Opinion filed: February 24, 2022

FIRST DISTRICT FOURTH DIVISION No. 1-19-0158

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 13 CR 17711 ) STANLEY ALLEN, ) Honorable ) Allen F. Murphy, Defendant-Appellant. ) Judge, presiding.

JUSTICE ROCHFORD delivered the judgment of the court, with opinion. Presiding Justice Reyes and Justice Lampkin concurred in the judgment and opinion.

OPINION

¶1 A jury returned verdicts convicting defendant, Stanley Allen, of the first degree murders

of Karif Thomas and Nakesha Johnson, but the jury also separately found in response to a special

interrogatory submitted for sentence enhancement purposes that he did not personally discharge

the firearm that proximately caused their deaths. The trial court sentenced defendant to a

mandatory term of natural life imprisonment. On appeal, defendant contends (1) the jury verdicts

finding him guilty of first degree murder but not guilty of personally discharging the firearm that

proximately caused the victims’ deaths are inconsistent; (2) the trial court erred by failing to

respond to the jury’s written question, propounded by it during its deliberations, regarding the

definition of the word “act” as contained in Illinois Pattern Jury Instructions, Criminal, No. 7.02

(4th ed. 2000) (hereinafter IPI Criminal 4th); (3) the trial court failed to properly admonish the

venire pursuant to Illinois Supreme Court Rule 431(b) (eff. July 1, 2012); and (4) the trial court

erred by admitting defendant’s recorded phone call from jail to his mother and grandmother under

the tacit admission rule. For the reasons that follow, we reverse and remand for a new trial. No. 1-19-0158

¶2 At trial, Antwon Fields, defendant’s friend of about 10 years, testified for the State. Fields

had a pending charge of possession of a firearm without a concealed carry license or valid Firearm

Owners Identification (FOID) card and a prior conviction for retail theft.

¶3 On the morning of August 10, 2013, Fields (whose nickname is Man-Man) was “hanging

out” with defendant, Thomas, and Johnson in the driveway of Thomas’s house at 126th Street and

Loomis Street. At about 2 a.m., Fields went to a liquor store with another person named Josh and

purchased a pint of Hennessy. They returned to Thomas’s driveway, and Josh left about a half hour

later.

¶4 Fields continued to socialize with defendant, Thomas, and Johnson. Fields stated that he

was positioned closest to the street, defendant was to his left, and Thomas was to defendant’s left.

Johnson was on the other side of the driveway. They were drinking and talking about their children

and “getting along just fine.” Fields stated that he was “buzzed” but was not drunk.

¶5 At about 3 a.m., Fields’s girlfriend, Ashley Robinson, called and told him that she was

getting off work and was driving over to pick him up. Fields saw Robinson’s vehicle about three

or four houses away, and he got up to walk to the automobile. Fields was also planning on giving

defendant a ride back to his home, so he motioned to defendant that it was time to go. As Fields

began walking, he heard a gunshot coming from close behind him, looked back, and saw that

Thomas was “laid back” on the ground. About three seconds later, Fields heard a second gunshot

from close behind him and saw a “quick flash.” Fields ducked down and went to Robinson’s

vehicle to get away from the gunfire. Fields subsequently learned that both Thomas and Johnson

had been shot and killed. Fields testified that, in his opinion, defendant “had to have been” the

shooter because “nobody else [was] out there.” However, Fields stated that he never saw defendant

with a gun in his hand.

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¶6 After Fields entered the passenger’s side of Robinson’s vehicle and they began driving, he

saw defendant walking across the street. Fields told Robinson to stop the automobile, and he called

to defendant to get in the vehicle. Fields explained that he called out to defendant because “he was

like a brother to me,” and Fields wanted an explanation for why defendant had fired the shots.

¶7 Soon after defendant entered the automobile, Fields saw a police vehicle pulling them over.

Fields then told defendant to get out of the automobile. Defendant got out and “[took] off.”

Defendant had nothing in his hand when he exited the vehicle.

¶8 The officer approached the automobile and asked Fields why defendant had run away.

Fields said that he did not know, and the officer “let [them] go.” They drove to his sister Tameka’s

house, and Fields went inside and stored some bags of marijuana in a closet. Then they drove to

his cousin Quinton’s house, and Fields told him and Robinson about the shooting. Fields began

receiving texts from some of his friends about the shooting, asking him how he was doing because

they knew he had been in the area where the shooting occurred. Fields decided to go to the police

to tell them what he knew. Robinson drove him to the police station where he gave a videotaped

statement and spoke with an assistant state’s attorney (ASA) about the shooting.

¶9 The parties stipulated that if called to testify, ASA Lisa Mateck would state that she and

Investigator John Daley interviewed Fields at about 8 a.m. on August 10, 2013. Clips from the

video recording of the interview were subsequently published to the jury. In the video, Fields tells

ASA Mateck that after hearing the first gunshot and seeing Thomas lying dead, he saw defendant

shoot Johnson “out of my peripheral [vision].”

¶ 10 Robinson testified that at about 3 a.m. on August 10, 2013, she got off work and called

Fields to let him know that she was driving over to pick him up at Thomas’s house. As she was

driving up Loomis Street and approached the house, she heard two gunshots. She came to a stop

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and saw Fields walking toward her automobile. He entered the passenger side. Then Robinson saw

defendant walk over to her vehicle with a bottle in his hand and he entered the back seat. Robinson

asked them if they had heard the gunshots, but neither defendant nor Fields responded. Instead,

Fields told Robinson to take him to his sister Tameka’s home.

