People v. Ward (371 Ill. App. 3d 382, 2007)

JUSTICE JOSEPH GORDON

delivered the opinion of the court:

Defendant, William Ward, appeals after his conviction by a jury of two counts of aggravated battery with a firearm. Defendant first argues that the State failed to prove his guilt beyond a reasonable doubt, asserting that his identification by a witness was too doubtful and unreliable and that there was insufficient evidence to prove that he possessed the weapon used in the shooting at the time the shooting occurred. Defendant also alleges that the State injected reversible error into the trial by minimizing its burden of proof and inflaming the jury’s passions and prejudices in its closing argument. He further contends that the circuit court erred by: declining to grant his motion to suppress; allowing the jury to determine that the victims suffered severe bodily injuries; failing to question the jurors individually after one of them indicated that defendant communicated with him, and that he had shared that experience with his fellow jurors; failing to give the jury the instruction required by People v. Prim, 53 Ill. 2d 62 (1972), when the jury indicated that it was deadlocked; and failing to conduct a hearing as required by People v. Krankel, 102 Ill. 2d 181 (1984), when presented with defendant’s pro se complaints of ineffective assistance of counsel. Further, defendant claims that his trial counsel was ineffective for failing to object to the circuit court’s refusal to provide a copy of the transcript of the identifying witness’s testimony to the jury, when the jury asked for the transcript. Finally, defendant contends that his counsel was ineffective for failing to preserve his alleged errors surrounding the State’s closing argument, the lack of jury questioning, the absence of a Prim instruction, and for misinforming defendant that his posttrial motions would be prepared by the state appellate defender.

We affirm.

FACTUAL BACKGROUND

On December 29, 2000, a grand jury indicted defendant for six counts of attempted first degree murder, two counts of aggravated battery with a firearm, six counts of aggravated battery, two counts of aggravated discharge of a firearm, three counts of aggravated unlawful use of a weapon, and two counts of unlawful use of a weapon by a felon. These charges stemmed from the drive-by shooting of two people in Harvey, Illinois, on September 24, 2000.

At defendant’s trial, Officer Montague Hall testified that he was a Harvey police officer on September 24, 2000. Around 7:25 p.m., he responded to a call of shots fired in an alley around 150th and Honoré. Hall recovered two 9-millimeter bullet casings at the scene. He spoke with a man on the ground who had been shot in his leg who was subsequently transported to Ingalls Hospital in an ambulance. Hall also spoke with two other people, James Tolbert and Terrence Cop-rich, who provided him with descriptions of two possible offenders. Hall recorded their descriptions, as to both persons, as “male Black, unknown height, unknown weight, unknown complexion,” in his police report. He suggested that the undetailed descriptions he recorded were insignificant because the investigating detectives would reinterview witnesses to obtain more specific information.

Harvey Detective Samuel White testified that he was assigned to investigate the September 24 shooting in the alley around 150th and Honoré. In the course of the investigation, he interviewed Tyrone Mo-ten on October 29, 2000. At the time, Moten was in police custody based on a parole violation. After speaking with Moten, White began to look for defendant.

White testified that on November 17, 2000, he went to defendant’s residence. He knocked on the door, but nobody answered. As he was leaving, he saw defendant drive up toward the residence. The two made eye contact and defendant drove off. White chased defendant in his car to 164th Street and Halsted, where defendant exited his car. When White tried to take him into custody, defendant punched White. However, White was able to get defendant to the ground and handcuff him. Other Harvey police then transported defendant to the police station, while White returned to defendant’s residence.

Upon his return, White entered defendant’s residence with Illinois Department of Corrections (IDOC) parole agent Agent Giorgakis. White observed Giorgakis search the bedroom, from which he recovered a safe and ammunition. White and Giorgakis then returned to the police station, where they opened the safe and discovered a loaded gun, ammunition, and a magazine.

The following day, White spoke with defendant. Defendant admitted that he had stolen the gun from his girlfriend, who lived with him at that residence. White then sent the gun and ammunition to the Illinois State Police crime lab.

The next day, on November 19, 2000, White met with one of the shooting victims, Michael Walker at Christ Hospital. White was accompanied by a felony review assistant State’s Attorney. White presented Walker with a photo array of six men, defendant and five others. However, Walker was unable to identify defendant as the person who shot him. In fact, he pointed to another person as the person he thought shot him. White testified that he no longer knew the whereabouts of the photo array he had shown Walker.

Giorgakis next testified for the State. He testified, consistent with his suppression hearing testimony, that he was at defendant’s residence with White on November 17, 2000. Giorgakis corroborated White’s account of defendant pulling up to his home, seeing the officers, and then speeding away. He further confirmed that defendant struck White after stopping and exiting his car at 163rd Street and Halsted.

Giorgakis then described how he returned to search defendant’s residence. He explained that he searched the bedroom and recovered ammunition and a lockbox from under the bed. He took the lockbox to the Harvey police station, opened it there, and recovered from within a 9-millimeter handgun as well as four fully loaded clips. He testified that he turned these items over to White.

Terrence Coprich testified next as to the occurrence of the shooting itself. Coprich admitted that he was a convicted felon whose probation had been terminated unsatisfactorily.

Coprich testified that on September 24, 2000, he was in the backyard of James and Michael Tolbert’s house at 150th and Honoré. Michael Tolbert was working on Walker’s car. Moten came by and he, Coprich, and unspecified others, got into a car and drove to 158th and Vine to look into a fight involving Moten that had occurred there earlier. There, while some spoke with an acquaintance named Cliff, Moten, a woman named Sakina, and defendant got into a fistfight. Defendant then ran to the back of the house at 158th and Vine. While most of the party got back into their car, Moten remained outside, picked up a brick, and smashed out the windows of defendant’s truck. Moten then reached into the truck and took a blue and red hat known as a “one-fifty,” based on its price of $150, from the front seat. Cop-rich grabbed Moten, chastising him for his conduct, and pulled him into the car. The entire party then returned to the Tolberts’ residence.

