Filed 8/22/08             NO. 4-07-0474

                     IN THE APPELLATE COURT

                              OF ILLINOIS

                         FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,    )    Appeal from
          Plaintiff-Appellee,           )    Circuit Court of
          v.                            )    Macon County
AARON M. BEASLEY,                       )    No. 06CF1527
          Defendant-Appellant.          )
                                        )    Honorable
                                        )    James R. Coryell,
                                        )    Judge Presiding.
_________________________________________________________________

          JUSTICE COOK delivered the opinion of the court:

          A jury found defendant, Aaron M. Beasley, guilty of

unlawful possession of more than 400 grams but less than 900

grams of a substance containing cocaine with intent to deliver

(720 ILCS 570/401(a)(2)(C) (West 2006)).    The trial court sen-

tenced defendant to 12 years' imprisonment, which was the minimum

sentence under the statute.    On appeal, defendant challenges the

sufficiency of the evidence and, in the alternative, raises

several arguments concerning the fairness of his trial.    Though

we find the evidence sufficient, we reverse and remand for a new

trial.

                          I. BACKGROUND

         A. Defendant's History and Living Circumstances

          Defendant, age 26 at the time of the offense, was a

community-college student who worked several temp-service jobs.

Prior to the conviction at issue here, defendant had never been
charged with a crime as an adult.   Defendant had one juvenile

conviction for possession of 10 to 30 grams of cannabis, for

which he received nine months' supervision.

          Defendant split his place of residence between his

parents' home at 1359 East Condit in Decatur, Illinois, and the

apartment of his girlfriend, Shanitera Walker.   Living at 1359

Condit were defendant's mother (Roni), father (Calvin), sister

(Amanda), and his toddler son, custody of whom he shared with

Shanitera.   According to those living in the house, defendant's

bedroom was not very private; the bedroom door could not be

locked and the bedroom closet was used as a household receptacle,

storing other family members' clothes, space heaters, and irons.

Defendant's older brother, Shawn Beasley, who is also the

codefendant in this case, did not live at 1359 Condit but,

according to Roni, visited two to three times per week for

several hours at a time.   Before he moved out, Shawn had shared

defendant's bedroom.

                       B. The Instant Crime

          On Monday, June 5, 2006, while conducting a drug

investigation against Shawn, Decatur police officers served a

warrant on Shawn's apartment on 25th Street in Decatur.   Then,

pursuant to information that Shawn was possibly storing cocaine

at 1359 Condit, Decatur police officer James Root directed

several officers to go to the Beasleys' family home.   Roni gave


                               - 2 -
the police permission to search the house.

           The police found two safes in defendant's bedroom

closet.    One of the safes was unlocked and "emitted the aroma of

cocaine" when opened.   The safe contained a black foam liner that

was later determined to contain cocaine residue and a piece of

paper that listed approximately 15 first names and initials with

numbers ranging from 80 to 1,000 next to the names.    Eighty

dollars is the typical price for a gram of cocaine; the other

numbers also matched typical prices for common sale quantities of

cocaine.   The initials of defendant, "A.B.," and the initials of

Shawn, "S.B.," were both on the list.   Officer Root opined that

this list was a drug record, but the handwriting in the list was

never compared to the handwriting of Shawn or defendant.    The

handle of the safe contained Shawn's fingerprints.    The inside

lid of the safe contained defendant's left-thumb fingerprint.

The age of the prints could not be determined.   When asked at

trial why his fingerprints may have been on the inside lid of the

safe, defendant answered:

           "Uh--I had to have probably just moved it out

           of the way while looking for something else.

           But, other than that, I would not know. ***

           [Maybe] the lid was up or it was laid down."

           Also in defendant's bedroom, police found a pair of

latex gloves on top of a small refrigerator.   In a small trash


                                - 3 -
can next to the refrigerator, police found sandwich bags that had

the corners cut (consistent with packaging smaller quantities of

cocaine).    According to Amanda, both Shawn and defendant had been

home the day before the search, but only Shawn stayed overnight

and slept in defendant's bedroom.    Before that, defendant had

been on a weekend trip with Shanitera in St. Louis.

