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"THE COURT: All right, then with regard to the explanation given by the State, I do not think it falls under thetheory of Batson."

The case then proceeded to trial on the merits.

B. TRIAL

The substantive facts in this case revolve around the killing of Javier Guzman and Jorge Torres in September of 1992.There is no dispute that the bodies were both found laying face down in the alley behind 1859 West Farwell near theintersection of Pratt and Wolcott in Chicago's Rogers Park neighborhood. Wallets, identification and other personal itemswere found nearby. Both victims had been shot in the back of the neck. Guzman and Torres were apparently on their wayhome from their jobs at a pizza restaurant. They had been paid earlier that day, and had stopped at a bar/liquor store andpurchased beer.

Maria Burnett testified for the State that she is an assistant State's Attorney for Cook County and that on the night ofJanuary 25, 1993 she was present at the Area 3 police station in Chicago in connection with the investigation of the murdersof Torres and Guzman. While at the station she took a statement from the defendant which was memorialized by a courtreporter.

In his statement the defendant averred that on September 21, 1992, he was living at Pratt and Ashland with Kenneth Henry,Henry's girlfriend, D.D., "James" (later identified as James Swansey) and "Dominica" (later referred to as "Donika" and"Domika"). On the date in question, James told the defendant that he had to go get some money to buy Pampers for hisbaby, and defendant agreed to go with him. They went to Pratt and Clark, whereupon James told defendant that he had agun and asked him to keep an eye out for the police. As they were walking down the street, they saw "two Mexicans"walking ahead of them. They crossed the street to get ahead of the "Mexicans," who turned into an alley. The "Mexicans"looked back out of the alley, and James asked them "what the F they was looking at" and approached them with his gun out.

James ordered the two victims to lay on the ground, and asked them if they had any money. The victims replied that theydid not. At that point James heard a noise, and handed the gun to defendant while he went to the corner of the alley to lookaround. James returned to where the defendant was standing, took the gun, and began searching the victims for money, butdid not find any. The defendant then searched the victims and found money in one of their pockets. He then said to James,"I hate people lying to me *** we should pop them." James said that he would do it, and he proceeded to shoot each victimin the back of the head.

Yahpri Tyler testified for the state that he is currently incarcerated in the Cook County jail for his previous failure to appearin connection with this case. He stated that in late September of 1992, he went to Kenneth Henry's apartment at 6748 NorthAshland, where he met the defendant and James Swansey. Henry had a copy of the Chicago Tribune, in which Tyler saw anarticle about a shooting in Rogers Park. The victims were two Mexicans, and the shooting took place "on Farwell andRidge, somewhere down there" at night. After Tyler read the article, the defendant declared that the article was aboutsomething that he (the defendant) and Swansey had done.

Porsha Jenkins testified for the State that she has known the defendant since 1991, and became his girlfriend in Septemberof 1992. She averred that in September of 1992 the defendant was living in a north side apartment with James Swansey,Kenneth Henry, Swansey's girlfriend Donika, their son, Christopher, and Kenneth's girlfriend, D.D. She stated that she hadnever seen the defendant sell drugs, and that he did not work for Henry. After September 21, 1992 Jenkins recalled a daywhen she was at Henry's apartment and the defendant, Henry and Swansey were present, discussing a newspaper articleabout the robbery of two pizza men in an alley between Pratt and Farwell. Sometime later, Jenkins had a conversation withthe defendant in which defendant stated that he and James had robbed the two men, and that James shot them.

Jenkins testified at trial that after the defendant was arrested, she went to Area Three with police. Counsel for the defendantobjected when the State asked Jenkins if she had told police what she had just testified to. The State rephrased the question,and asked Jenkins if she had talked to the police about this case. She answered that she had, and that she had also told anassistant State's Attorney what she knew about the case.

Kenneth Henry testified for the State that in September of 1992 he was living at 6748 North Ashland in Chicago.Defendant, James Swansey, "Domika," and his girlfriend, "D.D." were also staying with him. Henry averred that when hecame home in the afternoon on September 21, 1992, there was no food in the refrigerator; however, when he woke up thenext morning, the refrigerator was full of food. Henry asked defendant and Swansey where the food came from, and thedefendant replied "we got two Mexicans last night." Later on, defendant related further details, explaining to Henry thatthey had robbed the Mexicans and that Swansey had then shot them.

