made please the court my name is michelle katz i'm a cook county assistant state's attorney appearing on behalf of the people of the state of illinois the issue in this case arises from the trial court's responses to several questions that were asked by a deliberating jury that ultimately convicted the defendant of aggravated unlawful use of a weapon and unlawful use of a weapon by a felon the defendant previously been convicted of armed bank robbery specifically what's at issue was what court took place over the course of three and a half hours during which time five notes were sent by the deliberat the judge and those notes consisted of the following at one fifty five in the afternoon the jury sent to request to the judge for a copy of the defense to people ation as well as a copy of testimony that had been provided by one of the state's witnesses a police officer testified regarding the underlying incident in this case in response to that request the judge tendered the sought after i don't copy of the stipulation was tendered to the jury and that apparently no one was willing to change their mind at which point the trial court asked the parties the prosecution and the defense attorney if they wish to assist in the preparation of the court's response and the court responded in writing and the response consisted of this continue to deliberate with an open mind ok now we go forward to about fifteen minutes later the preferred no it indicates again their belief that they are death box only the number has now shifted we were at a four before and now we're at seven five and that based on the evidence we don't believe that we can reach a verdict in this case twenty minutes later before the court had responded to the third note the fourth note is delivered the fourth note the contents are essentially identical to what was in the third now the count is the same word seven five or you were deadlocked and can't  believe that we can reach a verdict in response to the third and fourth notes the court instructed his deputy sheriff to tell the judge to tell the jury to continue so liberating which they apparently did because they came back twenty five minutes later with a request for additional testimony in the way of a transcript from another police a police officer who testified on behalf of the state and approximately an hour after this they returned a verdict i should mention the court did the same thing it gave the requested the sought after transcript to the jury now we know this through not only the jury notes which were part of the common law record in this case but through defense counsel's preparation of an agreed statement of facts pursuant to supreme court rule reached twenty three d nowhere in this agreed statement facts is there so much of a word of protest to the absence of the defendant at the time that the responses were framed the conference on these  there was not any sort of protest word of protest issued to the substance of the court's responses to any of these five questions there was not a protest to the manner in which the  responses were then tendered to the jury and there was no objection posed in a post trial motion to anything that transpired during sure jury deliberations so having said that the issue in this case is whether or not where a judge properly response to a jury's questions and where those responses are given in the presence of and with the participation of defense counsel who acquiesces to the entirety of everything that transpires whether a defendant ken we have an attack on the propriety of those proceedings on appeal was that was the be agreed statement of facts which is part of the record in this case it states that two defense attorneys and two prosecutors were present for the duration of these exchanges there's nothing nothing to indicate that  any points in time that defense counsel was not present and it being the burden of the of the person who is appealing from that judgment to make a complete record and we're not  contesting the ability of a defendant to do so through an agreed statement of facts but it's incumbent on the person making that agreed statement of facts to accurately reflect everything that transpired including whether objections were wage so in the absence of an affirmative showing no waiver to be present by the defendant that this court should presume the defendant did not waive his right to be present an affirmative waiver would require the existence of a constitutional right it's our position that the right of presence is not a constitutional right it's a derivative right and it requires that something else be fundamentally wrong of a substantial nature elevated to that position so you contesting that there are even was a constitutional right to be present absolutely or you also contest in the fact that when we look at this agreed state in effect without an affirmative representation of the defendant waive their right one way or the other what transpired outside of that room where the conferences were being held we don't know if defense counsel went to the walk up and said to the defendant this is the no this is the question the jury asked i mean ultimately our position is it doesn't matter whether that conversation transpired or not but in terms of there being a requirement that there be a waiver it wasn't triggered in this case that's our position but moving to the question  that you're asking me about whether or not there is a constitutionally based right type position that based on this court's holding in being and based on being bull hickey and linds that this court has clearly repeatedly articulated that there is no constitutional free standing right of presence and in be in the court specifically adopted the united states supreme court's cases in  snyder instance are and gagged and all of which hold that there is no constitutional right for purposes of the fourteenth amendment and i