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Docket Nos. 97235, 97258 cons.-Agenda 3-November 2004.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant and Cross-
Appellee and Appellee, v. TYREESE ROBERTS, Appellee and
Cross-Appellant and Appellant.

Opinion filed February 3, 2005.
 

JUSTICE KILBRIDE delivered the opinion of the court:

Defendant, Tyreese Roberts, was found guilty by a jury of twocounts of first degree murder (720 ILCS 5/9-1(a)(1) (West 1996))and two counts of aggravated battery with a firearm (720 ILCS5/12-4.2(a)(1) (West 1996)). The circuit court of Cook Countysentenced him to natural life imprisonment for each count of firstdegree murder and 20 years' imprisonment for each count ofaggravated battery with a firearm.

The appellate court reversed defendant's convictions andremanded the cause for a new trial, holding the trial court erred inreplacing a discharged juror with an alternate after deliberations hadbegun. The appellate court did not address defendant's claim that thetrial court erred in denying his motion to quash arrest and suppressevidence. No. 1-01-2612 (unpublished order under Supreme CourtRule 23).

We granted petitions for leave to appeal filed by both the Stateand defendant (177 Ill. 2d R. 315(a)), and the appeals wereconsolidated. In these appeals, we consider whether replacement of adischarged juror with an alternate after a case is submitted to the juryfor deliberations is permissible under Illinois law. We holdpostsubmission replacement of a juror is permissible under limitedcircumstances, and the decision whether to proceed in that manner iswithin the discretion of the trial court. Based on the facts of this case,we find the trial court abused its discretion in replacing a dischargedjuror with an alternate after deliberations began.

I. BACKGROUND

Defendant was charged with multiple offenses stemming from adrive-by shooting. The charges included the first degree murders ofSalada Smith and Joshua Thomas and aggravated battery with afirearm of Robert Carr and Derrick Wandrick.

Prior to trial, defendant filed a motion to quash his arrest andsuppress evidence. Defendant claimed that police officers lackedprobable cause to arrest him and that a statement he made after thearrest should be suppressed as the fruit of the poisonous tree. SeeWong Sun v. United States, 371 U.S. 471, 486, 9 L. Ed. 2d 441, 454,83 S. Ct. 407, 416 (1963). Following a hearing, the trial court foundthe officers had probable cause to arrest defendant for the chargedoffenses and denied his motion.

Defendant's first jury trial resulted in guilty verdicts on twocounts of first degree murder (720 ILCS 5/9-1(a)(1) (West 1996))and two counts of aggravated battery with a firearm (720 ILCS5/12-4.2(a)(1) (West 1996)), but the trial court later granteddefendant's motion for a new trial because he did not receive aballistics report used by the State at trial. Defendant's second trialended in a mistrial because the jury was deadlocked.

This appeal is from defendant's convictions following his thirdjury trial. The jury for defendant's third trial was selected on Monday,March 19, 2001. Twelve jurors and two alternates were selected, andthe jury began hearing evidence the next day. Prior to the presentationof evidence, the trial court instructed the jurors that they wereprohibited from speaking to the parties or any of the witnesses, andthey were required to report immediately any attempt to discuss thecase with them to one of the deputies. The court also instructed thejurors to inform one of the deputies if they experienced any personalproblems or were in doubt as to their rights or duties as jurors.

On the charges at issue, the evidence, in pertinent part, showedthat a van approached Salada Smith, Joshua Thomas, Robert Carr andDerrick Wandrick as they were standing in a gas station parking lot atapproximately 2 a.m. on June 22, 1997. Several gunshots were firedfrom the open sliding door of the van. Salada Smith and JoshuaThomas died as a result of the multiple gunshot wounds they sufferedin this incident. Robert Carr and Derrick Wandrick survived theirgunshot wounds.