Defendant testified in his own defense. He stated that Henry and Swansey had actually committed the robbery and murder,and that he was just an observer. The defendant maintains that he confessed in order to cover for Henry who was the actualkiller, because he was afraid of Henry. The defendant further averred that Henry was a drug dealer for whom he sold drugs.

The following facts emerged at a post-trial hearing. During deliberations, the jury sent three notes to the judge. With respectto the first two notes, the sheriff at the direction of the judge contacted defense counsel at a restaurant by cellular telephoneand the court conferred with defense counsel regarding each response. The jury later sent the judge a third note requesting adefinition of the word "abet." During the hearing on defendant's motion for a new trial the judge stated that he instructed hissheriff to notify the parties. However, the jury returned a verdict without obtaining any response from the judge, and theattorneys for the defendant were never notified of the existence of the note, either before or after the return of the verdict.While the State apparently knew of the existence of the note, the court never informed defense counsel of its existence,other than by placing the note in the court file, and the judge never gave the jury a response. A while later, the courtcontacted defense counsel to inform them that a verdict had been returned. Defense counsel first became aware of the notepursuant to their exploration of the record sometime after judgement was entered on the verdict.

ANALYSIS

A. THE BATSON ISSUES

The defendant argues that he should be granted a new trial because the State engaged in racial discrimination during juryselection, in violation of Batson v. Kentucky. The defendant contends that he proved racial discrimination with regard tothree African-American jurors, Vertreasa Edwards, Tonia Felton and Barbara Gatewood, against whom the State exercisedperemptory challenges, and that the trial court erred in finding those challenges to be proper.

Under Batson the defendant has "the right to be tried by a jury whose members are selected pursuant to nondiscriminatorycriteria." 476 U.S. at 85-6, 106 S.Ct. at 1717. The Supreme Court has promulgated a three-step process for evaluatingclaims of discrimination in jury selection. Hernandez v. New York, 500 U.S. 352, 358, 111 S.Ct. 1859, 1865 (1991). "First,the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis ofrace." Hernandez, 500 U.S. at 358, 111 S.Ct. at 1866. "Second, if the requisite showing has been made, the burden shifts tothe prosecutor to articulate a race-neutral explanation for striking the jurors in question." Hernandez, 500 U.S. at 358-9, 111S.Ct. at 1866. Third, "the trial court must determine whether the defendant has carried his burden of proving purposefuldiscrimination." Hernandez, 500 U.S. at 359, 111 S.Ct. at 1866. At step three the court must decide "whether the opponentof the strike has proved purposeful racial discrimination." Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 1770-1.

1. VENIRE MEMBER EDWARDS

Defendant argues that the finding by the trial court of purposeful discrimination was never rebutted with regard to Edwards,since the State was never called upon to give reasons for excusing Edwards. The defendant contends that the onlyexplanatory reasons given with regard to Edwards were those given by the trial court, and thus the State's burden to rebutthe prima facie case with its own reasons was never satisfied. The State contends, based on the pronouncements of theCourt, that there was no finding of a prima facie case concerning the first challenged African-American juror, Edwards, andthat the finding of the trial court of a prima facie case of purposeful discrimination encompassed only Felton andGatewood. Consequently, the State contends that there would be no requirement of the State to provide any race-neutralreasons with regard to Edwards.

Contrary to the State's contention, there is no indication in the colloquy that the court intended to exclude venire memberEdwards from its finding of a prima facie case. More overridingly, such a distinction would make little sense, as a findingof a prima facie case looks to the totality of the State's conduct (see, e.g., People v. Heard, 187 Ill. 2d 36, 53-4, 718 N.E.2d58, 68-9 (1999)) and would thus taint the exclusion of every juror of that same race so as to put the State to the burden ofexplaining such an exclusion. The Court was required therefore, to elicit explanations from the State for the challenge ofEdwards as well as the other excluded jurors. See Purkett, 514 U.S. at 767, 115 S.Ct. at 1770-71 (once there is a finding ofa prima facie case, the State must provide a step two explanation with respect to jurors of that race who were challenged bythe State). Accord Hernandez, 500 U.S. at 358-9, 111 S.Ct. at 1866.

