                                           2017 IL App (3d) 150550

                                Opinion filed November 30, 2017
       _____________________________________________________________________________

                                                   IN THE


                                    APPELLATE COURT OF ILLINOIS


                                              THIRD DISTRICT


                                                     2017 


       THE PEOPLE OF THE STATE OF ILLINOIS, )       Appeal from the Circuit Court
                                              )     of the 14th Judicial Circuit,
             Plaintiff-Appellee,              )     Rock Island County, Illinois.
                                              )
             v. 	                             )     Appeal No. 3-15-0550

                                              )     Circuit No. 13-CF-1089

       AARON D. HENDERSON                     )

                                              )     Honorable Michael F. Meersman,
             Defendant-Appellant.             )     Judge, Presiding.
       _____________________________________________________________________________

              JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
              Justices Carter and O’Brien concurred in the judgment and opinion.

                                                  OPINION

¶1            Defendant, Aaron D. Henderson, appeals from his conviction for first degree murder and

       his subsequent 40 year prison sentence. Specifically, he argues that the trial court (1) committed

       reversible error when it conducted ex parte communications with the jury during deliberations,

       (2) committed reversible error when it allowed the jury to observe audio and video evidence in

       the courtroom during deliberations in the presence of only a representative of the State’s

       Attorney’s office, (3) failed to conduct a preliminary inquiry into defendant’s pro se allegations

       of ineffective assistance of counsel, and (4) abused its discretion in sentencing him to 40 years’

       imprisonment. We reverse and remand for a new trial.

¶ 2	                                                FACTS
¶3          In December 2013, defendant was charged, in relevant part, by information with first

     degree murder (720 ILCS 5/9-1(a)(3) (West 2012)) for the death of Derek James Jackson based

     on an accountability theory. Specifically, the charge alleged that defendant, while acting with

     another for whose conduct he was legally responsible for, during the attempted commission of

     robbery, shot Jackson with a firearm causing his death. The following month, defendant was

     charged with a second count of first degree murder with a firearm (720 ILCS 5/9-1(a)(2) (West

     2012); 730 ILCS 5/5-8-1(d)(iii) (West 2012)), for personally discharging the firearm that killed

     Jackson.

¶4          Defendant’s trial took place over the course of four days in March 2015 during which the

     following evidence was presented.

¶5          Alyson Schippers testified that she was Jackson’s girlfriend. Over her lunch hour on

     December 17, 2013, she was with Jackson, Jackson’s three-year-old son Remy, Kameron

     Bolden, and defendant, whom she knew by the nickname “Dewy.” She explained that Jackson

     and defendant were “good friends” and that defendant was at Jackson’s house “a lot.” While on

     her lunch break, Schippers overheard defendant and Jackson talking about Jackson purchasing a

     gun from defendant and someone else. Schippers did not find this unusual because Jackson had

     guns at his house and went to the shooting range. Jackson later picked her up from work, and

     she, Jackson, and Remy returned to Jackson’s home where they spent the night. Schippers stated

     that the three of them woke up the next morning around 10:30 to 11 a.m. Jackson had money lain

     out on the dresser, which Schippers assumed was for the purchase of the gun. She was getting

     Remy dressed while Jackson was getting ready for work when the telephone rang. According to

     Schippers, Jackson answered the phone and then told her that Dewy was on his way. Jackson

     asked her to turn on the music, and he went downstairs. She plugged her phone into the sound



                                                    2

     system. Jackson’s house was also equipped with an alarm system, and she heard a beep upstairs

     which indicated the front door to the house had opened.

¶6          Approximately 5 to 10 minutes later, Schippers heard a gunshot. She went downstairs to

     see what happened and saw Jackson lying on the ground as defendant, who was wearing a black

     hoodie, was leaned over Jackson rifling through his pockets. Schippers was scared so she went

     back upstairs and “took [her] phone off of the music” but then she “plugged it back in” because

     she did not want “them” to come upstairs. Shortly thereafter, she saw two people “running up the

     street.” Their back was to her and all she could see was that they “had dark clothes on, pants and

     shirt.” Schippers ran downstairs to check on Jackson and saw that he had been shot and was

     unresponsive. She called 911. A recording of the 911 call was published to the jury. During the

     call, Schippers tells the operator that “Dewey” and “Kam” shot Jackson. Schippers further

     testified that Jackson’s cell phone was never located nor was the cash he had set out to purchase

     the gun.