Three witnesses at the scene were unable to identify theoccupants of the van. Police officers were later informed that a personnamed Paris Williams may have been involved in these shootings.When the officers located Williams, he informed them defendant wasone of the people involved in the shootings. The officers proceeded todefendant's residence and arrested him. After he was arrested,defendant gave a statement admitting he was the driver of the van.

According to the testimony of Paris Williams, the occupants ofthe van were part of a street gang. Defendant and Michael Phillipswere two of the gang members present when the shooting wasplanned. The intended targets of the shooting were members of a rivalgang.

On Wednesday, March 21, defendant called Michael Phillips totestify. Phillips testified he and defendant were friends and grew uptogether. Phillips admitted he was a gang member, but testifieddefendant did not belong to a gang. Phillips denied having anypersonal knowledge of this incident.

The jury began deliberations at approximately 4 p.m. onThursday, March 22. The one remaining alternate juror was excusedafter being admonished by the court not to discuss the evidence or anyaspect of the case with anyone. Sometime between 5:45 and 6 p.m.that day, the jury sent a note to the court stating:

"Dear Judge:

***, one of our jurors, was contacted by Michael Phillipson Tuesday outside of the courtroom prior to his appearancein court.

She brought this to our attention and we are bringing it toyou for a decision on what course of action if any may benecessary.

*Michael Phillips influenced her thinking in coming to adecision in this case (possibly out of fear)[.]"

The court brought the jurors into the courtroom and instructedthem to stop their deliberations. The court then questioned the juror(hereafter, the excused juror) who had been contacted by Phillipsoutside the presence of the other jurors. The excused juror stated shespoke with Michael Phillips outside the courthouse two days earlier,on Tuesday night. She spoke with Phillips for approximately 25minutes while she was waiting for a ride and Phillips was trying to haila cab. She had never met Phillips prior to this conversation. They didnot talk about the trial, and she did not know why Phillips was there.She did not know Phillips was a witness in the case until he testifiedon Wednesday. She was "shocked" when Phillips was called to testify.The excused juror stated Phillips did not threaten her during theirconversation. She nonetheless felt she could not be fair and impartialbecause she had a conversation with Phillips and he later testified inthis case.

In response to questioning by defense counsel, the excused jurorstated Phillips kept looking at her when he testified and she becamenervous. After Phillips testified, the other women on the jury askedher why she was "looking like that." At that point, the excused jurormentioned her conversation with Phillips to all of the other women onthe jury.

The excused juror stated the jury began deliberating the next day.The jury voted twice after they went into the jury room, and she voted"not guilty" both times. According to the excused juror, the otherjurors knew she was nervous. The other jurors told her that she shouldinform the court about her conversation with Phillips, but they did nottell her that she should be removed from the jury.

The trial court then questioned the other 11 jurors individually.The juror who wrote the note stated the excused juror did not tell himthat Phillips influenced her out of fear. Rather, one of the other jurorssaid that the excused juror was afraid for her life or "something to thateffect." Based on this information, he wrote that Phillips influencedthe excused juror "possibly out of fear."

Ten of the other jurors stated they were aware of theconversation between the excused juror and Phillips, and they did notbelieve Phillips had threatened her. Several of these jurors believed theexcused juror felt some fear or anxiety as a result of her conversationwith Phillips because he stared at her during his testimony and becauseshe and Phillips both lived on the west side of Chicago. Two of thefemale jurors stated the excused juror told them she also encounteredPhillips on Wednesday night in the stairway after his testimony. Theexcused juror and Phillips did not speak to each other on thatoccasion. Each of these 10 jurors stated the conversation between theexcused juror and Phillips would not influence his or her ability to befair and impartial in this case.

The remaining eleventh juror stated she was not aware of thecontents of the note, but she was aware that the excused juror hadspoken to someone and was afraid. She stated her knowledge of thisinformation would not influence her ability to be fair and impartial.

