{ "id": 4277685, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE McLAURIN, Defendant-Appellant", "name_abbreviation": "People v. McLaurin", "decision_date": "2008-05-15", "docket_number": "No. 1\u201405\u20141149", "first_page": "644", "last_page": "663", "citations": [ { "type": "official", "cite": "382 Ill. App. 3d 644" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "194 Ill. 2d 40", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1096311 ], "year": 2000, "pin_cites": [ { "page": "66", "parenthetical": "it is well settled that an accused's attorney has no power to waive the defendant's right to be present at trial" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/194/0040-01" ] }, { "cite": "164 Ill. 2d 382", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477048 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "393" }, { "page": "393" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/164/0382-01" ] }, { "cite": "76 Ill. 2d 289", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2982988 ], "year": 1979, "pin_cites": [ { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/76/0289-01" ] }, { "cite": "377 Ill. App. 3d 735", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4274351 ], "year": 2007, "pin_cites": [ { "page": "747" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/377/0735-01" ] }, { "cite": "214 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8450454 ], "year": 2005, "pin_cites": [ { "page": "6" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/214/0001-01" ] }, { "cite": "228 Ill. 2d 502", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5706381 ], "year": 2007, "pin_cites": [ { "page": "516" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/228/0502-01" ] }, { "cite": "207 Ill. 2d 555", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 975008 ], "year": 2003, "pin_cites": [ { "page": "564" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/207/0555-01" ] }, { "cite": "204 Ill. 2d 585", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609695 ], "year": 2001, "pin_cites": [ { "page": "622-23" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/204/0585-01" ] }, { "cite": "196 Ill. 2d 236", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 351233 ], "year": 2001, "pin_cites": [ { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/196/0236-01" ] }, { "cite": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "weight": 6, "year": 1967, "pin_cites": [ { "page": "23-24" }, { "page": "710-11" }, { "page": "827-28" }, { "page": "23-24" }, { "page": "710-11" }, { "page": "827-28" } ], "opinion_index": 0, "case_paths": [ "/us/386/0018-01" ] }, { "cite": "372 Ill. App. 3d 973", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4268917 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "977-78", "parenthetical": "where there was no physical evidence and officer's testimony was uncorroborated by other witnesses, the evidence was closely balanced" }, { "page": "977-78" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/372/0973-01" ] }, { "cite": "209 Ill. App. 3d 744", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2541766 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "753", "parenthetical": "where two versions of a story were presented to the jury, the evidence was \"closely balanced\"" }, { "page": "753" }, { "page": "753" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/209/0744-01" ] }, { "cite": "306 Ill. 611", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5781059 ], "weight": 2, "year": 1923, "pin_cites": [ { "page": "613", "parenthetical": "where the evidence is in sharp conflict, it is required that the record be free from prejudicial error" }, { "page": "613" } ], "opinion_index": 0, "case_paths": [ "/ill/306/0611-01" ] }, { "cite": "123 Ill. 2d 113", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550782 ], "year": 1988, "pin_cites": [ { "page": "132-33" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0113-01" ] }, { "cite": "152 Ill. 2d 274", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5602841 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "341" }, { "page": "341" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/152/0274-01" ] }, { "cite": "347 U.S. 227", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11300100 ], "weight": 3, "year": 1954, "pin_cites": [ { "page": "229" }, { "page": "656" }, { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/us/347/0227-01" ] }, { "cite": "146 U.S. 140", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3564613 ], "weight": 3, "year": 1892, "pin_cites": [ { "page": "150" }, { "page": "921" }, { "page": "53" } ], "opinion_index": 0, "case_paths": [ "/us/146/0140-01" ] }, { "cite": "182 Ill. 2d 404", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 864527 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "459-60" }, { "page": "460" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/182/0404-01" ] }, { "cite": "168 Ill. 2d 420", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 307268 ], "weight": 6, "year": 1995, "pin_cites": [ { "page": "459" }, { "page": "459" }, { "page": "462" }, { "page": "459" }, { "page": "459" }, { "page": "459" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/168/0420-01" ] }, { "cite": "185 Ill. 2d 81", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 122017 ], "weight": 10, "year": 1998, "pin_cites": [ { "page": "162" }, { "page": "162" }, { "page": "162" }, { "page": "162" }, { "page": "162" }, { "page": "161-62" }, { "page": "161-62" }, { "page": "161-62" }, { "page": "161-62" }, { "page": "161-62" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/185/0081-01" ] }, { "cite": "215 Ill. 2d 167", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4060336 ], "weight": 9, "year": 2005, "pin_cites": [ { "page": "186-87" }, { "page": "186-87" }, { "page": "191" }, { "page": "187" }, { "page": "187" }, { "page": "187" }, { "page": "187" }, { "page": "187" }, { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/215/0167-01" ] }, { "cite": "378 Ill. App. 3d 535", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4275401 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "546-47" }, { "page": "546-47" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/378/0535-01" ] }, { "cite": "214 Ill. 2d 455", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8451309 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "470" }, { "page": "471" }, { "page": "471" }, { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/214/0455-01" ] }, { "cite": "225 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5704197 ], "weight": 9, "year": 2007, "pin_cites": [ { "page": "564" }, { "page": "565" }, { "page": "565" }, { "page": "565" }, { "page": "565" }, { "page": "565" }, { "page": "565" }, { "page": "565" }, { "page": "565" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/225/0551-01" ] }, { "cite": "30 Ill. 2d 136", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2827844 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/ill-2d/30/0136-01" ] }, { "cite": "159 Ill. 2d 217", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 781322 ], "weight": 11, "year": 1994, "pin_cites": [ { "page": "227" }, { "page": "227" }, { "page": "227" }, { "page": "227" }, { "page": "227-28" }, { "page": "227-28" }, { "page": "227-28" }, { "page": "227" }, { "page": "227-28" }, { "page": "227-28" }, { "page": "227-28" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/159/0217-01" ] }, { "cite": "397 U.S. 337", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054264 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/397/0337-01" ] }, { "cite": "321 Ill. App. 3d 523", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 132358 ], "year": 2001, "pin_cites": [ { "page": "528-29", "parenthetical": "\"Where the defendant or his attorney had knowledge of the court's communication with the jury at the approximate time of the jury's inquiry, plain error has not been found\"" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/321/0523-01" ] }, { "cite": "368 F.3d 936", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9247003 ], "year": 2004, "opinion_index": 1, "case_paths": [ "/f3d/368/0936-01" ] }, { "cite": "492 F.2d 232", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 474677 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "237-38" } ], "opinion_index": 1, "case_paths": [ "/f2d/492/0232-01" ] }, { "cite": "209 Ill. 2d 227", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5461490 ], "year": 2004, "opinion_index": 1, "case_paths": [ "/ill-2d/209/0227-01" ] }, { "cite": "455 U.S. 209", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11304618 