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FOURTH DIVISION
December 30, 2004

Following a jury trial, defendant Timothy Gallano was convicted of first-degree murder andconcealment of a homicidal death and sentenced to concurrent prison terms of 60 years and 5 years,respectively. He contends on appeal that (1) he was denied his right to a unanimous jury verdict when thetrial court dismissed a juror during deliberations after the juror had expressed to the court his reasonabledoubt as to defendant's guilt; (2) the trial court erred in allowing a witness to invoke his fifth amendmentright against self-incrimination without conducting a hearing to determine whether he had a valid basis forinvoking that right; and (3) his 60-year sentence for first-degree murder was excessive. For the followingreasons, we reverse defendant's convictions and remand for a new trial.

BACKGROUND

The following facts were adduced at defendant's trial. Arlene Bravo testified that on September 20,1999, her daughter, Stacy Bravo, left their home at 9:30 p.m. to work at a local bar, and that was the last timeArlene saw Stacy alive. Stacy's brother, John Bravo II, testified that he was introduced to defendant in earlySeptember 1999 as Stacy's boyfriend. On September 25, 1999, John became alarmed when Stacy did notappear at her cousin's wedding. The following Tuesday, John saw defendant in the parking lot of a local barin Blue Island getting out of Stacy's car. When John asked defendant about Stacy's whereabouts, defendanttold John that he had seen Stacy the Friday before the wedding, that she had gone to a party with a girlfriendand never came back, and Stacy lent him the car to run errands before she went to the party with hergirlfriend.

The next day, John went with his father to Jack Moretti's house, where defendant was living at thetime, to pick up Stacy's car. John asked defendant again if he had heard anything from Stacy and defendantreplied that he had not heard anything, and had not seen her since the Thursday before the wedding. Johnconfronted defendant with the discrepancy because defendant had previously told John that the last time hesaw Stacy was the Friday before the wedding. Defendant responded that he could not remember if it wasThursday or Friday, and could not remember the girlfriend's name that she went out with that night. Johnfurther testified on cross-examination that he was aware of Stacy's drug problem, and that he knew she hadreceived treatment through a drug rehabilitation program. He denied that she ever acted aggressively orviolently when he observed her using drugs.

Hope Bravo, Stacy's former sister-in-law, testified that the Wednesday before the wedding, onSeptember 22, 1999, she was working at a local bar in Blue Island. At about midnight, she saw someonedriving by the bar in Stacy's car. Hope thought it was unusual because Stacy should have been working atthat hour. Shortly thereafter, defendant came into the bar, flailing his arms around, asking "where is Stacy,"in an animated voice. Hope thought it was odd that defendant did not know where Stacy was because he andStacy were inseparable. When Hope said to defendant, "what did you do to her," he was extremely nervousand sweating. Defendant looked her in the eye and began to cry. He kept repeating, "I am sorry. I am sosorry." Defendant kissed Hope on the forehead and immediately left the bar, got into Stacy's car, and droveoff. On cross-examination, Hope testified that she did not contact police after defendant left the bar. Shealso testified that she was familiar with Jack Moretti. He was known around town because of his appearancewhich she likened to Jerry Garcia. On occasion, she saw Moretti and defendant at the bar where Stacyworked. Hope saw Moretti driving Stacy's car the week after defendant spoke to Hope.

Arlene Bonta testified that she lived on a farm in Mokena, Illinois. She had known defendant forabout 25 years, and he had lived with her from 1993 to 1994. In the fall of 1999, Bonta received a telephonecall from defendant, asking her if he could store a motorcycle frame and some parts in her barn. Two weeksafter the phone call, defendant arrived at Bonta's farm with a motorcycle frame and a blue barrel. The barrelwas too heavy for defendant to carry and Bonta's son helped defendant move the barrel into the barn. Afterthe barrel was unloaded from defendant's trailer, Bonta's dog was sniffing the barrel. Bonta's son alsotestified that the barrel had an odor. Defendant told them that the dog was probably sniffing the barrelbecause a dead possum was thrown in there by his girlfriend who was not happy with him. Bonta furthertestified that defendant returned to her farm in the summer of 2000 with Moretti, whom she described as"scary looking." At that time, they picked up the motorcycle frame, but left the barrel behind.