After speaking with the other 11 jurors, the court againquestioned the excused juror. The excused juror stated she was afraidthat she could possibly encounter Phillips in the future because theyboth lived on the west side of Chicago. She indicated she could not beimpartial given these circumstances. At that point, the trial courtdismissed the excused juror from the jury for cause.

Defense counsel moved for a mistrial, asserting the remainingjurors could not be impartial given their knowledge of the interactionbetween the excused juror and Phillips. In ruling on the motion, thetrial court noted there was no evidence that Phillips threatened theexcused juror, the jurors indicated they did not believe Phillips didanything wrong, and each of the jurors stated this event would notinfluence his or her ability to be fair and impartial. Based on thosefindings, the trial court denied defendant's motion for a mistrial.

The trial court then called the 11 remaining jurors into thecourtroom. The court informed them the excused juror had beendismissed by agreement of the parties and the alternate juror would berecalled the following day. The court instructed the jurors that theyshould not discuss the dismissal when they resumed deliberations.

The following morning, the court questioned the alternate juror,who stated she had not discussed the facts of this case with anyone,and she had not formed an opinion about the case. The court thencalled the other 11 jurors into the courtroom, and the jury wasresworn. The trial court instructed the jury to "begin yourdeliberations from the start, to begin them anew." The record does notindicate the time the reconstituted jury began deliberating, but it doesshow the jury found defendant guilty of the offenses at 9:30 thatmorning.

On direct appeal, defendant argued: (1) his confession shouldhave been suppressed because it was the fruit of an illegal arrest; (2)the replacement of the excused juror after submission violated section115-4(g) of the Code of Criminal Procedure of 1963 (Code) (725ILCS 5/115-4(g) (West 2000)) and Supreme Court Rule 434(e) (134Ill. 2d R. 434(e)); and (3) the jury as a whole was biased as a result ofthe conversation between the excused juror and Phillips. The appellatecourt held the replacement of the excused juror after submission wascontrary to section 115-4(g) and Supreme Court Rule 434(e). Thecourt then analyzed two prior Illinois appellate court cases, People v.Hayes, 319 Ill. App. 3d 810 (2001), and People v. Henderson, 45 Ill.App. 3d 798 (1977), that found such an "irregularity" did not requirereversal in the absence of prejudice to the defendant. The appellatecourt found the facts of this case indicated defendant was prejudicedas a result of the juror-replacement procedure. Relying on UnitedStates v. Symington, 195 F.3d 1080 (9th Cir. 1999), the appellatecourt further held replacing the excused juror with an alternate jurorviolated defendant's constitutional right to jury unanimity. Theappellate court therefore reversed defendant's convictions andremanded the cause to the trial court for a new trial. The appellatecourt did not address defendant's other contentions, finding they werenot necessary to the disposition of the appeal.

We allowed petitions for leave to appeal filed by both the Stateand defendant (177 Ill. 2d R. 315(a)), and consolidated the appeals.In appeal No. 97235, the State contends the appellate court erred inreversing defendant's convictions because the substitution of thealternate juror during deliberations did not violate section 115-4(g) orSupreme Court Rule 434(e), and his constitutional right to juryunanimity was not violated by the substitution. Defendant cross-appealed in appeal No. 97235, claiming the juror substitution resultedin a denial of his right to a fair trial by an unbiased jury. In appeal No.97258, defendant contends the appellate court erred in failing toaddress his claim that his motion to quash arrest and suppressevidence should have been granted.

II. ANALYSIS

We are asked to interpret section 115-4(g) of the Code (725ILCS 5/115-4(g) (West 2000)) and Supreme Court Rule 434(e) (134Ill. 2d R. 434(e)). Each provides for replacement of a discharged jurorwith an alternate before final submission of a cause to the jury. Wemust decide whether those provisions allow replacement aftersubmission. The State contends the juror-replacement procedureemployed by the trial court is not contrary to section 115-4(g) or Rule434(e), and that the court acted within its discretion in replacing theexcused juror with the alternate juror because the replacement ensureddefendant received a fair trial by an impartial jury. In response,defendant argues the use of alternate jurors after a case is submittedto the jury is prohibited by section 115-4(g) and Rule 434(e).