While the court did not elicit such reasons from the State, the Court did give its own reason to explain Edwards' exclusion,namely that she suffered from arthritis. However, reasons articulated by the Court can not satisfy the State's step two burdenof production. See People v. Harris, 129 Ill.2d 123, 184, 544 N.E.2d 357, 384 (1989) ("a court should not presume, or inferfrom the facts of the case, that an unarticulated neutral explanation exists *** a court must focus its inquiry on the reasonsactually articulated by the State"). Accord People v. Mays, 254 Ill. App. 3d 752, 761, 626 N.E.2d 1154, 1161 (1993) ("acourt should not infer from the facts articulated by the State an unarticulated reason for the exclusion"). Only at step three isthe court free to consider all the circumstances of the trial in making its ultimate determination of purposeful discrimination(McCain v. Gramley, 96 F.3d 288, 293 (1996)) therefore only at step three can the court consider its own race-neutralreasons, after the State has proffered its reasons at step two.⁽¹⁾ It is this ultimate determination at step three which makesit particularly important that the step two explanations be given by the State and not the court. The step three determinationwill substantially involve an evaluation by the court of the prosecutor's credibility. Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at1724 n. 21. See also, People v. Nunn, 273 Ill. App. 3d 519, 525 652 N.E.2d 1146, 1150 (1995) (stating that the trial court isat step three to assess the genuineness of the State's proffered explanation), citing Purkett, 514 U.S. at, 769, 115 S.Ct. at1771-72. To allow the court to rely on its own reasons with out eliciting any explanations by the State would effectivelyomit step two of the Batson process, and collapse it into step three. Moreover, the elimination of step two would effectivelymerge step one and step three into a single step since both require evaluations by the court of evidence produced by thedefense, contrary to the three step Batson process structured by the United States Supreme Court (see Hernandez, 500 U.S.at 358-9, 111 S.Ct. at 1865-66; see also Purkett, 514 U.S. at, 767, 115 S.Ct. at 1770-71). Accordingly, the failure of the trialcourt to elicit an explanation from the State at step two for the challenge to Edwards constitutes an error which, in and ofitself, would require a remand.

2. VENIRE MEMBERS FELTON AND GATEWOOD

The defendant next argues that he is entitled to a new trial because he proved that Felton and Gatewood were improperlyexcused by the State because of their race. In support, he maintains that the record demonstrates the reasons proffered bythe State for excluding Felton and Gatewood were pretextual, and that the trial court erred in not finding that the State hadengaged in racial discrimination.

We need not address any step one issues regarding the trial court's finding of a prima facie case with regard to Felton andGatewood, as this finding was never challenged. Once the prosecutor has offered an explanation for his challenges theestablishment of a prima facie case is moot, and the focus is on the second and third steps of the Batson process.Hernandez, 500 U.S. at 359, 111 S.Ct. at 1866 ("Once a prosecutor has offered a race-neutral explanation for theperemptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminaryissue of whether the defendant has made a prima facie showing becomes moot"). Thus, with respect to Felton andGatewood we need only focus on the step two and step three procedures of the trial court without regard to a step oneanalysis pertaining to the establishment of a prima facie case.

At step two of the Batson process, "the burden of production shifts to the proponent of the strike to come forward with arace-neutral explanation" for the strike. Purkett v Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 1770 (1995). In Purkett theUnited States Supreme Court held that "the second step of this process does not demand an explanation that is persuasive,or even plausible." Purkett, 514 U.S. at 767-8, 115 S.Ct. at 1771. Rather, the issue "is the facial validity of the prosecutor'sexplanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemedrace neutral." Purkett, 514 U.S. at 768, 115 S.Ct. at 1771 (quoting Hernandez, 500 U.S. at 360, 111 S.Ct., at 1866). "Inevaluating the race-neutrality of an attorney's explanation, a court must determine whether, assuming the proffered reasonsfor the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law." Hernandez,500 U.S. at 359, 111 S.Ct. at 1866.