need to clarify that i'm talking about the fourteenth amendment i'm not talking about this amendment this case not involve confrontation rights so that's not we're discussing we're talking about due process and by adopting the united states supreme court's position the court couldn't have been clearer the best case i think that supports our position for this is the case of people versus hickey and in that case there were as in this case five notes that were sent out and the court replied in writing  relying on being relying on the united states supreme court decision instance or said that there is no constitutional violation that transpires here the problem in this case mostly flows from the fact that the court while purporting to apply a plain error analysis strayed very badly from from doing so and so a number of things happen the first thing is that you have a finding of clear clear obvious error on the back on the basis of manifestly erroneous findings because you've got the couper starting its analysis by saying we find that there is these clear errors and they consist of the fact that the defendant was not informed was not consulted and was not allowed to be present the problem with this statement which is the bedrock of everything else that happens in this case is that nothing in that agreed statement of facts indicates that any of those things are true so in response your question your honor about the waiver and whether or not there needed to be a waiver of record the waivers sort of presupposes that the court did something affirmatively wrong and somehow prevented the defendant from being present in terms of a plane or analysis the only thing that we know is that he wasn't there but the counsel was there and counsel didn't say anything that's what this record shows so after the court makes these findings it then takes the findings gives that adds to them because the evidence in this case is closely balanced and i'm going to reach that part of it a little bit later and that under second prong it shows that the defendant was to near tonight a fair trial now and already talked about the of presence piece of it as it pertains to the court's responding to the jury's questions but what's important and i think what was lost on the appellate court in determining whether or not we were talking about a substantial right is the nature of what the court did because in a case such as this unlike childs in marked contrast to the cases where the court did not respond correctly to the jury's questions here there is nothing objectionable to the substance of any of the court's responses it's facially neutral words when they're when the judge says to a deliberating jury continued to turn to deliberate it can't be a more proper answer than that when a court exercises its discretion to give a jury the items that they see which are properly admitted avid and the testimony of the police officers a defense peel ation and it's notable here too that the jury was asking both for things from the defense case as well as from the prosecution case and one a judge turns around and says i'm giving the jury the transcript that can't constitute error  this court to find that it's not good law here's the distinction to be drawn the remo presumption that arises from a court's ex party communication with a jury it's only properly applied when you have a true x party communication meaning here you happen to fence attorney who is present all of the cases that are relied on by the defendant are cases where counsel was not present and therefore there was not a plane there's been a resistance or a backing off of it yes does it matter in this case you need to reach that issue absolutely not because here one is very hard pressed to understand how an interaction can be deemed ex parte when counsel is there it defies the very definition of ex parte and will following up just as freeman's question though the seven circuit held that presumption of prejudice applies to cases where the judge uses an intermediary to communicate with the jury again that is you know i'm sorry so explain that i what are we going to do with  cited in my brief of u s versus di pietro which is admittedly outside of the story stiction but it's a seven circuit case that deals with this question of what happens when the judge does that again that's a situation that's a case and more of these are cases where there is no defense counsel present that's a critical distinction to be drawn but in d p adul defense counsel is not present ye very similar to what happens in this case the judge told the deputy sheriff to instruct the jury to continue deliberating and that case was subjected to a harmless error analysis and the court ultimately found that that was harmless error the problem is i thought it was a broader well if you look at the wording of grammar it indicates right in there that the violation occurs when counsel is not present its either is not present or is not informed and what happens is if you look at the facts of ram or themselves that's very telling in terms of distinguishing what happens in this case from what happens in that case because there you've got a situation where there is an attempt to bribe a juror the court engages in a discussion with  juror about this attempted bribe the court does not tell defense counsel anything about it he takes it upon himself to have the prosecution contact the f b i the f b i actually goes in and has a conversation with the juror about this alleged threat and what comes out of grammar is the presumption of prejudice based on the sex party communications but interesting rammer provides for  evidence for hearing not proof reversal of a defendant's conviction so here you have a defendant who the essence of what is done in this case by the jurors both by the sheriff delivery orally of the identical instruction that was given in writing is it's not materially it's not