¶1dissenting:
¶2The majority has reversed and remanded for a new trial on the basis of its conclusion that the trial court erred when it “failed to fully examine a juror whose statement during polling indicated possible dissent.”
¶3I believe, however, that the majority reads too much into the juror’s responses. The question — “Was this and is this now your verdict?” — was asked of the jury before the polling of the individual members began and was not repeated for each individual juror. When her name was called, Mae Smith, the fifth juror polled, said, “Not sure.” When the trial judge remarked, “Pardon?”, the juror again said, “I’m not sure.” As the judge began to ask the polling question of her individually, she interrupted him and announced, “This is my verdict.”
¶4It does not appear from this colloquy that juror Smith was expressing any doubts regarding her verdict. She may have forgotten the polling question asked preliminarily of all the jurors and needed to be reminded. This is consistent with her immediate and unequivocal answer, “This is my verdict,” upon the court’s attempt to restate the question. Even assuming that there was some ambiguity in her initial responses, it did not reflect dissent from the verdict and, in any event, it was dispelled when she confirmed without any prompting or coercion from the trial court that it was her verdict. Under these circumstances, reversal and remandment for a new trial on this ground is inappropriate.
¶5The primary purpose of jury polling is to determine that the jury verdict accurately reflects each juror’s vote as reached during deliberations and that the jurors’ votes were not the result of force or coercion. (People v. Williams (1983), 97 Ill. 2d 252, 307, 454 N.E.2d 220.) A judge must be careful to ascertain the juror’s present intent in the polling. People v. Kellogg (1979), 77 Ill. 2d 524, 529, 397 N.E.2d 835.
¶6Whether a juror, in responding to a poll of the jury, has freely assented to a verdict is a question of fact for the court to decide. (People v. Herron (1975), 30 Ill. App. 3d 788, 792, 332 N.E.2d 623.) The trial judge is in the best position to determine this question because he not only hears the juror’s responses but also can observe the juror’s demeanor and tone of voice. (30 Ill. App. 3d 788, 792, 332 N.E.2d 623.) A trial court’s determination of whether a juror's response to a poll of the jury indicates a lack of voluntary assent to the verdict should not be overturned by a court of review unless the trial court’s conclusion is clearly unreasonable. 30 Ill. App. 3d 788, 792, 332 N.E.2d 623.
¶7In denying defense counsel’s motion for a mistrial, the trial judge found that juror Smith had acknowledged the verdict as her own when she was directly asked. That finding was not unreasonable. The facts in the two supporting authorities cited in the majority opinion are distinguishable.
¶8In the first of these, People ex rel. Paul v. Harvey (1972), 9 Ill. App. 3d 209, 292 N.E.2d 124, a civil paternity action in which a verdict was returned in favor of the defendant, the following colloquy occurred at trial between the court and a juror during polling:
“THE COURT: Is this and was this your verdict?
JUROR: Well, it wasn’t exactly, no.
THE COURT: Did you sign this?
JUROR: Yes, I did.
THE COURT: Then it’s your verdict.” 9 Ill. App. 3d 209, 210, 292 N.E.2d 124.
¶9In reversing, the appellate court found that the juror’s initial answer did not show whether or not she disagreed with the verdict and that the trial judge, in treating the signing of the verdict as conclusive, had foreclosed the juror from showing that she did in fact dissent. (9 Ill. App. 3d 209, 211-12, 292 N.E.2d 124.) The court held that when the court polls the jury, it must fully examine those jurors whose statements indicate possible dissent from the verdict. (9 Ill. App. 3d 209, 212, 292 N.E.2d 124.) However, it also has been held that unless it is clear to the reviewing court that a juror indicated possible dissent, we will not reverse on jury dissent grounds. (People v. Cabrera (1985), 134 Ill. App. 3d 526, 530, 480 N.E.2d 1170.) In my judgment, the juror’s responses in the instant case cannot reasonably be regarded as indicating dissent from the verdict. Nor can the court’s attempt to restate the question be construed as foreclosing an expression of dissent.
¶10In the other case cited by the majority, People v. Kellogg (1979), 77 Ill. 2d 524, 397 N.E.2d 835, the following colloquy occurred:
“THE CLERK: Susan M. Vesecky, was this then and is this now your verdict?
JUROR VESECKY: Yes. Can I change my vote?
THE COURT: The question is, was this then and is this now your verdict?
JUROR VESECKY: (No response.)
THE COURT: Was this then and is this now your verdict?
JUROR VESECKY: Yes, Sir.” 77 Ill. 2d 524, 527, 397 N.E.2d 835.
¶11The supreme court found that the juror’s initial response — “Yes. Can I change my vote?” — reflected ambiguity regarding her present assent to the verdict and some reluctance to abide by the verdict which the trial court should have explored. (77 Ill. 2d 524, 530, 397 N.E.2d 835.) The court held that the impact of the judge’s interrogation, his refusal to address himself to the question the juror asked, and the double-barreled question which he insisted be answered may have compelled the juror’s final “Yes, Sir” response. (77 Ill. 2d 524, 529-30, 397 N.E.2d 835.) Since the court did not ascertain if it was her desire to change her vote as she had asked, or whether she desired to abide by the verdict she had signed, the record did not reflect that the verdict of guilty was a unanimous verdict. (77 Ill. 2d 524, 530, 397 N.E.2d 835.) The facts in Kellogg clearly are distinguishable from those in the case at bar. Here, the juror never asked if she could change her vote and it strains credulity to suggest that the court compelled her assent to the verdict.
