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FIFTH DIVISION
August 16, 2002

No. 1-99-3356

JUSTICE QUINN delivered the opinion of the court:

Defendant Tyrone Thornton was charged, along with codefendantMelvin Scott, with six counts of aggravated kidnaping, one count offorcible detention (720 ILCS 5/10-4(A)(West 1996)), three counts ofaggravated battery (720 ILCS 5/12-4-(a), 12-4(b)(8), (West 1996)), onecount of aggravated unlawful restraint (720 5/10-3.1(a)(West 1996)) andone count of unlawful restraint (720 ILCS 5/10-3)(West 1996)).

Following a jury trial, Thornton was convicted of two counts ofaggravated kidnaping (720 ILCS 5/10-2(a)(1), (a)(3) (West 1996)). He wassentenced to 10 years in prison. On appeal, defendant asserts that hisconvictions must be reversed because (1) he was prejudiced when one of thejurors was interviewed in camera during jury deliberations; (2) hisconstitutional rights were violated when the court interviewed a jurorregarding her health and this interview took place in the presence of onlythe State and defense counsel; and (3) the evidence was insufficient tosupport his convictions. For the following reasons, we affirm.

At trial, James Fullilove (the victim) testified that on August 30,1997, at around 7 p.m. he was sitting in the backseat of a car parked infront of 6224 S. Vernon in Chicago, Illinois. At approximately 7:15 p.m.,he saw codefendant Scott pull up in his car and block the car in which hewas sitting. Defendant Thornton then got out of Scott's car and openedthe door of Fullilove's car and pulled Fullilove out of the car. AfterFullilove was out of the car, Thornton started punching him in the face,and the victim and Thornton fought for about 5 or 10 minutes. The victimtried to run and defendant tripped him. Defendant then pulled thevictim's overalls off and the victim was left wearing underwear, socks,and one shoe.

After that, codefendant got out of his car, walked over, put thevictim in a "full Nelson," and walked the victim through a gangway thatled to an alley. As Scott was doing that, Thornton drove Scott's cararound through the alley. Scott then forced the victim into the backseatof the car. Thornton then began to drive while the victim, Scott, andanother man, named Hickey, were in the backseat. During the car ride,Hickey, held the victim's head down so that he could not see where he wasgoing while Scott punched the victim and told him that he owed him moneyfor drugs. Thornton stopped the car in front of an abandoned three-flatbuilding on 48th and Michigan.

After the car stopped, Scott took the victim out of the car in a"full Nelson" and brought him up to the third-floor apartment of thatabandoned building. Once inside, the victim saw six or seven other peoplein the apartment. Thornton then punched the victim in the face a coupleof times and then the other men in the apartment started punching, kickingand beating the victim. The victim heard someone on the phone while hewas still being beaten. Thornton and Scott were still in the apartment. After the phone call, Thornton and Scott left the apartment while theother men continued to beat the victim.

About 30 or 40 minutes after Scott brought the victim into theapartment, someone came inside and said the police had Scott outside. Theother men then stopped beating the victim and brought him out into thehallway. One of the men then kicked the victim down three flights ofstairs. When the victim landed at the bottom of the staircase, he got upand walked outside, where he saw Detectives Carlson and Golab. The victimthen saw Scott inside a police car and told the detectives that Scott wasone of the men who kidnaped him. The detectives took the victim to thehospital where he remained until the next day. The victim's face wasfractured on the right side, he had a broken rib, and his "kidneys weremessed up."

Chicago police officer Shayna Fitzpatrick testified that at about7:30 p.m., she went to 6224 S. Vernon in response to a radio broadcastregarding a kidnaping in progress. When she arrived, she met with thevictim's brothers, Samuel and Kenneth. After speaking with them, she wentwith the victim's brothers to the victim's house at 6223 S. King Drive. While inside the house, Samuel received a phone call. Officer Fitzpatricktalked with Samuel about the phone call and as a result of thatconversation, she sent a flash message with details about the kidnapingover the radio.

Chicago police detective Marie Patrice Carlson testified that she wasworking with Detective Golab on the evening of August 30, 1997. Afterhearing the flash message that Officer Fitzpatrick sent over the radio,she and Detective Golab went to 6223 S. King Drive. Once there, DetectiveCarlson spoke with Officer Fitzpatrick and the victim's brother, Samuel. Samuel then got into the police car with Detective Carlson. DetectiveCarlson heard another message while inside the car that a car matching thedescription of codefendant's had been stopped at 527 E. 61st Street. Inresponse to that message, Detective Carlson, Detective Golan and Samueldrove to that location. When they arrived, Thornton and Scott weresitting in the back of a police car.