¶7          Nicholas Pauley, a police officer with the city of Rock Island, testified that he responded

     to the scene of the shooting. Upon arriving at the scene, he entered the house and saw that

     personnel from the Rock Island fire department were treating Jackson’s apparent head wound.

     Pauley then secured the scene. He located three spent shell casings in the vicinity, one in the

     kitchen and two in the dining room, which he marked with a piece of paper. Pauley was also

     present during the execution of a search warrant at defendant’s residence. During that search, he

     collected a pair of black jeans and other clothing.

¶8          Ellen Chapman, a forensic scientist with the Illinois State Police, testified that she tested

     the pockets of the black jeans collected from defendant’s residence. According to Chapman, the




                                                      3

       right front pocket of the jeans tested positive for gunshot residue. She further testified that the

       gunshot particles could be the result of being in the same environment as the discharged firearm.

¶9            Garrett Alderson, a criminalist with the Rock Island police department, testified that he

       was dispatched to the scene of the shooting to take photographs and collect evidence. He

       collected four shell casings and two bullets from the scene. The next day, he returned to the

       residence and collected a third bullet from the residence and a fourth bullet from Jackson’s body

       that was recovered during autopsy. Alderson stated the shell casings collected from the scene

       were 40-caliber TulAmmo Smith & Wesson casings. He also participated in the execution of the

       search warrant at defendant’s residence. At that residence, Alderson collected some of

       defendant’s clothing. He also took possession of money that had been seized from defendant and

       turned over to the Rock Island police department. Alderson found a potential blood stain on the

       money but no latent fingerprints. He then returned the money to a detective to enter into

       evidence.

¶ 10          Mark Staes, a police officer for the city of Rock Island, testified that he was dispatched to

       the scene of the shooting. Schippers let him in the back door of the residence. After securing the

       residence, he took Schippers and Remy into an upstairs bedroom. At that point, Schippers told

       him that Jackson had been on the phone with defendant and then, shortly thereafter, he let

       defendant and another person into the house. A few minutes later, she heard what she thought

       were two gunshots. She went downstairs and saw defendant going through Jackson’s pockets.

       Schippers showed him a picture of defendant on her cell phone.

¶ 11          Ranzan Ahmad testified that he was the owner of the 11th Street Mart in Rock Island.

       The market was equipped with a video surveillance system, which was working on December

       18, 2013. He turned the surveillance video over to the police.



                                                       4

¶ 12          Timothy Metzger, a police detective with the city of Rock Island, testified that he

       collected surveillance videos recorded by the 11th Street Mart convenient store, which was near

       Jackson’s house. He reviewed the videos and located footage of defendant. Redacted portions of

       the surveillance video were published to the jury. The video begins at 11:33 a.m. on December

       18, 2013, and it depicts defendant and Bolden walking across 11th Street into a parking lot,

       which is located near Jackson’s house. Approximately eight to nine minutes later, defendant and

       Bolden again appear on the video. Metzger described the clothes defendant was wearing as blue

       jeans, a black “leather-ish looking” coat, a “[g]rayish colored stocking cap,” and white tennis

       shoes. He described Bolden’s clothing as dark colored jeans with a white T-shirt “hanging out

       underneath” a “gray or purplish hoodie” under a “darker or black outer coat.”

¶ 13          Chad Sowards, a police detective with the city of Rock Island, testified that he responded

       to the scene of the shooting and interviewed Schippers. During that interview, Schippers told him

       that defendant was at the residence during the shooting and that she observed him going through

       Jackson’s pockets afterwards. Sowards then executed an arrest warrant for defendant at

       defendant’s girlfriend’s residence in Davenport, Iowa. At the time of his arrest, defendant was

       wearing a white hooded sweatshirt and maroon jeans. Sowards stated that defendant waived his

       Miranda rights and agreed to speak to the police. According to Sowards, defendant told him that

       he was at his residence from 3 p.m. on December 17, 2013, when he was dropped off by Jackson

       and Schippers, until 3 p.m. on December 18, 2013, when his girlfriend picked him up and took

       him to her house. Sowards further testified that defendant told him the last time he had been at

       Jackson’s home was December 17, 2013. Sowards’s interview of defendant was recorded and the

       recorded interview was published to the jury.