¶12In Kellogg, the supreme court held that if a juror indicates some hesitancy or ambivalence in his answer upon being polled, then it is the trial judge’s duty to ascertain the juror’s present intent by affording the juror the opportunity to make an unambiguous reply as to his present state of mind. (77 Ill. 2d 524, 528, 397 N.E.2d 835.) Even assuming that juror Smith’s initial responses were ambiguous, it is noted that she immediately and unequivocally stated, “This is my verdict,” before the judge could complete restating the question asked of the jury as a whole. It thus cannot reasonably be said that her statement confirming her verdict was prompted or coerced by the trial judge.
¶13Several cases in Illinois, not cited in the briefs or in the majority opinion, have dealt with the question of whether a juror’s unorthodox response, during a poll of the jury, negated the unanimity of a guilty verdict in a criminal trial. In one case the foreman of the jury, when asked by the clerk whether this was his verdict, replied, “It wasn’t, but it is.” (People v. Herron (1975), 30 Ill. App. 3d 788, 789, 332 N.E.2d 623.) In another case a juror, when asked by the clerk whether this was her verdict, replied, “No. No, sir.” The court then inquired whether this was her verdict and she changed her answer, stating, “Yes, sir.” (People v. Hill (1973), 14 Ill. App. 3d 20, 22, 302 N.E.2d 373.) In a third case a juror responded, “I pleaded guilty, yes.” (People v. Massie (1972), 5 Ill. App. 3d 432, 283 N.E.2d 293.) In all three cases it was held that the responses did not demonstrate any lack of unanimity among the jurors. In Herron, the court commented that whatever the phrase, “It wasn’t, but” was meant to mean, it did not take away from the fact that the foreman stated that the guilty verdict “is” his verdict now. People v. Herron (1975), 30 Ill. App. 3d 788, 791, 332 N.E.2d 623.
¶14In People v. Gardner (1976), 40 Ill. App. 3d 700, 702, 352 N.E.2d 448, the following exchange transpired between the trial judge and juror Bunetic during the polling of the jury:
“THE COURT: Mr. Bunetic?
JUROR BUNETIC: I give my verdict as not guilty, but there was certain points that I was not certain of, that I was … reluctant, I should state.
THE COURT: Did you sign this verdict?
JUROR BUNETIC: I signed it guilty.
THE COURT: Is this your verdict?
JUROR BUNETIC: I signed it guilty, sir.”
¶15The appellate court found that the juror had been given ample ■opportunity to disavow the verdict. (40 Ill. App. 3d 700, 704, 352 N.E.2d 448.) His initial response was ambiguous and did not necessarily support the interpretation that he wished to disavow the verdict. The court did not regard the trial judge’s questions as hindering or foreclosing the juror’s expression of an unwillingness to acquiesce in the verdict. The trial court found that a unanimous verdict of guilty had been reached. The appellate court held that this finding was not clearly unreasonable and affirmed defendants’ convictions. 40 Ill. App. 3d 700, 704, 352 N.E.2d 448. See also People v. Preston (1979), 76 Ill. 2d 274, 280-81, 285-87, 391 N.E.2d 359 (juror initially responded “compromise” during poll of jury but, upon further questioning by the court, expressed her assent to the verdict).
¶16In People v. Riddle (1977), 49 Ill. App. 3d 46, 48, 363 N.E.2d 881, the following exchanges took place between the court and two jurors:
“THE COURT: Mr. Gunter, is this your verdict?
JUROR GUNTER: Yes, sir.
THE COURT: Are you satisfied with it?
JUROR GUNTER: In a way I was and in a way I wasn’t.
THE COURT: Do you want this to be your verdict?
JUROR GUNTER: I guess it will have to be.
THE COURT: And do you want me to accept it?
JUROR GUNTER: Yes, sir.
…
THE COURT: Mrs. Christian, is this your verdict?
JUROR CHRISTIAN: Yes, sir.
THE COURT: Are you satisfied with it?
JUROR CHRISTIAN: In some ways and in some ways not.
THE COURT: Do you want me to accept it?
JUROR CHRISTIAN: Yes, sir.”
¶17In reviewing these responses, the appellate court stated:
“It cannot reasonably be maintained that jurors Christian and Gunter were not given ample opportunity to express grave doubts or to disavow the verdict. The court’s line of questioning seeking to determine each juror’s satisfaction with the verdict was aimed to elicit the juror’s true feelings. It is true that the responses in question were unorthodox, but they were not expressions of dissent as defendant would have us believe. There is no sign that the jurors were coerced by their fellow jurors in this case. Nor is there any indication that the questions put forth by the court were in any way oppressive or designed to coerce assent to a verdict of guilty. The court took care to see that expressions of dissent by the jurors were not hindered.” 49 Ill. App. 3d 46, 48-49, 363 N.E.2d 881.
¶18It is apparent from a review of the foregoing authorities that reversal of defendant’s conviction on the ground presented in the majority opinion would be inappropriate. Moreover, as stated above, even assuming that juror Smith’s initial responses reflected some possible ambiguity, that ambiguity was dispelled when she confirmed without any prompting or coercion by the trial court that, “This is my verdict.” She had an opportunity to express dissent from the verdict but failed to do so. Her unequivocal acceptance of the verdict required no further inquiry by the court.