Another police officer brought Scott over to Detective Carlson andDetective Golab's car while Samuel exited the car. Detective Golan thenread Scott his Miranda rights. Scott first denied knowing about thevictim's kidnaping and then said he might know where the victim was. Scott then directed the detective to 48th and Michigan. Detective Golabstopped the car at the southwest corner and then Scott told DetectiveCarlson to call over a teenaged boy who was walking down the street. Whenthe boy reached the car, codefendant told the boy to tell "them" that hewas with the police. The boy then walked across the street and into thebuilding where the victim was.

Detective Carlson testified that shortly thereafter the victim cameout of the building, wearing only a pair of blue boxer shorts with a tornwaistband, white socks, and one shoe. The victim had swelling andcontusions on his face, his right eye was swollen shut, and the victim'swhole body was shaking. Detective Golab went to help the victim whileDetective Carlson was in the police car with Scott.

The victim then brought Detective Carlson, Detective Golab, and someother police officers up to the third-floor apartment where Thornton andScott had brought him. Detective Carlson then called for an evidencetechnician who came and took photos of the apartment. After that, thedetectives brought the victim down to the police car and were going totake the victim to Area Two for an interview when the victim began tocomplain of pain in his ribs and lower back. The police took him to thehospital.

Assistant State's Attorney (ASA) James Navarre testified that onAugust 31, 1997, he met with defendant in an interview room in Area Twowhile Detective Golab was present. ASA Navarre told defendant that he wasa prosecutor and a lawyer but he was not defendant's attorney. ASANavarre advised defendant of his Miranda rights. Defendant said heunderstood and agreed to talk to ASA Navarre. After talking with ASANavarre and Detective Golab for about a half hour, defendant agreed togive a handwritten statement.

Defendant said that he had known Scott for about 10 years. Defendantalso said that he knew Fullilove, who had owed Scott $550 for couple ofmonths. Scott had been trying to get the money from the victim but everytime the victim saw Scott, the victim, would run.

On August 30, 1997 at around 7 p.m., defendant was riding in thefront seat with Scott in Scott's car while a person named William was inthe backseat. Scott told the defendant that they were going to drive by62nd and Vernon to see if the victim was there so that Scott couldcollect the money the victim owed him. When they arrived, Thornton sawthe victim out on the street with his brothers. Thornton said they firstdrove around the block and then he got out of the car and walked up andgrabbed the victim so he could not run.

Thornton said that the victim looked at Scott and he could see thefear in the victim's eyes. The victim then tried to run, so Thorntongrabbed him and they "started tussling with each other" as the victimtried to run. Defendant hit the victim in the right eye and the victimkicked defendant. Defendant held onto the victim's overalls, which cameoff, and as defendant pulled the victim's overalls, the victim's left shoecame off also.

Defendant said that Scott got out of the car and the victim told hisbrother to go get the money that the victim owed Scott. When the victim'sbrother went to get the money, Scott stayed with the victim. Defendantthen got into Scott's car and drove around the block. When defendant camearound the block, Scott had the victim in a "full Nelson." Defendantstayed in the front seat and William stayed in the backseat as Scottforced the victim into the back of the car.

Defendant then drove to 4839 S. Michigan while Scott was in thebackseat and was asking the victim where his money was. When they arrivedat 4839 S. Michigan, William, Scott and defendant took the victim to thethird-floor apartment. Once inside, defendant hit the victim in the ribs. William then used Scott's phone to call the victim's brother about gettingthe money the victim owed Scott. Defendant heard William say that Williamwas going to call back in five minutes. A couple of Scott's friends werealso in the apartment.

After William got off the phone, defendant and Scott drove to 61stand King Drive to pick up the money from the victim's brother. Thevictim's brother was not there when they arrived so defendant used Scott'sphone to call the victim's brother to see where he was with the money. Defendant said he dialed a phone number in the 312 area code twice tocall the victim's brother but heard a busy signal each time. Defendantdid not know that the area code he should have been dialing was 708. Asdefendant was walking back to Scott's car, the police came. Thedetectives then arrived and Scott went with them to show them where thevictim was being kept until they got the money.

Defendant took the stand in his own defense. Defendant testifiedthat he was with Scott on August 30, 1997. He saw the victim on the streetand he and defendant began to fight. Eventually they stopped fighting andthe victim and Scott got into Scott's car, which defendant was driving. No one pushed the victim into the car. Defendant was told to drive to48th and King Drive. On the way there, he heard Scott and the victimtalking about money that the victim owed Scott. Upon arrival, Scott, thevictim, and a third man got out of the car and went into a building. Defendant stayed in the car. After approximately 30 minutes, Scottreturned to the car. Defendant asked for ride home. Scott parked the carat 61st and King Drive and police came "from everywhere." The police tookdefendant to Area Two.