                                                       5

¶ 14          Herve Denain, a crime scene technician for the Davenport, Iowa police department

       testified that the Rock Island police department had requested him to assist with collecting

       evidence from a Davenport residence. He collected $227 in cash and a cell phone, both of which

       were located behind a couch.

¶ 15          Richard Nahnybida, a forensic computer examiner with the Davenport police department,

       testified that he assisted the Rock Island police department with its investigation of Jackson’s

       homicide. He examined a cell phone and extracted 102 photographs from the phone and memory

       card. Several of the photographs were entered into evidence. One of the photos was of a left hand

       with a tattoo on the wrist holding a Glock pistol.

¶ 16          Jennifer MacRitchie, a forensic scientist with the Illinois State Police, testified that one of

       the dollar bills seized from defendant contained a spot of blood, which she swabbed. Debra

       Minton, a forensic scientist specializing in deoxyribonucleic acid (DNA) analysis, testified that

       the blood stain collected from the dollar bill matched Jackson’s DNA profile.

¶ 17          Dustin Johnson, a forensic scientist specializing in firearms identification, testified that

       the four shell casings recovered from Jackson’s residence were all fired from the same gun, most

       likely a 40-caliber Glock or an older Smith & Wesson. He also testified that three of the four

       bullets recovered from the house and Jackson’s body were fired from the same gun. The fourth

       bullet was too damaged to be identified or eliminated as having been fired from the same gun.

       However, he stated that bullets could have only been fired from a .40-caliber or 10-millimeter

       Glock pistol. Although he had not been provided with the gun that shot the bullets, he stated that

       a Glock 23 fires a .40-caliber Smith & Wesson bullet.




                                                        6

¶ 18          Mark Peters, a forensic pathologist, testified that he conducted the autopsy on Jackson

       and determined that he had been shot three times, twice in the head and once in the left upper

       arm.

¶ 19          Scott Preston testified that he worked for U.S. Cellular and that defendant’s phone

       records show he made four calls to Jackson’s phone between 11 a.m. and 12 p.m. on December

       18, 2013.

¶ 20          The State rested; defense counsel made a motion for a directed verdict, which the trial

       court denied.

¶ 21          Kamren Bolden, defendant’s cousin, testified for the defense. He was 16 years old when

       Jackson was shot. Bolden stated that, on December 17, 2013, he, defendant, and Jackson spent

       time at Jackson’s tattoo shop and then they all went to the mall to get something to eat, after

       which Jackson dropped him and defendant back off at defendant’s house. According to Bolden,

       he spent the night at defendant’s house and woke up around 8 a.m. on December 18, 2013. Later

       that morning, he and defendant were in the basement when defendant’s younger brother, Aaryis,

       said that Yolanduis McDuffie, “Blackie,” was there. Bolden knew McDuffie from “the

       neighborhood.” He and defendant left defendant’s to walk to Jackson’s house to buy cannabis

       while McDuffie and Aaryis stayed home. Before going to Jackson’s, they stopped at a

       convenience store. While they were walking, they ran into Aaryis and McDuffie. Defendant told

       Aaryis to leave and not to follow them.

¶ 22          Bolden stated that he, McDuffie, and defendant then went to Jackson’s house. They

       knocked on the door and Jackson let them inside. They walked into the kitchen, at which point

       McDuffie pulled out a black gun and said, “Y’all know what it is. Everybody, get the fuck

       down.” Bolden and defendant dropped to the floor; he heard a gunshot. Bolden jumped up and



                                                     7

       ran out of the house. Defendant met up with him, and they started walking down the street as

       they were both distraught and nervous. Bolden walked to a friend’s house; defendant went his

       own way.