After returning to 150th and Honoré, Coprich and three others decided to get some beer. As they went back to his car after making the purchase, they noticed a gray station wagon pass by. Coprich recognized defendant as the front passenger in the wagon. Coprich and the others got in his car and followed the station wagon. Coprich surmised that the people in the wagon knew where his friends were, so he turned into the alley adjacent to the Tolbert residence to try to warn his friends to disperse. However, as he approached them, the station wagon entered the alley from another direction. Coprich testified that he again saw defendant and another man in the wagon as the cars became parallel, with the passenger doors of the two cars facing each other. He described the distance between himself and defendant at that moment as matching the distance between himself and the jury box at the time of his testimony. He described defendant as having “his head straight.” Coprich then saw “a gun come up,” “fire,” and heard “popping.” According to Coprich, defendant shot across the driver’s seat of the wagon. Coprich fled by driving his car away from the scene, but then returned to check on his friends. He came back to find Walker already on his way to a hospital and J.C. Johnson lying on the ground shot in the leg and hip.

On November 19, 2000, Coprich viewed a lineup at the Harvey police department. At that time he picked out defendant as the person he observed shooting.

On cross-examination, Coprich originally testified that he did not remember if he talked to the first police officers to come to the scene of the shooting, but that he had been told he did. He then testified that the first officers asked him “about what went on,” that he answered the officer’s questions, and that he observed the officer taking notes. Coprich further acknowledged that, on the same day he observed the lineup, he gave a statement to Detective White and Assistant State’s Attorney Alzetta Bozeman. Coprich testified that he told Bozeman about the fight between Moten, Sakina, and defendant, preceding the shooting, and Moten’s breaking of the windows of defendant’s truck. He explained that he declined to write out his statement himself, leaving it to Bozeman to record what he said. He further testified, however, that he checked over her recording of his statement, made no corrections, and signed it, along with White and Bozeman. On redirect, the State did not dispute that the written statement did not mention the preceding fight and vandalism, but only described the shooting itself.

J.C. Johnson testified that on September 24, 2000, he was with Walker, Moten, Sakina, and Lament Crims at the Tolbert home. Walker wore a blue and gray baseball hat at the time. As he and Walker walked down the alley behind the home, a cream-colored station wagon drove toward them. Gunfire began to come from the wagon and the two turned and started to run. Johnson was struck by a bullet and fell to the ground. He did not see what happened to Walker, nor did he see who shot him.

Johnson testified that an ambulance took him to the hospital where he was treated for a dislocated shoulder and a gunshot wound to the buttock. The bullet had passed through and shattered his right femur. The gunshot wound required two surgeries, one on the day of the shooting, and a later procedure for the removal of a nerve. Johnson could not feel his feet at the time of his testimony and his shoulder continued to “pop out” regularly.

Michael Walker was the next State witness. On September 24, 2000, he took his car to the Tolbert home to have Michael Tolbert perform repairs. He remembered Tolbert, Johnson, Coprich and Mo-ten all being present. At one point, they all got into cars; Walker thought they were going to get beer. Instead, they ended up at 158th and Vine, where he saw Moten, Moten’s cousin, and defendant get into a fistfight. As he was driving away, Walker saw Moten break the windows of a sport utility vehicle. On the way back to the Tolberts’, he stopped at a music store and bought some compact discs. Upon his return to 150th and Honoré, he met Moten, who gave him a hat that Moten said matched his outfit.

Walker stayed in the alley behind the Tolbert residence talking with Michael Tolbert until he saw Coprich’s car stop nearby. As he approached Coprich’s car, Walker observed a station wagon drive toward him. He next saw someone raise a gun and he turned and ran. While running away, he was shot in the back. Walker found himself lying in a puddle gasping for air; he could not feel his legs. The Tolbert brothers rushed him to a hospital. Walker’s next memory was of waking up in the hospital and being told that he was a paraplegic. Walker testified that the lowest point at which he now had any sensation was just below his neckline. One bullet was left in his body because it was too close to an artery to permit safe removal.

On November 19, 2000, Walker was rehospitalized. During this hospitalization, he was visited by Assistant State’s Attorney Bozeman and Detective White. The two showed him a photo array. However, he testified that he could not identify the person who shot him because he “instantly” turned and ran when he saw the gun. He did say that one person in the lineup resembled the shooter, but never conclusively identified anyone.

Forensic scientist Jeffrey Parise was the final witness for the State. After being qualified as an expert in firearm identification, Parise testified that he received a Glock model 17, 9-millimeter semiautomatic pistol, and two fired 9-millimeter Luger cartridge cases for analysis. After ensuring that the gun was safe to test-fire, he loaded two 9-millimeter Luger Sellier-Bellot brand cartridges into the gun and fired those rounds into a collection device known as a cotton box, collecting the spent shell casings afterwards. Parise explained that the firing of a gun left a number of markings on shell casings. The firing pin makes an impression on the primer of the casing, which is also marked by the breach face, where the firing pin passes through. The casing is also marked by the extractor, which removes the cartridge from the firing chamber, as well as the chamber itself. Parise examined the casings from the shots he fired and discovered that they matched each other. He then compared the casings from the shots he fired with the casings the Harvey police department gave him, using a side-by-side comparison microscope. From that comparison, he formed the opinion, to “a reasonable degree of scientific [and] technical certainty,” that the casings he received from the police had been fired from the gun he received from the police, “to the exclusion of all others.”

The defense declined to call any witnesses. Instead, the defense introduced into evidence defendant’s birth certificate and the registered address for defendant with the Secretary of State, which differed from the address where the ammunition and lockbox containing the gun were found.

After closing arguments, over defendant’s objection, the circuit court gave the following instruction to the jury:

“Members of the jury, if you have found the defendant guilty of the offense of attempt first degree murder and/or aggravated battery with a firearm, you must then decide whether or not severe bodily injury occurred during the commission of the attempt first degree murder.

If you decide unanimously beyond a reasonable doubt that severe bodily injury occurred during the commission of the attempt first degree murder and/or aggravated battery with a firearm, then you must sign the form indicating your decision.”

