Opinion
No. 1-15-0782
08-24-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOLLIE ROWRY, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County No. 09 CR 660105 Honorable Frank G. Zelezinski Judge Presiding. PRESIDING JUSTICE ELLIS delivered the judgment of the court.
Justices McBride and Burke concurred in the judgment.
ORDER
¶ 1 Held: Affirmed. Trial court did not abuse its discretion in denying motion for severance, as defenses were not antagonistic. After first polled juror stated she had mixed emotions, trial court properly directed jurors to continue deliberations. Trial court's decision not to declare mistrial was not error when juror unequivocally stated she agreed with verdict. ¶ 2 Following a jury trial, defendant Tollie Rowry was convicted of armed robbery and sentenced to 38 years of imprisonment, which included a 15-year enhancement for committing the crime while armed with a firearm, plus a three-year mandatory release period after the sentence is completed. On appeal, defendant argues that the trial court erred in denying his motion for severance based on his codefendant's antagonistic defense. He also claims that the trial court erred in ordering the jury back for further deliberations after polling one juror only, and further erred when it denied a motion for mistrial where that juror later stated the verdicts were hers while crying and shaking her head. ¶ 3 We affirm. The trial court did not err in denying defendant's motion for severance, as defendant and codefendant did not have antagonistic defenses. Nor did the trial court err when it directed the jurors to continue deliberations after the first polled juror stated she had mixed emotions. Finally, after the jury returned from additional deliberations and was polled again, the trial court did not act clearly unreasonably in determining that this juror voluntarily assented to the verdict; though the juror was still emotional, she unequivocally answered "yes" to the question of whether the verdicts were hers.
¶ 4 I. BACKGROUND
¶ 5 A. Defendant's Pretrial Motion for Severance
¶ 6 Defendant moved to sever his trial from the codefendant, Craig Freeman, based on antagonistic defenses. The State opposed the motion, arguing that defendant failed to show how the defenses were antagonistic, having provided no details or specificity as to either defense or the substance of any testimony. The trial court denied defendant's motion.
¶ 7 B. Trial
¶ 8 1. State's Case-in-Chief
¶ 9 a. Derrick Elibasich
¶ 10 The State's first witness was Derrick Elibasich. On December 17, 2008, he drove his wife Andrea Swearengin (who was his fiancée at the time) to a residence at 125th and Honore in Calumet Park, where she worked as a home health care worker. Ten to fifteen minutes later, Elibasich's son met him there, and they went to get lunch. The two of them returned and parked in front of the residence where Swearengin was working. As they sat in the car, Elibasich saw a copper four-door car circling at least three times. The car pulled directly in front of Elibasich's car; both cars were facing east. ¶ 11 Two men got out of the car, one from the passenger side and one from behind the driver, and approached Elibasich's car. When Elibasich rolled down the window, codefendant Freeman punched him in the face. Elibasich started to open his door and defendant pulled out a gun. Defendant pointed the gun two to three inches from Elibasich's face and hit him in the face with the gun. ¶ 12 While defendant held the gun, codefendant Freeman went through Elibasich's pockets. Elibasich testified that Freeman had braids at the time and did not have the gun. Freeman took Elibasich's gold Razr cell phone from his pocket. Freeman then circled around the car and started searching Elibasich's son. Meanwhile, defendant was holding the gun in Elibasich's face. Freeman took a phone and five dollars from Elibasich's son. ¶ 13 Defendant told Elibasich to get out of the car, turn around, and run, but Elibasich refused to leave his son. Defendant and Freeman backed away and returned to their car. Defendant got into the car on the rear passenger side; Freeman got into the front passenger side. The car headed east. Elibasich went to check on his son; he also heard and saw Swearengin in the window. ¶ 14 The police arrived five minutes later. Elibasich told the officer what happened. While Elibasich was with the paramedics, another squad car arrived, and Elibasich identified defendant and Freeman. The officers showed Elibasich property, including his and his son's cell phones, five dollars, and the keys to the vehicle his son was driving. ¶ 15 Throughout the State's examination, Elibasich testified that defendant was the individual with the gun, and that Freeman was the one with braids and no gun. Elibasich was shown a weapon and testified that it was the gun that defendant put to his head. ¶ 16 Codefendant Freeman's counsel first cross-examined Elibasich. He reaffirmed that the gun was concealed when the men got out of the car, and that the gun was not visible as the men approached Elibasich's car, when he rolled down his window, or when codefendant Freeman punched him in the face. Freeman's counsel had Elibasich clarify, and Elibasich again testified, that Freeman was not the individual with the gun. Elibasich also stated that Freeman was the one who went through his pockets. Then Freeman's counsel asked Elibasich which individual got into which seat of the car. When Elibasich again said that the man with the gun got into the rear passenger seat and the unarmed man got into the front passenger seat, Freeman's counsel impeached Elibasich with a prior transcript in which he stated that the armed man got into the front passenger seat, and the unarmed man got into the rear passenger seat. ¶ 17 Defendant's counsel then cross-examined Elibasich, who testified again that the person without the gun got into the front passenger seat. Elibasich also said that the man with the gun was heavy-set. ¶ 18 After Elibasich's testimony, defense counsel renewed the motion for severance based on the antagonistic defenses and asked for a mistrial. Counsel argued that the defenses were clearly antagonistic, because Freeman's defense was that defendant, and not Freeman, was the individual with the weapon, while defendant's defense was that he was not present at the scene at all. The trial court denied the motion.