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "215" }, { "page": "85" }, { "page": "945" } ], "opinion_index": 1, "case_paths": [ "/us/455/0209-01" ] }, { "cite": "507 U.S. 725", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6237509 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "738" }, { "page": "522" }, { "page": "1780" } ], "opinion_index": 1, "case_paths": [ "/us/507/0725-01" ] }, { "cite": "98 L. Ed. 654", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1954, "pin_cites": [ { "parenthetical": "see United States v. Olano, 507 U.S. 725, 738, 123 L. Ed. 2d 508, 522, 113 S. Ct. 1770, 1780 (1993); Smith v. Phillips, 455 U.S. 209, 215, 71 L. Ed. 2d 78, 85, 102 S. Ct. 940, 945 (1982)" } ], "opinion_index": 1 }, { "cite": "371 Ill. App. 3d 382", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4268505 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "405" }, { "page": "404" }, { "page": "405" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/371/0382-01" ] }, { "cite": "341 Ill. App. 3d 530", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5572423 ], "year": 2003, "pin_cites": [ { "page": "543", "parenthetical": "the jury being undecided for four hours was not sufficient to make the evidence close for plain-error purposes" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/341/0530-01" ] }, { "cite": "368 Ill. App. 3d 241", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4266223 ], "year": 2006, "pin_cites": [ { "page": "252" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/368/0241-01" ] }, { "cite": "229 Ill. App. 3d 546", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5215306 ], "year": 1992, "pin_cites": [ { "page": "553", "parenthetical": "rejecting defendant's speculation that if he had been present for discussion regarding jury question, his attorney might have objected to the judge's proposed response" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/229/0546-01" ] }, { "cite": "303 Ill. App. 3d 356", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 511329 ], "year": 1999, "pin_cites": [ { "page": "368", "parenthetical": "any error would be harmless because \"we would be required to speculate as to what action defendant or his counsel would have urged with respect to the notes\"" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/303/0356-01" ] }, { "cite": "195 Ill. App. 3d 1078", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2492511 ], "year": 1990, "pin_cites": [ { "page": "1086" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/195/1078-01" ] }, { "cite": "227 Ill. App. 3d 48", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5795096 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "57" }, { "page": "57" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/227/0048-01" ] }, { "cite": "294 Ill. App. 3d 561", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 35394 ], "year": 1998, "pin_cites": [ { "page": "568" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/294/0561-01" ] }, { "cite": "296 Ill. App. 3d 735", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 222573 ], "year": 1998, "pin_cites": [ { "page": "747" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/296/0735-01" ] }, { "cite": "128 Ill. 2d 66", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3229038 ], "year": 1989, "pin_cites": [ { "page": "93" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/128/0066-01" ] }, { "cite": "56 Ill. 2d 361", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5404559 ], "year": 1974, "pin_cites": [ { "page": "364" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/56/0361-01" ] }, { "cite": "146 Ill. App. 3d 667", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3572914 ], "year": 1986, "pin_cites": [ { "parenthetical": "no prejudice when the trial court answered two questions outside the defendant's and his counsel's presence because the judge correctly and appropriately responded to the jury's questions" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/146/0667-01" ] }, { "cite": "165 Ill. App. 3d 464", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3615230 ], "year": 1988, "pin_cites": [ { "page": "471-72" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/165/0464-01" ] }, { "cite": "239 Ill. App. 3d 830", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5149831 ], "year": 1993, "pin_cites": [ { "page": "841" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/239/0830-01" ] }, { "cite": "303 Ill. App. 3d 269", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 511382 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "272" }, { "page": "272" }, { "page": "272" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/303/0269-01" ] }, { "cite": "135 Ill. 2d 423", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3256255 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "455" }, { "page": "455" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/135/0423-01" ] }, { "cite": "173 Ill. 2d 48", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 147596 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "85" }, { "page": "85" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/173/0048-01" ] }, { "cite": "178 Ill. 2d 141", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 385536 ], "year": 1997, "pin_cites": [ { "page": "164" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/178/0141-01" ] }, { "cite": "194 Ill. 2d 40", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1096311 ], "year": 2000, "pin_cites": [ { "page": "66" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/194/0040-01" ] }, { "cite": "204 Ill. 2d 585", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609695 ], "weight": 4, "year": 2001, "pin_cites": [ { "page": "622-23" }, { "page": "621-22" }, { "page": "622" }, { "page": "622-23" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/204/0585-01" ] }, { "cite": "347 U.S. 227", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11300100 ], "weight": 2, "year": 1954, "pin_cites": [ { "parenthetical": "see United States v. Olano, 507 U.S. 725, 738, 123 L. Ed. 2d 508, 522, 113 S. Ct. 1770, 1780 (1993); Smith v. Phillips, 455 U.S. 209, 215, 71 L. Ed. 2d 78, 85, 102 S. Ct. 940, 945 (1982)" }, { "parenthetical": "see United States v. Olano, 507 U.S. 725, 738, 123 L. Ed. 2d 508, 522, 113 S. Ct. 1770, 1780 (1993); Smith v. Phillips, 455 U.S. 209, 215, 71 L. Ed. 2d 78, 85, 102 S. Ct. 940, 945 (1982)" } ], "opinion_index": 1, "case_paths": [ "/us/347/0227-01" ] }, { "cite": "182 Ill. 2d 404", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 864527 ], "year": 1998, "pin_cites": [ { "page": "460" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/182/0404-01" ] }, { "cite": "168 Ill. 2d 420", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 307268 ], "year": 1995, "pin_cites": [ { "page": "460" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/168/0420-01" ] }, { "cite": "185 Ill. 2d 81", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 122017 ], "weight": 5, "year": 1998, "pin_cites": [ { "page": "161" }, { "page": "161" }, { "page": "163-66" }, { "page": "164" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/185/0081-01" ] }, { "cite": "159 Ill. 2d 217", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 781322 ], "year": 1994, "opinion_index": 1, "case_paths": [ "/ill-2d/159/0217-01" ] } ], "analysis": { "cardinality": 1457, "char_count": 51396, "ocr_confidence": 0.837, "pagerank": { "raw": 5.252776773434028e-08, "percentile": 0.3303370196486359 }, "sha256": "32639c431cf94f9b4f10f0297c01510175ba3494a84f8ca8fe6baa8b3cf332cf", "simhash": "1:3aabc4267bcb74ff", "word_count": 8696 }, "last_updated": "2023-07-14T21:27:01.752924+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. WILLIE McLAURIN, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE NEVILLE\ndelivered the opinion of the court:\nAfter a jury trial, the defendant, Willie McLaurin, was convicted of aggravated unlawful use of a weapon (720 ILCS 5/24 \u2014 1.6(a)(1), (a)(3)(A) (West 2004)) and unlawful use of a weapon by a felon (720 ILCS 5/24 \u2014 1.1(a) (West 2004)), and he was sentenced to six years\u2019 imprisonment. On appeal, he contends (1) that his constitutional and statutory right to be present at his trial was violated when, without his consent or knowledge, he was excluded from discussions of the jury\u2019s five notes that were sent to the trial judge during the jury\u2019s deliberations; and (2) that he was denied his due process right to a fair trial by an impartial jury when the trial court permitted the sheriff to have an ex parte discussion with the deadlocked jury.