At the instructions conference, the defense had suggested that the determination should be bifurcated, only allowing the jury to determine whether severe bodily injury occurred after it determined guilt.

Jury deliberations began at 4:22 p.m. Subsequently, the jury sent a note to the circuit court, which it received at 5:30 p.m. The note stated: “We need written Statement from Terrance Coprich and also a transcript of his testimony in Court.” With the agreement of the parties, the circuit court prepared the following response: “The evidence which you should consider consists only of the testimony of the witnesses and the exhibits which the court has received. The transcript of Terrance Coprich’s testimony is not available.” At 6:05 p.m., the circuit court received another note stating, in part: “We need to know if the previous note is being considered — After over 1 hour, we are still at the same point and waiting for a response from you.” The court advised the parties that, upon receiving the jury’s note, it realized its original response had not been sent and, thereupon, sent it immediately. The court received one more note from the jury at 6:35 p.m., again asking for Coprich’s written statement. Again, with the approval of the parties, the judge responded: “The evidence which you should consider consists only of the testimony of the witnesses and the exhibits which the court has received. Please continue to deliberate.” At 7:30 p.m., the court received yet another note from the jury. The jury informed the court: “At this time *** we are a hung jury. We have voted 3 times and discussed each time what the key points are for each juror. Some members have clearly expressed that they will not change their minds.” To this note, the court and parties agreed that the appropriate reply was “Please keep deliberating.” Within one minute of receiving the court’s last note, the jury sent one more note to the court, received at 7:48 p.m., advising, “We need to know what the court’s definition is of ‘reasonable doubt.’ ” All agreed that the appropriate response was “You have all of the instructions. Please keep deliberating.” The jury sent one final note to the court at 8:10 p.m., received by the court at 8:24 p.m. The note said:

“We previously requested at 5:40 p.m., the courtroom transcript of Terrance Coprichs [sic] testimony. You replied that it was not available. All decisions are being made mostly upon this testimony.

Without this transcript we can not [sic] break the hung jury. We need to know when this transcript will be available. Please be specific.”

The court responded, without objection from the parties: “The transcript is not available. I do not know when or if it can become available in the future. Please keep deliberating.”

At approximately 9 p.m., the circuit court dismissed the jury for the day, instructing the jurors to return the following day at 9:30 a.m. However, another issue arose that night. A deputy informed the court that, while escorting the jurors out of the jury room, one of the jurors told him that defendant looked at him and said something and that he became uncomfortable. The court questioned that juror, whose name was Uriaus, outside of the presence of the rest of the jurors and asked for him to describe what had occurred. Uriaus related:

“I was seated in the back row at the far end of the jury seats. While you were speaking, giving us our final directions, I was spending time looking basically at the reactions and general mannerisms of the four attorneys and the defendant and had made eye contact with all five of them during the time of which you were speaking. At one point, the defendant leaned well back in his chair so that we specifically had eye contact, kept eye contact for a couple of seconds, shook his head no, and I believe he mouthed, ‘don’t do it.’ And that made me uncomfortable.”

Uriaus then asked to add that “[tjhere was also talk previous to this incident this evening” “in the jury room.” The circuit court, however, initially indicated that it did not “want to hear about any conversations that took place in the jury room.” The court, at first, maintained this position in spite of defense counsel’s argument that “[w]e need to hear.”

The court then inquired of Uriaus if he thought he could still be impartial. Uriaus assured the court that he could.

The circuit court then, while again explaining that it did not want to know the content of any such conversations, asked if anything was said that “would make you feel threatened or uncomfortable regarding Mr. Ward, specifically addressed to Mr. Ward only.” Uriaus indicated that there were no conversations among the jury of that type and reaffirmed that he could be an impartial juror. He also informed the court that he had told the other jurors about defendant’s attempted communication with him, however.

Defense counsel requested that the court ask Uriaus why he disobeyed the court’s previous instruction to the jury not to discuss anything about the case with his fellow jurors until the commencement of deliberations, if he were going to remain on the jury The court then asked if the defense had any further arguments, and counsel stated, “There are several options for me right now. I would like to take the night to think about it.” Finally, the court indicated, “My question is whether it’s necessary to poll the other jurors based upon the statement that was made by this one juror.” The State recommended addressing that question the following morning, and defense counsel agreed.

The following day, prior to the recommencement of deliberations, the State requested that the court poll each juror to inquire if he or she had observed anything that should be brought to the court’s attention, or if he or she heard about anything from another juror that should be brought to the court’s attention. The State proposed that if any juror responded affirmatively, then he or she should be asked if he or she could remain fair and impartial. When asked for his response, defense counsel replied, “No response.”

The court denied the State’s request, observing:

“I was in the courtroom. I saw no actions on Mr. Ward’s behalf that I would believe could be perceived as an attempt to intimidate the jurors in this matter. I will note that this juror did indicate that he had communicated what he believed to have been said by Mr. Ward to the other jurors.

Notwithstanding that, I believe that by polling them I will be bringing attention to something that more than likely did not occur.”

The defense made no comment on the court’s ruling.

Deliberations continued, but, at 10:15 a.m., the jury sent the court another note, stating: “We are still a hung jury. We again request the courtroom transcript of Terrance Coprichs [sic] testimony. This will continue to be a vital need of our deliberations.” The State suggested to the court that it should attempt to acquire the transcript so the jury could make a decision. The defense, on the other hand, objected to a transcript going to the jury, contending that a jury was supposed to deliberate based on its collective memory. The court observed that Coprich’s testimony was “very brief’ and “uncomplicated,” and “was extremely incriminating and damaging to the defendant.” The court therefore sent the jury a response of: “I have considered your request for a transcript of Terrance Coprich’s testimony. That request is denied. Please rely upon your collective memory of the evidence.” At 12:35 p.m., the jury sent its final note to the court, indicating, “We have reached an [sic] unanimous decision on all counts.”

The jury acquitted defendant on the two remaining counts of attempted first degree murder, but convicted him of two counts of aggravated battery with a firearm, one count for J.C. Johnson and one count for Michael Walker. The jury also signed forms indicating that it had found beyond a reasonable doubt that severe bodily injury occurred during the commission of the aggravated battery with a firearm, both to Johnson and Walker. Defendant requested that the jury be polled and each juror affirmed that the verdict was his or hers both at the time of signing the verdict and at the time of polling.

After a sentencing hearing, the court imposed a 20-year sentence for one count to be followed by a consecutive 15-year sentence. At the conclusion of the hearing, the court asked defendant if he had any questions surrounding his sentence. Defendant replied:

“Yes, I do.

I want to know why, first of all, I took a jury and everything, but there is a lot about my case that you still do not know about and there was a lot of evidence that was not submitted in my trial, in my motion.

I had signed affidavits and a lot of other things that was not submitted, you know, and I blame that on — and the fact of my counsel, and I ask that, you know, that you take all that into consideration, you know.”

The court responded that it would appoint the appellate defender to assist him in his posttrial motions “or anything that you wish to present.” Defense counsel stated that he had “already advised” defendant of that fact. Later, after the court admonished defendant of his appeal rights, defendant appeared to want to revisit the performance of his trial counsel. However, after defendant’s statement that he “had a lot of evidence,” the circuit court interjected, “Mr. Ward, I am not retrying the case today.” In response, defendant informed the court that his attorney possessed the evidence he spoke of and wanted the evidence returned to him so that he could submit it to the court himself. The court instructed defendant to speak to his attorney about the return of that evidence.

Defendant’s trial counsel, in fact, filed motions for a new trial and for reconsideration of his sentence. Both, however, were denied.

Prior to trial, defendant filed a “Motion to Suppress Physical Evidence.” In this motion, defendant alleged that “on November 17, 2000, police and other government agents, without lawful authority, seized certain property which might tend to incriminate the accused, i.e.: a gun from a safe in the residence searched.” The motion to suppress came for hearing on April 26, 2004.

The suppression hearing began with a stipulation between the defense and the State that Marshon Shelby, defendant’s girlfriend, would testify that a safe recovered by personnel from the Harvey police department and the Illinois Department of Corrections (IDOC) at 15745 Lathrop, on November 17, 2000, belonged to defendant.

The first and only witness at the suppression hearing was Agent Giorgakis, called by defendant. Giorgakis testified that he and fellow IDOC agent Rucker reported to 15745 South Lathrop in Harvey, the address IDOC had as defendant’s residence, on November 17, 2000. Giorgakis was dispatched there after the Harvey police department contacted his supervisor. On the way to the Lathrop address, his supervisor informed Giorgakis that defendant was wanted for questioning in a shooting. Upon arrival, they met Harvey Detective White, who was waiting for them.

Giorgakis testified that he and Rucker went to perform a compliance check, which he explained was a search for contraband, such as “drugs, guns, [or] stolen merchandise.” According to Giorgakis, since defendant was on parole, “he was subject to compliance checks at any time with cause.” The cause for the check at that time was a charge against defendant for possession of a controlled substance in April 2000, and because the Harvey police department had informed Giorgakis’s office that defendant was wanted for questioning in an attempted murder case involving a gun. Giorgakis testified that when he met White, he did not have any significant discussion surrounding the attempted murder. According to Giorgakis, “[h]e just let me know he was identified and was wanted for investigation.” They did not have a warrant for a search of the residence, nor did they have defendant’s explicit consent for a search at that time.

When Giorgakis and Rucker knocked at the door, other adults living at the address let them in, though Giorgakis did not know who they were, since he was not defendant’s regular parole agent. He and Rucker then went to defendant’s bedroom. While Harvey police entered the residence, Giorgakis’s supervisor blocked them from entering the bedroom, which Giorgakis testified was the only room IDOC had authority to search. When Giorgakis looked underneath the bed, he discovered a locked box, which the agents took to the Harvey police station, since they did not have the tools with them to force it open. At the station, Giorgakis pried the box open with a crowbar. Inside, they discovered a Glock 9-millimeter handgun with three 16-round magazines and a 30-round magazine. The IDOC agents left these items with the Harvey police. Again, there was no warrant or consent to search the box.

At the conclusion of Giorgakis’s testimony, defendant argued that the State could not enter a parolee’s home without reasonable suspicion of wrongdoing under the totality of the circumstances. Defendant contended there was no reasonable suspicion in this case because the possession of a controlled substance charge was far removed in time from the date of the search. He further argued that the compliance check was, in fact, a pretext; that the Harvey police department used IDOC to conduct a search for the gun because the police knew they did not have sufficient probable cause, a higher standard than reasonable suspicion, to obtain a warrant so as to conduct the search themselves. The State countered by emphasizing that parolees have a reduced expectation of privacy. The State further argued that the possession charge and his status as a suspect in a shooting allowed for reasonable suspicion that defendant was engaged in criminal wrongdoing.

The circuit court denied the motion. The circuit court agreed with defendant that the Harvey police department used IDOC for its own purposes. However, the court found that fact to be unimportant considering defendant’s reduced expectation of privacy as a parolee and the reasonable suspicion created by the possession of a controlled substance charge. The court also, while finding it unnecessary to make an explicit ruling, “believe[d] arguably the information that the Illinois Department of Corrections received about the defendant being identified as a shooter may have been sufficient in and of itself.”

Defendant now appeals.

ANALYSIS

I. Outside Influence on the Jury

Defendant contends that he was denied a fair trial because the circuit court did not act sufficiently to ensure that the jury was not tainted by a communication Juror Uriaus received from defendant and which Uriaus then described to his fellow jurors prior to informing the court of its occurrence. The State, however, contends that we should not review this claim because he is now taking a position on appeal contrary to that he took below and because he has otherwise waived the claim, including through failing to raise the issue in his posttrial motion. We agree with the State that defendant has waived the issue.

The court looked to the parties for guidance as to whether polling of the jury would be required to purge any taint of Uriaus’ communicating his experience with defendant to his fellow jurors on the night the incident came to its attention. The defense and the State agreed to delay any determination until the following morning. On returning to court the following day, after having had the evening in which to weigh their options, the defense elected to make a response of “no response” to the State’s request for polling of the jury. Defendant currently contends that we cannot conclude that he waived his claim because “no response” is equally capable of being interpreted as an implicit joining in of the State’s request as it is a statement in opposition. We, however, disagree.

Leading up to defendant’s “no response,” the State and the court itself were the only entities that ever explicitly addressed polling the jury surrounding the alleged communication by defendant. Defendant, on the other hand, only specifically requested further questioning of Uriaus. Moreover, following defendant’s “no response,” the court specifically stated that it was “going to deny the State’s request.” By the court’s reference to “the State’s request” in its ruling, defendant would have recognized that the court did not view him as joining the State’s motion, and he should have clearly made a request at that time if he actually desired polling of the jury. The defense should have recognized that the court would not readily deny a joint motion by both parties as it might deny a motion made only by the State. This is particularly true where the State’s request could have had potentially negative consequences for defendant’s position, which the circuit court recognized and articulated in its denial of that motion. By not making a specific request at that point, defendant did not afford the circuit court the opportunity to correct any error that might have occurred, and, of course, affording the circuit court such an opportunity is one of the bases underlying the waiver rule.

In our view, defendant’s conduct in this case is identical to that described by the Second Circuit as an example of waiver in this context in United States v. Gersh, 328 F.2d 460 (2d Cir. 1964), when it stated the “argument [for waiver] would indeed [have] be[en] persuasive if defense counsel had known of the incident [of outside contact] before the case was submitted to the jury or while it was deliberating, but had nevertheless stood mute, gambling on an acquittal while holding this issue in reserve.” Gersh, 328 F.2d at 463. See also United States v. Shakur, 723 F. Supp. 925, 932-33 (S.D.N.Y. 1988) (“A defendant may waive his right to complain of prejudicial outside influence upon the jury if, knowing of that influence, he or his counsel ‘ “nevertheless stood mute, gambling on an acquittal while holding this issue in reserve” ’ [Citations.] This may be regarded as waiver by deliberate concealment”).

Moreover, the Gersh court ultimately declined its defendants’ requested relief because the defendants, even at the time of their post-trial motion, failed to request the appropriate remedy of a hearing to determine the facts surrounding the contact and to afford the government the opportunity to show such contact to be harmless. Gersh, 328 F.2d at 463-64. The court explained:

“Save when the conceded facts as to outside contact with a juror conclusively show prejudice, the court is not bound to order a new trial but rather to conduct a hearing in which the facts can be established, with the Government having the burden of showing that any such contact ‘was harmless to the defendant.’ [Citations.] If a request for such a hearing had been made, it should have been granted. But defense counsel never made such a request; their motion *** was not for a hearing, which, so far as appears, would still have been entirely practicable and which the judge might well have directed had he been asked. Instead they sought a new trial because of his previous failure to hold a hearing, an error which counsel chose to regard as beyond correction.” Gersh, 328 F.2d at 464.

So too here, defendant failed to seek a posttrial hearing in the circuit court and continues to inappropriately ask for a new trial rather than a hearing so as to deny the State the opportunity to show the harmlessness of any contact.

Nevertheless, in spite of his procedural forfeitures and insufficiencies, defendant asks for us to review for plain error. Even granting this review, however, can provide no relief for defendant.

“[T]he plain-error doctrine bypasses normal forfeiture principles and allows a reviewing court to consider unpreserved error when either (1) the evidence is close, regardless of the seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence. In the first instance, the defendant must prove ‘prejudicial error.’ That is, the defendant must show both that there was plain error and that the evidence was so closely balanced that the error alone severely threatened to tip the scales of justice against him. *** In the second instance, the defendant must prove there was plain error and that the error was so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process.” People v. Herron, 215 Ill. 2d 167, 186-87 (2005).

Thus, “Herron’s two prongs establish two categories of plain error: prejudicial errors, which may have affected the outcome in a closely balanced case, and presumptively prejudicial errors, which must be remedied although they may not have affected the outcome.” People v. Nitz, 219 Ill. 2d 400, 415 (2006). Defendant contends that he is entitled to relief under both prongs. We, however, disagree since, to begin, we can find no error that is plain.

“The trial court has substantial discretion in determining whether an improper contact with a juror has caused prejudice to the defendant” (People v. Harris, 123 Ill. 2d 113, 132 (1988)) and in fashioning the means to investigate improper contact (see United States v. Williams-Davis, 90 F.3d 490, 498-99 (D.C. Cir. 1996) (“the trial court has broad discretion over the ‘methodology’ of inquiries into third-party contacts with jurors. [Citation.] We have explicitly rejected any automatic rule that jurors are to be individually questioned”); United States v. Khoury, 539 F.2d 441, 443 (5th Cir. 1976)). As the court in United States v. Chiantese, 582 F.2d 974, 980 (5th Cir. 1978), explained:

“In determining whether to conduct a hearing in a case such as this, the court must balance the probable harm resulting from the emphasis such action would place upon the misconduct and the disruption involved in conducting a hearing against the likely extent and gravity of the prejudice generated by that misconduct. We as an appellate tribunal, are in a poor position to evaluate these competing considerations; we have only an insentient record before us. The trial court is in a far better position to judge the mood at trial and the predilections of the jury. The trial court, therefore, must enjoy a broad discretion in these matters.”

“A court only abuses its discretion when it ‘act[s] arbitrarily without the employment of conscientious judgment or, in view of all the circumstances, exceed[s] the bounds of reason and ignore[s] recognized principles of law’ [citation], so that ‘no reasonable person would take the view adopted by it’ [citation].” People v. Rojas, 359 Ill. App. 3d 392, 401 (2005).

In this case, the circuit court took the necessary step of questioning Uriaus to ensure his ability to remain fair and impartial since he indicated that he had become uncomfortable based on what he perceived to be defendant’s attempt to communicate with him. In declining to investigate further, by conducting voir dire of the remaining jurors who may have heard Uriaus describe defendant’s alleged communication, the court made a judgment that such an investigation would be more detrimental to defendant than allowing the issue to go unexplored. This concern was bolstered by the fact, as discussed above, that the defense remained silent rather than joining or concurring of record in the State’s jury-polling demand. We cannot say that this judgment was unconscientious or beyond the bounds of reason. As the circuit court explained, conducting voir dire of the remaining jurors would have acknowledged and accentuated the communication as an established fact detrimental to the defense and emphasized defendant’s alleged communication as misconduct.

Defendant contends, however, that further inquiry was required under our supreme court’s decision in People v. Roberts, 214 Ill. 2d 106 (2005), and that the circuit court’s decision was therefore made in ignorance of established legal principles. But, we disagree.

In Roberts, a juror met and spoke with one Phillips outside of the courthouse, unaware that Phillips would be a witness in the defendant’s case. The juror was “shocked” when Phillips was called to testify. The juror perceived that Phillips kept looking at her during his testimony and she became nervous. After Phillips’ testimony, the other women on the jury asked the juror about her nervous appearance and she related her experience with Phillips to all of the other women on the jury. Later, during deliberations, other jury members told the juror that she should inform the judge of her contact with the witness. The jury sent the judge a note regarding the juror’s contact with Phillips two hours after deliberations began. Called before the court in response to the note, the juror described her contact with Phillips to the court and disclosed that she related that experience to the other women of the jury; she further informed the court that she could no longer be fair and impartial. The court dismissed the juror and questioned the remaining 11 jurors, 10 of whom had become aware of the juror’s contact with the witness. All 10 who were aware of Phillips contact told the court that they did not believe Phillips had, in fact, threatened the excused juror, and all 11 affirmed that they could remain fair and impartial. The court recalled a woman who had served as an alternate juror and questioned her about whether she had discussed the case with anyone and if she had formed an opinion about the case. The court did not, however, inquire of the alternate juror if she was made aware of the excused juror’s contact with Phillips. The circuit court then instructed the new group of 12 jurors to begin their deliberations afresh. Roberts, 214 Ill. 2d at 111-13.

In addressing the substitution of the excused juror, our supreme court concluded:

“Given the facts of this case, we find defendant was prejudiced by the replacement of the excused juror with the alternate juror. First, according to the excused juror, all of the other female jurors were informed the day before deliberations began of her contact with Phillips. Based on that statement, we must conclude the female alternate juror knew of the contact between the excused juror and Phillips because the alternate juror was not excused from the jury until the case was submitted for deliberations. The alternate juror was not, however, questioned about her knowledge of the contact between the excused juror and Philips when she was recalled to serve on the jury. Therefore, the court did not ensure the alternate juror was not biased due to outside influence.” Roberts, 214 Ill. 2d at 124.

We find Roberts eminently distinguishable from the present case. To begin, in Roberts, the juror with whom the outside contact occurred admitted that, as a result, she lost her ability to remain impartial and, therefore, had to be excused from further jury service. Moreover, that juror clearly expressed her sense of intimidation to her fellow jurors, starting with her apparent unease, which led her fellow jurors to inquire about what was bothering her. In this case, however, Uriaus stated that he was not adversely impacted by defendant’s alleged communication. Further, the circuit court, here, specifically concluded that defendant’s communication, if it actually occurred, was not intimidating or threatening in nature and found no reason to excuse Uriaus. Secondly, whereas, as we have discussed above, the circuit court in this case made a reasoned decision in opting not to voir dire the remainder of the jury in order to avoid emphasizing and accentuating that incident, in Roberts there appeared to have been no apparent reason not to question the recalled alternate juror when that circuit court had already questioned all remaining 11 jurors about the outside contact.

The case of People v. Williams, 344 Ill. App. 3d 334 (2003), is more analogous. In that case, one juror received a call on the first night of trial from the county jail. The juror related to the circuit court that this contact made her uncomfortable and that she could no longer be impartial. She also reported that other jurors had become uncomfortable when spectators in the courtroom stared at the jury as it left the courtroom. The circuit court excused this juror, but elected not to voir dire the remainder of the jury because it was concerned that the jurors would then conclude that their colleague’s dismissal was related to the spectators’ conduct, rather than on account of the phone call that only she experienced and knew about. Williams, 344 Ill. App. 3d at 336. At the hearing on the defendant’s posttrial motion, the circuit court maintained the correctness of its decision, “noting that [it] had personally observed the demeanor of the spectators in the courtroom and noted no behavior that would give rise to a need for an inquiry into jury intimidation.” Williams, 344 Ill. App. 3d at 337. On appeal, the Williams court affirmed the circuit court’s refusal to question the remaining jurors, holding:

“[T]here was no credible evidence to conclude that any of the other jurors were fearful or intimidated by the spectators staring at those jurors as they left the courtroom. Indeed, the dismissed juror’s observation that some of the jurors felt ‘uncomfortable’ fails to rise beyond the level of mere suspicion of impartiality, which is insufficient where the burden is upon the defendant to show that a jury was tainted.” Williams, 344 Ill. App. 3d at 337.

Here, as in Williams, the circuit court made a personal observation of the actions of the persons in the courtroom and determined that no intimidating conduct took place. Further, in light of the nonintimidating nature of defendant’s alleged communication, here, also as in Williams, we can only find the creation of a “suspicion of impartiality,” insufficient to warrant any relief to defendant. See Williams, 344 Ill. App. 3d at 337.

With respect to the second prong of plain error, defendant would appear to rely on presumptions of prejudice and the lack of a fair trial where there is any outside influence on a jury. In support of the existence of these presumptions, defendant cites to People v. Mitchell, 152 Ill. 2d 274, 341 (1992), which quoted People v. Harris, 123 Ill. 2d 113, 132 (1988), for the proposition that “ ‘[i]t is well settled in Illinois that any communication with a juror during trial about a matter pending before the jury is deemed presumptively prejudicial to a defendant’s right to a fair trial.’ ” In rendering this statement of law, the Harris court relied on the United States Supreme Court case of United States v. Remmer, 347 U.S. 227, 229, 98 L. Ed. 654, 656, 74 S. Ct. 450, 451 (1954), which stated:

“In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties.”