Sergeant Tom Wetherald of the Illinois State Police testified that on January 31, 2002, he wasassigned to assist with the missing persons case of Stacy Bravo. He accompanied Moretti, who was incustody at that time for passing bad checks, to Moretti's residence in Blue Island. When Wetherald enteredthe basement, he saw what he believed to be dried blood on the walls and the floor boards. The material onthe floor boards was later determined to be human blood. On February 4, 2002, Wetherald and other officerstook defendant into custody, and accompanied him to the Bonta farm where Wetherald observed a blueplastic 55 gallon drum. The drum was then taken to the coroner's office.

Illinois State Police biologist, Dan Gandor, testified that he took DNA samples from the floor boardsin the basement of Moretti's residence, as well as swabs from Arlene and John Bravo. The parties stipulatedthat the blood on the floorboards belonged to the biological daughter of Arlene and John to a degree of99.99% certainty.

Doug Hoglund, Deputy Chief of the Blue Island Police Department, testified that he had informationthat Moretti and defendant were involved in Stacy's disappearance, and that Moretti's arrest for possessionof stolen checks lead police to defendant. Moretti consented to a search of his home where the policerecovered explosives, drug paraphanalia, marijuana, shotguns, ammunition, mercury, and a passport. Defendant did not reside there at the time these items were discovered. Hoglund further testified that heinterviewed defendant following his arrest. After advising defendant of his rights, defendant agreed to speakwith him. Defendant was informed that the police were investigating Stacy's disappearance. According toHogland, defendant initially told him that he and Stacy were no longer dating and that he did not know of herwhereabouts. When Hoglund told defendant that police had information that defendant did know whathappened to Stacy, defendant "hung his head" and began to cry.

Defendant then told Hoglund that he was living with Stacy in September 1999. When she arrivedhome from work one morning, they had an argument and Stacy pointed a gun at him. He took the gun awayfrom her and shot her in the head more than once. After he shot Stacy, Moretti came out of a bedroom wherehe had been sleeping. He and Moretti put Stacy's body into a large plastic bag and left it in the trunk ofStacy's car for a few days. They then put the body into a blue 55 gallon plastic drum, filled it with cementand put motorcycle parts on top of it. A few days later, defendant took the barrel to the Bonta's farm. Defendant then accompanied the officers to the Bonta farm where the barrel was discovered.

Assistant State's Attorney Terry Reilly testified that on February 5, 2002, he interviewed defendantin the presence of Officer Hoglund. Defendant gave a videotaped statement after being advised of andwaiving his rights. ASA Reilly testified that there was a difference in the oral statement that defendant gaveto Hoglund and the videotaped statement he later made. Reilly stated that in the oral statement to Hoglund,defendant said that he took the gun away from Stacy and shot her several times. When he spoke with Reillyin the videotaped statement, Defendant said that Stacy had the gun, there was a struggle for it, and the gunwent off. Reilly also testified that defendant told him that he did not mean for the incident to happen.

Forensic Pathologist Bryan Mitchell testified that on February 5, 2002, he conducted an autopsy ofStacy Bravo's body. Stacy died as a result of multiple gunshot wounds to the head, causing laceration of thebrain and fracturing of the skull. His examination revealed a gunshot entrance wound on "the right side ofthe head just above and behind the right ear." The path of the bullet was from back to front. There were noexit wounds. He observed a keyhole shaped wound suggesting that there had been more than one bullet thatentered the area. Mitchell removed what appeared to be five pieces of bullet jacketing and two pieces of leadfrom the skull. He explained that when multiple bullets are fired into the same area, the bullets will collideinto each other causing the bullets to fragment inside the skull. According to Mitchell, the gun was firedright up against her head. He had no opinion as to whether the wounds were as a result of a struggle or anexecution. With the exception of the skull, he found no evidence of injury to any other part of her body.

Wetherland testified for the defense regarding a report that he generated during the investigation. Therein, he stated that '"[defendant's] initial statements indicated that Bravo was shot during a struggle with[defendant]."' The parties also stipulated that Stacy received out-patient drug treatment and counselingbetween April 1997 and October 1997, and that during that time, she attended 30 counseling sessions.