\nBACKGROUND\nMcLaurin was charged in an information with aggravated unlawful use of a weapon (720 ILCS 5/24 \u2014 1.6(a)(1), (a)(3)(A) (West 2004)) and unlawful use of a weapon by a felon (720 ILCS 5/24 \u2014 1.1(a) (West 2004)). His prior felony conviction was predicated upon a federal bank robbery conviction. After pretrial motions were disposed of by the court, the defendant\u2019s case proceeded to trial.\nThe State\u2019s Case\nAt trial, Chicago police officer John O\u2019Carroll testified that on August 17, 2004, at 2:30 a.m., he and his partner, Officer Langle, turned their MARS lights on and pulled a car over on 15th Street because the car\u2019s driver and front seat passenger were not wearing seat belts. Officer O\u2019Carroll testified that as he and his partner sat in their patrol car, which was parked behind the car they had stopped, he observed a black male in the backseat moving back and forth, his head was turning back and forth, and his hands were moving in front of his body. Based upon the black male\u2019s movements in the backseat, Officers O\u2019Carroll and Langle exited their patrol car. Officer O\u2019Carroll explained that after he exited his vehicle on the passenger side of both vehicles, he pulled his weapon and while holding his flashlight in his other hand, he announced, \u201cChicago police officers. Let me see your hands.\u201d When he and his partner were 10 to 15 feet from the stopped car, Officer O\u2019Carroll testified that the man in the backseat, whom O\u2019Carroll identified as the defendant, jumped out on the driver\u2019s side and began running eastbound on 15th Street. Officer O\u2019Carroll radioed for backup, gave chase, and followed McLaurin down 15th Street.\nOn cross-examination, Officer O\u2019Carroll testified (1) that the car they stopped was a two-door vehicle, and (2) that McLaurin had to push the driver\u2019s seat forward before he could jump out of the car. When asked how he could radio for backup while holding a flashlight in one hand and a gun in the other, Officer O\u2019Carroll stated that he \u201cprobably did that right away \u2014 when he jumped out, I grabbed the radio and said that.\u201d During further questioning, the officer admitted that he could not radio in with the flashlight in his hand and that he did not really recall where his flashlight was that night. According to Officer O\u2019Carroll, after he exited his vehicle, he pulled his weapon, radioed for help, and began chasing McLaurin.\nAs he ran down the street, Officer O\u2019Carroll stated that he saw McLaurin reach in front of his body and throw a gun into the gutter under a van parked on 15th Street. While Officer O\u2019Carroll continued chasing McLaurin, he turned south on Lawndale Avenue and a second police car arrived. With Officer O\u2019Carroll behind McLaurin and with a second squad car closing in on him, Officer O\u2019Carroll testified that McLaurin complied with his order to stop and lay down in the street. Officer O\u2019Carroll stated that another officer, Officer Dailey, handcuffed McLaurin while O\u2019Carroll kept his gun on McLaurin.\nWhile Officer Daily stayed with McLaurin in the second squad car, Officer O\u2019Carroll returned to the van and retrieved the \u201cheavy, blue stainless steel\u201d gun from the gutter. Officer O\u2019Carroll testified that the gun he retrieved that night was a High Point 9-millimeter semiautomatic and that it had one bullet in the chamber. After retrieving the gun, Officer O\u2019Carroll returned to the car that he and his partner had originally pulled over. Officer O\u2019Carroll and his partner ticketed and arrested the driver for driving on a suspended license, for driving without insurance, and for not wearing a seatbelt. Two other passengers, Ms. Arlena Jones and her 18-month-old child, were also in the car. Officer O\u2019Carroll also testified that he and the other officers searched the car and did not find any other guns. When he returned to the police station, Officer O\u2019Carroll inventoried the weapon, but he did not request that the weapon be tested for fingerprints.\nNext, Officer Edward Langle, O\u2019Carroll\u2019s partner, corroborated Officer O\u2019Carroll\u2019s testimony that the officers pulled the car over and that McLaurin jumped from the car and ran away. However, Officer Langle explained that he stayed with the car and its remaining occupants, so he did not see what happened after Officer O\u2019Carroll started chasing McLaurin. Officer Langle testified that Officer O\u2019Carroll returned to the car they had pulled over with a gun but he did not see the gun being tossed or being recovered. Finally, Officer Langle testified that he and his partner did not recover the gun from the backseat of the car that they had pulled over.\nOfficer Daily testified that on August 17, 2004, he had been a policeman for just five months. He and his partner, Officer Tillman, were patrolling 16th Street near Ridgeway Avenue, close to Officer O\u2019Carroll\u2019s location, when they responded to Officer O\u2019Carroll\u2019s radio call for assistance. Officer Daily stated that he drove north on Lawn-dale Avenue and saw McLaurin running from Officer O\u2019Carroll who had his weapon drawn. According to Officer Daily, Officer O\u2019Carroll told McLaurin to get on the ground and, when McLaurin got down, Officer Daily stated that he handcuffed McLaurin and put him inside his squad car. While Officer Daily sat with McLaurin, Officer O\u2019Carroll walked back up Lawndale Avenue. Officer Daily stated that Officer O\u2019Carroll went about 20 feet to a parked van, shouted, \u201cGun,\u201d and picked up a gun before leaving to return to his own squad car on 15th Street.\nOutside the presence of the jury, the trial court admitted People\u2019s group exhibit 1 (weapon and bullet) and group exhibit 2 (federal conviction for armed bank robbery in case number 99 CR 776-2) into evidence and heard the testimony of Jackine Austin, a defense witness. Although he was not sworn, Austin, the driver of the car stopped by police on August 17, 2004, was called by the defense and stated to the trial court that, if he were called to testify, he would invoke his fifth amendment right to remain silent to avoid making incriminating statements. When the jury returned to the courtroom, the trial court received People\u2019s group exhibits 1 and 2, the State rested, and defense counsel\u2019s motion for a directed verdict was denied.\nThe Defendant\u2019s Case\nMs. Arlena Jones testified that on August 17, 2004, at 2:25 a.m., her boyfriend, Jackine Austin, was driving and she was in the front passenger seat of his car. Ms. Jones testified that McLaurin, whom she described as a family friend, was sitting in the backseat of the car with her baby, who was in his car seat. The police pulled Austin\u2019s car over and Ms. Jones recalled that two officers approached the car from the rear and that one officer was on each side of the car. Ms. Jones testified that she rolled her window down and one of the officers asked if anyone in the car had a license. She told the officers that she had one but not with her and McLaurin also told the officers that he had a license. Ms. Jones further testified that the police asked everyone to get out of the car and that, while she was getting her baby out of the car seat, the police told Austin and McLaurin to put their hands on the hood of the car. Ms. Jones was holding her baby and watching from approximately five feet away as one of the officers patted down Austin and McLaurin. Ms. Jones testified that the policeman who patted the men down did not find any weapons or contraband.\nHowever, according to Ms. Jones, while the men were being searched by one officer, the other officer searched the car. Ms. Jones testified that the other officer found a gun in the backseat of the car. Ms. Jones testified that McLaurin never ran from the car and that both men stood with their hands on the hood while the officers searched them and the car. Ms. Jones stated that she did not see the gun before the officer found it; that she did not know if it was in the car that night; and that she did not see McLaurin with the gun on August 17, 2004. Finally, Ms. Jones testified that she knew that the gun belonged to her boyfriend, Austin.