Thus, at step two of the Batson process, the reasons articulated by the State for excusing the challenged venire membersneed only be facially race-neutral. Purkett, 514 U.S. at 768, 115 S.Ct. at 1771; Hernandez, 500 U.S. at 360, 111 S.Ct., at1866. Unless the State's reason is inherently discriminatory on its face, the trial court may not at step two refuse to accept areason given by the State even if the reason is not "persuasive or even plausible." Purkett, 514 U.S. at 767-8, 115 S.Ct. at1771. It appears that in light of Purkett to end the inquiry at step two would require a virtually explicit admission by theState of a racially motivated purpose. Thus, the inquiry may no longer end at step two with a finding that a facially race-neutral explanation is a pretext for purposeful discrimination.

However, while Purkett dilutes the effectiveness of step two as a dispositive stage for finding race motivation, such adetermination is still mandated at stage three. Purkett, 514 U.S. at 767, 115 S.Ct. at 1770-71. At stage three the trial court isfree to reexamine the explanation offered by the State (Goode v. Shoukfeh, 943 S.W.2d 441, 445-46 (Tex. 1997)) and "thepersuasiveness of the [State's] justification becomes relevant" (Purkett, 514 U.S. at 768, 115 S.Ct. at 1771). See also Peoplev. Rivera, 307 Ill. App. 3d 821, 831, 719 N.E.2d 154, 162 (1999) ("As Purkett makes clear *** a facially neutral reason atthe second step is not necessarily a legitimate, nonpretextual one under step three."). However, at stage three, the burden ofproof remains with the defendant to establish racial motivation. In determining if such motivation has been established, thecourt may examine all of the relevant Batson circumstances of the trial. See Purkett, 514 U.S. at 768, 115 S.Ct. at 1771("But to say that a trial judge may choose to disbelieve a silly or superstitious reason at step three is quite different fromsaying that a trial judge must terminate the inquiry at step two when the race-neutral reason is silly or superstitious. Thelatter violates the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shiftsfrom, the opponent of the strike."). See also McCain v. Gramley, 96 F.3d 288, 293 (1996) ("Plausibility is to be taken intoaccount at step three of the Batson analysis- whether, in light of all the circumstances of the trial, the opponent of the strikehas proved purposeful racial discrimination.").

In reviewing the trial court's determination of whether the State's proffered reasons are pretextual, "we are mindful that thelegitimacy of proffered reasons is generally a factual matter for the trial court since it is in the best position to observe thecourse of the voir dire and assess the demeanor of the prospective jurors as well as the attorneys." Rivera, 307 Ill. App. 3dat 831, 719 N.E.2d at 162. This determination is finding of fact by the trial court accorded great deference on review.Hernandez, 500 U.S. at 364, 111 S.Ct. at 1868. "A trial court's finding that the State excused black venire members forrace-neutral reasons will not be reversed unless it is clearly erroneous." People v. Randall, 283 Ill. App. 3d 1019, 1025, 671N.E.2d 60, 66 (1996).

a. Venire Member Felton

Defendant first argues with regard to Felton that the trial court erred in allowing her to be excused because the reasonsgiven by the prosecutor for excluding her were pretextual. In support, defendant contends that the State accepted a whitejuror who possessed the traits for which Felton was purportedly excused.

We examine this contention from both the perspective of a step two analysis and a step three analysis. Under Purkett theState met its stage two burden of production. The State's reasons for excusing Felton were that she was young (27), singleand a renter. All of these reasons are facially race-neutral, and satisfy the State's burden of production under step two of theBatson analysis. Furthermore, Illinois courts have held youth to be a legitimate reason to excuse a juror. See, e.g., People v.Mays, 254 Ill. App. 3d 752, 763, 626 N.E.2d 1154, 1163 (1993); People v. Kindelan, 213 Ill. App. 3d 548, 556, 572 N.E.2d1138, 1143 (1991). Courts have also found renter status to be a legitimate reason. See, e.g., People v. Mack, 128 Ill. 2d 231,243-44, 538 N.E.2d 1107, 1113 (1989).