¶ 23           Bolden testified he spoke to the police three or four times and he lied to them the first

       time and told them he was not at Jackson’s house because he was scared. The second time he

       spoke to the police he told the truth. No one promised anything in exchange for his testimony; he

       did not fabricate the story to save his cousin.

¶ 24           Bolden further testified that defendant and Jackson were friends, he never heard them

       fight, and he never heard defendant talk about robbing Jackson. Bolden was surprised about the

       shooting. He pleaded guilty to lying to police and served a term in the Illinois Department of

       Corrections (DOC).

¶ 25           On rebuttal, Detective Sowards testified that, the first time he interviewed Bolden,

       Bolden denied any knowledge of the shooting. During the second interview, Bolden told him the

       version of events, which was substantially the same as his trial testimony. During the third

       interview, Bolden told him that defendant hugged him and told him to keep his mouth shut.

¶ 26           Following closing arguments, the jury began deliberating. Sometime later, while in the

       midst of its deliberations, the trial court brought the parties and the jury into the courtroom

       because the jury had a question regarding an instruction. The court read them an instruction,

       which had inadvertently been excluded; the jury resumed deliberations.

¶ 27           Later, the jury again returned to the courtroom with a request to review video and audio

       evidence. Neither the State nor the defense was present during this request. During this

       interaction, the trial court addressed the jury, in relevant part, as follows:




                                                          8

               “I hear there’s a couple things you wish to view. I’ve got Ms. Bernard here

               from the State. Obviously, there’s nobody else in here. I would just ask

               that [you do] not discuss the case with yourselves as long as Ms. Bernard

               is here in. So you can watch whatever you guys want to watch. She’s

               obviously the one who seems to know how to run things because nobody

               else does. And whatever you want to watch, just let her know.”

After some discussion regarding the actual evidence the jury wished to see and hear, the court

stated,

               “Well, I’ll let you guys talk to Becky because we are out of here. Like I

               said, I just want to make sure you don’t talk about the case because,

               technically, [she is an] employee of the State’s Attorney’s office. You

               know, normally you get to sit here and discuss it, if you watch it, and if

               you want to watch any more if you want to watch it two or three times, I’ll

               keep her here as long as you guys want it.”

After a short recess, the court and the jury reconvened, and the jurors requested to watch the

video of defendant’s confession. The court announced, “Ms. Bernard is back, present. There is

nobody else in the courtroom.” The court also asked the jury to “decide as a group as to whether

or not you feel that you would like to take a break and come back tomorrow morning and

continue your deliberations, or if you wanted us to order you dinner and keep deliberating

tonight. That, too, is entirely up to you.” The court informed the jury that, when it got to about 5

p.m., it would send the bailiff in to ask what they want to do. The court stated “it’s not my goal

to lock you in there and force something out of you if you truly think you would like to take a

break and start tomorrow refreshed again. That’s entirely your decision.”



                                                 9

¶ 28          After another recess, the parties returned to the courtroom because the jury had indicated

       it had reached a verdict. Prior to bringing the jury back in, the trial court informed the parties that

       the jury had, on two different occasions, “wanted to watch audio or visual evidence that had been

       submitted” and that it “didn’t feel it necessary to contact either of the attorneys at that time.” The

       court further explained that Ms. Bernard came in and hooked everything up and that the jury was

       told not to discuss anything in front of Ms. Bernard. The court also noted that the jury was

       supervised by the bailiffs at all times. The jury was then called into the courtroom. It found

       defendant guilty of first degree murder under an accountability theory and not guilty of first

       degree murder as the principal.

¶ 29          On April 27, 2015, defense counsel filed a motion for judgment notwithstanding the

       verdict and, alternatively, for a new trial, followed by an amended motion on June 2, 2015.

       Following a June 5, 2015, hearing, the trial court denied both motions and then proceeded to the

       sentencing hearing. At the sentencing hearing, Jackson’s mother read a statement in aggravation

       and defendant’s family presented letters in mitigation. The State recommended a sentence of 50

       years’ imprisonment while defense counsel asked for the minimum sentence. Thereafter, the

       court noted it had considered the factors in aggravation and mitigation and sentenced defendant

       to 40 years’ imprisonment followed by 3 years’ mandatory supervised release (MSR).