¶ 19 b. Andrea Swearengin
¶ 20 The State next called Andrea Swearengin. On December 17, 2008, while working as a housekeeper at the home where Elibasich had dropped her off, she witnessed events through the kitchen window. She also saw the copper-colored car, a Ford Focus, circling the block three or four times. She did not feel comfortable and called 911. ¶ 21 She testified that the copper-colored car parked in front of Elibasich's car, and two people got out. One of the men walked towards Elibasich and the other towards his son. She saw Elibasich try to get out of the car, and the man near him pulled a silver gun out of his pants and "stuck it in [Elibasich's] face." The other man struck Elibasich's son in the face, and she saw him emptying his pockets. While on the telephone with the 911 operator, she saw the gun and told the operator that her husband and son were "getting stuck up." The audio recording of her 911 call was played in court and entered into evidence. ¶ 22 Swearengin testified that the gunman had braids and was taller and more muscular than the other man. On cross-examination, she agreed that she had provided only a license plate number of the car to the 911 operator and had not given a description of the men.
¶ 23 c. Corporal Bernadine Rzab
¶ 24 Blue Island police corporal Bernadine Rzab was the first of four police officers to testify for the State. On December 17, 2008, at around 12:30, she received a dispatch regarding an armed robbery a couple of blocks away. The dispatch indicated the suspects were three black males, with one in possession of a gun, in a copper-colored, four-door vehicle. Shortly thereafter, Rzab noticed a vehicle matching the description being followed by two squad cars. She joined in the pursuit, and the vehicle was pulled over. ¶ 25 Two of the men got out of the car and started running. Rzab was able to identify the front-seat passenger, whom she identified in court as defendant. She testified that she saw a shotgun in defendant's hand as he started running and she chased the men. Blue Island police officer Michael Elton was also chasing them. The two suspects turned the corner. As Rzab turned the corner, Elton was in front of her. They chased the men through an alley and a backyard. Rzab saw Elton pointing to a stairwell behind the house, and Rzab saw a muzzle of a weapon laying there. She told Elton to stay there while she continued chasing the men to the front yard of the house. Rzab saw prints in the snow and a partially opened gate at the house next door. She went into a crawl space where she found defendant lying in the corner. Two other officers arrived. Rzab testified that she recognized defendant as the individual who had been in the front passenger seat of the copper vehicle and who had the shotgun as he was running away. Defendant was placed into custody. ¶ 26 On cross-examination, Freeman's counsel confirmed that Rzab took defendant into custody, that she lost sight of Freeman, and did not see the officers who took Freeman into custody. ¶ 27 Defendant's counsel also cross-examined Rzab. She testified that both defendant and Freeman were running away from her in the same direction. She also testified that both men turned a corner and she lost sight of them, but that Officer Elton was in front of her. She continued running west towards Elton and again testified that she saw Elton pointing in the stairwell. She told him to stay there and she kept running.
¶ 28 d. Officer Michael Elton
¶ 29 Blue Island police officer Michael Elton testified that, on December 17, 2008, he responded to a dispatch call regarding an armed robbery. He saw a vehicle matching the description of the car being followed by Sergeant Corrigan. He joined the police pursuit. He also testified that the vehicle pulled over, and two men got out and fled. Elton identified defendant as the individual who emerged from the front passenger seat with a silver-colored shotgun. ¶ 30 Elton pursued defendant, who was 10 to 15 feet in front of him. As they ran into a backyard, Elton shouted to defendant to drop the weapon and toss it. Defendant tossed the weapon into a lower basement stairwell and Elton stayed with the weapon. He also testified that as Officer Rzab came up behind him, he pointed towards the weapon. Rzab continued chasing defendant. ¶ 31 Freeman's counsel did not cross-examine Elton. Defendant's counsel cross-examined Elton, who testified that he turned a slight corner but never lost sight of defendant.
¶ 32 e. Officer David Stone
¶ 33 The State next called Blue Island police officer David Stone, who also responded to the December 17, 2008 dispatch call regarding the armed robbery. Stone drove to Oak and Honore, parked his car, and began to look through yards for individuals. After searching two or three yards, he found codefendant Freeman lying in the snow between a garage and a fence. He arrested Freeman and turned him over to Sergeant Corrigan. ¶ 34 On cross-examination, Freeman's counsel elicited testimony that Stone did not prepare a report regarding the incident, and that Stone did not recover a weapon or property from Freeman. Defendant's counsel did not cross-examine Stone.
¶ 35 f. Sergeant Gerard Corrigan
¶ 36 Calumet Park sergeant Gerard Corrigan testified that he received a radio dispatch on December 17, 2008 regarding an armed robbery, along with a description of a vehicle and the license plate. He drove to the area in one or two minutes, where he saw a car matching the description. Corrigan turned off his lights and siren, followed the car, and called for backup. Police officers from Blue Island and Calumet City arrived as backup. ¶ 37 Corrigan activated his lights and pulled the car over. All three doors opened, and two men from the passenger side got out and fled. Corrigan testified that the individual in the front passenger seat had a shotgun in his hand. He identified defendant in court as that individual. Corrigan also identified Freeman as the individual who came out of the back seat. Corrigan testified that Officer Elton and Officer Rzab pursued the two fleeing men, while Corrigan secured the driver, later identified as Sammy Jackson. ¶ 38 After handcuffing Jackson and placing him in the squad car, Corrigan searched the vehicle and found a plastic bag in the back seat containing a key, a five-dollar bill, and a cell phone. ¶ 39 Defendant and codefendant were brought to Sergeant Corrigan, who placed them in the back of a Calumet Park squad car. Corrigan performed custodial searches. He found a gold Motorola Razr cell phone on Freeman. He searched defendant and found his wallet. Officer Shefcik gave Corrigan the shotgun that Corrigan had seen defendant holding as he fled. The shotgun was loaded with five rounds. ¶ 40 Corrigan then brought defendant and Freeman back to the scene of the incident, where Elibasich identified them as the two men who had robbed him and his son. Corrigan testified that Elibasich identified defendant as the individual with the shotgun who held him up and identified Freeman as the one who went through his pockets. Corrigan showed the cell phone recovered from Freeman to Elibasich, who identified it as his cell phone. Corrigan then showed the key, cell phone, and $5 bill recovered from the back of the vehicle to both Elibasich and to his son, who identified the property as his own. ¶ 41 Corrigan also testified that, at that time, defendant was about six feet tall and weighed over 200 pounds. He stated that Freeman was approximately five feet, eight inches tall and weighed about 160 pounds. He also described Freeman's hairstyle at the time of the crime, which Corrigan said was in braids. ¶ 42 Freeman's counsel cross-examined Corrigan. Corrigan testified that he never saw Freeman with a weapon, and no officer brought him a weapon from the area where Freeman had been found. Freeman's counsel also elicited testimony from Corrigan regarding his police report, which confirmed that Elibasich had identified defendant as the individual who struck him in the face with a gun, and that Elibasich had not told him that Freeman had hit him. He also confirmed that Freeman was the individual with the braided hair. ¶ 43 On cross-examination by defendant's counsel, it was established that Corrigan stated in his report that defendant weighed 160 pounds and that Freeman weighed 165 pounds. ¶ 44 After Corrigan's testimony, the State rested.
¶ 45 2. Defendant's Renewed Motion for Severance
¶ 46 Neither defendant testified or presented any evidence. After closing arguments, Freeman's counsel renewed the motion for severance. He argued:
"[T]he strategies and the arguments and the theory of both legal counsel for Mr. Rowry are contrary to ours. And as demonstrated by the closing arguments, we stepped on each other numerous times; therefore, making an additional prosecutor of the other defendant and counsel in this matter. We ask that your Honor consider it again in light of everything that's happened up to this point, arguments made up to this point, the arguments that were made before the jury and we ask for a mistrial."Defendant's counsel joined in the motion, which the trial court denied.
¶ 47 3. Jury Poll
¶ 48 After the jury returned with its initial verdicts finding defendant and codefendant Freeman each guilty of armed robbery, the jurors were polled. The first juror polled was asked "were these then and are they now your verdicts?" She initially did not respond, then said, "I have to go first?" and then responded, "They wasn't." The trial court asked her, "What do you mean they were not? You signed them." The juror stated she had "mixed emotions." The trial judge immediately sent the jurors back to the jury room for further deliberation. ¶ 49 Both defendant's counsel and Freeman's counsel moved for a mistrial. The motions were denied. ¶ 50 The jury returned sixteen minutes later with its verdicts and again found defendant and Freeman each guilty of armed robbery. Again, the jurors were polled. This time, when the jurors were asked if those were their verdicts, all jurors responded "Yes." ¶ 51 After the trial judge excused the jury, Freeman's counsel moved for a mistrial, claiming that, although the juror's "mouth said, yes, that was her verdict," the juror was shaking her head left to right and crying. Freeman's other attorney further added that another juror leaned over and said something to her and "she more adamantly shook her head no." Defendant's counsel stated that she made the same observations, and that the juror was "shaking her head no as she said yes and putting her head in her hands and crying at the same time." Defendant's counsel made the same motion for a mistrial. The trial judge denied the motion stating, "The record is clear. She did respond yes to the Court's polling of the jury." ¶ 52 Defendant filed this appeal.
¶ 53 II. ANALYSIS
¶ 54 A. Motion for Severance
¶ 55 Defendant first argues that the trial court erred in denying his motion for severance, because codefendant Freeman's defense was antagonistic toward defendant's defense. ¶ 56 A defendant does not have an automatic right to be tried separately from a codefendant merely because they were charged in the same indictment for crimes arising from the same circumstances. People v. Bean, 109 Ill. 2d 80, 92 (1985); accord People v. Ruiz, 94 Ill. 2d 245, 257 (1982) (accused has no right to be tried separately from his companions when charged with offenses arising out of common occurrence). The long-established general rule in Illinois is that defendants who are jointly indicted are to be jointly tried, unless fairness requires a separate trial to avoid prejudice to one of the defendants. People v. Mahaffey, 165 Ill. 2d 445, 469 (1995); People v. Byron, 116 Ill. 2d 81, 92 (1987); Bean, 109 Ill. 2d at 92. ¶ 57 Our supreme court has explained several reasons for this rule. "A joint trial promotes economy, reliability, and consistency in the judicial process." Mahaffey, 165 Ill. 2d at 469. "In a joint trial, the jury obtains a more complete view of all the acts underlying the charges than would be possible in separate trials." Id. "From this perspective, the jury may be able to determine more reliably the guilt or innocence of a particular defendant." Id. ¶ 58 The law recognizes two common bases for severance. The first is where the State intends to introduce a codefendant's out-of-court statement implicating the defendant. Because that codefendant might assert his or her right not to testify, and thus the defendant would not be permitted to confront that codefendant's statement, a separate trial is necessary (unless the codefendant's statement can be redacted to eliminate any implication of the defendant). People v. Lee, 87 Ill. 2d 182, 187 (1981); Bruton v. United States, 391 U.S. 123, 134 -136 (1968). This basis for severance is not present here. ¶ 59 The other traditional example of prejudice warranting severance is when the defenses of the codefendants are "so antagonistic that a severance is imperative to assure a fair trial." People v. Daugherty, 102 Ill. 2d 533, 542 (1984); Lee, 87 Ill. 2d at 188. Defendant raises this basis for severance. ¶ 60 A defendant who does not want to be jointly tried may move for severance prior to trial. Bean, 109 Ill. 2d at 92. But a motion for severance "must state how the defendant would be prejudiced by a joint trial." (Emphasis added.) Id. "Mere apprehensions of prejudice are not enough." Id. ¶ 61 In his motion for severance, defendant stated he had "reason to believe that his co-defendants [would] assert an antagonistic defense" and that, as a result, he would be "irreparably prejudiced" and "forced to defend himself against both the prosecutor's case and the co-defendants' case." During the hearing on the motion, the State contended that the motion did not contain sufficient specificity or "the details of either [defendant's] defense or [Freeman's] defense, the substance of the testimony and the manner in which there would be a conflict in defenses." Defense counsel stated that she believed that codefendant Freeman would be alleging that defendant was the most culpable, defendant had the only weapon involved in the armed robbery, and the crime was defendant's idea. Defense counsel also stated her belief that, if Freeman testified, his defense would be that "the guilt lies at the feet of [defendant]." Defense counsel conceded that she could not predict whether Freeman would testify but said that, if he did, it would be clearly prejudicial and antagonistic to defendant if Freeman said that "the fault was [defendant's] in that he planned this armed robbery; that he is the one that had the gun; that he was the one calling all the shots." ¶ 62 The court noted that it had already heard the evidence in the case when the third defendant was tried before a jury. As the court further explained: "[T]he evidence is somewhat intertwining to a great degree. If [the State] want[s] to gamble on the case, and, in fact, as [defense counsel] indicates, the co-defendant does testify, basically, you have a mistrial." The State reiterated its position that "apprehension" was not enough to have the case severed. The trial court denied the motion for severance. ¶ 63 We will not reverse a trial court's denial of a motion for severance unless the trial court abuses its discretion. Bean, 109 Ill. 2d at 93. A trial court abuses its discretion only when the trial court's ruling was arbitrary, fanciful or so unreasonable that no reasonable person would agree with the view adopted by the trial court. People v. Chambers, 2016 IL 117911, ¶ 68; People v. Rivera, 2013 IL 112467, ¶ 37. ¶ 64 "In ruling on a severance, the court is to make a prediction about the likelihood of prejudice at trial, taking into account the papers presented, the arguments of counsel, and any other knowledge of the case developed from the proceedings. [Citation.]" (Internal quotation marks omitted.) People v. Mercado, 397 Ill. App. 3d 622, 628 (2009). Here, defendant's motion for severance did not state "how" he would be prejudiced by a joint trial. Bean, 109 Ill. 2d at 92. And during the hearing on the motion, defense counsel conceded that she could not predict whether Freeman would testify, stating only her "belief" as to what his defense might be. ¶ 65 But defendant argues that his motion detailed the nature of the antagonistic defenses with sufficient specificity, and "it became clear that the Defendants' defenses were antagonistic when Mr. Freeman's counsel argued that Defendant was the individual with a gun in opening statements, cross examinations, and closing arguments." ¶ 66 Our supreme court has stated that, when reviewing a trial court's decision on a motion for severance, the reviewing court does not consider " 'the subsequent happenings at trial.' " People v. Daugherty, 102 Ill. 2d 533, 545 (1984) (quoting People v. Yonder 44 Ill. 2d 376, 386, (1969); accord People v. Moman, 201 Ill. App. 3d 293, 305 (1990) ("a reviewing court will not look to trial events to second-guess a trial court's denial of a severance motion where a defendant has made insufficient allegations of prejudice prior to trial"); People v. Carter, 145 Ill. App. 3d 985, 988 (1986) (same); People v. Columbo, 118 Ill. App. 3d 882, 939 (1983) (same). On the other hand, the trial court has a continuing duty throughout the trial to grant a severance if prejudice appears. People v. Spain, 285 Ill. App. 3d 228, 232 (1996). And defendant renewed his motion for severance during and after the trial. ¶ 67 For defenses to be considered so antagonistic as to require severance, there must be actual hostility between the defenses of the codefendants. People v. Rodriguez, 289 Ill. App. 3d 223, 235 (1997); People v. Lovelady, 221 Ill. App. 3d 829, 836 (1991). Actual hostility requires a " 'true conflict, such that each defendant professes his own innocence and condemns the other.' " Rodriguez, 289 Ill. App. 3d at 235 (quoting Lovelady, 221 Ill. App. 3d at 836). ¶ 68 Severance is not required when a codefendant's theory and the defendant's theory are merely inconsistent or contradictory. Rodriguez, 289 Ill. App. 3d at 235. "The 'mere contradiction in testimony of two defendants as to what happened on the day of the crime does not render defenses sufficiently antagonistic to constitute reversible error.' " Lovelady, 221 Ill. App. 3d at 836 (quoting People v. Lekas, 155 Ill. App. 3d 391, 408 (1987)). For example, actual hostility is not shown where "one defendant claims an alibi defense and the other defendant asserts a reasonable doubt [defense], but at no time do the defendants become rivals or accuse each other." People v. Rice, 286 Ill. App. 3d 394, 403 (1996); accord People v. Williams, 196 Ill. App. 3d 851, 860 (1990). ¶ 69 We begin with the initial, pretrial motion to sever. We conclude that the trial court did not abuse its discretion in denying it, because the defense theories were not necessarily, inherently inconsistent. Defendant's theory was that he was not present at the robbery at all. Codefendant's anticipated theory was that he was there but did not know he was participating in a crime, and certainly not a crime involving a firearm. ¶ 70 To be sure, codefendant's theory put all the blame on the other robber, but not necessarily by name. Saying that you were an unwitting participant in a crime is different than specifically identifying the other person who was supposedly "calling all the shots." As the trial court correctly recognized, it would be one thing if codefendant testified—during which testimony, presumably, he would have identified his companion by name—but short of that testimony or other evidence put forth by codefendant to implicate defendant specifically in the crime, there was no basis to say that the two defenses would be so antagonistic as to warrant severance. Absent any specificity in the pretrial motion for severance, the trial court acted within its discretion in denying it. ¶ 71 We turn now to the renewed motions to sever. As it happened, codefendant did not testify, so he never directly implicated defendant through sworn testimony. Nor did codefendant present any evidence in his case-in-chief. ¶ 72 Some case law suggests that we should stop right there and find no error in denying the severance. This court has observed on more than one occasion that "antagonistic defenses have been confined to those instances where one codefendant testifies implicating the other." (Emphasis added.) People v. Bramlett, 211 Ill. App. 3d 172, 179 (1991); People v. Precup, 50 Ill. App. 3d 23, 29 (1977), aff'd, 73 Ill. 2d 7 (1978); see also People v. Murphy, 93 Ill. App. 3d 606, 609 (1981) ("Antagonistic defenses have been confined to those instances where one or more co-defendants testify implicating the other.") (emphasis added). Likewise, our supreme court has referred to the problem of antagonistic defenses, in the context of a motion to sever, as one where "a codefendant takes the stand to point a finger at the defendant as the real perpetrator of the offense." (Emphasis added.) Lee, 87 Ill. 2d at 187. ¶ 73 But even if we continued in our analysis, defendant has not demonstrated that the trial court abused its discretion in denying the renewed motions to sever. Though codefendant did not testify, defendant complains that codefendant's lawyer implicated defendant. It is true that, in his cross-examinations of various witnesses, codefendant's lawyer emphasized that it was defendant, not codefendant, who carried the weapon. And counsel repeated that point in opening and closing arguments. Obviously, this testimony and argument did not help defendant and, at least to some degree, hurt defendant's case. ¶ 74 But the key here is that the damning evidence against defendant did not come from codefendant or even from questions asked by codefendant's lawyer, but rather from the State's witnesses on direct examination. These witnesses—the victim and Officers Corrigan, Rzab, and Elton—repeatedly identified defendant as the one who was armed, who participated in the robbery, who fled the scene, and who was found hiding from police in a crawlspace. Codefendant's lawyer merely emphasized those same points to the jury in cross-examination and closing argument. It was cumulative testimony; any negative incremental impact on defendant's case would have been negligible at most. ¶ 75 In Lee, 87 Ill. 2d at 189, our supreme court held that the trial court did not err in refusing to sever the defendant's trial, even after a codefendant took the stand and testified that the defendant had forced him to commit the fatal shooting, because the codefendant's testimony was cumulative—it merely repeated testimony already received from two other witnesses. Likewise, in People v. Zambetta, 132 Ill. App. 3d 740, 746 (1985), this court found no error in denying a motion to sever, even though a codefendant testified and implicated the defendant in the drug transaction, because "the codefendant's testimony was merely cumulative of the evidence presented at trial," including two independent eyewitnesses to the drug transaction. ¶ 76 If sworn testimony by a co-defendant implicating another defendant is not enough to warrant severance when it is cumulative, we fail to see how cumulative testimony from non-party State witnesses on cross-examination would warrant severance, either. In the end, while we recognize that codefendant's lawyer emphasized points that were harmful to defendant, they were nothing more than that—emphasis. The cross-examination points revealed nothing new—particularly not the most important fact from codefendant's perspective, that defendant was the only one who carried a weapon. Beyond that, the most that codefendant's counsel accomplished in cross-examination was that the weapon was initially concealed. That point was intended to help codefendant argue that he was unaware that defendant was armed, but it did not hurt defendant in any meaningful way. Whether the weapon was initially concealed had no effect on the outcome of defendant's case. ¶ 77 In sum, the supposedly damaging cross-examination and argument by codefendant's lawyer was overwhelmingly cumulative of the evidence already introduced by the State, and to the limited extent it was not—the point about the initial concealment of the weapon—it was not antagonistic to defendant's case. Defendant cannot demonstrate that any meaningful difference resulted in this case from being tried jointly with codefendant. And more to the point for the purposes of our review, defendant has not demonstrated an abuse of discretion—that the trial court's decision to deny him a severance was so arbitrary or unreasonable that no reasonable judge would have ruled the same way. We affirm the trial court's denial of the motions to sever.
Codefendant Freeman has also filed an appeal, raising the same issue. People v. Freeman, 2017 IL App (1st) 150800-U (unpublished order under Supreme Court Rule 23). --------
¶ 78 B. Polling of Jurors
¶ 79 Defendant next argues that the trial court improperly directed the jury to continue its deliberations after polling only one juror who expressed mixed emotions as to the initial verdict. ¶ 80 In People v. Kellogg, 77 Ill. 2d 524, 527-28 (1979), our supreme court outlined the process for the polling of a jury as follows:
"When a jury is polled, each juror should be questioned individually as to whether the announced verdict is his own. The poll should be conducted so as to obtain an unequivocal expression from each juror. [Citation.] The very purpose of the formality of polling is to afford the juror, before the verdict is recorded, an opportunity for "free expression unhampered by the fears or the errors which may have attended the private proceedings" of the jury room. [Citation.] In conducting the poll, each juror should be examined to make sure that he truly assents to the verdict. [Citation.]"¶ 81 Kellogg also discussed the proper procedure if, during the jury poll, one of the jurors expresses some form of dissent as to the verdict:
"However, if a juror indicates some hesitancy or ambivalence in his answer, then it is the trial judge's duty to ascertain the juror's present intent by affording the juror the opportunity to make an unambiguous reply as to his present state of mind. [Citation.] Jurors must be able to express disagreement during the poll or else the polling process would be a farce and the jurors would be bound by their signatures on the verdict. Before the final verdict is recorded, a juror has the right to inform the court that a mistake has been made, or to ask that the jury be permitted to reconsider its verdict, or to express disagreement with the verdict returned. If the trial judge determines that any juror does dissent from the verdict submitted to the court, then the proper remedy is for the trial
court, on its own motion if necessary, to either direct the jury to retire for further deliberations [citation], or to discharge it [citation]." Id. at 528-29.¶ 82 Here, in the initial polling, the first questioned juror did not unequivocally state that she agreed with the verdict. Instead, she was reluctant to be the first juror to answer and then indicated that the verdicts were not hers. As directed by Kellogg, the trial court then "afford[ed] the juror the opportunity to make an unambiguous reply as to [her] present state of mind" (id. at 528), at which point the juror merely stated that she had "mixed emotions." The trial judge immediately directed the jury to retire for further deliberations, again in accordance with Kellogg's directive that, if a juror dissents, the proper remedies are either to order further deliberations or discharge the jury and declare a mistrial. Id. at 529. ¶ 83 But defendant says that it was error to order further deliberations immediately upon hearing the first juror's dissent. Defendant argues that the trial court had a "duty" to continue polling the remaining jurors first, before ordering further deliberations. He relies on Bianchi v. Mikhail, 266 Ill. App. 3d 767 (1994) and People v. Chandler, 88 Ill. App. 3d 644 (1980). ¶ 84 This question was not specifically addressed in Kellogg, because in that case it so happened that the dissenting juror was the twelfth and final juror polled, so the jury polling was completed at that moment. See Kellogg, 77 Ill. 2d at 527. ¶ 85 The question did arise, as defendant notes, in Chandler, 88 Ill. App. 3d at 645, albeit in a slightly different posture. There, after one juror dissented from the verdict, the trial court continued to poll the remainder of the jury and found a second dissenting juror, as well. Id. After questioning the two dissenting jurors, the court ordered the jury to continue deliberations, which ultimately resulted in a guilty verdict. Id. ¶ 86 The defendant there made, in essence, the exact opposite argument that defendant makes here. There, the defendant argued that the judge erred by not stopping the polling immediately upon discovering the first dissenting juror—that the trial court should have immediately ordered the resumption of deliberations instead of continuing to poll the remaining jurors. Id. at 646. He argued that, by continuing the polling before ordering further deliberations, the trial court isolated and coerced the dissenting jurors and acted inconsistently with Kellogg's dictate that, upon discovery of a dissenting juror, the trial court should either discharge the jury or order the jury to deliberate. Id. ¶ 87 This court found no error in the trial court's continuation of the jury polling and disagreed that the trial court's actions were inconsistent with Kellogg. Defendant relies particularly on this statement in the Chandler opinion: "On the contrary, it is apparent that the trial court has the duty to continue the poll and to fully inquire of each juror as to whether he concurs in or dissents from the verdict." Id. at 649. The court supplemented its opinion on denial of rehearing, however, again addressing the argument that its holding was inconsistent with Kellogg. The court then squared its holding with Kellogg as follows:
"We still find that Kellogg suggests that each member of the jury should be polled so that 'an unequivocal expression from each juror' [citation] is obtained and that the poll need not be stopped at the first dissent. In addition, although Kellogg limits the trial court's remedies upon discovery of dissent to either directing the jury to retire for further deliberation or to discharge it, we do not feel that those remedies prohibit the continuation of the poll prior to the remedial action. This is apparent when the purpose of the poll which is to make sure that each juror truly assents to the verdict is considered. As noted in our original opinion, the question of unanimity of a verdict is for the trial court
and that determination will be upheld unless clearly unreasonable." (Emphasis added.) Id. at 654.¶ 88 Chandler does not compel a ruling in defendant's favor here. Chandler is not inconsistent with Kellogg, nor is it inconsistent with the trial court's actions below. Chandler ultimately stands for the proposition that, when a dissenter is found on a jury, the polling of the jury "need not be stopped at the first dissent" but, rather, the trial court may continue polling the remainder of the jury. Id. That is far different from a per se rule that the polling of the jury must continue, as defendant urges here. True, earlier in the Chandler opinion, in the language on which defendant relies, this court suggested that continued polling was mandatory, but the court clearly modified that stance upon denial of rehearing and held that continued polling was permissive. ¶ 89 In our view, that modified holding is consistent with Kellogg. When the supreme court insisted that every juror be polled, it was discussing a full and adequate polling "before the verdict is recorded." Kellogg, 77 Ill. 2d at 528; see also id. ("Before the final verdict is recorded, a juror has the right to inform the court that a mistake has been made, or to ask that the jury be permitted to reconsider its verdict, or to express disagreement with the verdict returned.") (emphasis added). That proposition is beyond debate; before a verdict is accepted as the final verdict of the jury, the trial court must ensure that the verdict is unanimous. ¶ 90 But once a trial judge determines that a juror is dissenting from the verdict, the verdict is obviously not final and will not be recorded at that time; the trial court, per Kellogg, will ultimately either discharge the jury or order further deliberations. Id. at 529. So while a trial court might reasonably decide to continue the jury polling to hear from the remaining jurors, it is not mandatory that the court do so. If the trial court exercises the option of discharging the jury, a mistrial occurs and the case is over. And if the trial court orders further deliberations, it will have the opportunity to determine the unanimity of the verdict once more, when the jury returns again with a verdict. Thus, we do not read in Kellogg or Chandler, nor do we see the need for, the adoption of a per se rule that, once a single juror expresses dissent from the verdict, the trial court must continue polling the remaining jurors. ¶ 91 Simply put: Under Kellogg, upon discovery of a dissenting juror, the trial court ultimately must either order additional deliberations or discharge the jury. Kellogg, 77 Ill. 2d at 528-29. Under Chandler, it is not improper for the trial court to continue polling the remaining jurors before exercising one of those remedies—but neither is it mandatory. Chandler, 88 Ill. App. 3d at 654. ¶ 92 Defendant further relies on Bianchi, 266 Ill. App. 3d 767, a case that appears to interpret Chandler in the same way as defendant. There, after the jury returned its verdict, the first juror polled "expressed some doubt" about the verdict, at which time the judge stopped the polling and ordered the jury to deliberate further. Id. at 772. The jury returned with the same verdict, but the same juror wrote the word "protest" next to her name on the verdict form. Id. The court questioned that juror first, and given her continued doubt, sent the jury back for deliberations once more. Id. at 773. The jury ultimately returned a unanimous verdict to which all jurors agreed when polled. Id. ¶ 93 This court agreed with the plaintiff that reversal was required for more than one reason, including that the trial court erred by discontinuing the polling after finding the dissenting juror. The court first noted that Kellogg required that all jurors be polled before accepting the verdict, as we have discussed above. Id. at 779. The court then quoted Chandler—the same language on which defendant here relies—where the court initially held that the trial court did not err by continuing to poll the jury after finding a dissenting juror: " 'On the contrary, it is apparent that the trial court has the duty to continue the poll and to fully inquire of each juror as to whether he concurs in or dissents from the verdict.' " (Emphasis omitted.) Id. at 780 (quoting Chandler, 88 Ill. App. 3d at 649). The court then held: "Therefore, following the decisions in Kellogg and Chandler, we hold it was error for the judge to twice discontinue the jury poll and excuse the jury to continue its deliberations as soon as he discovered that the first juror was equivocal about his verdict. This conduct effectively isolated the juror and conceivably could have had a coercive effect." Id. at 781. ¶ 94 To the extent that Bianchi held that Kellogg and Chandler created a per se rule that a judge must always continue polling the jury after determining that one of the jurors has dissented, we respectfully disagree with that conclusion. Kellogg said nothing whatsoever about that situation; as we have noted, the dissenting juror in that case was the last juror questioned, and when the court wrote of all jurors being polled, it was referring to all jurors being polled before the final verdict was accepted by the court, not to what should occur if one of the jurors dissents and it is clear that a final, unanimous verdict has not been reached. ¶ 95 And Chandler did not create a per se rule, either. As we have also noted above, while the court initially may have suggested as much—the language on which Bianchi and defendant focus—it clearly modified that position in its supplemental opinion upon denial of rehearing—language that the court in Bianchi did not mention. Under Chandler, continuing the polling after one juror dissents is permissible, is not prohibited, is not an abuse of discretion—but is not mandatory, either. Because neither Kellogg nor Chandler held that continued polling after the discovery of a dissenting juror is mandatory, we respectfully disagree with the court in Bianchi that those cases created such a per se rule. ¶ 96 We also find Bianchi distinguishable on the facts, because in that case the jury poll was interrupted twice after the juror expressed dissent, and the combination of those two instances, in the appellate court's view, "effectively isolated the juror and conceivably could have had a coercive effect." Id. Here, in contrast, the interruption of the jury poll following the juror's expressed dissent occurred only once. At that moment, the trial court followed up with the juror to understand her views and then, determining that she was not in agreement with the verdict, ordered additional deliberations. Those actions were consistent with Kellogg. We see nothing here that demonstrates that the trial court, at that time, coerced the juror or acted inappropriately in any way, nor does defendant claim as much. Defendant's claims regarding the initial polling of the jury is simply that the court violated a per se rule by terminating the polling prematurely. As we find that no such per se rule exists, we reject this argument. ¶ 97 Defendant next argues that the trial court committed error after the jurors returned and were once again polled. This time, each juror was asked if the verdicts were then and were now their verdicts. All twelve jurors, including the juror in question, responded "yes." ¶ 98 Defendant contends that the