However, merely because the reasons given by the defendant were facially race-neutral, does not mean that they weregenuine, non-pretextual reasons and that the State was not engaged in racial discrimination in jury selection. Where "theState fails to exclude white venire members [who possess] the same characteristic as a black venire member who wasexcused on the basis of that characteristic, an inference of purposeful racial discrimination is raised." People v Andrews,155 Ill. 2d 286, 295, 614 N.E.2d 1184, 1189 (1993). Nevertheless, "the white jurors may have, in some other respect,exhibited a trait which the prosecutor reasonably could have believed would make him or her desirable as a juror."Andrews, 155 Ill. 2d at 295, 614 N.E.2d at 1190.

However, the determination as to whether the reasons given for the exclusion of an African-American juror are pretextualbecause white jurors with those same attributes were accepted is a stage three determination. Thus, the burden of proof is onthe defendant. Purkett, 514 U.S. at 768, 115 S.Ct. at 1771. Based on the record in this case there is ample support for thetrial court's ruling that the defendant has not met his burden of proving racial discrimination. Therefore, the findings of thecourt on this issue are not clearly erroneous. While the defendant correctly points out that Trenette Thurmond, a whitevenire member who was accepted by the State, was single, similar in age to Felton and not a homeowner, the State pointedout distinctions between the employment history of Thurmond and that of Felton sufficient to preclude us from overturningthe trial court's determination. While Felton worked as a "developmental trainer" for a company providing services to thementally disabled, Thurman had a history of being employed by non-altruistic enterprises, such as Ryder and Holsum BreadCompany and had also been employed in a managerial capacity twice. This non-racial distinction can properly support aninference that the State would have believed Thurmond to be more easily convinced to reach a finding of guilty than wouldFelton.

Defendant further argues that we should not grant the trial court's finding the usual deference it is due because the trialjudge, in addition to the explanations given by the State, improperly considered a factor not articulated by the State, namelythat Felton was a single mother, in ruling that Felton was properly excused. We disagree.

Defendant cites People v. Harris in support of his argument. As previously noted with respect to Edwards, in Harris, ourSupreme Court held that "it was improper for the trial court to have based its conclusion that the State rebutted defendant'sprima facie case upon" a fact not articulated by the State. Harris, 129 Ill. 2d at 185, 544 N.E.2d at 384; see also, People v.Mays, 254 Ill. App. 3d 752, 761, 626 N.E.2d 1154, 1161 (1993) ("a court should not infer from the facts articulated by theState an unarticulated reason for the exclusion"). Harris was decided before Hernandez and Purkett, and does not speak explicitly in terms of the three step process.However, it is clear that in holding it was improper for the trial court to conclude that the State rebutted the prima facie casebased upon a fact not articulated by the State, Harris is addressing step two. Harris is effectively saying that at step two ofthe Batson process, the reasons must be articulated by the State and not the court. As such Harris should not be read topreclude the use of unarticulated facts by the trial judge at what is now seen as the third step of the process, pursuant toPurkett and Hernandez.

There is no cause to conclude in this case that the reason given by the judge was intended to supplement the reasons givenby the State at stage two, as those reasons were facially race-neutral. Rather the reason given by the court (that Felton was asingle mother) was intended to apply to stage three of the Batson process. While the trial judge should have labeled thesteps of the Batson process in order to clarify the record, there is nothing to prevent a reviewing court from providing thosedemarcations where they are supported by the record. Schultz v. Schultz, 297 Ill. App. 3d 102, 106, 696 N.E.2d 1169, 1172(1998) ("a reviewing court is not bound by the reasons given for a trial court's judgment and may affirm on any basissupported by the record regardless of whether the trial court relied on the same basis").

b. Venire Member Gatewood

The defendant next argues that venire member Barbara Gatewood was improperly excused from the jury by the State. TheState explained that it excused Gatewood because she lived near the address of the defendant's girlfriend to which the policewent looking for the defendant, but did not find him. The defendant claims that this reason is pretextual, and in supportargues that it is implausible that Gatewood's performance as a juror could have been affected by her residence near anaddress where the defendant's girlfriend lived and the police went looking for the defendant. We disagree.

