to testify is not available for cross-examination in the context of the fourth Chambers factor. Caffey, 205 Ill. 2d at 101, 792 N.E.2d at 1194. Based upon the totality of the circumstances, it was not an abuse of discretion for the trial court to exclude Pratt from testifying regarding the statements made to him by Moretti.\nAccordingly, for all of the foregoing reasons, we reverse defendant\u2019s convictions for first-degree murder and concealment of a homicidal death and remand the cause to the circuit court for a new trial. Double jeopardy is not implicated because there is sufficient evidence to prove defendant guilty of both offenses beyond a reasonable doubt. People v. Fomear, 176 Ill. 2d 523, 535, 680 N.E.2d 1383, 1389 (1997).\nReversed and remanded.\nGREIMAN and QUINN, JJ., concur.\nDefendant points out that Litke stated in voir dire that he was convicted of theft when he was 18, which would have been in 1985. Thus, defendant argues that it is likely that Litke\u2019s five-year sentence in Arizona for revocation of probation, which he began serving in 1988, was related to the theft charge.", "type": "majority", "author": "JUSTICE THEIS" } ], "attorneys": [ "Michael J. Pelletier and Shaena M. Fazal, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald and Nancy Colletti, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY GALLANO, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1\u201403\u20141432\nOpinion filed December 30, 2004.\nMichael J. Pelletier and Shaena M. Fazal, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald and Nancy Colletti, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0941-01", "first_page_order": 959, "last_page_order": 976 }