¶ 11 Robinson began driving. A few moments later, a police officer activated her sirens to pull

them over. When Robinson stopped her vehicle, defendant exited and ran away in the direction of

a nearby hardware store. Robinson and Fields remained inside the vehicle. The officer pulled up

alongside and asked Robinson why defendant had run away. Robinson responded that she did not

know. The officer then spoke with another officer on her “walkie,” after which she told Robinson

that she was free to go.

¶ 12 Robinson drove to Tameka’s house, where they stayed for only about two minutes. Then

Robinson drove to Quinton’s house where she heard Fields and Quinton discuss the shooting. A

couple of hours later, Robinson drove Fields to the police station and dropped him off. About an

hour later, Robinson returned to the police station and gave a videotaped statement.

¶ 13 Officer Asia Blackman testified that at about 3 a.m. on August 10, 2013, she was on

uniformed patrol in a marked squad car in the area of 127th Street and Loomis Street. Her partner,

Officer Jerald Nettles, was in a separate unmarked vehicle at that time. Officer Blackman was

parked in a parking lot at 127th Street and Bishop Street when she heard two gunshots coming

from somewhere north of where she was parked.

¶ 14 Officer Blackman left the parking lot and traveled north on Bishop Street. When she arrived

at 126th Street and Bishop Street, Officer Blackman spoke with two people and then continued

south on Loomis Street and saw Robinson’s vehicle parked on the west side of the street. Officer

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Blackman saw defendant run from the east side of the street toward Robinson’s vehicle. Defendant

entered the rear driver’s side seat.

¶ 15 Officer Blackman activated her emergency lights and stopped the vehicle, at which point

she saw defendant open the rear driver’s side door, exit the automobile, and run across the street

in the direction of a hardware store. Defendant was holding a bottle in his left hand and was holding

up his pants with his right hand as he ran. Officer Blackman eventually lost sight of defendant.

¶ 16 Officer Blackman pulled up next to Robinson’s vehicle and asked her why defendant had

run away. Robinson said, “I don’t know, I think he has some weed on him or something.” Officer

Blackman heard over the police radio that Officer Nettles was in distress and needed help, so she

left to assist him. She drove to Ada Street, where she saw defendant and Officer Nettles wrestling

in an alley. Officer Blackman exited her vehicle, went over to them, and helped pull defendant off

Officer Nettles. The officers handcuffed defendant.

¶ 17 After defendant was handcuffed, Officer Blackman recovered from inside of his pants a

Smith & Wesson .357 revolver with four live rounds and two spent cartridge casings in the barrel.

¶ 18 Officer Nettles testified that at about 3 a.m. on August 10, 2013, he was standing outside

his unmarked police vehicle in the parking lot of a currency exchange at 127th Street and Bishop

Street when he heard two to three gunshots. Soon after, he heard Officer Blackman radio that she

had stopped a vehicle near 127th Street and Loomis Street and that one of the occupants, a black

male who was wearing a white T-shirt and jeans, had run from the car in a southeasterly direction.

¶ 19 Officer Nettles subsequently saw a person (later identified as defendant) matching the

clothing description running near Ada Street and 127th Street with a bottle in his left hand. Officer

Nettles exited his vehicle, gave chase, and tackled defendant. They fought each other, and

defendant rolled on top of Officer Nettles and grabbed his testicles. Officer Nettles struck

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defendant on the left side of his face with the bottle he had been carrying and radioed for help.

Officer Blackman responded and helped subdue defendant. After defendant was handcuffed,

Officer Blackman recovered a revolver from him.

¶ 20 Officer Nettles and defendant were both transported to the hospital. At the hospital, a blood

sample was taken from defendant and it showed that his blood alcohol level was 0.23.

¶ 21 Crime scene investigator Cary Morin testified that he received the firearm recovered from

defendant and swabbed the grip and the inside of the barrel. Morin analyzed the firearm for

fingerprints, but none were detected. DNA analyst Lyle Boicken examined the swabs from the gun

grips and detected a mixture of DNA profiles from at least three people, but he was not able to

separate the profiles for a comparative analysis. There was no human DNA detected on the swab

from the barrel.

¶ 22 The medical examiner, Dr. Adrienne Segovia, testified that Thomas and Johnson each died

from a single gunshot wound and that their manners of death were homicide. The gunshot to

Johnson’s head entered the left side of her face, below her nostril. Dr. Segovia noted stippling on

Johnson’s face, indicating that the bullet had been fired at close range. The gunshot to Thomas

entered the left side of his neck and exited the right. Dr. Segovia also noted stippling on Thomas’s

face but it was “much fainter” than the stippling on Johnson’s face.

¶ 23 Firearms expert Robert Hunton testified that the cartridge casings recovered by police were

fired from the revolver recovered from defendant at the time of his arrest. The bullet recovered

from Johnson’s body came from the same revolver.

¶ 24 The trial court admitted into evidence a recorded six-minute phone call from the Cook

County jail at 10:25 p.m. on August 12, 2013, between defendant and his mother and grandmother.

The recording is contained in the record on appeal. During the recording, defendant, his mother,

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and grandmother sometimes talk over each other, such that, during our initial listening, it was not

always entirely clear who was speaking and what was being said. However, after listening to the

recording multiple times, we have been able to identify each of the speakers and what each one of

them was saying. We set forth the pertinent portion of the phone call 1:

“[DEFENDANT’S MOTHER]: You innocent, right?

[DEFENDANT]: (silent pause followed by:) uhhhh…

[DEFENDANT’S MOTHER]: Alright.

[DEFENDANT]: Uh-huh.

[DEFENDANT’S MOTHER]: Alright.

[DEFENDANT]: Uh-huh.

[DEFENDANT’S GRANDMOTHER]: Alright.

[DEFENDANT]: Alright.

[DEFENDANT’S GRANDMOTHER]: Love you baby.

[DEFENDANT’S MOTHER]: Love you.