\nThe State\u2019s Rebuttal Case\nThe State called Officer Langle in rebuttal. Officer Langle testified that he and his partner, Officer O\u2019Carroll, pulled a car over on August 17, 2004, ran the license plate, and noticed that the rear seat passenger was moving back and forth. As he and O\u2019Carroll approached the stopped car, Officer Langle stated that McLaurin jumped out of the backseat and started running. While his partner was chasing McLaurin, Officer Langle secured the stopped car by telling the driver to get out and to lie down on the ground. When the driver complied, Officer Langle handcuffed him and took him into custody before getting the female passenger out of the car. One and one half minutes after Officer Langle lost sight of his partner, Langle testified that he saw O\u2019Carroll with McLaurin in custody. Finally, Officer Langle testified that the van that the gun was recovered under was parked on Lawndale Avenue and the State rested its case.\nThe Jury\u2019s Deliberations\nOn February 4, 2005, the jury began its deliberations at 11:55 a.m. During the jury\u2019s deliberations, the jury sent out five notes. McLaurin\u2019s attorneys and the assistant State\u2019s Attorneys were present for the discussions of the jury notes in the judge\u2019s chambers. The defendant was not informed of the notes and was not present during any of the discussions concerning the jury\u2019s notes.\nMcLaurin\u2019s Motion for a New Trial\nOn March 3, 2005, McLaurin\u2019s attorney filed a motion for a new trial contending that the State had not proven McLaurin guilty beyond a reasonable doubt because, in a case without any forensic evidence connecting McLaurin to the weapon the police recovered, Officer O\u2019CarrolI\u2019s testimony regarding where he recovered the weapon was contradicted by the testimony of Officers Langle and Daily.\nOn March 15, 2005, the trial court entered a judgment on the verdict, found McLaurin guilty of unlawful use of a weapon by a felon and sentenced McLaurin to six years of imprisonment. On April 4, 2005, McLaurin\u2019s attorney filed a motion to reconsider sentence. On April 8, 2005, the trial court denied McLaurin\u2019s motion for reconsideration of the sentence. McLaurin filed a notice of appeal on April 8, 2005.\nThe Agreed Statement of Facts\nBecause no transcripts existed, McLaurin\u2019s appellate counsel asked the assistant State\u2019s Attorneys and McLaurin\u2019s attorney to prepare an agreed statement of facts about the trial proceedings regarding the jury\u2019s notes. The trial attorneys agreed to the following statement of facts:\n\u201c1. The following persons were present for the discussions held before the Honorable James M. Schreier: Assistant Public Defender Kathryn Maloney (Vahey), Assistant State\u2019s Attorneys James V Murphy and Michael Yoon. Defendant was not present for any of the discussions. Furthermore, discussions of jury notes were not held in open court, they were held in chambers. [Also present was Assistant Public Defender Brian Barrido.]\n2. Jury Note #1: On February 4, 2005, at or about 1:55 p.m., the jury *** requested the exact wording of a stipulation and \u2018Officer Daley\u2019s testimony as to why he was on Longdale headed north.\u2019\n* * *\nResponse to Jury Note #1: 2:15 p.m., a copy of the stipulation and transcript of Officer Daley\u2019s [sic Dailey] testimony was sent back to the jury.\n3. Jury Note #2: On February 4, 2005, at or about 3:00 p.m., the jury *** stated, \u2018We are deadlocked 8-4 and it appears that no one is willing to change their mind.\u2019 ***\nResponse to Jury Note #2: After Judge Schreier gave parties opportunity for suggestions, Judge Schreier responded in writing \u2018Keep on deliberating with an open mind.\u2019 ***\n4. Jury Note #3: On February 4, 2002, at or about 3:50 p.m., the jury *** stated, \u2018We are deadlocked 7-5, based on the evidence presented, this jury feels it cannot a [sic] decision in this case.\u2019 ***\nPrior to any response to Jury Note #3 being returned to the jury, Jury Note #4 was received by the Court.\nJury Note #4: On February 4, 2002, at or about 4:10 p.m., the jury *** stated, \u2018We are deadlock still at 7-5, based on the evidence presented, this jury does not feel it can reach a decision.\u2019 ***\nResponse to Jury Notes #3 and #4: There was no written response. Judge Schreier requested his sheriff to inform the jury to keep on deliberating. ***\n5. Jury Note #5: On February 4, 2002, at or about 4:35 p.m., the jury *** requested the testimony of Officer O\u2019Carroll. ***\nResponse to Jury Note #5: The jury was provided with a copy of Officer O\u2019Carroll\u2019s testimony.\n6. On February 4, 2005, at or about 5:25 p.m., the McLaurin jury returned with its [guilty] verdict. ***\u201d\nANALYSIS\nI. Waiver\nOn appeal, McLaurin claims that reversible error occurred when, after jury deliberations had begun in his case, (1) he was not informed, consulted, or allowed to be present when the trial court and the attorneys discussed the five jury notes sent to the trial court; and (2) the trial court allowed the sheriff to have ex parte communications with the hung jury. See Illinois v. Allen, 397 U.S. 337, 25 L. Ed. 2d 353, 90 S. Ct. 1057 (1970); People v. Childs, 159 Ill. 2d 217, 227 (1994); People v. Mallett, 30 Ill. 2d 136 (1964). The State contends, however, that McLaurin waived his right to raise these issues on appeal because he failed to object at trial and he also failed to preserve these issues in a posttrial motion. People v. Piatkowski, 225 Ill. 2d 551, 564 (2007); People v. Woods, 214 Ill. 2d 455, 470 (2005). Our review of the record revealed that McLaurin failed to raise the aforementioned issues in a postttrial motion; therefore, the issues can only be reviewed if there was a plain error or a defect affecting the defendant\u2019s substantial rights. 134 Ill. 2d R. 615(a).\nWhere, as here, the defendant failed to properly preserve an error for appellate review, a reviewing court may still review the unpreserved error when \u201c \u2018(1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error *** is so serious that it affected the fairness of the defendant\u2019s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.\u2019 \u201d People v. Dixon, 378 Ill. App. 3d 535, 546-47 (2007), quoting People v. Piatkowski, 225 Ill. 2d 551, 565 (2007); People v. Herron, 215 Ill. 2d 167, 186-87 (2005); People v. Woods, 214 Ill. 2d 455, 471 (2005); see also 134 Ill. 2d R. 615(a). Thus, we first review the record for \u201cclear and obvious\u201d trial errors. Piatkowski, 225 Ill. 2d at 565, citing Herron, 215 Ill. 2d at 186-87; Woods, 214 Ill. 2d at 471.\nII. Plain Error\nA. Clear and Obvious Trial Errors\nUpon reviewing the record, we discovered two \u201cclear and obvious\u201d trial errors. Piatkowski, 225 Ill. 2d at 565, citing Herron, 215 Ill. 2d at 191; Woods, 214 Ill. 2d at 471. First, we note that after jury deliberations had begun, McLaurin was not informed or consulted or allowed to be present when the trial court and the attorneys discussed the jury\u2019s five notes that were sent to the trial court judge. It is well settled that McLaurin had a constitutional right to appear and be present during each critical stage of his trial. People v. Kliner, 185 Ill. 2d 81, 162 (1998); People v. McDonald, 168 Ill. 2d 420, 459 (1995); 725 ILCS 5/115 \u2014 4(h) (West 2004) (\u201cA trial by the court and jury shall be conducted in the presence of the defendant unless he waives the right to be present\u201d). Moreover, jury deliberations are a critical stage of the trial and involve substantial rights, and a defendant has a right to be present. McDonald, 168 Ill. 2d at 459. Therefore, we find that the trial court\u2019s exclusion of McLaurin from the trial court\u2019s and the attorneys\u2019 discussions of the jury\u2019s five notes, a critical stage of the trial, was a \u201cclear and obvious\u201d trial error. McDonald, 168 Ill. 2d at 462; 134 Ill. 2d R. 615(a).\nSecond, we note that \u201c[a] communication between the judge and the jury following the jury\u2019s retiring to deliberate, except one held in open court and in the defendant\u2019s presence, deprives the defendant of his constitutional rights.\u201d Kliner, 185 Ill. 2d at 162, citing McDonald, 168 Ill. 2d at 459; Childs, 159 Ill. 2d at 227. Thus, once the jury retired to deliberate, the trial court\u2019s communications with the jurors were supposed to take place in open court. Kliner, 185 Ill. 2d at 162, citing McDonald, 168 Ill. 2d at 459; Childs, 159 Ill. 2d at 227. Here, the trial judge violated this rule when he permitted the sheriff to have ex parte communications with the jurors after receiving the fourth jury note, which stated that the jury was hung seven to five. People v. Hobley, 182 Ill. 2d 404, 459-60 (1998), citing Mattox v. United States, 146 U.S. 140, 150, 36 L. Ed. 917, 921, 13 S. Ct. 50, 53 (1892), and Remmer v. United States, 347 U.S. 227, 229, 98 L. Ed. 2d 654, 656, 74 S. Ct. 450, 451 (1954); see also People v. Mitchell, 152 Ill. 2d 274, 341 (1992) (\u201c \u2018[i]n Illinois, any communication with a juror during trial about a matter pending before the jury is deemed presumptively prejudicial to a defendant\u2019s right to a fair trial. Although this presumption of prejudice is not conclusive, the burden is on the State to establish the contact with the jurors was harmless to the defendant\u2019 \u201d), quoting People v. Harris, 123 Ill. 2d 113, 132-33 (1988). Therefore, we also find that the trial judge\u2019s decision to permit the sheriff to have ex parte communications with the hung jury was a \u201cclear and obvious\u201d error. Piatkowski, 225 Ill. 2d at 565.\nB. The Evidence Was Closely Balanced\nHaving found clear and obvious trial errors, we are now required to consider the two prongs in the plain error rule to determine (a) whether the evidence presented at trial was so closely balanced that the error alone threatens to tip the scales of justice against McLaurin, or (b) whether the errors were so serious that they affected the fairness of McLaurin\u2019s trial, regardless of the closeness of the evidence. Piatkowski, 225 Ill. 2d at 565, citing People v. Herron, 215 Ill. 2d 167, 187 (2005). Our review of the record reveals that the State presented no forensic or physical evidence linking McLaurin to the weapon recovered on August 17, 2004. Instead, the State\u2019s case consisted of the testimony of three police officers present at the scene of the incident on August 17, 2004.\nFirst, we note that Officer O\u2019Carroll testified that he chased McLaurin after he exited from the backseat of a two-door parked car, while the front-seat passengers remained seated inside, and ran away from the scene. Second, we note that Officer O\u2019Carroll testified that McLaurin threw the gun under a van parked on 15th Street, but Officers Daily and Langle testified that the only van they saw that night was parked on Lawndale Avenue. The police officers\u2019 conflicting testimony was contradicted by Ms. Jones, the front-seat passenger, who testified that after the car was pulled over, the police officers approached, one on each side of the car, and that the occupants all remained in the car until ordered out. Ms. Jones also testified that McLaurin did not run, but McLaurin and the driver, Austin, were ordered out of the car by the police and searched at the front of the car. Ms. Jones further testified that after the police patted down both Austin and McLaurin, the officers searched the car and found a gun in the backseat. Finally, Ms. Jones testified that the gun the police found in the car belonged to her boyfriend, Austin.\nWe find the following conflicts in the testimonial evidence presented to the jury: (1) Officer O\u2019Carroll\u2019s testimony conflicted with the testimony of Officers Langle and Dailey regarding the location of the van where the gun was allegedly discovered; (2) the three officers\u2019 testimony that McLaurin ran after the car was stopped conflicted with Ms. Jones\u2019 testimony that McLaurin did not run and was searched while standing next to the car; and (3) Ms. Jones\u2019 testimony that the police found the gun in the backseat of the car conflicted with Officer O\u2019Carroll\u2019s testimony that he retrieved the gun underneath a van parked on 15th Street. People v. Jarvis, 306 Ill. 611, 613 (1923) (where the evidence is in sharp conflict, it is required that the record be free from prejudicial error); People v. Keefe, 209 Ill. App. 3d 744, 753 (1991) (where two versions of a story were presented to the jury, the evidence was \u201cclosely balanced\u201d).\nWe further note that two of the jury\u2019s notes establish that the jurors were deadlocked \u201c7-5, based on the evidence presented.\u201d The fact that the jurors were deadlocked \u201cbased on the evidence presented\u201d is additional evidence that the State failed to present the jury with overwhelming evidence of McLaurin\u2019s guilt. Therefore, based on the absence of any physical evidence linking McLaurin to the gun, the conflicting testimony of the witnesses, and the fact that the jurors reported that they were deadlocked \u201c7-5 based on evidence presented,\u201d we hold that the evidence presented to the jury was so closely balanced that the errors tipped the scales of justice against the defendant. Jarvis, 306 Ill. at 613; People v. Porter, 372 Ill. App. 3d 973, 977-78 (2007) (where there was no physical evidence and officer\u2019s testimony was uncorroborated by other witnesses, the evidence was closely balanced); Keefe, 209 Ill. App. 3d at 753.\nC. Constitutional Errors\nNext, we must determine if McLaurin\u2019s constitutional rights were violated by the trial court. We find that excluding McLaurin from the discussions of the jury\u2019s notes, without his voluntary and knowing consent, violated substantial constitutional rights protected by the federal and state constitutions. Childs, 159 Ill. 2d at 227; U.S. Const., amend. VI; Ill. Const. 1970, art. I, \u00a78; see also 725 ILCS 5/115 \u2014 4(h) (West 2004). We also find that the sheriff\u2019s ex parte communications with the hung jury is a trial error of constitutional magnitude, implicating the trial court\u2019s conduct. Kliner, 185 Ill. 2d at 162; Childs, 159 Ill. 2d at 227-28. The cumulative effect of the trial court\u2019s violations of McLaurin\u2019s constitutional rights was so serious that it affected the fairness of his trial and implicates the second prong of the plain error rule.\nD. Harmless Error\nBecause the trial errors in this case are violations of McLaurin\u2019s constitutional rights, the State must prove that the trial errors were \u201charmless beyond a reasonable doubt.\u201d Kliner, 185 Ill. 2d at 162; Childs, 159 Ill. 2d at 227-28, citing Chapman v. California, 386 U.S. 18, 23-24, 17 L. Ed. 2d 705, 710-11, 87 S. Ct. 824, 827-28 (1967). Normally, a jury verdict will only be set aside when no injury or prejudice results from the trial errors. Hobley, 182 Ill. 2d at 460, quoting Mitchell, 152 Ill. 2d at 341. However, as stated above, where constitutional errors occur, the State is required to demonstrate that the errors were harmless beyond a reasonable doubt. Kliner, 185 Ill. 2d at 161-62, citing Childs, 159 Ill. 2d at 227-28.\nHere, the State argues that the trial errors were harmless beyond a reasonable doubt because (1) the jury deliberated for 1 hour and 15 minutes after the sheriffs ex parte communication, and (2) there was no coercion or jury prejudice since the fluctuating numerical divisions (8 to 4, 7 to 5, then 7 to 5) reported by the jury show that the jury was never hopelessly deadlocked. We are not persuaded. We note that the record does not establish the length of time the jury deliberated after the sheriffs ex parte communication with the jurors. In addition, the State\u2019s reliance upon the numerical divisions reported in the jury\u2019s notes as evidence that the jury was not hopelessly deadlocked is inconsistent with two of the jury\u2019s notes that stated: \u201cWe are deadlocked 7-5, based on the evidence presented, this jury feels it cannot reach a decision.\u201d In light of the preceding, the State has failed to present any evidence (1) that the jury was not coerced by the sheriffs ex parte communications, or (2) that the trial court\u2019s errors were harmless beyond a reasonable doubt. Kliner, 185 Ill. 2d at 161-62, citing Childs, 159 Ill. 2d at 227.\nWe find that McLaurin was prejudiced (1) by the trial court excluding him from the discussion of the jury\u2019s notes because he was unable to participate in his defense, and (2) by the sheriff\u2019s ex parte communications with the hung jury because he was convicted and sentenced to the penitentiary after the ex parte communications. Kliner, 185 Ill. 2d at 161-62; Childs, 159 Ill. 2d at 227-28. We note that after the jury\u2019s first two notes, the trial judge sent written responses to the jury and the jury continued to deliberate, but the trial judge permitted the sheriff to have ex parte communications with the jury after receiving the next two jury notes. Where a deprivation of liberty has occurred, as in this case, we will not speculate on the effect of the sheriffs ex parte communications on the jurors because McLaurin\u2019s constitutional rights were violated and the evidence was closely balanced. Therefore, we hold (1) that the trial judge\u2019s decision not to follow section 115 \u2014 4(h) of the Code of Criminal Procedure of 1963 but to exclude McLaurin during critical stages of the trial when the jury\u2019s notes were discussed by the trial judge and the attorneys, and (2) that the trial judge\u2019s decision to permit the sheriff to have ex parte communications with the hung jury before it reached a guilty verdict denied McLaurin his right to a fair trial and these errors prejudiced McLaurin and force this court to question the integrity of the judicial process. Dixon, 378 Ill. App. 3d at 546-47; 725 ILCS 5/115 \u2014 4(h) (West 2004). Accordingly, because the State has failed to show that McLaurin\u2019s exclusion during the discussions of the jury\u2019s notes and the sheriffs ex parte communication with the jury were harmless errors beyond a reasonable doubt, we hold that the trial court\u2019s errors affected the fairness of McLaurin\u2019s trial and the integrity of the judicial process.