different in any material sense this type of situation cannot constitute the court found that this was a structural error essentially that's what the court found and if you look at all of the cases and both briefs set them out in which there have been sheriffs who have had conversations with yours that they've always been subjected to a harmless error analysis and here was implicated meaning he was convicted but the state can show that the error was harmless beyond a reasonable doubt so there was an attempt to impose and apply a player analysis then court allowed relief as to both issues the issues are discrete issues with the common origin that is the inappropriate conduct of a judge  the the issues advance from two different points of the room record and i will spend most of my time this morning discussing the most critical issue that is the trial judge's decision to send to the deputy sheriff to instruct the jury reflect that the judge of the the decision making yes but that's this a key confusion that the state brings on to the case because the state characterized that issue as not being ex parte because counsel was involved but that the issue to pinpoint issue is what occurs in the jury room that is ram or death that is ex parte violation when and when  sheriff is the conduit he he is in effect a message we don't we don't know what was said and that's the you also don't know this or a don't want to hand in this particular case and just as fitzgerald was getting there we only have what we have in the record and that's the statement of facts which said this sheriff was told to go into the jury room and say keep on deliberating now you're telling just as garmin that it it's ok if the sheriff would have taken a note written by the judge that says keep on deliberating and handed it to the jurors and the reason that you're same ones ok and what isn't is we don't know what happened in that jury room when the sheriff did what he was told to do if he goes into the jury room and he says keep on deliberating we don't know if that conversation ensued well likewise do we know if the the sheriff hands a note that says keep on deliberating we still don't know whether the jurors said what does that mean what it did do you know i don't understand what that means tell the judge this we have no idea so and as far as rammer goes i mean the second part of the question is quite a bit different situation then just someone saying keep on deliberating and there is some import to the fact isn't there that the the defense attorney acquiesced to the procedure that was taken by the judge here to just merely tell the jury to keep on deliber he's a stack of their history you're trusting the deputy sheriff to handle no without ever station but you're not trusting the deputy sheriff to acquiesce to the authority of the  which gives a street the opportunity to say it was not did not affect the process however this situation is rife with problems as i mentioned here the deputy sheriffs a law enforcement officer the deputy sheriff did it also in the context of this case this this case is of a rather simple case four witnesses testified the jury went out five and a half hours  and they wanted to review two notes one to review other law enforcement officers testimony if again it's not it's not a note you're saying a law enforcement officer in and it's off the fairness of the procedure which would he might have objected to the the whole process going on if you said in the deputy sheriff maybe he has the common sense to say wait a minute i don't want to go to show everyone that and that really goes to the heart of my question defense counsel head trial counsel had absolutely no problem he raised no objection to him not being there correct but she raised no objection but this in this issue is predominantly short i'm just getting to where he's prejudiced as a result of right then appell counsel after a lot of thought came up reasons why that the defendant was prejudice as a result of not being in that room right there was there was a thought what are the odds that the like to ask a follow up question to that i don't think i understood your answer correctly your justice thomas question about what prejudice was shall i i didn't get an answer to that i thought your answer was you know what what president what what different would have happened had the defendant been in the room and i think your answer basically was he could have objected to the fact that he wasn't in the room but what prejudice for any of the questions where the jurors were deadlocked for what information was sent one defendant's presence would have added to the fairness of the procedure and i think that's the debts are hard question t are answer but in this case quite easily he was not there at the most crucial part of this trial the state is arguing this not even a trial here is or does or does a jury and then question conference is a violation are green just mistress readers on page fifteen of your brief you vote i think from remember where it says in the criminal case any private communication contractor tampering directly or indirectly with a juror during the trial about the matter pending before the jury is for obvious reasons deemed presumptively prejudicial is it your contention that the verbal communication by the share to the jury was about a justice burke with respect to your question about more versus knight and what's this court supposed to make of that more versus night this is the essence of the people's argument there's two separate lines of cases there's the cases that deal with forfeiting defendants whose attorneys are present who do nothing come back later and say my right of presence was violated and that's the being line of cases in the all of the united states supreme court cases that that case relies on then there's the line of cases that start out with the common law line of cases philip and shields