¶ 30          On June 10, 2015, defendant filed a series of pro se motions, including a “petition for

       post-conviction relief for ineffective [sic] assistance,” a “motion for notwithstanding the

       verdict,” and a “motion for reconsideration and new trial.” On June 11, 2015, defense counsel

       filed a motion to withdraw and requested that a conflict attorney be appointed to represent

       defendant’s interests. On that same day, defense counsel also filed a motion to reconsider

       defendant’s sentence.



                                                         10 

¶ 31          On July 29, 2015, the trial court conducted a hearing on the pending motions. The court

       denied all defense motions.

¶ 32          This appeal followed.

¶ 33                                               ANALYSIS

¶ 34          On appeal, defendant argues that the trial court (1) committed reversible error when it

       conducted ex parte communications with the jury during deliberations, (2) committed reversible

       error when it allowed the jury to observe audio and video evidence in the courtroom during

       deliberations in the presence of a representative of the State’s Attorney’s office, (3) failed to

       conduct a preliminary inquiry into defendant’s pro se allegations of ineffective assistance of

       counsel, and (4) abused its discretion in sentencing him to 40 years’ imprisonment.

¶ 35          Because we find the second issue dispositive, we address it first. Specifically, defendant

       argues that the procedure used by the trial court in allowing the jury to observe video and audio

       evidence in the courtroom, while in the midst of deliberations and in the presence of a

       representative of the State’s Attorney office, “chilled jury deliberations and prevented jurors

       from speaking freely regarding the evidence.”

¶ 36          Defendant acknowledges that he did not preserve this issue for appeal since he neither

       objected at trial nor included the issue in a posttrial motion. See People v. Enoch, 122 Ill. 2d 176,

       186 (1988) (to preserve an error for appellate review, a defendant must raise the issue at trial and

       in a posttrial motion). Nonetheless, he contends that this court may review the issue for plain

       error. The State disagrees, asserting that plain-error review is not appropriate because defense

       counsel acquiesced in the procedure used by the trial court by not objecting once the events were

       brought to his attention. “Under the doctrine of invited error, an accused may not request to

       proceed in one manner and then later contend on appeal that the course of action was in error.”



                                                        11 

       People v. Carter, 208 Ill. 2d 309, 319, (2003). This is so because “permit[ting] a defendant to use

       the exact ruling or action procured in the trial court as a vehicle for reversal on appeal ‘would

       offend all notions of fair play’ [citation], and ‘encourage defendants to become duplicitous.’ ”

       People v. Harvey, 211 Ill. 2d 368, 385 (2004) (quoting People v. Villarreal, 198 Ill. 2d 209, 227

       (2001) and People v. Sparks, 314 Ill. App. 3d 268, 272 (2000)). The record here, however,

       illustrates that defense counsel had no opportunity to object to the procedure the court used to

       allow the jury to review the audio and video evidence as he was not even aware of the jury’s

       request until the parties reconvened upon the jury reaching its verdict. Thus, we reject the State’s

       contention that defendant invited the error here. Accordingly, we will address defendant’s

       contention of plain error.

¶ 37          “The plain-error doctrine permits a reviewing court to by-pass normal rules of forfeiture

       and consider ‘[p]lain errors or defects affecting substantial rights *** although they were not

       brought to the attention of the trial court.’ ” People v. Eppinger, 2013 IL 114121, ¶ 18 (quoting

       Ill. S. Ct. R. 615(a)). The first step in a plain-error analysis is to determine whether a clear and

       obvious error occurred. Id. ¶ 19. If a clear and obvious error occurred, we then consider whether

       either of the two prongs of the plain-error doctrine has been satisfied. People v. Sargent, 239 Ill.

       2d 166, 189-90 (2010).