\nFinally, we address the issues raised in the dissent. Following Piatkowski and Herron, the majority considered McLaurin\u2019s forfeited claims of trial error under the two prongs of the plain error rule set forth in those cases. See Piatkowski, 225 Ill. 2d at 565, citing Herron, 215 Ill. 2d at 187; see also 134 Ill. 2d R. 615(a). The dissent, however, would deny plain error review in this case (1) because the evidence presented to the jury was not closely balanced, and (2) because the defendant has not shown that the trial court\u2019s errors prejudiced him. In support of its first position, the dissent contends that the inconsistent police testimony regarding where the weapon was recovered was of little import and that defense witness Arlena Jones\u2019 testimony was not entitled to significant weight. We disagree.\nWhere a defendant is charged with and convicted of aggravated unlawful use of a weapon by a felon, we find that it would be a denial of due process for this court to take the position that evidence related to the weapon is unimportant, especially, where the police officers\u2019 testimony conflicts about where the officer recovered the weapon. Moreover, we find that conflicting police testimony regarding the location of the recovered weapon becomes more, not less, important where, as here, there was no physical evidence linking McLaurin to the weapon and the evidence presented to the jury was closely balanced. Porter, 372 Ill. App. 3d at 977-78, citing Herron, 215 Ill. 2d at 187.\nThe dissent argues that the evidence presented to the jury was not closely balanced because Arlena Jones\u2019 testimony should be given little weight because she was McLaurin\u2019s \u201cclose family friend\u201d and she had known him for 10 years. On this point, we note that the jury, as trier of fact, was responsible for observing the witnesses, assessing their credibility, and determining the weight to be given each witness\u2019s testimony. People v. Ortiz, 196 Ill. 2d 236, 259 (2001). Significantly, the dissent does not comment on the fact that the jury was hung 7 to 5 and could not reach a verdict based on the evidence presented at trial, evidence that largely consisted of the testimony of the three police officers and Arlena Jones. The dissent correctly observes that Arlena Jones testified that the gun the police recovered belonged to her boyfriend, Jackine Austin, but then fails to consider that, outside the jury\u2019s presence, Jackine Austin told the court that he was unwilling to testify in McLaurin\u2019s defense because he wanted to avoid making incriminating statements. We find that the evidence was closely balanced and that the trial judge\u2019s errors, including the judge\u2019s decision to permit the sheriff to have ex parte communications with the hung jury shortly before McLaurin was convicted, tipped the scales of justice against McLaurin. Herron, 215 Ill. 2d at 187; Keefe, 209 Ill. App. 3d at 753.\nIn addition, the dissent studiously ignores the majority\u2019s focus, under the second prong of the plain error rule, (1) on the magnitude of the trial judge\u2019s two violations of McLaurin\u2019s constitutional rights, and (2) on the fact that the cumulative effect of the trial judge\u2019s violations of McLaurin\u2019s constitutional rights was so serious, regardless of the closeness of the evidence, that the errors affected the fairness and integrity of McLaurin\u2019s guilty verdict. Herron, 215 Ill. 2d at 187. In spite of the fact the majority\u2019s opinion established that the trial court\u2019s violations of McLaurin\u2019s constitutional rights were errors, the dissent incorrectly insists that McLaurin was required to demonstrate that he was prejudiced. The dissent\u2019s analysis conflates the two-prong plain error rule set forth in Piatkowski and Herron and incorrectly focuses on the prejudice defendant must show under the first prong. Piatkowski, 225 Ill. 2d at 565, citing Herron, 215 Ill. 2d at 187; Kliner, 185 Ill. 2d at 161-62; Childs, 159 Ill. 2d at 227-28. The dissent ignores the majority\u2019s finding, under the second prong of the plain error rule, that the constitutional errors in this case were so serious that they affected the fairness of the defendant\u2019s trial and challenged the integrity of the judicial process. Piatkowski, 225 Ill. 2d at 565. Thus, in light of Piatkowski and Herron, the dissent\u2019s reliance on People v. Hickey, 204 Ill. 2d 585, 622-23 (2001), to support its contentions that McLaurin bore the burden of showing prejudice or that his presence would have affected the ex parte communication is misplaced. Accordingly, because the supreme court has held that a defendant\u2019s substantial rights are implicated when he is excluded from the trial court\u2019s discussions of a hung jury\u2019s notes (McDonald, 168 Ill. 2d at 459), and when the sheriff has ex parte communications with a jury, in this case, shortly before a guilty verdict was returned, we believe that the dissent ignored the fact that the trial judge\u2019s cumulative errors violated McLaurin\u2019s fundamental right to a fair trial. Kliner, 185 Ill. 2d at 161-62; Childs, 159 Ill. 2d at 227-28, citing Chapman v. California, 386 U.S. 18, 23-24, 17 L. Ed. 2d 705, 710-11, 87 S. Ct. 824, 827-28 (1967).\nCONCLUSION\nIn light of the violations of McLaurin\u2019s constitutional rights, we are reversing his conviction; therefore, it is unnecessary for this court to reach the defendant\u2019s other contentions on appeal. Both the federal and state constitutions provide that no person shall be put in jeopardy twice for the same criminal offense. People v. Pinkonsly, 207 Ill. 2d 555, 564 (2003), citing U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, \u00a710. \u201cThe double jeopardy clause protects a defendant from: (1) a second prosecution after an acquittal; (2) a second prosecution after a conviction; and (3) multiple punishments for the same offense.\u201d People v. Whitfield, 228 Ill. 2d 502, 516 (2007), citing People v. Gray, 214 Ill. 2d 1, 6 (2005). \u201cThe prohibition against double jeopardy forbids a second trial if the evidence was insufficient to prove the defendant guilty beyond a reasonable doubt in the initial proceeding.\u201d People v. Davis, 377 Ill. App. 3d 735, 747 (2007), citing People v. Taylor, 76 Ill. 2d 289, 309 (1979). We note that a reversal for trial error is a determination that the defendant has been convicted by means of a fundamentally defective judicial process. People v. Olivera, 164 Ill. 2d 382, 393 (1995). A \u201creversal for evidentiary insufficiency occurs when the prosecution has failed to prove its case, and the only proper remedy is a judgment of acquittal.\u201d Olivera, 164 Ill. 2d at 393. In this case, we find that the evidence was sufficient to convict and a new trial is required to correct the trial court\u2019s errors that deprived McLaurin of a fair trial. Accordingly, for the foregoing reasons, we reverse and remand this case for a new trial.\nReversed and remanded.\nCAMPBELL, J., concurs.\nSection 12 \u2014 603.1 of the Illinois Vehicle Code provides:\n\u201c(a) Each driver and front seat passenger of a motor vehicle operated on a street or highway in this State shall wear a properly adjusted and fastened seat safety belt ***.\n(f) A law enforcement officer may not search or inspect a motor vehicle, its contents, the driver, or a passenger solely because of a violation of this Section.\u201d 625 ILCS 5/12 \u2014 603.1(a), (f) (West 2004).\nIllinois Supreme Court Rule 615(a) provides:\n\u201c(a) Insubstantial and Substantial Errors on Appeal. Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.\u201d 134 Ill. 2d R. 615(a).