Accord Mattox v. United States, 146 U.S. 140, 150, 36 L. Ed. 917, 921, 13 S. Ct. 50, 53 (1892) (“Private communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear”).

The United States Supreme Court later possibly appeared to retreat from its position in Remmer, however. In Smith v. Phillips, 455 U.S. 209, 215, 71 L. Ed. 2d 78, 85, 102 S. Ct. 940, 945 (1982), in a case where a juror submitted an employment application to the prosecutor’s office while serving as a juror, the court stated “the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias.” Later, in United States v. Olano, 507 U.S. 725, 738, 123 L. Ed. 2d 508, 522, 113 S. Ct. 1770, 1780 (1993), the court stated: “We generally have analyzed outside intrusions upon the jury for prejudicial impact.” The Olano Court then went on to say, after citing Smith: “There may be cases where an intrusion should be presumed prejudicial [citations], but a presumption of prejudice as opposed to a specific analysis does not change the ultimate inquiry: Did the intrusion affect the jury’s deliberations and thereby its verdict?” Olano, 507 U.S. at 739, 123 L. Ed. 2d at 522, 113 S. Ct. at 1780.

The federal circuits are divided as to the effect of Smith and Olano on the ongoing vitality of the Remmer presumption. Several circuits interpret Smith and Olano as abolishing the presumption established in Remmer. See United States v. Sylvester, 143 F.3d 923, 934 (5th Cir. 1998) (“We agree that the Remmer presumption of prejudice cannot survive Phillips and Olano. Accordingly, the trial court must first assess the severity of the suspected intrusion; only when the court determines that prejudice is likely should the government be required to prove its absence”); Williams-Davis, 90 F.3d at 496 (stating, in discussing the significance of Smith, “But assuring the defendant ‘an opportunity to prove actual bias’ is out of synch with the Remmer presumption; why would a defendant enjoying a presumption in his favor need such an opportunity?”); United States v. Pennell, 737 F.2d 521, 532 (6th Cir. 1984) (“In light of Phillips, the burden of proof rests upon a defendant to demonstrate that unauthorized communications with jurors resulted in actual juror partiality. Prejudice is not to be presumed”). However, not all of the circuits have reached that conclusion. See United States v. Dutkel, 192 F.3d 893 (9th Cir. 1999); United States v. Tucker, 137 F.3d 1016, 1030 (8th Cir. 1998); United States v. Cheek, 94 F.3d 136, 141 (4th Cir. 1996). But, even those circuits that recognize Remmer as having ongoing vitality appear to still draw a distinction between contacts tantamount to jury tampering and those of a more innocuous nature; attempts at tampering are still presumed prejudicial, whereas innocuous contacts are not. See Dutkel, 192 F.3d at 895 (“The government argues that the categorical directive of Remmer has been undermined by subsequent cases which empower the district court to shift the burden of showing prejudice to the defendant. The cases on which the government relies do nothing of the sort, as none involved jury tampering as that term is normally understood: an effort to influence the jury’s verdict by threatening or offering inducements to one or more of the jurors. *** Jury tampering is a much more serious intrusion into the jury’s processes and poses an inherently greater risk to the integrity of the verdict. While we presume that jurors will disregard the advice of friends and ignore other ex parte contacts, we can indulge no such presumption where jury tampering is involved”); Tucker, 137 F.3d at 1030 (“We do not have sufficient facts before us to ascertain whether the presumption of prejudice should apply, since [the] affidavit does not reiterate the substance of the alleged communications between [the juror] and [the outsider]. However, the type of contact suggested by the record is neither outside legal advice nor exposure to extraneous facts, but private communication, contact or tampering. Tampering was exactly the sort of contact involved in Remmer I, in which the Supreme Court stated the presumption rule”); Cheek, 94 F.3d at 141 (“If the party attacking the verdict introduces competent evidence of extrajudicial juror contacts, the court must analyze whether the contacts were ‘more than innocuous interventions that simply could not justify a presumption of prejudicial effect.’ [Citation.] But if a contact or communication ‘cannot be characterized as innocuous [the court] must proceed from the presumption of prejudice.’ [Citation.]”).

Most recently, the Seventh Circuit, too, has rejected that Remmer created a categorical presumption in Wisehart v. Davis, 408 F.3d 321, 326 (7th Cir. 2005) (“Ripped from its context, the statement is difficult to take seriously, because it is so easy to imagine situations in which a ‘private communication ... with a juror during a trial about the matter pending before the jury’ would not create a rational presumption of prejudice”). The Wisehart court went on to explain:

“In short *** the extraneous communication to the juror must be of a character that creates a reasonable suspicion that further inquiry is necessary to determine whether the defendant was deprived of his right to an impartial jury. How much inquiry is necessary (perhaps very little, or even none) depends on how likely was the extraneous communication to contaminate the jury’s deliberations.” Wisehart v. Davis, 408 F.3d at 326.

For a time, Illinois seemed to acknowledge a categorical presumption in accord with the literal language of Remmer. For example, in Mitchell, a case succeeding Smith by a decade, our supreme court quoted its decision in Harris for the existence of the presumption of prejudice from outside contact which had, as noted, relied on Remmer. Moreover, defendant presents Illinois cases from as recently as 1999 that continued to extol the unqualified existence of the presumption. See People v. Burns, 304 Ill. App. 3d 1, 6 (1999). However, more recently, our supreme court appeared to shift toward a more fact-intensive, case-specific analysis in People v. Williams, 209 Ill. 2d 227 (2004).