Defendant testified that he was at Area Two for almost a full daybefore he was interviewed by an assistant State's Attorney. Defendantasked the police to be allowed to call his lawyer several times but theyrefused. When the assistant State's Attorney questioned the defendant,the defendant lied because he was afraid. Eventually, the assistantState's Attorney told defendant that nothing would come of this incidentand he could go home if he signed a statement. Defendant testified thatthe assistant State's Attorney made up everything in the statement. Defendant admitted that he signed all seven pages of the writtenstatement. The defense rested.

The jury found defendant guilty of two counts of aggravatingkidnaping. Defendant's motion for new trial was denied. After a hearingin aggravation and mitigation, the trial court sentenced defendant to 10years in prison on one count of aggravated kidnaping. This appealfollowed.

ANALYSIS
Juror Separation

Defendant first argues that his convictions must be reversed becauseduring jury deliberations, a juror who complained of being ill was broughtto the judge's chambers. There, she was questioned by the court on therecord in the presence of counsel for both sides but not in the presenceof defendant. The record reflects that the following took place:

"THE COURT: Come on in.

THE JUROR: I don't know if it's something I ate.

THE COURT: The food here, that could be true. Which jury are you on?

THE JUROR: The Tyrone Thornton.

THE COURT: Thornton jury. You are on the jury on deliberating. Do you think that if we stopped deliberations at this time that you would be able to continue deliberating tomorrow?

THE JUROR: I don't know that's possible.

THE COURT: Do you feel like you could continue to deliberate now?

THE JUROR: Oh, God no. I have been getting real nauseous.

THE COURT: Does either attorney have any questions for [the juror]?

THE STATE: No.

THE COURT: You want to go back with your

fellow jurors. We will be with you in a minute, okay?

THE JUROR: Thank you.

DEFENSE COUNSEL: Did he say that they have verdict?

THE COURT: He said one of the jurors knocked on the door.

DEFENSE COUNSEL: That was at the same time this woman is sitting here. You asked her if she could continue deliberating she said God no. Does she need a doctor? I am very worried about the unanimity of the verdict at this point in time.

THE COURT: Well, at this point in time we don't have a unanimous verdict.

DEFENSE COUNSEL: I wouldn't think so.

THE SHERIFF: They say they reached a verdict.  They were signing one of the forms.

THE STATE: Should we give them a few minutes?

THE COURT: Yes. The jury indicated they had reached a verdict. In conjunction based on what transpired in my chambers, I think that it would be prudent to bring them out and question them about the chronology of their reaching a verdict and then see what they have together.

DEFENSE COUNSEL: I agree judge."

Apparently, during the discussions with the ill juror regarding hermedical status and possible ability to continue, unbeknownst to the trialcourt, the remaining jurors continued to deliberate, ultimately reachinga verdict. Once back in open court, the following exchange took place onthe record:

"THE COURT: You may be seated. Mr. Foreman, has the jury reached verdicts in this case?

THE JURY FOREMAN: We have.

THE COURT: Would you give the verdict forms to the sheriff, please. Mr. Foreman, during the deliberations, one of the jurors, * * *who is a member of this jury, knocked on the door and indicated to the sheriff that she wasn't feeling well. I then had her brought into my chambers with the attorneys. While we were speaking to her, the sheriff informed me that there was another knock on the door and someone indicating that the jury had reached a verdict, is that correct?

THE JURY FOREMAN: That's right.

THE COURT: Was [the ill juror] in the room when the jury reached a unanimous verdict?

THE JURY FOREMAN: We have received her at least implicit approval on the verdict. We had unanimously on the first verdict and we were-been working for an hour and a half or two on the second, and we had at least her implicit approval, and there were two other people who had not yet decided on the verdict, but she was not one of those two.

THE COURT: Okay.

THE JURY FOREMAN: So we assumed on their change we were okay to move forward with it, with the verdict.

THE COURT: When [the ill juror] came back into the room, did you verify that with her?

THE JURY FOREMAN: Yes.

THE COURT: [Defense Counsel], would you like to have the verdicts published and the jury polled?

DEFENSE COUNSEL: Yes, Ma'am.

THE COURT: Ask the Clerk to publish the verdicts. I don't want any reaction from the people in the gallery.

THE CLERK: 'We, the jury, find the defendant, Tyrone Thornton, guilty of aggravatedkidnaping, great bodily harm. We, the jury, find the defendant, Tyrone Thornton, guilty of aggravated kidnaping with ransom.'

THE COURT: Ladies and gentleman, at this time the clerk is going to be asking each of you individually a question, and that is, 'were these then and are these now your verdicts?'