[DEFENDANT]: I love you too.

[DEFENDANT’S MOTHER]: Take care of—

[DEFENDANT]: Momma, you know it wasn’t nothing crazy though.

[DEFENDANT’S MOTHER]: I got you. I got you.

[DEFENDANT]: Alright, alright, alright.

[DEFENDANT’S MOTHER]: Alright.

1 The State provided the trial court with its own rendition of the phone call, which we find to be slightly inaccurate, as it omits one of defendant’s responses of “uh-huh” during the course of the conversation.

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[DEFENDANT]: Hey and one more thing, call E and tell him that Man-Man is

trying to come to court on me on the 30th. That’s their little statement that they was talking

about.

[DEFENDANT’S GRANDMOTHER]: Right.

[DEFENDANT’S MOTHER]: Man-Man’s trying to what?

[DEFENDANT’S GRANDMOTHER]: Go to court on him.

[DEFENDANT’S MOTHER]: Oh Man-Man?

[DEFENDANT’S GRANDMOTHER]: Yeah, he said call E and tell E that Man-

Man is trying to go to court on him on the 30th.

[DEFENDANT’S MOTHER]: On E?

[DEFENDANT’S GRANDMOTHER]: Tell E that Man-Man is trying to go to

court on Stanley on the 30th.

[DEFENDANT’S MOTHER]: Ok.”

¶ 25 During closing arguments, the State argued that defendant personally fired the gunshots

that killed Thomas and Johnson. The State ended its closing argument by playing the recording of

the phone call between defendant, his mother, and grandmother. In his closing arguments,

defendant asserted that it was Fields who shot the victims.

¶ 26 During the jury instructions, the court gave the jury IPI Criminal 4th No. 7.02, stating:

“To sustain the charge of first degree murder, the State must prove the following

propositions:

First proposition: That the defendant performed the acts which caused the death of

Karif Thomas; and

Second proposition: That when the defendant did so,

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he intended to kill or do great bodily harm to Karif Thomas or another;

or he knew that his acts would cause death to Karif Thomas or another;

or he knew that his acts created a strong probability of death or great bodily harm

to Karif Thomas or another.”

¶ 27 The court gave a similar instruction with respect to the death of the other victim, Johnson.

¶ 28 The court further instructed the jury that it would receive four verdict forms for the offense

of first degree murder. The first verdict form reads that the jury finds defendant not guilty of the

murder of Thomas. The second verdict form reads that the jury finds defendant guilty of the murder

of Thomas. The third verdict form reads that the jury finds defendant not guilty of the murder of

Johnson. The fourth verdict form reads that the jury finds defendant guilty of the murder of

Johnson.

¶ 29 The court instructed the jury that the State has also alleged that while committing the

murders, defendant personally discharged a firearm and that, “If you find the defendant is not

guilty of the offense of first degree murder, you should not consider the State’s additional

allegations regarding the offense of first degree murder.”

¶ 30 At the request of the State, the trial court also asked a “special interrogatory” of the jury to

obtain a sentence enhancement under section 5-8-1(a)(1)(d)(iii) of the Unified Code of Corrections

(Code) (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2020)) 2:

“If you find the defendant is guilty of first degree murder, you should then go on

with your deliberations to determine whether the State has proved beyond a reasonable

2 Section 5-8-1(a)(1)(d)(iii) provides that “if, during the commission of the offense, the person personally discharged a firearm that proximately caused *** death to another person, 25 years or up to a term of natural life shall be added to the term of imprisonment imposed by the court.” 730 ILCS 5/5-8- 1(a)(1)(d)(iii) (West 2020).

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doubt the allegations that during the offense of first degree murder the defendant was armed

with a firearm, and that during the commission of the offense of first degree murder, the

defendant personally discharged a firearm that proximately caused death to another

person.”

¶ 31 The court instructed the jury that it would receive four additional verdict forms in response

to the special interrogatory. The first verdict form reads that the jury finds that, during the

commission of the first degree murder of Thomas, defendant did not personally discharge a firearm

proximately causing death to another person. The second verdict form reads that the jury finds

that, during the commission of the first degree murder of Thomas, defendant personally discharged

a firearm proximately causing death to another person. The third verdict form reads that the jury

finds that, during the commission of the first degree murder of Johnson, defendant did not

personally discharge a firearm proximately causing the death of another person. The fourth verdict

form reads that the jury finds that, during the commission of the first degree murder of Johnson,

defendant personally discharged a firearm proximately causing the death of another person.

¶ 32 During the jury deliberations, the jury submitted eight notes. The first two, submitted at

5:15 p.m. and 5:40 p.m. asked for certain exhibits. In response, the court sent some exhibits to the

jury.

¶ 33 The third note, submitted at 5:46 p.m., stated, “Get clarification on the four separate

charges. The two first degree murder, the two discharge of a weapon. Are they both inclusive?” In

response, the court informed the jury that it had been instructed on the applicable law and to

continue deliberating.

¶ 34 At 6:30 p.m., the jury submitted a fourth note requesting more evidence and exhibits and

requested to listen again to the phone call between defendant, his mother, and grandmother. In

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response, the court informed the jury that it would not receive the exhibits but it allowed the jury

to enter the courtroom to listen to the phone call again.

¶ 35 At 8:07 p.m., the jury submitted a fifth note stating, “Define the following first proposition:

Perform the acts which cause the death of.” (Emphasis in original). The court instructed the jury,

“I cannot define that for you. Continue your deliberations.”

¶ 36 At 8:52 p.m., the jury submitted a sixth note requesting to view Fields’s videotaped

interview. The court allowed the jury to enter the courtroom to view the videotape again.

¶ 37 At 9:33 p.m., the jury submitted a seventh note stating, “Jury is deadlock 6-6.” With the

agreement of the parties, the court decided that it would keep the jury until 11 p.m. and then send

it home for the weekend.

¶ 38 At 10:53 p.m., the jury submitted an eighth note stating, “Is acts defined as a broader

interpretation and worded on page 17 of the instructions? Deadlocked!! Can we consider act as

involvement?”

¶ 39 In discussing the eighth note with counsel, the court stated, “Quite frankly, I have no idea

what that means.” Defense counsel responded, “Sound[s] like some of them are kind of working

on some kind of accountability theory.” The court noted, “They certainly weren’t instructed on

any accountability theory.” The prosecutor stated that page 17 of the instructions contained IPI

Criminal 4th No. 7.02, which provided that the State must prove that defendant performed the acts

causing the victims’ deaths. The prosecutor stated that “act means actions.” Defense counsel

responded, “I think the answer to this question is no. It should be the usual common language.”

¶ 40 The court stated its agreement with defense counsel as to how to answer the note and then

proposed sending the jury home for the weekend and bringing it back Monday for the continuation

of deliberations. The prosecutor responded, “That’s fine.” Defense counsel stated, “We agree to

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that, too. I think we are vested in this jury.” The court sent the jury home for the weekend but did

not answer its eighth note regarding the definition of “acts.”

¶ 41 The jury returned the following Monday and continued deliberating without ever having

received an answer from the trial court regarding its eighth note. At 11:21 a.m., the jury returned

two verdict forms finding defendant guilty of the first degree murders of Thomas and Johnson.

The jury returned two additional verdict forms in response to the special interrogatory, finding that

during the commission of the first degree murders of Thomas and Johnson, defendant did not

personally discharge a firearm that proximately caused their deaths. The trial court denied

defendant’s posttrial motion and sentenced him to a mandatory term of natural life imprisonment.

¶ 42 On appeal, defendant first argues that his conviction for murder should be reversed and the

cause remanded for a new trial because the jury’s findings in response to the special interrogatory

that he did not personally discharge the firearm proximately causing the victims’ deaths conflicted

with its general verdicts finding him guilty of first degree murder. Defendant’s contention is that

the State only charged him as a principal shooter, meaning that the jury’s general verdicts of guilty

necessarily means that it found he shot and killed the victims, which conflicts with the findings in

response to the special interrogatory that he did not discharge the firearm and therefore did not

shoot the victims. Defendant contends that these inconsistent findings cannot be allowed to stand.

¶ 43 Defendant’s contention is without merit. Our supreme court has held that defendants cannot

challenge convictions solely because they are legally inconsistent with acquittals on other charges.

People v. Jones,

(2003). In so holding, the Jones court followed the United

States Supreme Court in United States v. Powell,

(1984), which set forth several

reasons for refusing to allow defendants to challenge convictions based on inconsistency: the

inconsistent verdicts could be the product of jury lenity; in the face of inconsistent verdicts, the

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reviewing court cannot know which of the verdicts reflects the jury’s true intent; it would be unfair

to allow defendant to challenge a guilty verdict on inconsistency grounds where the State is not

similarly able to appeal an acquittal on those same grounds; and defendant can still challenge the

sufficiency of the evidence, lending a check on jury irrationality.

¶ 44 We have utilized the Jones/Powell analysis when addressing (as here) inconsistencies

between a jury’s general verdict of guilty of first degree murder and its finding in response to a

special interrogatory that defendant did not personally discharge the firearm causing the victim’s

death. We have held that such inconsistencies can stand for the same reasons articulated in Powell

and Jones. See People v. Alexander,

; People v. Ware,

, ¶ 52.

¶ 45 We have further held that since the State’s purpose in asking the special interrogatory was

to obtain a sentence enhancement under section 5-8-1(a)(1)(d)(iii) of the Code (730 ILCS 5/5-8-

1(a)(1)(d)(iii) (West 2020)), we will “refuse to consider the answer to the ‘special interrogatory’

beyond the purpose for which it was asked—whether there could be a sentence enhancement.”

People v. Jackson,

(2007). As such, an answer to a special interrogatory,

which relates only to the issue of sentence enhancement and not to the issue of defendant’s

underlying guilt or innocence of the criminal charges against him, cannot “trump[ ] the verdict in

criminal cases” regardless of any inconsistency between the answer to the special interrogatory

and the general verdict (People v. Reed,

(2009)).

¶ 46 For all these reasons, we reject defendant’s contention that his conviction of first degree

murder must be reversed based on the inconsistency between the general verdicts and the jury’s

responses to the special interrogatory brought for sentence enhancement purposes.

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¶ 47 Next, defendant argues that the trial court erred by failing to answer “no” to the jury’s

eighth note asking whether when considering if the State proved that defendant performed the

“acts” which caused the victims’ deaths under IPI Criminal 4th No. 7.02, the term “acts” can be

broadly interpreted as meaning “involvement.” Defendant argues that this eighth note exhibited

that the jury was wrestling with the question of whether it could find him guilty on an

accountability theory, even though the jury was never instructed on accountability at trial.

Defendant contends that by failing to answer “no” to the question of whether he could be convicted

on an accountability theory, the court permitted the jury to convict him of first degree murder even

though it found that he did not personally discharge the firearm. In other words, it convicted him

on an accountability theory that was not pursued at trial.

¶ 48 Initially, the State argues that defendant acquiesced in the court’s handling of the eighth

jury note and therefore is estopped from arguing that the court should have answered the note in

the negative. See People v. Harvey,

(2004) (defendant’s invitation or

agreement to the procedure later challenged on appeal goes beyond mere waiver and amounts to

an estoppel). We disagree. Review of the record shows that after the jury submitted its eighth note

regarding whether it can consider defendant’s “involvement” in the shooting as indicating that he

performed the acts which caused the victims’ deaths, the court engaged in a discussion with

counsel during which defense counsel stated that the note indicated that the jury was “working on

some kind of accountability theory” and that “the answer to this question is no.” The trial court

agreed with defense counsel that the answer to the eighth note was “no” but proposed sending the

jury home for the weekend to get some rest. Defense counsel agreed to sending the jury home for

the weekend, but he never stated that he had changed his mind regarding how the note ultimately

should be answered nor did he make any statement acquiescing in any decision not to respond to

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the note. On this record, we find that defendant is not estopped from arguing on appeal that the

court erred by failing to respond to the jury’s eighth note.

¶ 49 Generally, the trial court has the duty to provide instruction to the jury when it has posed

an explicit question or requested clarification on a point of law arising from facts about which

there is doubt or confusion. People v. Childs,

(1994). This is true even

though the jury was properly instructed originally; if a jury makes explicit its difficulties, the court

should resolve them with “specificity and accuracy.”

. If the jury question is unclear, the

court has the duty to seek clarification.

The trial court’s response to a jury question is reviewed

for an abuse of discretion. People v. Reid,

(1990). The failure to answer or

the giving of a response which provides no answer to the particular question of law posed is

prejudicial error. Childs,

.

¶ 50 There are certain circumstances, though, when the trial court may exercise its discretion to

refrain from answering a jury question. Such circumstances include when the words used in the

instructions have a commonly understood meaning and the instructions are readily understandable

and sufficiently explain the relevant law, where further instructions would serve no useful purpose

or would potentially mislead the jury, when the jury’s inquiry involves a question of fact or where

the giving of an answer would cause the court to express an opinion that would likely direct a

verdict one way or another. Reid,

; People v. Manning,

(2002).

¶ 51 None of these circumstances are present here, as the jury’s inquiry involves a question of

law, not fact, and the giving of an answer would have served the useful purpose of clarifying the

jury’s confusion on the point of law and would not have caused the court to express an opinion

that would likely have directed a verdict one way or the other.

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¶ 52 The State argues, though, that the word “acts” has a commonly understood meaning such

that the court committed no abuse of discretion in declining to respond to the jury’s eighth note

regarding whether “acts” can be broadly interpreted as including “involvement.” The State further

argues that the trial court effectively answered the same question several hours earlier, when the

jury submitted a fifth note stating, “Define the following first proposition: Perform the - acts - which cause the death of.” (Emphasis in original.) In response to that note, the court instructed the jury,

“I cannot define that for you. Continue your deliberations.”

¶ 53 Contrary to the State’s argument, the submission of the eighth note during the course of its

lengthy deliberations shows that an answer was necessary because the jury was continuing to

struggle with which “acts” the State must prove that defendant performed under IPI Criminal 4th

No. 7.02. The jury was questioning whether the State was required to prove that defendant actually

fired the weapons causing the victims’ deaths, or whether the State was only required to prove

defendant’s “involvement” in the circumstances leading to their deaths. Neither the commonly

understood definition of “acts” nor the court’s response to the fifth note, in which it declined to

define “acts,” answered the question posed in the eighth note or clarified the jury’s point of

confusion so as to alleviate the court of its duty to provide further instruction.

¶ 54 A case cited by defendant, People v. Morris,

(1980), is instructive. In

Morris, the defendant was charged with burglary after he was arrested for driving away from the

victims’ home with their stolen property in his possession.

. At trial, evidence showed

that the defendant’s palm print was found on the living room window.

The investigating officer

testified that the defendant stated that he and another man, Chris Armstrong, were at the scene of

the burglary but that the defendant never went inside the home.

Instead, Armstrong went to the

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rear of the home while the defendant waited.

Several minutes later, the defendant left the scene.

¶ 55 The jury was given People’s Instruction No. 10 (IPI Criminal 4th No. 13.21), allowing

them to infer the defendant’s participation in the burglary from his unexplained possession of

recently stolen property.

The jury was not instructed as to accountability.

. During

their deliberations, the jury sent the judge the following note:

“ ‘If a person comes into possession of property obtained illegally by another can he be

presumed guilty of burglary even though he, himself, may never have illegally entered the

building or removed the property?’ ”

.

¶ 56 The judge answered:

“ ‘Not a proper question! You must decide the case on the instructions as given.’ ”

¶ 57 The jury convicted the defendant of burglary.

On appeal, the defendant argued that the

jury’s note evinced some confusion regarding his accountability if he had not actually entered the

burglarized home.

The defendant contended that if the jury’s verdict resulted in part from this

confusion, then he was prejudiced by the court’s refusal to respond to the note.

¶ 58 We agreed, noting that since no instruction on accountability was given, the State was

required to show that the defendant actually entered the victims’ house.

This showing could be

either by direct proof or by the inference contained in People’s Instruction No. 10.

However,

the jury’s note clearly evidenced confusion concerning the inference permitted by People’s

Instruction No. 10 and the possibility of convicting the defendant on an accountability theory.

We held that “once the jury had exhibited confusion concerning the applicability of accountability

to this instruction, it was reversible error for the trial court to refuse to provide a proper answer to

the jury’s query.”

.

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¶ 59 Similarly, in the present case, the jury was not instructed on accountability, yet its eighth

note (indicating that it was struggling with the definition of the word “acts” in IPI Criminal 4th

No. 7.02 and was wondering if “acts” could be broadly interpreted to mean that defendant was

guilty if he had any “involvement” in the victims’ deaths) evidenced the possibility that it was

considering convicting defendant on an accountability theory. Once the jury exhibited confusion

concerning the applicability of accountability to this instruction, it was reversible error for the trial

court to fail to provide a proper response to the jury’s query. The proper response was “no,” that

the jury could not so broadly interpret the word “acts” in IPI Criminal 4th No. 7.02 so as to convict

defendant on an accountability theory that was not pursued at trial. See People v. Peoples,

(where the jury sends a note inquiring about an accountability theory that was

not presented at trial, the proper response is to inform the jury not to consider such a theory). As a

direct result of the court’s failure to so respond to the jury’s eighth note here, the jury subsequently

convicted defendant of murder while simultaneously finding that he did not fire the weapon that

killed the victims (i.e., the jury likely found that defendant was not a principal but instead was

some type of accomplice accountable for the principal’s shooting of the victims).

¶ 60 The State argues that while the inconsistency between the jury’s finding of guilt of first

degree murder and the finding that he did not fire the weapon that killed the victims could indicate

that the jury found defendant guilty on an accountability theory, the possibility exists that the

verdict can be otherwise explained as the product of juror lenity, compromise, or some other

“unknowable” reason. Since we cannot know with absolute certainty that the jury convicted

defendant on an accountability theory, the State contends that we cannot find any prejudicial error

by the court’s failure to respond to the eighth jury note. We disagree, as prejudicial error results

not from the certainty that the court’s failure to respond to the jury note caused it to convict

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defendant on an accountability theory, but rather because the court’s failure to answer the jury note

left the door open for the jury to convict defendant on an accountability theory that was never

argued at trial. See, e.g., People v. Flynn,

(1988) (where the court’s

refusal to explicitly answer the jury’s questions “left the door open” for the jury to entertain

improper inferences to resolve its confusion, prejudicial error resulted requiring a new trial).

¶ 61 People v. Jaimes,

, cited by the State, is inapposite. In Jaimes,

the jury convicted the defendant of first degree murder but acquitted him of aggravated discharge

of a firearm. Id. ¶ 1. The jury also found that the State failed to prove that the defendant personally

discharged a firearm that caused death. Id. On appeal, the defendant argued that the trial court

erred in its responses to three jury notes sent to it during the deliberations. Id. The first note asked:

“ ‘Can we find [the defendant] guilty of first degree but not guilty of discharging and

aggravating?’ ” Id. ¶ 28. The trial court discussed the note with the parties, who were unclear as to

its meaning. Id. Accordingly, the court responded to the jury with: “ ‘Please clarify your

question.’ ” Id.

¶ 62 The jury sent a second note asking: “ ‘Please define what is intended as an “act” in first

degree murder.’ ” Id. With the concurrence of the parties, the court instructed the jury: “ ‘You have

received the evidence and the instructions. Please continue to deliberate.’ ” Id. ¶ 29.

¶ 63 The jury sent a third note asking: “ ‘Are each of the three charges independent of each

other? If not, what charges must be in tandem?’ ” Id. ¶ 30. With the concurrence of the parties, the

court instructed the jury: “ ‘You have received all of the evidence and the instructions. Please

continue to deliberate.’ ” Id. ¶ 31.

¶ 64 The defendant argued on appeal that the trial court should have realized, based on the three

notes, that the jury was asking to convict him on a theory of accountability despite not being

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instructed on that theory of guilt and that the court should have informed the jury that it could not

consider such a theory. Id. ¶ 56. We found no reversible error in the trial court’s responses to the

jury notes, finding that “after the trial court asked the jury to clarify its initial note, the jury

responded by asking which charges were in tandem. This question juxtaposed with the jury’s first

and second note simply does not necessarily indicate that the jury was concerned about guilt by

accountability.” Id. ¶ 58.

¶ 65 By contrast, the jury’s eighth note here regarding whether the word “acts” could be given

a “broader interpretation” indicated that it was concerned about guilt by accountability, but (unlike

Jaimes) the court did not ask the jury for clarification nor did it provide any other type of response.

The trial court’s failure to offer any response to the jury’s eighth note indicating that it was

considering convicting defendant on an accountability theory that it was not instructed on

necessitates that we reverse and remand for a new trial. See Peoples,

;

Flynn,

; Morris,

.

¶ 66 We proceed to address some other issues raised by defendant that are likely to reoccur

during retrial.

¶ 67 Defendant contends that the trial court erred during voir dire when it failed to properly

admonish the jurors pursuant to Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). Rule 431(b)

states:

“The court shall ask each potential juror, individually or in a group, whether that juror

understands and accepts the following principles: (1) that the defendant is presumed

innocent of the charge(s) against him or her; (2) that before a defendant can be convicted

the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant

is not required to offer any evidence on his or her own behalf; and (4) that if a defendant

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does not testify it cannot be held against him or her; however, no inquiry of a prospective

juror shall be made into the defendant’s decision not to testify when the defendant objects.”

¶ 68 Rule 431(b) requires that the court ask the potential jurors whether they understand and

accept the enumerated principles, mandating a specific question and answer process. People v.

Wilmington,

.

¶ 69 Review of the record indicates that the trial court properly questioned the potential jurors

as to whether they understood and accepted the first three principles. As to the fourth principle,

the court admonished the potential jurors as to whether they understood and accepted that

defendant had a right to remain silent and that he was not required to testify but failed to inquire

as to their understanding and acceptance that defendant’s failure to testify cannot be held against

him. The failure to specifically question the potential jurors about their understanding and

acceptance that defendant’s failure to testify cannot be held against him constitutes noncompliance

with Rule 431(b). Id.; People v. Jackson,

. Accordingly, on

retrial, the trial court must ask the potential jurors not simply whether they understand and accept

that defendant has a right to remain silent and not to testify, but whether they also understand and

accept that if defendant does not testify it cannot be held against him.

¶ 70 Next, defendant contends that the court erred by admitting his recorded phone call from

jail to his mother and grandmother as a tacit admission under Illinois Rule of Evidence 801 (eff.

Oct. 15, 2015). Rule 801 defines hearsay as an out-of-court statement offered to prove the truth of

the matter asserted and specifies that certain statements are not considered hearsay. One such

nonhearsay statement is the statement of a party opponent, which includes “a statement of which

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the party has manifested an adoption or belief in its truth.” Ill. R. Evid. 801(d)(2) (eff. Oct. 15,

2015). These adopted statements are called “tacit admissions.”

¶ 71 The admissibility of evidence generally is within the discretion of the trial court and will

not be reversed absent an abuse thereof. People v. Colon,

.

However, to the extent that admissibility of evidence requires the interpretation of a rule and its

intended scope, our review is de novo.

Also, in deciding to admit the recording here, the trial

court heard no live testimony on the issue but instead listened to the recording and determined that

it was admissible under the tacit admission rule. As no live testimony was presented and we are

reviewing the same evidence (the recorded phone call that is contained in the record), our review

of the phone call and whether it constitutes a tacit admission falling within the scope of Rule 801

is de novo. See People v. Flores,

.

¶ 72 Under the tacit admission rule, defendant’s silence may be introduced as a tacit or implied

admission of his guilt if he remained silent in the face of an incriminating statement painting or

portraying him as a participant in illegal and prohibited activity. People v. Soto,

(2003). When an incriminating statement is made in the presence and hearing of

defendant and the statement is not denied, contradicted, or objected to, both the statement and the

failure to deny it are admissible as evidence of defendant’s acquiescence in its truth. People v.

Ruiz,

. The necessary elements for admissibility under the tacit

admission rule are “(1) that the statement incriminates the defendant such that the natural reaction

of an innocent person would be to deny it, (2) that the defendant heard the statement, and (3) that

the defendant had an opportunity to reply or object and instead remained silent.” Colon,

, ¶ 18.

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¶ 73 Several out-of-state jurisdictions have rejected the tacit admission rule. See, e.g., Jarrett v.

State,

(Ga. 1995); Ex parte Marek,

(Ala. 1989). Although the

tacit admission rule remains valid in Illinois, we have noted our concerns with the inherently

ambiguous nature of a defendant’s silence in the face of an incriminating statement, and that such

silence potentially can be motivated by many factors other than a sense of guilt. Ruiz,

. We have also noted that “[t]he tacit admission rule appears to be on particularly

shaky ground when a defendant is in police custody and knows the police can hear his

conversation” because in such a unique circumstance, he may not feel free to respond.

Accordingly, our supreme court has expressly held that

“[w]hile the tacit admission rule obtains in this State, and the silence of a defendant

in the face of an accusation of guilt may be shown at his trial as evidence of guilt, such

evidence should be received with caution and only when the conditions upon which it

becomes admissible are clearly shown to exist.” (Emphasis added.) People v.

Aughinbaugh,

(1967).

¶ 74 In the present case, the conditions for admitting the recorded phone conversation between

defendant and his mother and grandmother while he was in jail have not been clearly shown to

exist. The conversation begins with defendant’s mother questioning him, “You innocent, right?”

to which defendant responds with a silent slight pause, followed by a long “uhhhh.” Such a

question by his mother was not an incriminating statement portraying defendant as a participant in

illegal activity but rather it was an inquiry about whether he was innocent. The trial court

determined that under these circumstances, the natural reaction of an innocent person would be to

respond affirmatively and assert his innocence and since he did not immediately do so, the entire

recording was admissible under the tacit admission rule. We disagree. Under the tacit admission

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rule, a defendant’s silence is only admissible if made in response to an incriminating statement

that would cause an innocent person to deny it. In effect, the admission of the recorded phone

conversation here between defendant and his mother and his grandmother flips the tacit admission

rule on its head and allows for an inference of guilt from defendant’s failure to immediately

respond affirmatively to his mother’s nonincriminatory question, “You innocent, right?” We

decline to so expand the tacit admission rule, and given the lack of an incriminating statement here

that would cause an innocent person to deny it, the conditions for the admission of the recording

have not been clearly shown to exist and therefore on remand it may not be admitted into evidence.

¶ 75 Further, even if we were to expand the tacit admission rule to allow for the admission of a

defendant’s silence in the face of a nonincriminatory question about his innocence, the recorded

conversation would be inadmissible because defendant did not, in fact, remain silent, after his

mother asked him, “You innocent, right?” Rather, after an initial silent pause, defendant said

“uhhhh.” His mother than said, “Alright,” and defendant made an affirmative sound, “Uh-huh.”

His mother said “alright” again, and defendant again responded affirmatively, “Uh-huh.” His

grandmother then spoke up and said, “Alright,” and defendant said, “Alright.”

¶ 76 The trial court found that defendant’s responses of “uh-huh” are “what everybody

associates with a yes.” However, the court found “that yes came four seconds too late,” and that

defendant tacitly admitted his guilt by not immediately saying “yes,” or “uh-huh,” in response to

his mother’s question, “You innocent, right?” We disagree, as our review of the recorded

conversation shows a freewheeling discussion in which the parties talk over each other and where

defendant’s multiple affirmative responses of “uh-huh” at least arguably were made in response to

his mother’s question regarding his innocence. In the absence of a clear showing that defendant

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remained silent in the face of his mother’s question about his innocence, the necessary elements

for admissibility under the tacit admission rule have not been met.

¶ 77 Further, the circumstances surrounding the placing of the phone call also militate against

application of the tacit admission rule here. Specifically, defendant placed the phone call from the

Cook County jail following his arrest and receipt of Miranda warnings (see Miranda v. Arizona,

(1966)) and the call began with the following clearly audible warning to its

participants: “This call may be monitored and recorded. Your use of the institutional telephone

constitutes consent for this monitoring and recording. This call is subject to recording and

monitoring.” Given that defendant was in jail at the time of the call and that he previously had

been informed of his right to remain silent and that any statement could be used against him and

he also was made aware that jail officials were listening to and recording his conversation, he may

not have felt as free to respond to his mother and grandmother as he would if the conversation had

taken place outside of such a setting.

¶ 78 Ruiz,

, is informative. In Ruiz, we found that the defendant’s

failure to deny an incriminating statement was not admissible under the tacit admission rule

because the statement and the defendant’s response were made while he was under arrest and in a

room at the police station and knew that an officer could hear him. Id. ¶ 38. We cited McCormick

on Evidence: “ ‘[T]he fact that the police are present when an accusatory statement is made may

constitute a critical circumstance that eliminates the naturalness of a response.’ ” Ruiz,

, ¶ 38 (quoting 2 Kenneth S. Broun et al., McCormick on Evidence § 262, at 308

(7th ed. 2013)). We noted that “many arrested people know, even without Miranda warnings, ‘that

silence is usually golden.’ ” Id. (quoting United States v. Flecha,

(2d Cir. 1976)).

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We held that “defendant’s surroundings militate against applying the tacit admission rule to the

specified statements.” Id. ¶ 39.

¶ 79 Similarly, in the present case, defendant had been arrested and given Miranda warnings.

He was in custody in the Cook County jail when the call was made, and he knew that it was being

recorded, all of which discourages application of the tacit admission rule here.

¶ 80 Next, defendant argues that the trial court erred by admitting defendant’s statement to his

mother, at the end of the recorded conversation, in which he asks her to “call E and tell him that

Man-Man is trying to come to court on me on the 30th. That’s their little statement that they was

talking about.” The State argues that the statement was admissible because it shows that defendant

was trying to get E to intimidate Fields (whose nickname was Man-Man) to prevent him from

testifying. A defendant’s attempt to intimidate a potential witness is admissible to show his

consciousness of guilt. People v. Smith,

(1990). Our review of the admissibility

of defendant’s statement is de novo because no live testimony was presented and we are reviewing

the same evidence (the recorded phone call) that the trial court reviewed in determining whether

defendant’s statement was admissible to show his attempt to intimidate a witness. Flores,

.

¶ 81 Our review of defendant’s statement to his mother shows no explicit indication that he

wanted E to intimidate Fields; in fact, during the brief statement, defendant never identifies E’s

relationship to Fields, nor does he clearly convey what he intends for E to say or do with the

information that Fields was “trying to come to court on me on the 30th.” In their responses to

defendant’s statement, neither his mother nor his grandmother provide any indication of an

awareness that defendant’s request to call E was meant for him to intimidate or threaten Fields.

The State’s argument for admissibility operates, then, on an assumption that defendant wanted E

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to threaten and intimidate Fields to keep him from testifying; however, our supreme court has held

that evidence that depends on unproven assumptions is inadmissible. See People v. Barrow,

(1989) (letters that defendant sent to his brother indicating his dislike of a

prosecution witness were inadmissible, where the State’s argument for admissibility centered on

its unproven assumption that the letters indicated defendant’s intent for his brother to intimidate

the witness). Accordingly, on retrial, defendant’s statement to his mother regarding E and Man-

Man may not be admitted into evidence.

¶ 82 For all the foregoing reasons, we reverse and remand for a new trial. We find that for

purposes of the remand, a retrial in this case is not barred by the double jeopardy clause as the

evidence presented at defendant’s original trial was sufficient to prove him guilty of first degree

murder beyond a reasonable doubt. See People v. Lopez,

(2008) (indicating

that the double jeopardy clause does not prohibit retrying a defendant whose conviction has been

negated due to an error in the proceedings leading to the conviction unless the evidence presented

at the original trial, viewed in the light most favorable to the State, was insufficient to sustain a

conviction).

¶ 83 In so finding, we acknowledge the somewhat unusual procedural posture of this case, in

which the State charged defendant with first degree murder as the principal shooter and the jury

convicted him but separately found in responses to the special interrogatory (for sentence

enhancement purposes) that he did not personally discharge a firearm proximately causing the

victims’ deaths. As discussed earlier in this opinion, the jury’s responses to the special

interrogatory related only to defendant’s sentence enhancement and not to the general verdicts of

guilt and, as such, those responses have no bearing on the State’s ability to retry him for first degree

murder on the same basis as in the original trial. See, e.g., Peoples,

(we

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reversed and remanded due to the trial court’s error in responding to a jury note, and further held

that the inconsistency between the finding of guilt and the finding made for sentence enhancement

purposes created no double jeopardy impediment to the State’s ability to retry him on the same

basis as in the first trial).

¶ 84 However, as the jury specifically found against the State on the sentencing enhancement

issue, the double jeopardy clause precludes the State from again submitting a special interrogatory

on retrial to obtain a sentence enhancement. See Currier v. Virginia,

, ___,

(2018) (the issue preclusive aspect of the double jeopardy clause prohibits the State

from relitigating issues necessarily resolved in defendant’s favor at the earlier trial).

¶ 85 Reversed and remanded.

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No. 1-19-0158

Cite as: People v. Allen,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 13-CR-17711; the Hon. Allen F. Murphy, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, Michael Gomez, and Stephen for L. Gentry, of State Appellate Defender’s Office, of Chicago, for Appellant: appellant.

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, David H. Iskowich, and Tyler J. Cox, Assistant State’s Appellee: Attorneys, of counsel), for the People.

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