Both the State and the defendant cite People v. Peter Sims, 249 Ill. App. 3d 246, 618 N.E.2d 1083, (1993) in which thecourt held that it was improper for the State to excuse a juror because he formerly lived in the same police district as atestifying police officer. The State also cites Peter Sims arguing that the court also noted that it "would be a different case ifdefense counsel moved to dismiss a venireperson who lived in the vicinity of the crime, since such a person might fear hissafety in the community." Peter Sims, 249 Ill. App. 3d at 250, 618 N.E.2d at 1087. See also Andrews, 155 Ill. 2d at 302, 614N.E.2d at 1193 (a juror may be legitimately excused for residing near the scene of the crime or the residence of thedefendant). In this case, the witness doesn't simply live in the vicinity of a testifying police officer, nor on the other hand,does she live near the scene of the crime or the residence of the defendant. Consequently, the facts in Sims are not on allfours from either the defendant's or the State's perspective.

However, on balance we believe the holding in Andrews is applicable, pursuant to the rational articulated in Peter Sims.There the court reasoned that a juror who lives near the scene of the crime might fear for his safety in the community.Likewise, if Gatewood believed that the defendant or his girlfriend frequented her neighborhood, she might have feared forher safety. Additionally, she might have feared retribution if the defendant was convicted. Such fears could very well haveaffected her decision as to the defendant's guilt or innocence. This conclusion is particularly warranted under Purkett, whichwould only vitiate an explanation given by the State if "discriminatory intent [was] inherent in the prosecutor's explanation"(Purkett, 514 U.S. at 768, 115 S.Ct. at 1771) which is clearly not the case here. Thus we do not find reversible error withrespect to venire members Felton and Gatewood.

B. THE UNANSWERED QUESTION FROM THE JURY

Defendant next argues that the trial court erred by failing to respond to a question by the jury asking for a definition of theword "abet" during deliberations and by failing to ever inform him of the existence of that question. He also argues that theerror was not harmless.

The "general rule is that the trial court has a duty to provide instruction to the jury where it has posed an explicit question orrequested clarification on a point of law arising from facts about which there is doubt or confusion." People v. Childs, 159Ill. 2d 217, 229, 636 N.E.2d 534, 539 (1994). "This is true even though the jury was properly instructed originally." Childs,159 Ill. 2d at 229, 636 N.E.2d at 539. "The failure to answer or the giving of a response which provides no answer to theparticular question of law posed has been held to be prejudicial error." Childs, 159 Ill. 2d at 229, 636 N.E.2d at 539. Even ifa term in a jury instruction "has a plain meaning within the jury's common knowledge" the trial court must instruct the jurywhere clarification is requested. People v. Landwer, 279 Ill. App. 3d 306, 316, 664 N.E.2d 677, 684 (1996).

In this case we believe that the jury's question regarding the meaning of the word "abet" posed an explicit question on apoint of law for which they were entitled to clarification. People v. Landwer is on point. The Landwer court held that a trialcourt's refusal to define the word "originated" for a jury was not harmless error where an understanding of "originated" wascritical to the defendant's theory of the case. In Landwer the jury asked for a definition of the word "originated" whichappeared in a jury instruction explaining the defense of entrapment. The court refused to define "originated," and thedefendant was found guilty. On appeal the court reversed, reasoning that the jury's question was one of law, and that therecord indicated that the jury was confused as to the word's meaning. The court further reasoned that because the jury'sunderstanding of "originated" was key to their understanding of the law of entrapment (which was the defendant's onlyviable defense) the error was not harmless.

In this case, the jury requested a definition of the word "abet," the definition of which was central to the defendant's theoryof the case. Defendant claimed that he was not involved in the commission of the alleged crimes, but that he was merelypresent and watched. While the jury instruction contains several words which are virtually synonymous with "abet," if thejury had mistakenly believed that "abet" could encompass less culpable behavior than the other terms, such as being presentat the commission of a crime and doing nothing about it, the defendant's defense was precluded.

However, we cannot conclude that the trial court breached its duty to answer the jury's question. A judge may notcommunicate with a jury which has retired to deliberate, except in open court in the defendant's presence. Childs, 159 Ill. 2dat 227, 636 N.E.2d at 538. Failing to inform the parties about a jury's request is "highly improper." People v. Johnson, 146Ill. 2d 109, 150, 585 N.E.2d 78, 97 (1991). Since "jury deliberations are a critical stage of trial affecting substantial rights, adefendant has an absolute right to be informed of any jury question involving a question of law and to be given theopportunity to participate for his protection in fashioning an appropriate response." Childs, 159 Ill. 2d at 234, 636 N.E.2d at542. See also People v. Courtney Harris, 294 Ill. App. 3d 561, 568, 691 N.E.2d 80, 85 (1998) (the failure of a trial judge toinform the defendant of a note from the jury deprived the defendant of his "constitutional right to be present at and toparticipate in a critical stage of trial").