            In the basement crawl space, police found an "Old Navy"

shopping bag and another safe.    Roni testified the bag belonged

to her, she had used it to store gardening supplies, and she had

last seen it a week prior to the search.      In the shopping bag,

police found nearly $70,000 worth of cocaine, which was further

contained in several sandwich bags.      In the safe, which was

locked and subsequently pried open by police, police found baking

soda, which is often used as a cutting agent for cocaine, and a

white plastic container containing wet wipes.      Police found

Shawn's fingerprints on the white plastic container but did not

submit the baking soda box for testing.      Defendant testified that

he had seen a safe in the basement within the last year but did

not know which of the three safes found in the search it had

been.    When defendant saw the safe, it was not in the crawl

space.

                 C. Investigation Against Defendant

            On June 6, 2006, the day after the search, defendant

voluntarily went to the police station for questioning.      Defen-


                                 - 4 -
dant told police that Shawn had a key to the family home at 1359

Condit.    Shawn periodically lived at 1359 Condit and stored

things in defendant's bedroom.    Defendant often stayed over at

his girlfriend Shanitera's apartment and did not know anything

about the safe, the gloves, or the sandwich bags found in his

bedroom.    Defendant had seen a safe in the basement approximately

a year ago.

            On August 15, 2006, Shanitera saw defendant with

another woman at the movie theater.      Defendant and Shanitera got

in a dispute.    The police arrived and arrested Shanitera for

domestic battery.    While incarcerated, Shanitera contacted the

sheriff's department to talk to them about defendant.     Shanitera

told police that, following the June 2006 investigation, defen-

dant told her that he would be staying with her for awhile

because the police had found the drugs at his parents' house.

After Shanitera implicated defendant in the instant drug case,

the State dropped the domestic-battery charges against her.

            In October 2006, the State charged both defendant and

Shawn with unlawful possession of more than 400 grams but less

than 900 grams of a substance containing cocaine with intent to

deliver.

                              D. Trial

            At trial in early February 2007, Shanitera testified

that defendant had told her that the drugs confiscated in the


                                 - 5 -
June 2006 search belonged to him and his brother and that he knew

about the safe in the bedroom.    Shanitera testified that she was

no longer upset with defendant at the time of trial.    During

cross-examination, Shanitera admitted that she had saved newspa-

per clippings about the investigation, which mentioned the safe

in the bedroom.   Shanitera also revealed that she was released

from jail on the domestic-battery charges the very same day she

decided to speak to police regarding the instant drug case.

Shanitera also stated that she was trying to recover custody of

the son that she shared with defendant from the Beasley family.

          According to defendant, he never told Shanitera that

the drugs were his.   He only told her what he had learned of the

investigation through the police.    Defendant testified that, when

he and Shanitera began to fight, Shanitera told him she would

make his life a "living hell."    According to defendant's sister

Amanda, Shanitera called the Beasley residence in a harassing

manner on many occasions.   According to Amanda, Shanitera ex-

pressed her feelings that defendant had "done her wrong" and

stated, "that's okay cause I'm coming out of jail, and Aaron will

be going in."

          During closing argument, the defense noted that the

State never bothered to have several items checked for finger-

prints, such as the box of baking soda found in the basement

safe, or the list of names found in the bedroom safe.    In rebut-


                                 - 6 -
tal, the State responded:

           "[T]hey examined the plastic container which

           was sitting right beside the baking soda, but

           yet, this baking soda somehow becomes a huge

           glaring gap. *** Well, if this had been sent

           in and the defendant's print would have been

           on this, we would have just as much of a

           story that was concocted as there was--"

The defense objected to the implication that the defense was

concocting stories.    The court replied:   "He didn't say the

defense concocted the story.    He said the story was concocted.

***   Overruled."   The State went on to provide a hypothetical

where, if it had in fact tested the box of baking soda for prints

and the results had come back with defendant's prints on the box,

then it would not be "hard" for defendant to "refute the physical

evidence" by saying his prints were on the box because he had

been "baking cookies."    The following exchange then took place

regarding the absence of fingerprints on certain items:

                "STATE: You, also, learned that evidence

           can be requested to be sent to the [l]ab for

           examination.   There was no request [by defen-

           dant] to do so.

                DEFENSE: Objection as to this line of

           argument which shifts the burden


                                - 7 -
          impermissibly.

               THE COURT: Overruled.

               STATE: If *** it's unconscionable on the

          part of [the State,] it's just as unconscio-

          nable on the part of the defense.   So, if you

          want something tested, you can get it tested.

          You can't sit back and say, 'Well, nobody

          tested it; therefore, the evidence fails.'"

          The jury received instructions on accountability.

During jury deliberations, the jury sent the court a note, which

read:

          "Could we have a more clear clarification of

          [i]f [sic] you know about a crime being com-

          mitted but do nothing and later get arrested

          as a participant in the crime is that a sign

          of guilt."

The defense suggested that the answer should be, "no, it is not."

Instead, the trial court told the jurors: "You must rely on the

instructions you have already been given."

          Following deliberations, all 12 jurors signed the

guilty verdict, including Vernard Fuller.    When the court polled

the jury, each juror except Fuller answered only with a "yes."

When the court polled Fuller, the following exchange took place:

               "THE COURT: Mr. Fuller, is this your


                              - 8 -
verdict?

        JUROR FULLER: Um--I have to say, yes, I

guess.

        THE COURT: Okay.

        DEFENSE: Well, I'm--

        THE COURT: Okay.    Thank you.    He said,

'Yes,' I believe.      Mr. Doyle, is this your

verdict?      [The court then proceeded to poll

several more jurors.]

        THE COURT [upon polling all the jurors]:

Okay.    Anything else, counsel?

        DEFENSE: Judge, I don't believe that Mr.

Fuller really indicated--

        STATE: Can we--

        THE COURT: Well, let's--do you want to

take them out for just a minute? [Upon which,

the jury left the courtroom.]

        ***

        THE COURT: Okay. Thank you.      Miss Re-

porter, would you, please, read back Mr.

Fuller's response? (Whereupon, the question

and the response was read back by the court

reporter.)

        DEFENSE: He was kind of shaking his head


                          - 9 -
as he said that, Your Honor.     I mean, the

only reason I said something is I've never

had someone be somewhat equivocal.

     THE COURT: He may not have been happy

with what the result was, but I think his--

his answer is not equivocal.     His answer is

that's his verdict.    Anything else then,

counsel?

     STATE: No.

     THE COURT: Mr. Vigneri [(defense coun-

sel)]?

     DEFENSE: Just to preserve the record, I

guess I'd ask for a mistrial or further poll-

ing of Mr. Fuller.

     ***

     THE COURT: *** I mean, these people

aren't here to be badgered about and bullied.

He's indicated that was his verdict.     Uh--and

so, I'm--Mr. Scott [(prosecutor)], do you

want him brought--brought back in?

     STATE: I see no need to.

     THE COURT: I don't either."

                  E. Posttrial

On March 12, 2007, defendant filed a posttrial motion.


                      - 10 -
Among other claims, defendant argued that newly discovered

evidence warranted granting a new trial.   Defendant noted:

"Codefendant Shawn D. Beasley has now pleaded guilty and has made

written and oral statements indicating that the cocaine in

question was possessed solely by him and that this [d]efendant

had no knowledge of the same."   Defendant's trial attorney filed

an affidavit stating:

          "On February 22, 2007, [several weeks after

          trial], I was provided with Shawn Beasley's

          written statement in which he assumed full

          responsibility for the drugs which are the

          subject of this *** case and in which he

          indicated that only he had knowledge of the

          presence of the drugs at the Condit Street

          residence."

Defendant also attached a written statement by Shawn, which read:

          "I would like [Y]our [H]onor to know that the

          people of 1359 E. Condit had no knowledge of

          the illegal substances that were found in

          [their] house.   Especially Aaron M. Beasley."

Defendant later filed a supplemental posttrial motion that

attached an affidavit by Shawn stating the same and further

stating that if called at defendant's trial, he would have

asserted his fifth-amendment rights.


                              - 11 -
             Defendant also attached the affidavit of juror Fuller.

Fuller stated he only signed the guilty form because other jurors

"ganged up" on him.     He "felt coerced by them to sign."    He

stated that when the judge asked him if that was his verdict, he

"never said 'Yes' and in fact *** said 'No.'"     At the time the

court asked Fuller, "and at all other times, he did not agree

with the guilty verdict."     Fuller further stated:

            "I was trying to explain to the judge my

            disagreement with the verdict, but the judge

            cut me off and did not give me an adequate

            opportunity to respond to his question and to

            tell him in no uncertain terms that I dis-

            agreed with the verdict and was voting 'not

            guilty.'   Had the judge given me an adequate

            opportunity to respond, that is what I would

            have told him.   The judge did not let me

            finish my answer to his question."

            On April 9, 2007, the defense filed a criminal subpoena

requesting all audio and video recordings of the jury poll.        The

State filed a motion to quash and the trial court granted the

motion.   Defendant filed a subsequent posttrial motion challeng-

ing the court's decision to quash the subpoena, which the court

denied.   The court sentenced defendant as stated.      This appeal

followed.


                                - 12 -
                             II. ANALYSIS

                   A. Sufficiency of the Evidence

            Defendant first challenges the sufficiency of the

evidence.   In reviewing the sufficiency of the evidence, the

question is "'whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.'" (Emphasis omitted.)     People v. Bishop, 218

Ill. 2d 232, 249, 843 N.E.2d 365, 375 (2006), quoting Jackson v.

Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct.

2781, 2789 (1979).    The phrase "any rational trier of fact" does

not allow an appellate court to relax its duty to carefully

consider whether the evidence was sufficient to sustain a guilty

verdict.    People v. Minniweather, 301 Ill. App. 3d 574, 577, 703

N.E.2d 912, 913-14 (1998).    In balance, however, an appellate

court may not reverse a conviction "unless the evidence is so

improbable, unsatisfactory, or inconclusive that it creates a

reasonable doubt of defendant's guilt."     People v. Collins, 214

Ill. 2d 206, 217, 824 N.E.2d 262, 267-68 (2005).    A court of

review may not substitute its own judgment for that of the trier

of fact on matters of credibility or weight of the evidence.      See

People v. Brink, 294 Ill. App. 3d 295, 300, 690 N.E.2d 136, 139

(1998).

            To be convicted of possession with intent to deliver,


                                - 13 -
the State must prove beyond a reasonable doubt that (1) defendant

had knowledge of the presence of the controlled substance; (2)

the controlled substance was in the immediate control or posses-

sion of defendant; and (3) defendant intended to deliver the

controlled substance.     People v. Schmalz, 194 Ill. 2d 75, 81, 740

N.E.2d 775, 779 (2000).    Where narcotics are found on the pre-

mises over which the defendant has control, it may be inferred

that the defendant had the requisite knowledge and possession,

absent other facts and circumstances that create a reasonable

doubt of the defendant's guilt.     People v. Smith, 191 Ill. 2d

408, 413, 732 N.E.2d 513, 515 (2000).    Possession may be joint.

Schmalz, 194 Ill. 2d at 82, 740 N.E.2d at 779.    To be convicted

of possession with intent to deliver on an accountability theory,

the State must prove beyond a reasonable doubt that Shawn was

guilty of possession with intent to deliver and that defendant,

"[e]ither before or during the commission of an offense, and with

the intent to promote or facilitate such commission, *** solic-

its, aids, abets, agrees or attempts to aid, such other person in

the planning or commission of the offense."    720 ILCS 5/5-2(c)

(West 2006).

          Defendant argues that the State did not establish guilt

directly or on an accountability theory because (1) evidence

indicated that Shawn had access to the places the contraband was

found and had slept in defendant's bedroom immediately prior to


                                - 14 -
the search; (2) evidence of defendant's fingerprints on the safe

in the bedroom closet could not reliably tie defendant to the

crime because the State did not establish when the fingerprints

had been impressed; and (3) Shanitera's testimony tying defendant

to the crime was "unreliable and untrustworthy."    We agree that a

rational jury may have just as easily reached a "not guilty"

verdict on the facts of this case.

           However, establishing that the evidence is closely

balanced is not the standard for finding the evidence to be

insufficient.    Defendant's prints were on the inside of the safe

where cocaine residue was found.    Defendant's initials were found

on the list inside the safe that investigators believed to be

records of drug sales.   The jury may have found it incredible

that defendant would not have known anything about the safe that

was found in his bedroom closet.

           Additionally, there is the issue of Shanitera's testi-

mony.   Shanitera testified that defendant told her that he and

Shawn had been in possession of the drugs for a week or so prior

to the search.   Shanitera testified that defendant told her that

the police "got the stuff" and that defendant would therefore be

staying with her for a while.    The jury was made aware that

Shanitera had an axe to grind with defendant and that Shanitera's

pending charges may have motivated her to cooperate with police,

but the jury chose to believe Shanitera anyway.    We will not


                                - 15 -
upset the jury's determination of Shanitera's credibility.    The

State's evidence against defendant was sufficient to convict.

                           B. New Trial

          Defendant next points to several alleged errors that

may have prevented him from receiving a fair trial, including (1)

the State's implication during closing argument that defendant

was required to prove his innocence; (2) the trial court's

failure to question an ambivalent juror during polling; (3)

indications that the jury may have been confused as to a point of

law regarding accountability; and (4) the exculpatory evidence

contained in Shawn's affidavit and written statement.   We find

the State's implication that defendant was required to prove his

innocence and the trial court's failure to question the ambiva-

lent juror particularly troubling and find that they warrant

remand for a new trial.

                       1. Burden of Proof

          The defense is under no obligation to produce any

evidence, and the prosecution cannot attempt to shift the burden

of proof to the defense.   People v. Woods, 292 Ill. App. 3d 172,

180, 684 N.E.2d 1053, 1059 (1997) (Cook, J., dissenting).    Courts

have found error where the prosecution implied that the defendant

had an obligation to come up with evidence to create a reasonable

doubt of his guilt.   See People v. Nevitt, 135 Ill. 2d 423, 453,

553 N.E.2d 368, 379 (1990) (error, though not plain error, for


                              - 16 -
prosecution to comment on defendant's failure to produce an alibi

witness); People v. Weinstein, 35 Ill. 2d 467, 469-70, 220 N.E.2d

432, 433-34 (1966) (reversible error where 17 objections were

made as to prosecution's misleading statements of the burden of

proof).   Here, in closing argument, the State said:

           "If *** it's unconscionable on the part of

           [the State not to test certain items for

           fingerprints,] it's just as unconscionable on

           the part of the defense.    So, if you want

           something tested, you can get it tested.      You

           can't sit back and say, 'Well, nobody tested

           it; therefore, the evidence fails.'"

The State argues that its comments were appropriate because the

defense opened the door by first stating that it was unconsciona-

ble that the State failed to get certain items tested for finger-

prints (People v. Singleton, 367 Ill. App. 3d 182, 190, 854

N.E.2d 326, 333-34 (2006) (defendant cannot object to a line of

inquiry that he invited)), and it further claims that it was

merely pointing out defendant's constitutional right to conduct

his own tests on physical evidence.     See People v. Peeples, 155

Ill. 2d 422, 477, 616 N.E.2d 294, 319 (1993).     First, while

defendant may have invited the State to explain why it chose not

to submit certain items for fingerprinting, a defendant in a

criminal case can never "open the door" to shift the burden of


                              - 17 -
proof.    Moreover, defendant, though able to submit evidence for

analysis, has no burden to do so.    A defendant's failure to

submit evidence for analysis cannot be considered "unconsciona-

ble."    Further, by overruling defendant's objections to these

types of comments by the State, the trial court was in effect

sanctioning an erroneous burden of proof before the eyes of the

jury.



                            2. Jury Poll

            Regarding juror Fuller's allegedly equivocal answer

during polling, the question of whether a juror has freely

assented to the verdict is a factual one that is left to the

discretion of the trial court.    People v. Chandler, 88 Ill. App.

3d 644, 650, 411 N.E.2d 283, 288 (1980).     Polling the jury

safeguards the defendant's right to a verdict that is the product

of the free and unhampered deliberations of each juror.      People

v. Bennett, 154 Ill. App. 3d 469, 475, 507 N.E.2d 95, 99 (1987).

The polling should be done in a manner that elicits an "unequivo-

cal" response from each juror.    People v. Kellogg, 77 Ill. 2d

524, 528, 397 N.E.2d 835, 837 (1979).      The trial judge should not

turn the polling process into an opportunity for further deliber-

ations; however, if a juror expresses "some hesitancy or ambiva-

lence" in his answer, then it is the trial judge's duty to

ascertain the juror's present intent by affording the juror the


                               - 18 -
opportunity to make an unambiguous reply.      Kellogg, 77 Ill. 2d at

528, 397 N.E.2d at 837.

            In Kellogg, upon being asked whether the guilty verdict

was and is her final verdict, the 21-year-old juror responded,

"Yes.    Can I change my vote?"    The trial judge did not answer the

juror, but instead repeated the question.     The juror did not

respond, and the trial judge repeated the question again.     That

time, the juror responded, "'Yes, sir.'"      Kellogg, 77 Ill. 2d at

527, 397 N.E.2d at 837.    The supreme court held that the juror

had expressed a reluctance to abide by the verdict and that the

trial judge did not sufficiently determine her present intent.

Kellogg, 77 Ill. 2d at 530, 397 N.E.2d at 838.     The Kellogg court

noted it could not tell from the record whether the juror truly

assented to the verdict or whether she responded to the judge, a

person of authority, with a compelled answer.      Kellogg, 77 Ill.

2d at 530, 397 N.E.2d at 838.

            In Bennett, when asked whether the guilty verdict was

and is her final verdict, the juror answered, "'Not sure.'"       The

trial judge replied, "'pardon?'"      The juror again answered, "I'm

not sure."    The judge then began to repeat the question, "'Is

this,'" but the juror cut the judge off and answered, "'This is

my verdict.'"    Bennett, 154 Ill. App. 3d at 473, 507 N.E.2d at

97-98.    The Bennett court held that the judge did not give the

juror an opportunity to express her verdict in an unambiguous


                                  - 19 -
manner.   Bennett, 154 Ill. App. 3d at 476, 507 N.E.2d at 100.

The Bennett court thought it was possible that the juror felt

reluctant to explain her position and then was coerced into

complying with what she believed to be the trial judge's wishes.

Bennett, 154 Ill. App. 3d at 476, 507 N.E.2d at 100.

          Here, juror Fuller expressed some hesitancy or ambiva-

lence in his answer when he stated, "Um--I have to say, yes, I

guess," while shaking his head.     The trial court therefore had a

duty to ascertain Fuller's present intent by giving him the

opportunity to make an unambiguous reply.        Kellogg, 77 Ill. 2d at

528, 397 N.E.2d at 837.    Juror Fuller was never given the oppor-

tunity to restate his position more clearly.       As he testified in

his affidavit, juror Fuller felt "cut off" by the trial judge and

was therefore not able to express his dissent from the verdict.

          The cases cited by the State for the proposition that

unorthodox responses are not necessarily expressions of dissent

are distinguishable.    See People v. Riddle, 49 Ill. App. 3d 46,

48-49, 363 N.E.2d 881, 883 (1977).        In Riddle, the following

exchange took place during the polling of two jurors:

                  "'COURT: Mr. Gunter, is this your ver-

          dict?

                  A: Yes, sir.

                  Q: Are you satisfied with it?

                  A: In a way I was and in a way I wasn't.


                                 - 20 -
               Q: Do you want this to be your verdict?

               A: I guess it will have to be.

               Q: And do you want me to accept it?

               A: Yes, sir.

                                * * *

               Q: Mrs. Christian, is this your verdict?

               A: Yes, sir.

               Q: Are you satisfied with it?

               A: In some ways and in some ways not.

               Q: Do you want me to accept it?

               A: Yes, sir.'"    Riddle, 49 Ill. App. 3d

          at 48, 363 N.E.2d at 883.

In Riddle, the jurors responded unequivocally that this was their

verdict and that they wanted the court to accept their verdict,

but expressed uncertainty as to how they felt about the verdict.

See also People v. Cabrera, 116 Ill. 2d 474, 490, 508 N.E.2d 708,

714 (1987) (the fact that trial court did not allow juror to

express her rationale did not make trial court's determination

that juror voluntarily assented to the verdict unreasonable).

Moreover, as noted by the appellate court, the trial court gave

the jurors ample opportunity to disavow their verdict.     Riddle,

49 Ill. App. 3d at 48, 363 N.E.2d at 883.   In our case, juror

Fuller was not permitted to speak again after making his initial

statement.


                                - 21 -
           The State also points to Cabrera for the proposition

that a juror's statement in an affidavit, taken after the jury

has rendered its verdict, has been polled in open court, and has

been discharged, will not be admitted to impeach a juror's

verdict.   Cabrera, 116 Ill. 2d at 491, 508 N.E.2d at 714-15.

However, regardless of whether Fuller's affidavit is admissible

to show the process by which Fuller came to sign the guilty

verdict, Fuller's affidavit would be admissible to show that he

felt "cut off" by the trial judge during polling and would have

liked to explain to the trial judge that he actually dissented

from the verdict.

           Finally, the State points to two cases from outside our

jurisdiction wherein the jurors made statements similar to

Fuller's during polling and the court(s) found the jurors'

statements sufficiently unequivocal.   See State v. Wiese, 162

Wis. 2d 507, 516-17, 469 N.W.2d 908, 911 (1991) (the juror

initially said she "'wasn't completely sure,'" then, upon further

inquiry by the court, answered, "'yes, I guess so,'" and then,

after questioning all the other jurors and coming back to the

questionable juror, the juror answered "'yes'"); State v. Boyd,

2005-Ohio-73, at ¶13 (juror stated "'Yeah, I guess.   Yes,'" and

then "'Well, yes, I guess.   Yes'") (Ohio Appellate 9th District

2005).   Unlike the instant case, the jurors in Wiese and Boyd

were allowed to make additional, clarifying statements.   Also,


                              - 22 -
nothing here indicates that the jurors in Wiese and Boyd were

exhibiting ambivalent body language while they spoke, as compared

to the instant case where juror Fuller was reportedly shaking his

head.

                      3. Remaining Contentions

            Because we reverse and remand on the above-stated

grounds, we decline to address defendant's remaining contentions

of error.    Because the evidence was sufficient to permit the jury

to convict defendant for possession with intent to deliver,

double jeopardy is not implicated.      People v. Taylor, 76 Ill. 2d

289, 309-10, 391 N.E.2d 366, 375 (1979).

                           III. CONCLUSION

            For the aforementioned reasons, we reverse the trial

court's judgment and remand for a new trial.

            Reversed and remanded.

            McCULLOUGH and MYERSCOUGH, JJ., concur.




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