* * *

DEFENSE COUNSEL: Your Honor, so the record is completely clear, could you inquire as to which one of the two was the one that was under discussion towards the end?

THE COURT: Which verdict?

DEFENSE COUNSEL: Yes, Ma'am.

THE COURT: Mr. Ingliss, could you answer that question?

THE JUROR: Great bodily harm.

THE COURT: Anything else?

DEFENSE COUNSEL: Could you perhaps ask the foreman what words were used in the jury room to affirm that verdict due to the absence of the one of the members of the jury when that verdict was apparently reached.

THE COURT: Could you repeat that please?

DEFENSE COUNSEL: Yes, Ma'am. Could you perhaps inquire of the jury what words were used to affirm the verdict that was apparently reached when one of the jury members on that one count, great bodily harm, was in your chambers.

THE COURT: I believe that infringes on the secretiveness of the jury deliberations and I will not ask that question.

DEFENSE COUNSEL: Thank you, judge."

Defendant's initial assertion of error based on these facts is thatthe separation of the ill juror from the jury during deliberationsviolated the applicable state statute.

Section 115-4 of the Illinois Code of Criminal Procedure of 1963 (725ILCS 5/115-4 (West 1996)) reads, in relevant part, as follows:

"(l) When the jury retires to consider its verdict an officer of the court shall be appointed to keep them together and to prevent conversation between the jurors and others; however, if any juror is deaf, the jury may be accompanied by and may communicate with a court-appointed interpreter during its deliberations. Upon agreement between the State and defendant or his counsel the jury may seal and deliver its verdict to the clerk of the court, separate, and then return such verdict in open court at its next session.

(m) In the trial of a capital or other offense, any juror who is a member of a panel or jury which has beenimpaneled and sworn as a panel or as a jury shall be permitted to separate from other such jurors during every period of adjournment to a later day, until final submissions of the cause to the jury for determination, except that no such separation shall be permitted in any trial after the court, upon motion by the defendant or the State or upon its own motion, finds a probability that prejudice to the defendant or to the State will result from suchseparation."

Defendant argues that the separation of the juror in the instant case caused prejudice to defendant. Defendant acknowledges that thestandard of review as to the determination of whether a defendant has beenprejudiced is left to the sound discretion of the trial court, based uponthe facts and circumstances of each case and the nature of the actionwhich is alleged to be prejudicial, citing People v. Payton, 84 Ill. App.3d 181 (1980), and People v. Martinez, 45 Ill. App. 3d 939 (1977).

However, defendant urges us to hold that, to the extent that eithersection 115-4(1) or (m) is violated, and the jurors are separated duringdeliberations, a strict reading of the statute requires reversal of any conviction,per se. In support of this proposition, defendant relies uponthe holding in People v. Ritzert, 17 Ill. App. 3d 791 (1974).

In Ritzert, the defendant was convicted of driving while intoxicated. After the jury had deliberated for four hours without reaching a verdict,the trial court asked counsel from both sides what they wished to do.Defense counsel preferred that a mistrial be declared and the prosecutorurged that the jury be allowed to go home and resume deliberations in themorning. The court sent the jury home. The following morning thedefendant objected to the procedure but the trial court noted that noobjections had been raised prior to the jury's release. The appellatecourt reversed the defendant's conviction and found that defendant'sfailure to object to the separation was of no consequence and that, underthe statute, the parties could only agree to such a separation after thejury had concluded deliberations and sealed its verdict. Ritzert, 17 Ill.App. 3d at 795.

Defendant acknowledges that many courts have held that the separationof jurors during deliberations in violation of the statute does not, perse, require reversal, citing People v. Dahlin, 184 Ill. App. 3d 59 (1989),People v. Dungy, 122 Ill. App. 3d 314 (1984), People v. Jackson, 105 Ill.App. 3d 750 (1982), and People v. Martinez, 45 Ill. App. 3d 939 (1977).Dahlin and Jackson specifically declined to follow Ritzert.

Defendant also acknowledges that in People v. Hanson, 31 Ill. 2d 31,41-42 (1964), our supreme court held: "[W]here the separation [of the jurywas] ***by inadvertence or carelessness of the jurors or of the officer,or of both, the verdict will not be set aside unless it is clearly shownthe jurors were operated on in some way to the prejudice of the prisoner.[Citations.]"

This topic has also been the subject of legal commentary. "Where itappears that a separation of jurors after submission of a criminal case tothe jury was with authority of the court and not in violation of a statuteor rule, or in some instances, where the separation was of such temporaryor trivial nature as not to reasonably suggest the likelihood ofprejudice, or where the separation was for a necessary purpose, thedefendant generally has the burden of proving reversible harm." 75B Am.Jur. 2d Trial