We review de novo the construction of a statute as a question oflaw. People v. Bonutti, 212 Ill. 2d 182, 188-89 (2004). In construinga statute, our primary goal is to determine and give effect to the intentof the legislature. Metzger v. DaRosa, 209 Ill. 2d 30, 34 (2004). If wecan determine the legislative intent from the plain language of thestatute, we will give that intent effect without resorting to otherinterpretive aids. Metzger, 209 Ill. 2d at 35. We will not depart fromthe plain statutory language by reading into it exceptions, limitations,or conditions that are in conflict with the express legislative intent.Barnett v. Zion Park District, 171 Ill. 2d 378, 388-89 (1996). Further,a court may not inject provisions that are not found in a statute.Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill. 2d 141, 154-55(1997). The rules of statutory construction also apply to interpretationof our supreme court rules. In re Estate of Rennick, 181 Ill. 2d 395,404 (1998).

Section 115-4(g) and Supreme Court Rule 434(e) allow trialcourts to direct the selection of alternate jurors after impaneling a jury.725 ILCS 5/115-4(g) (West 2000); 134 Ill. 2d R. 434(e). The keylanguage in both of these provisions, for purposes of this appeal, is asfollows: "If before the final submission of a cause a member of thejury dies or is discharged he shall be replaced by an alternate juror inthe order of selection." 725 ILCS 5/115-4(g) (West 2000); 134 Ill. 2dR. 434(e).

The plain language of section 115-4(g) and Rule 434(e) providesfor mandatory replacement of a juror who dies or is discharged beforesubmission of a case to the jury. The replacement of a dischargedjuror after submission is not addressed in any way by these provisions.Certainly, there is no express language in section 115-4(g) or Rule434(e) barring replacement of a juror after submission.

Defendant advances, however, several arguments in support ofhis contention that section 115-4(g) and Rule 434(e) prohibitreplacement of a juror after submission. First, defendant argues thatbecause the statute and rule provide for replacement of a juror with analternate only before submission, the absence of a similar provision forpostsubmission juror replacement indicates an intent to bar thatprocess. Thus, according to defendant, the rule of expressio unius estexclusio alterius is violated by construing the statute and the rule toallow for replacement of jurors after submission.

The maxim expressio unius est exclusio alterius means " 'theexpression of one thing is the exclusion of another.' " Metzger, 209Ill. 2d at 44, quoting Black's Law Dictionary 581 (6th ed. 1990). Thismaxim is simply an aid of statutory construction, not a rule of law, andis subordinate to the primary rule that the legislative intent controls ininterpreting a statute. In re Detention of Lieberman, 201 Ill. 2d 300,319 (2002); Bridgestone/Firestone, 179 Ill. 2d at 153. This maxim isapplicable only to help ascertain the intent of the legislature when thatintent is not clear from the plain language of the statute.Bridgestone/Firestone, 179 Ill. 2d at 153.

The plain language of section 115-4(g) and Rule 434(e)mandates replacement of discharged jurors prior to submission. Thislanguage does not, however, indicate an intent to preclude the use ofalternate jurors after submission. There is no indication from the plainlanguage of these provisions that the legislature intended to governthe entire subject of the use of alternate jurors. Thus, the principle ofexpressio unius est exclusio alterius does not support defendant'scontention because the plain language of these provisions does notindicate an intent to prohibit use of alternate jurors after submission. Defendant also argues section 115-4(g) and Rule 434(e), ascriminal provisions, must be strictly construed in his favor, andnothing may be implied from these provisions beyond their literalmeaning. Like the principle of expressio unius est exclusio alterius,the rule that penal statutes should be construed to afford lenity to theaccused is only applicable where the statute is ambiguous. People v.Hicks, 164 Ill. 2d 218, 222 (1995); People v. Hobbs, 86 Ill. 2d 242,246 (1981). Since the plain language of section 115-4(g) and Rule434(e) is not ambiguous, this aid of construction is not applicable.Moreover, this rule does not assist defendant because a literal readingof the provisions at issue results in an interpretation that they onlyapply to replacement of discharged jurors before submission and donot prohibit postsubmission replacements.