\nThe State conceded in its brief that McLaurin did not knowingly or voluntarily relinquish his right to be present or to participate at trial. See People v. Lofton, 194 Ill. 2d 40, 66 (2000) (it is well settled that an accused\u2019s attorney has no power to waive the defendant\u2019s right to be present at trial).\nThe record shows that the trial court received the fourth jury note at 4:10 p.m., but there is no indication in the record of what time it was when the sheriff actually spoke with the jury or how long the sheriff actually communicated with the jury before the jury sent a fifth note at 4:35 p.m. asking for a transcript. Further, there is no indication of what time it was when the jury received the requested transcript before reaching a guilty verdict at 5:25 p.m.", "type": "majority", "author": "PRESIDING JUSTICE NEVILLE" }, { "text": "JUSTICE MURPHY,\ndissenting:\nI agree that the practice of documenting and preserving every communication between the jury and the court is a wise one. At times it may be practical and necessary to proceed without a court reporter, especially for minor or administrative communications, but if that does occur, the substance of the communication should be made part of the record as soon as practicable. However, unlike the majority, I believe that the trial court\u2019s actions did not rise to the level of meriting reversal. I respectfully dissent and would affirm defendant\u2019s conviction.\nFirst, I would not invoke the plain-error exception to the waiver rule. See People v. Cloutier, 178 Ill. 2d 141, 164 (1997); 134 Ill. 2d R. 615(a). In People v. Kliner, 185 Ill. 2d 81 (1998), our supreme court held that even though the defendant did not object to the trial court\u2019s ex parte communications with the jury or include the issue in his post-trial motion, \u201cwe have determined that application of the waiver rule is less rigid where the basis for the objection is the trial court\u2019s conduct.\u201d Kliner, 185 Ill. 2d at 161; People v. Williams, 173 Ill. 2d 48, 85 (1996); People v. Nevitt, 135 Ill. 2d 423, 455 (1990); People v. Comage, 303 Ill. App. 3d 269, 272 (1999). Where the trial court chose to discuss the jury notes outside of defendant\u2019s and the court reporter\u2019s presence, and the trial court sent the bailiff to relay his message to the jury, the trial court\u2019s conduct is clearly the basis of defendant\u2019s argument on appeal. Therefore, I would hold that the waiver rule does not apply. Kliner, 185 Ill. 2d at 161; Williams, 173 Ill. 2d at 85; Nevitt, 135 Ill. 2d at 455; Comage, 303 Ill. App. 3d at 272. Since the waiver rule is inapplicable, there is no need to invoke the plain-error exception to the waiver rule, and the analysis should focus on whether defendant suffered prejudice.\nA jury verdict will not be set aside where it is apparent that no harm or prejudice resulted from the communication. People v. McDonald, 168 Ill. 2d 420, 460 (1995). The key question in determining prejudice is whether defendant\u2019s presence could have had any effect on the communication. People v. Blalock, 239 Ill. App. 3d 830, 841 (1993); People v. King, 165 Ill. App. 3d 464, 471-72 (1988). In Kliner, for example, the defendant argued that he was harmed by the trial judge\u2019s ex parte communication with the jury because he was denied the opportunity to make suggestions regarding the appropriate response to jury notes. Our supreme court analyzed the substance of the trial court\u2019s responses to determine whether the error was harmless beyond a reasonable doubt. Kliner, 185 Ill. 2d at 163-66. See also Comage, 303 Ill. App. 3d at 272; People v. Stropoli, 146 Ill. App. 3d 667 (1986) (no prejudice when the trial court answered two questions outside the defendant\u2019s and his counsel\u2019s presence because the judge correctly and appropriately responded to the jury\u2019s questions).\nIn its first and fifth notes, the jury requested the stipulation and transcripts of Daily\u2019s and O\u2019Carroll\u2019s testimony. It is within the sound discretion of the trial court to allow or refuse a request by the jury to review testimony in a criminal case. People v. Pierce, 56 Ill. 2d 361, 364 (1974). Transcripts of testimony may be made available to the jury if the court believes that the transcripts will be helpful to jurors. People v. Flores, 128 Ill. 2d 66, 93 (1989). \u201c[When] the jury itself requests the opportunity to examine transcripts of the testimony, the trial court must assume that the jury believes that such review would be helpful.\u201d People v. Modrowski, 296 Ill. App. 3d 735, 747 (1998).\nThe jury had already heard Daily\u2019s and O\u2019Carroll\u2019s trial testimony. Furthermore, the agreed statement of facts provides that the trial court\u2019s response was to send these materials to the jury after discussions with counsel. Significantly, defendant does not contend on appeal that the trial court erred when it provided these materials to the jury. The trial court\u2019s responses to the jury\u2019s requests to the first and fifth notes were within its discretion and, therefore, defendant did not suffer any prejudice. See Kliner, 185 Ill. 2d at 164.\nIn their second note, the jurors stated that they were \u201cdeadlocked 8-4 and it appears that no one is willing to change their mind.\u201d After giving counsel for both sides opportunities for suggestions, the trial court sent a note back to the jury to \u201ckeep on deliberating with an open mind.\u201d The jurors sent a third note at 3:50 p.m. stating that they were deadlocked 7 to 5. \u201cBased on the evidence presented, this jury feels it cannot [sic] a decision in this case.\u201d At 4:10 p.m., before a response to the third note was returned to the jury, a fourth note was sent out providing, \u201cWe are deadlock [sic] still at 7-5. Based on evidence presented, this jury does not feel it can reach a decision.\u201d The trial court did not send a written response. Instead, it instructed its bailiff to inform the jury to continue deliberating.\nWhether a jury should continue to deliberate after it has indicated that it is hopelessly deadlocked is also within the discretion of the trial court. People v. Harris, 294 Ill. App. 3d 561, 568 (1998). \u201cAn instruction to a deadlocked jury is improper if it hastens a verdict, coerces a juror to make a determination in conflict with the juror\u2019s views, or otherwise interferes in deliberations such that a defendant is prejudiced.\u201d People v. Kegley, 227 Ill. App. 3d 48, 57 (1992). However, a trial court has a duty to provide guidance to a jury that is not hopelessly deadlocked. Kegley, 227 Ill. App. 3d at 57. In addition, where the trial court receives an unsolicited statement regarding the numerical division of the jurors, it is not error to order the jury to continue its deliberations. People v. Iozzo, 195 Ill. App. 3d 1078, 1086 (1990). Here, the judge\u2019s written response to the jury\u2019s second note was to continue deliberating with an open mind, and in response to third and fourth notes, the trial court told the bailiff to instruct the jury to continue deliberating. Defendant does not argue that the court\u2019s responses coerced a verdict or otherwise interfered with the jury\u2019s deliberations.\nDefendant does not explain what would have occurred if he had been present. Instead, he claims generally that his presence would have contributed to the fairness of the procedure. Our supreme court rejected a similar argument in People v. Hickey, 204 Ill. 2d 585, 622-23 (2001), where the defendant was not present when the jury sent five notes during deliberations. The defendant claimed that his constitutional right was violated because he could have had some input into the nature of the communication with the jury. Hickey, 204 Ill. 2d at 621-22. The court held, however, that the defendant\u2019s \u201c \u2018argument is based on broad principles and is not adapted to the specifics of this case.\u2019 [Citation.]\u201d Hickey, 204 Ill. 2d at 622. As in Hickey, here there is nothing in the record indicating that defendant\u2019s presence would have contributed to the fairness of the procedure. See Hickey, 204 Ill. 2d at 622-23; People v. Lee, 303 Ill. App. 3d 356, 368 (1999) (any error would be harmless because \u201cwe would be required to speculate as to what action defendant or his counsel would have urged with respect to the notes\u201d); People v. Hernandez, 229 Ill. App. 3d 546, 553 (1992) (rejecting defendant\u2019s speculation that if he had been present for discussion regarding jury question, his attorney might have objected to the judge\u2019s proposed response).