Defendant testified that he met Stacy and Moretti through mutual friends. While defendant lived inBourbonnais, he would often stay with Moretti at his apartment. According to defendant, he "looked up" toMoretti, but soon realized he was a drug dealer who was "not on the level." Defendant did not do drugsbecause he had a commercial driver's license and was required to participate in drug screening. Defendanthad known Stacy for six months before the shooting. She would often stay overnight at Moretti's place. They very seldom had disputes, and when they did, they talked very easily and openly about them. Defendant stated that he found out that Stacy was taking drugs. They discussed the problem, and she agreedthat she would not do them anymore. According to defendant, Moretti made Stacy sell cocaine at herworkplace and Stacy was not happy with that arrangement. Defendant testified that he confronted Morettiabout the situation, and Moretti told him it was none of his business. According to defendant, Moretti wasalways asking Stacy about money, and at the time of her death, she owed Moretti $4,000.

Defendant further testified that on September 20, 1999, he was at Stacy's parents' house earlier inthe day. Stacy went to her pool league and a friend of his picked him up. At about 10 p.m., he was sitting inthe basement watching television. Moretti was in the next room asleep. Stacy came home with anotherwoman and went into Moretti's room. They had a conversation, but he could not hear what they werediscussing. Then Stacy came out and had a conversation with the woman. The two women were smokingmarijuana. At some point, the other woman left. Stacy was upset and was acting out of character. He hadonly seen her behave that way once before when she and Moretti got into a verbal confrontation and shethrew some bottles around the bar.

According to defendant, Stacy then walked up to him with a notebook in one hand and a gun in theother hand. She pointed the gun at defendant about two feet away from him. Defendant reached up andgrabbed the hand holding the gun. He pushed Stacy back into some chairs in front of a workbench. "Itseemed like when she hit the chairs, the gun went off." He did not know how many times it went off. Hishand was never on the trigger. After the gun discharged, Moretti came in and told defendant they had to getrid of the body because Moretti had drugs in the house and did not want the police there. Defendant did notwant to have anything to do with hiding the body. He reluctantly agreed to help Moretti put Stacy's bodyinto a plastic bag and they placed her in the trunk of her car. According to defendant, Moretti cleaned theblood off the basement floor and was upset because defendant did not help him.

Defendant drove to see his friend who was a training officer for the Mokena police department. Hewas not at home. Defendant attempted to contact him four or five times over a period of time to no avail. The body remained in the trunk of the car for a few days. He and Moretti then placed the body into a 55gallon plastic drum belonging to Moretti. They filled it with cement and motorcycle parts and left on the sideof the house for a few days. It was defendant's idea to bring the drum to the Bonta farm. Defendant furthertestified that he did not intend to shoot Stacy and did not have the gun in his hand until after she had beenshot. He believed the gun was the same one that he had seen Moretti with in the past for protection.

Following deliberations, the jury found defendant guilty of first-degree murder and concealment of ahomicidal death. He was subsequently sentenced to a concurrent prison term of 60 years and 5 years,respectively. His motions for a new trial and for resentencing were denied.

ANALYSIS

A. Discharge of Juror Litke

Defendant contends that he was denied his right to a fair trial when the trial court dismissed a jurorduring deliberations who had expressed reasonable doubt. The following facts are relevant to a dispositionof this issue. Prior to trial, the court conducted voir dire by questioning potential jurors, and by giving theState and defense an opportunity to submit questions and exercise challenges. Each juror was asked, "wereyou ever arrested, charged with, or convicted of a crime other than a minor traffic offense?"

During the process, the State made challenges for cause as to potential jurors who were untruthfulwith respect to their criminal backgrounds. The trial court granted the State's motion to dismiss twopotential jurors for cause. Thereafter, the State also made a motion to dismiss prospective juror Todd Atkinsbecause, although he admitted that he had an arrest for mob action in 1986, in March of 1996, he was alsocharged with battery, and in January 1997, he was charged with delivery of cannabis. The trial court deniedthe motion for cause stating, "[h]e did indicate sufficiently he has been in fact arrested. The fact that he hasmany, many more is, well, just icing on the cake." He was then dismissed by the State on a peremptorychallenge.

After 12 jurors were empaneled, the court sought three alternate jurors. The prospective alternateswere asked, "were any of you or anyone close to you ever a victim of a crime before?" Prospective alternateFrank Litke was questioned individually by the court as follows:

"A.[Mr. Litke] My son's mother was murdered. My two sons.

Twelve years ago.