Finally, defendant asserts 14 other jurisdictions have reviewedstatutes or rules similar to section 115-4(g) and Rule 434(e) andfound their provisions prohibit substitution of alternate jurors aftersubmission. A review of the cases cited by defendant for thisproposition reveals that 11 of those cases involved statutes or rulesspecifically requiring the discharge of alternate jurors after submission.See Cantrell v. State, 265 Ark. 263, 266, 577 S.W.2d 605, 607(1979); People v. Burnette, 775 P.2d 583, 586-87 (Colo. 1989);Claudio v. State, 585 A.2d 1278, 1284-85 (Del. 1991); Bulls v.United States, 490 A.2d 197, 200 (D.C. 1985); State v. Wideman, 69Haw. 268, 269, 739 P.2d 931, 932 (1987); James v. State, 14 Md.App. 689, 698-99, 288 A.2d 644, 650 (1972); People v. Dry LandMarina, 175 Mich. App. 322, 328, 437 N.W.2d 391, 393-94 (1989);State v. Hutton, 53 Ohio St. 36, 46, 559 N.E.2d 432, 444 (1990);Brigman v. State, 350 P.2d 321, 322-23 (Okla. Crim. App. 1960);State v. Bobo, 814 S.W.2d 353, 355 (Tenn. 1991); State v. Cuzick, 11Wash. App. 539, 541, 524 P.2d 457, 458-59 (1974). Unlike theprovisions interpreted in these cases, section 115-4(g) and Rule434(e) do not specifically require discharge of alternate jurors aftersubmission. We find this difference in language is critical. A provisionexpressly requiring discharge of alternate jurors after submissionclearly indicates a legislature's intent to preclude the use of alternatejurors after submission. In contrast, the plain language of our statuteand supreme court rule does not indicate an intent to prohibit the useof alternate jurors after deliberations. Accordingly, these authoritiesare of limited persuasive value in construing our statute and rule.

Defendant also cites Sotola v. State, 436 So. 2d 1001 (Fla. App.1983), and Woods v. Commonwealth, 287 Ky. 312, 152 S.W.2d 997(1941), in support of his contention that other jurisdictions havereviewed statutes or rules similar to ours to prohibit postsubmissionsubstitution. In Sotola, the court did not interpret any provision onthis subject. The court stated Florida did not have any statutory orprocedural authorization for postsubmission substitution andconcluded "[i]n the event of timely objection, it should not be done."Sotola, 436 So. 2d at 1009. In Woods, the court interpreted languagethat is not similar to our statute or rule to prohibit postsubmissionsubstitution. Woods, 287 Ky. at 315-16, 152 S.W.2d at 999.

In the remaining case cited by defendant, the Wisconsin SupremeCourt interpreted language similar, but not identical, to that containedin our statute and supreme court rule. See State v. Lehman, 108 Wis.2d 291, 321 N.W.2d 212 (1982). The statute interpreted in Lehmanprovided in relevant part: "If before the final submission of the causea regular juror dies or is discharged, the court shall order an alternatejuror to take his place in the jury box." (Emphasis omitted.) Lehman,108 Wis. 2d at 302, 321 N.W.2d 2d at 217. The statute did notcontain language requiring discharge of alternate jurors at the time thecase was submitted to the jury. The court stated it appeared thelegislature intended the statute to control the entire subject of use ofalternate jurors. Lehman, 108 Wis. 2d at 305, 321 N.W.2d at 219.Therefore, Lehman found the Wisconsin statute did not allowsubstitution of a juror during deliberations. Lehman, 108 Wis. 2d at305-06, 321 N.W.2d at 219-20. The court further held thatsubstitution of an alternate juror during deliberations was reversibleerror absent consent by the defendant to the substitution. Lehman,108 Wis. 2d at 313, 321 N.W.2d at 222-23. In a subsequent case, theWisconsin Supreme Court explained the opinion in Lehman was basedprimarily on the public policy concern that a fair trial requiredparticipation of all jurors in all jury deliberations and postsubmissionjuror substitution violated that policy. State v. Koput, 142 Wis. 2d370, 386-87, 418 N.W.2d 804, 811 (1988).