¶ 38          “Plain-error review is appropriate under either of two circumstances: (1) when ‘a clear or

       obvious error occurred and the evidence is so closely balanced that the error alone threatened to

       tip the scales of justice against the defendant, regardless of the seriousness of the error’; or (2)

       when ‘a clear or obvious error occurred and that error is so serious that it affected the fairness of

       the defendant’s trial and challenged the integrity of the judicial process, regardless of the

       closeness of the evidence.’ ” Eppinger, 2013 IL 114121, ¶ 18 (quoting People v. Piatkowski, 225



                                                        12 

       Ill. 2d 551, 565 (2007). The burden of persuasion falls on defendant. People v. Johnson, 238 Ill.

       2d 478, 485 (2010). We review de novo the ultimate question of whether a forfeited error is

       reviewable as plain error. Id.

¶ 39          We begin by noting that it is a basic tenet of our criminal justice system that

       “deliberations of the jury shall remain private and secret.” (Internal quotation marks omitted.)

       United States v. Olano, 507 U.S. 725, 737 (1993). The primary purpose of this “ ‘cardinal

       principle’ ” is to protect the jury’s deliberations from improper influence. Id. at 737-38. We also

       note that the issue here does not call into question the trial court’s decision to allow the jury to

       review the requested audio and video evidence, which is a matter within the court’s discretion.

       See People v. Kliner, 185 Ill. 2d 81, 163 (1998). Rather, the issue concerns the procedure used

       by the court in allowing the jury to review the evidence during deliberations.

¶ 40          This court recently addressed situations similar to the one at issue here in People v.

       McKinley, 2017 IL App (3d) 140752, and People v. Johnson, 2015 IL App (3d) 130610. At issue

       in McKinley was whether the trial court abused its discretion by allowing the jury, while in the

       midst of deliberations, to watch a videotape of the defendant’s traffic stop in the courtroom and

       in the presence of a judge, the prosecutor, defense attorney, defendant, and a bailiff. McKinley,

       2017 IL App (3d) 140752, ¶ 11. In answering the question, the majority found guidance in

       Olano, 507 U.S. at 737-38, our decision in Johnson, 2015 IL App (3d) 130610, and People v.

       Rouse, 2014 IL App (1st) 121462.

¶ 41          At issue in Olano was “whether the presence of alternative jurors during jury

       deliberations was a ‘plain error’ that the court of appeals was authorized to correct under Federal

       Rule of Criminal Procedure 52(b).” Olano, 507 U.S. at 727. Specifically, in that case, the trial

       court allowed two alternate jurors to retire with the jury and stay with it throughout deliberations,



                                                        13 

       although the court instructed the alternates that they could not actually participate in the

       discussions. Id. The Court noted while the presence of third parties during jury deliberations

       could impinge on the privacy of the deliberations, reversal was warranted only if the defendant

       suffered prejudice as a result of the intrusion. Id. at 737-38. The Court then noted that the

       presence of alternative jurors during jury deliberations could prejudice a defendant because the

       alternates may have actually participated in the deliberations verbally or via their body language,

       or their presence could have exerted a “ ‘chilling’ ” effect on the jurors. Id. at 739. Ultimately,

       the Court found the defendant failed to establish prejudice and noted, “Nor do we think that the

       mere presence of alternate jurors entailed a sufficient risk of ‘chill’ to justify a presumption of

       prejudice on that score.” Id. at 741.

¶ 42          In Johnson, this court considered whether the trial court’s decision allowing the jury to

       review video evidence during deliberations and in the presence of the judge, prosecutor,

       defendant, and defense counsel was presumptively prejudicial because the presence of the above

       “parties impaired the jury’s ability to deliberate and thoroughly examine the evidence.” Johnson,

       2015 IL App (3d) 130610, ¶ 14. In a divided opinion, the majority concluded that viewing the

       video in the courtroom and in the presence of others was not prejudicial because “[n]othing in

       the record suggest[ed] that the judge, the prosecutor, or defense counsel affected the jury’s

       ability to analyze the video evidence.” Id. ¶ 20.