Q. Was anyone arrested as a result of that?

A. Yes.

Q. Were you in any part of the court proceedings in any way, sir, such as a witness?

A. No.

Q. Now the fact that someone who was related closely was the victim of a homicidein the past, would that have any bearing or impact upon you whether or not you could be afair and impartial juror in this case, sir?

A: No.

Q. If you were selected as a juror in this case, Mr. Litke, could you rule onlyaccording to the evidence you hear, the law that I would give you, be able to give both sideshere a fair trial?

A. Yes."

The court next asked the panel: "were any of you or anyone close to you ever arrested for, charged with, orconvicted of a crime other than a minor traffic offense?" Mr. Litke apparently raised his hand and stated asfollows:

"Q. And Mr. Litke?

A. Well, I got to go back to the - - my children were kidnapped, too, eight years ago,by some in-laws.

Q. In-laws, that goes back to the victim question.

A. Yes.

Q. The in-laws, were there criminal charges placed on them?

A. No. I went to the Supreme Court of Montana. I had to go through two states. They were trying to, they put a false front of like they had any kind of custody rights to mychildren.

Q. I understand, this was a -

A. Eight year process.

Q. -- a custody situation which was bordered on the criminal, is that what youconsider it to be?

A. Yes. They took advantage of their mother's death and shipped them out of Statereal fast before I could find out what's going on.

Q. Would this have any bearing on you, again, Mr. Litke, whether you would be fairand impartial in this case?

A. No."

Later, the court questioned each potential alternate individually. Litke indicated that he was 35,married and unemployed with three children. He stated that he would not give a police officer any more orless weight than any other witness, and that he did not hold any bias or prejudice against a person chargedwith a crime. He was then asked about his ability to be fair and impartial and whether he would could sign aguilty or not guilty verdict form. He responded that he could be fair and impartial, and could sign a guilty ornot guilty form depending on whether the State proved defendant's guilt beyond a reasonable doubt. Thecourt went on to question other potential alternates and then Litke volunteered the following information:

"A. But you passed up, when I was 18 years old, I pleaded guilty to taking a surveylens out of the back of a pick up truck.

Q. Alright, I'm sorry, I guess I just left that open out there. I went with the otherindividuals.

Q. Alright, when you were 18, obviously, the matter is all done with in court at thistime. The fact that you were once arrested and convicted of an offense in the past have anybearing or impact upon you whether or not you could be fair and impartial?

A. No."

The State had no questions for the potential alternates. The State used its one and only peremptory challengeon prospective alternate Catrina Stubbs. The defense used its one and only peremptory challenge onprospective alternate Patricia Jaroszewski. Litke was then empaneled as the first alternate juror. Subsequently, in the middle of the trial, one of the 12 jurors informed the court that she was having difficultysecuring child care and did not foresee the problem resolving. The trial court excused the juror, and replacedher with alternate Litke.

On March 28, 2003, at the close of the case, the alternate jurors were dismissed and the 12 jurorsbegan deliberating at 2:55 p.m. At about 6:10 p.m., approximately three hours later, the court received anote from the jury room as follows:

"I Frank D. Litke, Jr., do not feel comfortable signing a guilty verdict of firstor second degree murder and everyone else does. My mind cannot bechanged because I feel some reasonable doubt."

The note was signed by Litke and the jury foreman, Joi Bauers. After receiving the note from the trial court,the State proceeded to construct a background check of Litke "based on our suspicions after his name cameout, that he was a holdout and hearing what he had said about his - the mother or, sorry, the mother of hischildren being murdered." Based upon the information it received, the State argued that Litke lied during thecourse of voir dire and moved to have Litke dismissed from the jury. The defense objected. The courtexpressed concern regarding the potential perjury, and then granted the State's request that the jurors stopdeliberating.

The State then indicated that its research revealed information based upon statements Litke gaveduring voir dire regarding his supreme court case in Montana. That case was a published opinion andindicated that Mr. Litke was arrested on January 3, 1988, and subsequently incarcerated in Arizona stateprison as a result of a revocation of probation for a previous theft conviction.⁽¹⁾ Litke was imprisoned for thatoffense for five years from March 1988 to January 1993.