In this case, we base our decision on the plain language of ourstatute and rule. See Metzger, 209 Ill. 2d at 35 (we will rely solely onthe plain language of a statute if the legislative intent can bedetermined from that language). As previously stated, we find theplain language of our statute and rule does not indicate an intent toprohibit the use of alternate jurors after submission. It is not evidentfrom these provisions that alternate jurors may only be used beforesubmission. Accordingly, we reject the policy rationale in Lehman andadhere to the plain language of our statute and rule.

We also note that when postsubmission substitution is found tobe erroneous, most jurisdictions have not required reversal unless thedefendant was prejudiced by the error. See State v. Sanchez, 129N.M. 284, 291, 6 P.3d 486, 493 (2000) (collecting cases).Accordingly, most courts have found a per se rule of reversal is notnecessary to protect the defendant's right to a fair trial.

In sum, when the language of a statute or rule is unambiguous,the only legitimate function of courts is to enforce the law as written.Bridgestone/Firestone, 179 Ill. 2d at 154. We conclude the plainlanguage of section 115-4(g) and Rule 434(e) applies only to themandatory replacement of a juror before deliberations and does notprohibit postsubmission replacement of a juror.

In the absence of a specific prohibition of postsubmission jurorreplacement, we find this question should be viewed as a matter withinthe trial court's discretion. Matters relating to jury selection andmanagement are generally within the discretion of the trial court. SeePeople v. Metcalfe, 202 Ill. 2d 544, 553 (2002) (deciding a challengeof a prospective juror for cause); People v. Kirchner, 194 Ill. 2d 502,541 (2000) (determining jury instructions); People v. Chapman, 194Ill. 2d 186, 222 (2000) (giving a Prim instruction to a deadlocked juryand the timing of the instruction); People v. Kliner, 185 Ill. 2d 81, 163(1998) (deciding jury's request for transcripts of witness testimony);People v. Cloutier, 178 Ill. 2d 141, 173 (1997) (allowing evidentiaryitems in the jury room); People v. Williams, 164 Ill. 2d 1, 16 (1994)(determining the manner and scope of voir dire examination); Peoplev. Ward, 154 Ill. 2d 272, 305 (1992) (replacing a juror with analternate before submission); People v. Preston, 76 Ill. 2d 274, 283(1979) (declaring a mistrial due to the length of deliberations).

In determining whether the trial court abused its discretion, theprimary consideration must be the potential prejudice to the defendantas a result of the postsubmission replacement. We find our appellatecourt's decisions in Hayes and Henderson instructive in analyzing thepotential prejudice to a defendant in these circumstances. In Hayes, ajuror was replaced by an alternate during deliberations when it wasdiscovered the juror could not adequately follow the evidence becausehe had significant difficulty understanding the English language.Hayes, 319 Ill. App. 3d at 814. The appellate court did not addresswhether replacement of the juror during deliberations was prohibitedby section 115-4(g) or Supreme Court Rule 434(e). Instead, the courtfocused on whether the defendant was prejudiced by the juror-replacement procedure. The court concluded the replacement of thejuror during deliberations, while "irregular," did not require reversalbecause the defendant was not prejudiced by this procedure. Hayes,319 Ill. App. 3d at 817-18. In finding the defendant was notprejudiced, the appellate court noted the alternate juror wasdischarged for only 2