\nAs for the sheriffs communication with the jurors, the majority relies in part on the fact that defendant was only convicted after that communication, while they continued to deliberate after the jury receiving the judge\u2019s written responses to their first two notes. However, the majority disregards that in the time between the bailiff s communication with them and their verdict, the jury also requested and received a transcript of O\u2019Carroll\u2019s testimony. Having heard the trial testimony and received the stipulation and transcripts of Daily\u2019s and O\u2019Carroll\u2019s testimony, the jury reached its decision and convicted defendant.\nFurthermore, I disagree that the evidence was sufficiently close to merit review under the first prong of the plain-error rule. See 134 Ill. 2d R. 615(a). Officers Edward Langle and John O\u2019Carroll both testified that defendant jumped from the backseat of the car and began running. As Langle secured the car, O\u2019Carroll chased defendant and saw him throw the gun into the gutter, under a van. O\u2019Carroll testified that after defendant was apprehended, he returned to the van and recovered the gun. Officer Demarko Daily corroborated that defendant was running southbound on Lawndale and that O\u2019Carroll found a gun under a van. Langle did not see O\u2019Carroll when he found the gun but noticed that O\u2019Carroll returned to their squad car with a gun.\nThe majority relies on defense witness Arlena Jones\u2019 testimony that the gun was her boyfriend\u2019s and that defendant never ran from the police that night; however, it is significant that she was a close family friend of defendant whom she had known for 10 years. The majority notes on this point that the jury, as trier of fact, was responsible for observing the witnesses, assessing their credibility, and determining the weight to be given their testimony. I note that after observing Jones, assessing her credibility, and determining the weight to be given her testimony, the jury apparently did not believe her, as it chose to convict defendant. The majority also relies on O\u2019Carroll\u2019s statement that he recovered the gun from underneath a van on 15th Street, while Daily and Langle testified that the van was on Lawndale. Where the gun was thrown, according to the officers\u2019 testimony, was near an intersection, and Daily underscored that he saw the gun \u201con the corner of 15th and Lawndale.\u201d Accordingly, I do not read the same import into the testimony as the majority.\nIn addition, although the majority\u2019s analysis relies on the jury\u2019s deadlock notes, the jury votes changed from 8 to 4 to 7 to 5 within 50 minutes, and the second 7 to 5 note simply reiterated the note of 20 minutes before, since the jury had not yet received a response from the court. See People v. Vasquez, 368 Ill. App. 3d 241, 252 (2006) (where two officers saw the defendant take possession of a loaded gun, and the only witness who challenged the testimony was the defendant\u2019s half brother, who had a close personal relationship with him, \u201c[t]he mere fact that the jury indicated in one note that it could not reach a decision does not render the evidence closely balanced\u201d); People v. Smith, 341 Ill. App. 3d 530, 543 (2003) (the jury being undecided for four hours was not sufficient to make the evidence close for plain-error purposes). Therefore, under these circumstances, I do not believe that the jury\u2019s notes rendered the evidence closely balanced.\nTo the extent that the majority relies on the second prong of the plain-error rule, I reiterate my above analysis as to the trial court\u2019s responses to the jury notes. Furthermore, this court has expressed doubt as to whether Illinois categorically presumes prejudice when there is outside contact with a juror. People v. Ward, 371 Ill. App. 3d 382, 405 (2007). Ward noted that the Supreme Court appears to have departed from its position in Remmer v. United States, 347 U.S. 227, 98 L. Ed. 654, 74 S. Ct. 450 (1954) (see United States v. Olano, 507 U.S. 725, 738, 123 L. Ed. 2d 508, 522, 113 S. Ct. 1770, 1780 (1993); Smith v. Phillips, 455 U.S. 209, 215, 71 L. Ed. 2d 78, 85, 102 S. Ct. 940, 945 (1982)). In addition, since People v. Hobley, 182 Ill. 2d 404, 460 (1998), was decided, \u201cour supreme court appeared to shift toward a more fact-intensive, case-specific analysis in People v. Williams, 209 Ill. 2d 227 (2004).\u201d Ward, 371 Ill. App. 3d at 404. Ward concluded based on Williams, \u201cIllinois no longer appears to categorically presume prejudice when there is outside contact with a juror.\u201d Ward, 371 Ill. App. 3d at 405.\nIn addition, defendant cited several federal cases in support of his argument that prejudice must be presumed when a trial court uses a bailiff as a medium for communicating with the jury. Not only do these cases involve habeas corpus petitions, but they are also factually distinguishable. In United States ex rel. Tobe v. Bensinger, 492 F.2d 232 (7th Cir. 1974), after the jury reached a verdict, defense counsel discovered that three inquiries made of the court, all involving the possibility of reaching a nonunanimous verdict, never reached the court. Affidavits established that the jury asked the bailiff several times what would happen if they reached a nonunanimous verdict, and the bailiff, without the trial court\u2019s knowledge, told them \u201cover and over again in one form or another that \u2018You must reach a decision.\u2019 \u201d Tobe, 492 F.2d at 237-38. Here, there are no allegations of juror coercion. Furthermore, unlike the Tobe bailiff, here the bailiff communicated to the jury not only with the trial court\u2019s knowledge, but at its direction.\nIn Moore v. Knight, 368 F.3d 936 (7th Cir. 2004), the deliberating jury sent a note to the judge asking where the defendant lived, the distance between his home and the location of the crime, and the time that he arrived home on the night in question. Without conferring with any attorneys, the trial court responded via a bailiff either that there was no evidence in the record regarding this question or that their questions could not be answered. Unlike here, where the jury\u2019s notes indicated that it was deadlocked, the bailiff in Moore responded to factual questions about the case, which went to the very heart of the defendant\u2019s alibi defense. Furthermore, the Moore bailiffs answer was incorrect because the defendant presented testimony as to when he arrived home as part of his alibi defense. Further exacerbating the incorrect response in Moore was the fact that the jurors were not permitted to take notes during the trial and that the trial court instructed them that they would not be allowed to ask any more questions. In addition, unlike the court in Moore, here, the trial court consulted with counsel before responding to the jury\u2019s questions.\nFinally, while an attorney cannot waive a defendant\u2019s presence (People v. Lofton, 194 Ill. 2d 40, 66 (2000)), it is significant that, unlike People v. Childs, 159 Ill. 2d 217 (1994), defendant\u2019s attorneys were present during discussions on both the jury notes and the decision to send the bailiff instead of giving a written response. See People v. Smith, 321 Ill. App. 3d 523, 528-29 (2001) (\u201cWhere the defendant or his attorney had knowledge of the court\u2019s communication with the jury at the approximate time of the jury\u2019s inquiry, plain error has not been found\u201d).\nI agree that the trial court should have provided a written note to the jury instead of sending the sheriff to tell them to continue deliberating. It also should have made a record of the discussions on the jury notes. However, where both of defendant\u2019s attorneys were present for all of the discussions, the evidence is not closely balanced, the judge\u2019s responses to the jury notes were correct, and any presumption as to prejudice for outside contact with a jury has been called into question, the trial court\u2019s actions did not merit reversal. Therefore, I would affirm defendant\u2019s conviction.", "type": "dissent", "author": "JUSTICE MURPHY," } ], "attorneys": [ "Patricia Unsinn and Manuel Serritos, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Annette Collins, and Allison Brunell Sise, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE McLAURIN, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1\u201405\u20141149\nOpinion filed May 15, 2008.\nMURPHY, J., dissenting.\nPatricia Unsinn and Manuel Serritos, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Annette Collins, and Allison Brunell Sise, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0644-01", "first_page_order": 662, "last_page_order": 681 }