In addition, the State conducted an FBI search which indicated that Litke had been arrested seventimes. On February 23, 1987, he was arrested for violation of a court order and armed burglary. The Statefurther informed the court that it had contact with the Maricoppa County prosecutor's office in Arizona. Through Litke's state identification, it was discovered that he was arrested in July 1987 for assault andinterference with judicial procedure. In December 1987, he was arrested for theft. On February 20, 1987,he was arrested for criminal trespass, and February 14, 1987, he was arrested for interference with judicialprocess and armed robbery. On April 25, 1987, he was charged with a violation of his probation andsentenced to five years' imprisonment. Mr. Litke was also arrested in January 1988 for burglary toolpossession and on August 6, 1987, for obstruction of court, kidnapping, and aggravated serious injury. Thecharges were later dropped after he aided in the case as a State's witness.

Based upon Litke's untruthfulness, the State argued that he could not be trusted to follow his oathand moved to excuse Litke from the jury. In response, the defense reminded the court that it refused todismiss prospective juror Atkins for cause when he was not forthcoming with all of his prior arrests. Thecourt stated that instance "was nothing of the magnitude and degree of what I have heard regarding Mr.Litke."

The court then reopened the voir dire of Litke. The following questions and answers were given:

"Q. During voir dire examination, you made several statements to the judge when hegave you questions, correct?

A. Yes.

Q. And you indicated that you were involved in a child custody dispute, correct?

A. Yes.

Q. And this child custody dispute originated out of - was filed in Montana, correct?

A. And Arizona first.

Q. Arizona first. Then the case ended up in Montana, correct?

A. Yes.

Q. Is that yes?

A. Yes.

Q. In Montana, the Supreme Court of Montana heard this case and published anopinion, correct?

A. Yes.

Q. And when they did that, your name is Frank D. Litke, correct?

A. Junior, yes.

Q. Frank D. Litke, Jr., okay. And in that case what happened was your children[were] taken while you were in prison in Arizona, correct?

A. Yes.

Q. In fact, you were in Arizona prison for five years, correct?

A. Yes.

Q. Okay. And that was for violation of a theft charge, correct?

A. Yes.

Q. And besides that charge, you had six other arrests in the state of Arizona, correct?

A. Yes.

Q. Besides that one?

A. Yes.

Q. And you served your prison sentence from - you were admitted to the ArizonaDepartment of Corrections on March 11, 1988, correct, approximately that time?

A. Yes.

Q. And then you were released January 2, 1993, correct?

A. Yes.

* * *

THE COURT: Mr. Litke, you are excused from this jury, sir."

At that time, the jury was informed that one of its members was dismissed. The jurors were senthome over the weekend and were admonished not to discuss the case with anyone and to return on Monday. The court additionally entered an order requiring the sheriff to contact the alternate jurors who had beenpreviously released and to have them return to court on Monday and not discuss the case with anyone.

On Monday, the State argued that the reason it made its motion for Litke to be removed was that"Mr. Litke would be manifestly biased in this case; that being the fact that not only did he lie about hisbackground, but included within his background were material elements that could be a bias for bothpossibly the defense and the State in this case." Defendant then objected to the case continuing and statedthat he was renewing his motion for a mistrial. The court, in considering defendant's motion for a mistrial,stated in pertinent part,

"It was the Court's position that Mr. Litke was not truthful to the Court. Now if Mr. Litke, as my question to him did indicate this, the Court wouldhave, in fact, been able to question him as well as each of the sides herewhether or not because of his extensive background, not only being in thepenitentiary, but his extensive arrest background and other problems whetherthat would have any affect [sic] upon him being a fair juror. This Court aswell as the parties were deprived of this because Mr. Litke - because of hisuntruthfulness and deceit, and, as such, the Court felt obligated to removehim from the jury. Now, this by itself does not warrant a mistrial at thisjuncture, and the Court will deny a mistrial at this juncture."

Janet Streck, a released alternate juror, returned to court on Monday as the court requested. She toldthe court that she had not discussed the case with anyone. She then took her oath. The court instructed thejury that Litke had been released from his duty as a juror, but that the reason for his dismissal "has nothing todo with the case or any prior deliberations." He then asked the remaining 11 jurors if any of them could notcontinue to deliberate in light of anything that Litke may have said or done during deliberations. None of thejurors raised his hand. The court then informed the jurors that Ms. Streck would now be deliberating withthem, and that they were to begin their deliberations anew. The jury deliberated for one and one-half hoursbefore it returned with a guilty verdict for first-degree murder and concealment of homicidal death.

In Illinois, a defendant has a right to a unanimous jury verdict. Ill. Const. 1970, art. I