and rogers that deal with ex party communications a court and a jury which the defendant and defense counsel do not know about rameau comes from that line of cases more is another one on that same track because that is the situation and i went back and checked my brief to make sure that i was correct that is a case where defense counsel did not know and was not informed of what transpired that is the critical fundamental difference between those two lines of cases just to scar men if you asked a question  think alluding to the language in child which is a little bit troubling because they are the court this court did make an affirmative statement about there being a requirements that communications between a judge and jury occur in open court so in terms of your the response your question and defense counsel concedes it and i agree with him that a written response by a court to a deliberating jury is not problematic unless a supplemental restraint instruction is required because if you look at child what happened in child and all of those cases in this brought me back to there's nothing there's no one from ready in the courts responses here in that case and that's the only one that was reversed we're talking about kleiner mcdonald in child's child is reversed be costs be because the court not only gave a response via the deputy sheriff to the deliberating jury additionally that was done without the counsel being present or being notified counsel objected and asked for a mistrial upon learning of it but additionally this court found that the response was completely inadequate and chiles thereafter has really been used to stand for the proposition that there is an obligation on a trial judge when a question of law is specifically liberating jury to answer that question if that question needs to be answered in the way of a supplemental instruction then your churchgoing the requirement that it be done in open court so there's a question about it's our position that these two lines of cases are completely reconcilable because one again involves the presence of an attorney one doesn't it's clear that it's not a structural error because maurice macdonald's case a capital defendant who's pro se has no ability to interact or offer up any suggestions to the court's responses yet this court found that that was harmless error based on the propriety of the responses that were given to the court's question again going back to the moral line and will shouldn't we be troubled by the fact that there was this oral means of responding that was the same as the written response  the the the deputy did it orally i'm going to refer this court for the answer to that question back to to the united states supreme court's decision in jack nine because gaghan on which follows rammer and we've got it in my memory has been around for years kisses from the one nine hundred fifty s you've got a whole body of case law that comes up afterwards including gag on where the trial judge engages in a conversation with a juror tells the defense attorney he's going to do it it's clear that it's an ex parte communication there's a a conversation that ensues and yet the court declines to find that that is going to satisfy plain error and recurrence of his forfeited that's the ultimate authority  on whether or not the defendant has the ability to take hold of that ram or presumption and then say and by the way i'm entitled to a new trial everything that we don't know and i agree there's a lot that we don't know in this case we don't know because the defendant didn't make an adequate record do we agree with what the contents of what are the contents of the statement of facts absolutely the problem is that that everything  became the basis of a finding of error is what's not in that agreed statement of facts the defendant did not avail himself of the opportunity to go and get a bystander's report which would have brought the court who made the who made the decisions what the responses should be in brought him into the mix and had there been any kind of dispute between the parties as to what transpired the court would of there would have been a hearing the court would have been had made findings and you would have a record that had flushed all of this out you don't have that because of the choices that were made by the apple wants to see the deputy i guess this is the second to last thing i want to discuss there's sort of a suggestion here that there was something untoward that was done by the deputy the deputy is sworn to ensure that that jury does its job and in the absence of anything to suggest otherwise and here all we have asked is this child who are instructing the deputy we don't even know that he did it to tell the judge the jury to continue to deliberate if anything there should be a presumption that the the deputy did exactly what he was supposed to do in light of the fact that the defense hasn't made a records indicate otherwise the burden is on him to provide the court with a record to show what transpired during those jury deliberations there is no requirement that the court have a court reporter present a cited two cases for the stand for the proposition that there's no smith and edwards i believe that there's no obligation to have a court reporter for closing arguments clearly there's no case at least not yet where this court has indicated that there's a requirement that there be a court reporter present during a conference on jury deliberations the defendant the the  bottom line justice thomas as several of you have noted is the defendant's right to a fair trial was not warranted it was impacted in any appreciable way and that remains the overriding task to which a claim such as this based on a due process allegation of a defendant's constitutional rights to be present has to be subjected and when it is subjected to that test it's clear that the appellate court improperly reverse