only affirmative part of the juror's response to the jury polling was her word "yes." He says that the juror was crying and shaking her head and argues that "in whole, her demeanor and tone indicated strongly that she did not agree with the verdict," or, at the very least, her "yes" answer was not unequivocal. Thus, while that juror stated she agreed with the final verdict, defendant argues that the trial court's failure to declare a mistrial was reversible error. ¶ 99 "The purpose of polling a jury is to determine that the verdict accurately reflects each juror's vote and that the vote was not the result of coercion." People v. Kliner, 185 Ill. 2d 81, 166 (1998); see also People v. Wheat, 383 Ill. App. 3d 234, 237 (2008) (purpose of polling jury is to determine whether verdict has in fact been freely reached and remains unanimous). Whether a juror has freely assented to the verdict is a factual question left to the discretion of the trial court. People v. Beasley, 384 Ill. App. 3d 1039, 1048 (2008); People v. Chandler, 88 Ill. App. 3d 644, 650 (1980). "The trial judge, in determining whether a juror has freely assented to the verdict, not only hears the juror's response, but observes the juror's demeanor and tone of voice during the course of the polling of the jury." People v. Cabrera, 116 Ill. 2d 474, 490 (1987). We will not set aside the trial court's determination as to the voluntariness of the juror's assent to the verdict unless that determination is clearly unreasonable. Kliner, 185 Ill. 2d at 167. ¶ 100 In Cabrera, 116 Ill. 2d at 488-89, when the trial court polled the jury on its guilty verdicts, the following exchange occurred with one of the jurors:
" 'THE COURT: Was this and is this now your verdict ***?¶ 101 After polling was completed, defense counsel requested that the trial court inquire with this juror, noting that it was " 'obvious she wanted to say more than a yes or no answer.' " Id. at 489. The trial court declined, explaining that "it [was] not the duty of the court to delve into the jurors' decision-making process, and that the court had given the jurors sufficient opportunity to state whether they were in agreement or disagreement with the jury's verdict." Id. Defense counsel later obtained an affidavit from the juror indicating her desire to recant the guilty verdict on the murder charge, but the trial court refused the request for a mistrial. Id. ¶ 102 The supreme court upheld the trial court's determination that the juror had agreed with the guilty verdict. First noting the wide discretion afforded to the trial court, who is in a far superior position to observe both verbal and non-verbal aspects of a juror's communication, the supreme court held that "[i]t cannot be said that the determination of the trial judge here that the juror voluntarily assented to the verdict and did not wish to repudiate it is clearly unreasonable. When [the juror] understood that she was to respond with a yes or no answer, she unequivocally answered yes when the judge inquired: 'Was this and is this now your verdict?' " Id. at 490. Thus, despite the juror's stated desire to elaborate on her opinion about the guilty verdict, the juror's unequivocal response to the yes-or-no question was sufficient to support the trial court's determination that she agreed with the verdict. ¶ 103 In People v. Epps, 197 Ill. App. 3d 376 (1990), this court confronted a situation similar to the one here. There, during the poll of the jury after the verdict, one juror, when asked whether it was her verdict, "became visibly shaken, began to cry, delayed answering by thirty seconds, then blurted out yes and continued to cry." Id. at 379. In considering defendant's motion for a mistrial, the trial court found that "the crying was the outward manifestation of making a difficult decision," since the 64-year-old defendant was on trial for shooting a seven-year old and, if convicted, was facing death. Id. The court further found that "the juror had said expressly that the verdict was hers and gave no indication, other than sobbing and delaying her answer, that it was not her verdict." Id. In denying the motion for mistrial, the trial court found that the juror had voluntarily assented to the verdict. Id. ¶ 104 On appeal, in considering whether the trial court's determination that the verdict was voluntary was unreasonable, we considered the following:
[JUROR]]: Can I say what I have to say, or do I have to give a yes, or no answer?
THE COURT: I want a yes or no answer. Was this and is this now your verdict?
MS. CANCINELLI [sic ]: I found in my own person mind—
THE COURT: I said I want a yes or no answer. Was this and is this now your verdict?
MS. CANCINELLI [sic ]: Yes.' "
"The juror said nothing during polling that demonstrated that the verdict was not hers. She unambiguously stated "yes"—it was her verdict. All she did was show emotion. Emotion shown is not necessarily involuntariness revealed." Id. at 380.¶ 105 We concluded there that the emotion shown by the juror gave rise to at least two inferences: (1) "although the tragedy moved the juror, she nevertheless would remain true to her oath and render a verdict of guilty of first degree murder" or (2) "the juror was yielding to illicit coercion and rendering her verdict contrary to her belief and to her oath." Id. at 381. But we noted, "[o]n the other hand," that the juror's verbal response, "yes," was unambiguous. We concluded that "[t]he unambiguous response, when weighed against the ambiguity, so completely tilt[ed] the scales of justice" that it was "difficult to see any result other than the one announced by the circuit court." Id. at 381. "Keenly aware that we were not witnesses to the polling, fully acquainted with the record, and giving the deference to the circuit court that the law commands," we affirmed the "discretionary" finding of the trial court that the verdict was voluntary. Id. ¶ 106 We find the reasoning of the courts in Cabrera and Epps applicable here. While it is undisputed that this juror was emotional, there was no evidence whatsoever that the juror's emotional state indicated coercion. Nor is there any evidence that, in responding "yes" to the trial judge's question, she did not agree with the verdicts. She clearly and unequivocally stated: "Yes" when asked "were these then and are these now your verdicts." The trial court found that the juror agreed with the verdict, and we cannot say from this record that this determination was "clearly unreasonable." Cabrera, 116 Ill. 2d at 490; Kliner, 185 Ill. 2d at 167. Accordingly, we will not set aside the trial court's determination.
¶ 107 III. CONCLUSION
¶ 108 We affirm the judgment of the circuit court of Cook County. ¶ 109 Affirmed.