In Williams, a defendant seeking postconviction relief presented the affidavit of a juror who averred that another juror “mentioned that she ‘had a conversation’ with her husband about one of the issues in the case. When a third juror commented that they had been instructed not to discuss the case with others, she responded that it was ‘hard not to.’ ” Williams, 209 Ill. 2d at 234. The Williams defendant contended he was entitled to an evidentiary hearing because of the presumption of prejudice established in Mitchell and later applied in People v. Hobley, 182 Ill. 2d 404 (1998). Our supreme court disagreed, however, stating, “The lesson of Hobley is that a juror affidavit alleging exposure to ‘prejudicial outside influences’ (emphasis added) [citation] is sufficient to raise a presumption of prejudice and to shift the burden to the State to establish that such contacts were harmless.” Williams, 209 Ill. 2d at 241. The Williams court then went on to explain, in rejecting postconviction relief:

“The *** affidavit contains nothing more than the mere assertion that an improper conversation occurred. The affidavit contains no information about the nature of the conversation. That is, it offers no evidence that the alleged conversation was prejudicial in any respect. Indeed, the juror may have been the one doing the talking while her husband simply listened. The husband may have made remarks that were critical of the judge or of the prosecution. The ‘issue’ discussed may have been the decision not to sequester the jury or how long the proceedings should go on each day. In sum the *** affidavit establishes only that a member of the jury was having difficulty overcoming the temptation to discuss the case with her husband. It does not establish that the improper conversation was prejudicial in nature.” Williams, 209 Ill. 2d at 241-42.

Thus, since Illinois no longer appears to categorically presume prejudice when there is outside contact with a juror, defendant in this case may not obtain relief under Herron’s second prong of plain error, as elucidated by Nitz, based on a categorical presumption. Moreover, there appears to be no reason to presume prejudice based on the nature of the communication. Defendant’s attempted communication with the jury here is better described as innocuous than tampering. Defendant’s plea, which consisted of him mouthing the words “don’t do it,” did not necessarily explicitly or implicitly threaten or menace Uriaus. Further, unlike a bribe or threat, defendant’s communication did not inherently suggest his guilt of the offense for which he was being tried; in fact, his plea, “don’t do it,” could be viewed as being entirely consistent with innocence.

More overridingly, any presumption should not apply when a defendant initiates the contact himself, in this case through defendant’s misconduct in attempting to communicate with a juror, albeit silently and in open court. In fact, some cases, addressing defendants’ outbursts in open court, have so held. See United States v. Harris, 2 F.3d 1452, 1456 (7th Cir. 1993) (stating, regarding an outburst before the jury, “ ‘[t]o allow a defendant by his own misconduct to terminate his trial even temporarily would be to allow him to profit from his own wrong.’ [Citation.]”); Reynolds v. State, 625 N.E.2d 1319, 1321 (Ind. App. 1994) (“A defendant who creates his own cause for mistrial presents no error”); Winston v. Commonwealth, 12 Va. App. 363, 370, 404 S.E.2d 239, 243 (1991) (“ ‘[C]ourts have frequently explained their reluctance to consider the disruptive conduct of a defendant to be a proper ground for a mistrial, as being necessitated by the possible consequences of a contrary holding. To hold that the disruptive conduct of a defendant is a proper ground for a mistrial, it has been said, would provide a criminal defendant with a convenient device for provoking a mistrial whenever he chose to do so.’ [Citation.]”).

We acknowledge that these considerations may not apply in situations where the defendant’s conduct is so egregious that the fairness of the trial is necessarily, irrevocably undermined. For example, the Fifth Circuit, in reversing for a new trial where the defendant attempted to have a friend persuade a relative sitting on the jury to vote in the defendant’s favor, held:

“It makes no difference in this case that it was [the defendant] himself who initiated the contact that may have poisoned the jury. We reject the suggestion that [the defendant] may not be heard here to complain of the results of his own misconduct. He has been convicted of jury tampering and for that misconduct is subject to punishment. That is an entirely discrete matter. At issue in his trial in this case was whether [the defendant] had dealt with stolen goods, not whether he had tried to corrupt the judicial system. A fair and impartial jury cannot be permitted to draw the conclusion that, because a defendant attempted to fix his trial, he is guilty of the offense for which he is being tried. It is conceivable that a defendant, innocent of the charge being tried, might attempt to tamper with a jury to assure a favorable verdict.” United States v. Forrest, 620 F.2d 446, 458 (5th Cir. 1980).

Our supreme court subsequently quoted Forrest in People v. Hawkins, 181 Ill. 2d 41, 56-59 (1998), while rejecting the State’s claim that the defendants should not be able to claim that they were deprived of a fair trial on the bases of unclean hands and injected error. See Hawkins, 181 Ill. 2d at 57 (“That defendants may have contributed to the corruption of an impartial fact finder is immaterial to our immediate inquiry of whether they were denied a fair trial”). However, that case involved the significantly more egregious facts of a codefendant attempting to bribe the trial judge and the trial judge subsequently attempting to renege on the previously agreed upon fix because he perceived himself to be under scrutiny from law enforcement. Hawkins, 181 Ill. 2d at 45-48.

Here, on the other hand, the circuit court determined that defendant’s communication was not intimidating in nature. In fact, in our view, defendant’s statement can be viewed simply as a supplication, little different in substance from what his attorney had already asked from the jury. We would, thus, perceive no manifest injustice in precluding defendant’s claim on the basis of injected error under these facts.

II. Motion to Suppress

Defendant argues that the circuit court should have granted his motion to suppress because the evidence of his arrest for possession of a controlled substance was too old or “stale” to indicate any criminal activity at the time of the search. Defendant also appears to contend that the notification by the Harvey police that he was involved in a shooting could not have been sufficient to formulate reasonable suspicion of wrongdoing. The State, on the other hand, contends that the information surrounding the shooting, in and of itself, was sufficient to form reasonable suspicion for the search, especially when combined with defendant’s flight from Giorgakis and White when they reported to his home. Likewise, the State does not concede that any staleness of the drug arrest would have precluded the search.

Normally, for the search of a home to be reasonable, the police must have obtained a warrant supported by probable cause. See Griffin v. Wisconsin, 483 U.S. 868, 873, 97 L. Ed. 2d 709, 717, 107 S. Ct. 3164, 3168 (1987); see also Payton v. New York, 445 U.S. 573, 589, 63 L. Ed. 2d 639, 653, 1