¶ 43          In Rouse, the defendant argued that the trial court’s decision requiring the jury to watch

       video evidence in front of the parties and the judge “ ‘infringed upon the sanctity and privacy

       that is so critical to jury deliberations.’ ” Rouse, 2014 IL App (1st) 121462, ¶ 73. The court

       disagreed, noting that “No one communicated with the jurors while they viewed the recording.

       After viewing the recording, the jury returned to the jury room to deliberate. Under the record



                                                           14 

       before us, we find no indicia of prejudice or anything improper having occurred during the

       replay of the surveillance footage.” Id. ¶ 79.

¶ 44          Ultimately, the McKinley majority found that the trial court’s decision, allowing the jury

       to view the video in the courtroom and in the presence of a judge, prosecutor, defense attorney,

       defendant, and bailiff did not create a chilling effect on the jury where the record contained no

       evidence that the presence of third parties in the courtroom affected the jury in any way.

       McKinley, 2017 IL App (3d) 140752, ¶ 23.

¶ 45          We find the above cases distinguishable from the one at bar. In Olano, the alternate jurors

       present during the jury’s deliberations had no obvious ties to the prosecution or the defense.

       Further, in McKinley, Johnson and Rouse, all parties, including the defendants and their

       respective counsel, were present in the courtroom while the jury reviewed the video evidence.

       Thus, if any indication of impropriety did exist, the judge or one of the parties would have

       noticed and any evidence of prejudicial impact would likely have been found in the respective

       records.

¶ 46          In this case, however, the jury reviewed evidence while in the presence of an employee of

       the State’s Attorney’s office and a court bailiff. While the record indicates the trial court

       instructed the jury that it should not discuss the case in front of the State employee the first time

       the jury requested to review evidence, no similar instruction was given during the jury’s second

       request to review evidence. Further, even if the jury did not discuss the case while in the

       presence of the bailiff or the employee of the State’s Attorney office, we simply have no way of

       determining what affect their presence had on the jury. As defendant notes, the employee of the

       State’s Attorney’s office or the bailiff could have frowned at a piece of evidence or scoffed at

       defendant’s testimony. However, neither the judge, nor defendant, nor defense counsel was



                                                        15 

       present to oversee the interaction and to observe any impropriety. Thus, we find the trial court

       committed a clear error by allowing the jury to review the video and audio evidence in this

       manner.

¶ 47          Having found a clear and obvious error, we now consider whether the error rises to the

       level of plain error. Under the second prong of the plain-error doctrine, a “defendant must

       demonstrate not only that a clear or obvious error occurred [citation], but that the error was a

       structural error [citation].” Eppinger, 2013 IL 114121, ¶ 19. Structural errors are those which

       “erode the integrity of the judicial process and undermine the fairness of the defendant’s trial.”

       People v. Herron, 215 Ill. 2d 167, 186, (2005). “An error is typically designated as structural

       only if it necessarily renders a criminal trial fundamentally unfair or an unreliable means of

       determining guilt or innocence.” People v. Thompson, 238 Ill. 2d 598, 609.

¶ 48          Based on the record before us, we cannot say with any degree of confidence that the

       procedure employed by the trial court in this case did not affect the jury’s deliberations or result

       in bias. On the other hand, we can say with absolute certainty that allowing the jury to review

       evidence in the courtroom during deliberations and only in the company of an employee of the

       State’s Attorney’s office and a court bailiff rendered defendant’s trial “fundamentally unfair” and

       “an unreliable means of determining guilt.” That is, we find that allowing a representative of the

       State to be in the room while the jury reviews evidence, without any prior notice to defendant, to

       be so far beyond the pale of what is expected in a criminal jury trial as to “erode the integrity of

       the judicial process.” Herron, 215 Ill. 2d at 186. Accordingly, we find second prong plain error.

       We reverse defendant’s conviction and sentence and remand for a new trial.

¶ 49          Having reversed defendant’s conviction and sentence due to the aforementioned error, we

       need not consider defendant’s remaining contentions on appeal.



                                                       16 

¶ 50                                         CONCLUSION

¶ 51          For the foregoing reasons, we reverse the judgment of the circuit court of Rock Island

       County and remand for further proceedings.

¶ 52          Reversed; cause remanded.




                                                    17 