While the record indicates the court did not contact the defendant's attorneys before the verdict was returned to apprise themof the jury's question, the record is unclear as to the requisite facts and circumstances that would have to be ascertained toestablish why such contact was not made. The record is unclear as to how much time elapsed between the receipt of thejury's inquiry and the return of the verdict. Nor does the record show, aside from the judge's statement that he directed hissheriff to call, what if any attempts were made by the sheriff to contact counsel, what means were utilized to contactcounsel and why such attempts failed. These are all factors which must be considered in determining whether reversibleerror was committed. See, e.g., People v. James Sims, 166 Ill. App. 3d 289, 310-11, 519 N.E.2d 921, 935 (1987) (trialcourt's failure to answer jury's question was not error where the judge was presiding at arguments in the trial of a co-defendant when the question was received, and the judge was not able to confer with the defendant's counsel before averdict was returned by the jury which had posed the question); People v. Chandler, 110 A.D.2d 970, 487 N.Y.S. 887(1985) (finding no reversible error where the trial judge was absent from the courtroom when the jury posed a question andthe judge did not return for 50 minutes, by which time a verdict was returned); People v. Hall, 101 A.D.2d 956, 477 N.Y.S.439 (1984) (finding reversible error where the judge was not able to respond to a jury's note until two hours had elapsed anda verdict was already returned). The burden of preparing a proper record and preserving that record is on the defendant.People v. Green, 288 Ill. App. 3d 402, 407, 680 N.E.2d 753, 757 (1997).

Defendant argues that we do have a record of the lapse of time based on the affidavits of the jurors, however, each of thethree affidavits gives a different time interval. While one says an hour elapsed between the sending of the third note and theverdict, another states that 30 minutes to an hour elapsed, and the third states that 15 minutes passed. Moreover, aside fromthese affidavits of three jurors, there is no record of any additional investigation undertaken by counsel as to parties whomay have had knowledge including the sheriff, opposing counsel or possibly the court reporter. Accordingly, we cannotfind here that the court's failure to inform counsel of the note prior to verdict was unreasonable, nor as previously discussedcould the trial court have responded to the jury without counsel being notified.

We note, however, that the trial court clearly erred in its failure to ultimately notify the defendant of the jury's question atthe earliest opportunity after verdict. The defendant has an absolute right to be informed of the jury's question. Childs, 159Ill. 2d at 233, 636 N.E.2d at 541. We do not believe that this right evaporates when the verdict is returned. Suchinformation, even after a verdict can be significant in that among other things it enables the defendant's attorney toinvestigate and make a record regarding the time and other circumstances that would be helpful in clarifying whydefendant's counsel was not notified of the note prior to the verdict.

In this case, however, in spite of this violation of the defendant's right to be informed by the trial court, we must concludethat the error was harmless. The record is clear that the defendant in fact discovered the note before he made his motion fora new trial, which would point to the actual discovery of this note well within the thirty-day period following the verdict.The record is further clear that the motion was not argued until several months later, giving the defendant ample time andopportunity to investigate and make a record of the circumstances prevailing at the time the jury question was sent.

C. THE PRIOR CONSISTENT STATEMENTS

Defendant lastly argues that the questioning of Jenkins by the State and the State's subsequent comments in closingargument created a prejudicial inference that Jenkins made prior statements to the police which were consistent with hertrial testimony, and that he was thus denied a fair trial. In support, the defendant argues that the prosecutor asked Jenkins ifshe told the police in 1993 what she had "told us today." After the defense objected, the State rephrased the questionwithout eliciting any ruling on the objection from the court and asked Jenkins if she talked to the police about herknowledge of the case. Over the defendant's objection, the judge ruled that she could answer yes or no, and she answered"yes." Finally, the State argued during closing arguments that Jenkins told the jury "the same truth she told police" shortlyafter the crime.

The colloquy between the Court and the parties follows: