The opinion
Mr. JUSTICE GEORGE MORAN, dissenting:
I dissent from the majority opinions determination that defendants were given a fair trial. Not only were they not accorded a “perfect trial free from all error,” but they were subjected to a fundamentally unfair forum for the determination of guilt or innocence. The record demonstrates that defense counsel was limited throughout the trial in assuring that defendants received a fair adjudication.
The majority conclude that the defendants may not now complain of the failure of the trial court to communicate with the jury. A review of the record demonstrates that defense counsel objected to the trial court’s refusal to ascertain the jury’s confusion. In an effort to ameliorate .the court’s communication, defense counsel suggested the inclusion of the words “at this time.” This suggestion followed a general objection to the failure to recall the jury. Such action by the defense counsel cannot legitimately and should not be interpreted as a waiver, especially since the error supposedly waived has been viewed by our courts to be very serious.
The trial court’s communication told the jury that the judge cannot communicate with them. This statement is patently erroneous. A trial judge has a responsibility to ensure that the jury functions properly in its determination of guilt or innocence. In People v. Kucala, 7 Ill.App.3d 1029, 1035 , 288 N.E.2d 622, 627 , the court held that:
“Where a jury has raised an explicit question on a point of law arising from the facts over which there is doubt or confusion, the court should attempt to clarify the question in the minds of the jury members.”
(See also People v. Harmon, 104 Ill.App.2d 294 , 244 N.E.2d 358 ; Hunter v. Smallwood, 28 Ill.App.3d 386 , 328 N.E.2d 344 .) Furthermore, section 5.3(a) of the A.B.A. Standards Relating to Trial by Jury provides that: .
“If the jury, after retiring for deliberation, desires to be informed on any point of law, they shall be conducted to the courtroom.” (Emphasis added.)
The failure of the trial court even to inquire about the specific concern of the jury and the direction to continue deliberations left the jury to grope without some guidance from the court. As our supreme court stated in reviewing the propriety of an Alien instruction:
“Jurors, and especially those voting in the minority, conceivably could feel a coercive influence if when seeking guidance from the court they are met with stony silence and sent back to the jury-room for further deliberation.” (People v. Prim, 53 Ill.2d 62, 74 , 289 N.E.2d 601 , cert. denied, 412 U.S. 918 .)
This error alone is sufficiently serious to cause reversal.
Defendants argue that the communication, especially since the trial court refused to add defense counsel’s corrective language, implies that the trial court erroneously believed that it did not have discretion to act. I agree. The court in People v. Briggman, 21 Ill.App.3d 747 , 316 N.E.2d 121 , held that the trial court’s failure to inquire about the specific concern of the jury supports the view that the trial court thought it had no discretion. In this case, there is no explanation in the record for the trial court’s refusal at that time to consider the jury’s concern or its apparent unwHlingness to consider such concerns in the future. This attitude was reflected also in the trial court’s disregard of the jury’s second communication. Under the holding of People v. Queen, 56 Il1.2d 560, 310 N.E.2d 166 , it was error for the trial court to refuse to exercise discretion under the erroneous behef that it had no discretion.
The total effect of the trial court’s position concerning the jury was to force the jury to reach a decision without proper guidance. After being told that the judge cannot communicate with the jury and having its second communication totally disregarded, the jury could not but feel the coercion to reach a decision. As the length of deliberation increases the reasonableness of a doubt succumbs. Under the circumstances of this case, I cannot agree with the majority that the trial court’s action was not prejudicial to the defendants.
The majority also concludes that, although, some error occurred in limiting the scope of defense counsel’s cross-examination, there was not manifest prejudice to defendants. The majority holds that the limitation on defense counsel’s cross-examination of the prosecutrix with regard to an earlier statement was waived because there was an insufficient foundation for the use of an inconsistent statement. However, the majority’s excerpt from the record is taken out of context. Prosecutrix had been examined about a previous statement under oath concerning her first comments to defendant Yates. Following this questioning is the excerpt quoted by the majority. The clear implication from the sequence is that the questioning related to the previous statement under oath. When defense counsel attempted to clarify the situation, the court sustained objections.
Our supreme court has emphasized that a party’s right to cross-examine a witness, especially the defendant’s right in a criminal case, must not be unduly restricted. (People v. Pelletri, 323 Ill. 176 , 155 N.E. 591 ; People v. Del Prete, 364 Ill. 376 , 4 N.E.2d 484 . See also Smith v. Illinois, 390 U.S. 129 .) In a prosecution for rape, the defendants must be given adequate leeway to explore whatever goes to explain, modify, or discredit what the witnesses have previously stated. The court precluded defense counsel from impeaching the prosecutrix’s testimony about ability to observe the defendants. Furthermore, defense counsel was limited in developing the absence of the report of an offense. Furthermore, the trial court sustained other objections to proper attempts to impeach the credibility of the prosecutrix.
The trial court also restricted the cross-examination of Jeffrey Elkins concerning his actions after running away. The defense was not able to determine whether Elkins reported the incident to anyone or what he subsequently did. These facts are relevant to the question whether an offense was committed. The majority opinion dismisses this restriction of cross-examination as not of sufficient magnitude to merit further discussion.
Although a trial court has discretion to limit the scope of cross-examination the discretion in this case was abused. The overall effect of these limitations was to deny defendants their right to cross-examination effectively the witnesses against them. Nor can it be said that these restrictions were not prejudicial, since the witnesses whose cross-examination was improperly restricted were the principal witnesses against defendants.
A third basis for this dissent is the majority’s treatment of the trial court’s orders consolidating the defendants’ cases for trial and refusing defense counsel’s requests to withdraw from the defense of all but one of the defendants. The same issue is present in analyzing both orders. If the defenses may be inconsistent or the interests of the joint defendants are in fact antagonistic, the trial court’s orders were erroneous. The majority concludes that Latimore’s defense is entirely consistent with Vesey’s plea of not guilty. However, since Vesey is relying on reasonable doubt as to the State’s case and Latimore is claiming consent, there is a conflict. Latimore’s testimony placed Vesey at the scene, eliminating any reliance on the failure of the State’s identification evidence. Furthermore, the defense counsel was put at an obvious disadvantage in representing four defendants. This disadvantage is partially reflected in the confusion of Vesey and Yates with regard to which had already been granted a hearing on the defense motions to suppress identification testimony. Under all of the circumstances, the trial court erred in consolidating the cases for trial and, after consolidating tire cases, in not relieving defense counsel of responsibility for four defendants.
In summary, the circumstances surrounding defendants’ trial were not conducive to the impartiality and fairness which due process requires. Although the evidence was sufficient to support the verdict of the jury, fairness requires more than that the results coincide with the evidence. Defense counsel was limited throughout the trial in properly representing defendants. The only remedy for such conduct is reversal and remand for a proper forum in which the issues of guilt and innocence may be impartially determined.