THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY HILL, Defendant-Appellant, 315 Ill. App. 3d 1005

JUSTICE TULLY delivered the opinion of the court: Following a jury trial, defendant, Anthony Hill, was convicted of two counts of first degree murder and one count of attempted first degree murder. Defendant was sentenced to a term of natural life as to the murder charges and a concurrent term of 30 years’ imprisonment as to the attempted first degree murder count. It is from this judgment of conviction defendant now appeals pursuant to

section 6 of

article VI of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Supreme Court Rules 603 and 606 (134 Ill. 2d Rs. 603, 606). For the reasons that follow, we reverse and remand. At trial, defendant claimed he acted out of self-defense against the victims, who were the actual aggressors in this case. In support of this defense, defendant presented a significant amount of testimony detailing the harassment and intimidation suffered by him at the hands of Gangster Disciple members, specifically, at the hands of Darnell Harris, a high-ranking officer in the organization.

He testified as to how he had been tormented and threatened over the course of several months by gang members because he would not join ranks with them in their war with a rival gang. Ultimately, the culmination of his fear and frustration led him to an emotional breaking point which ended in a violent shooting spree on November 29, 1994. During the afternoon hours of that fateful day, Darnell Harris and Charles Buford, both members of the Gangster Disciples, went to defendant’s home, where Harris made remarks that defendant construed as a threat against his life.

Later that evening, in an apparent attempt to thwart his own untimely demise, defendant and Kyle Edmondson (a codefendant not party to this appeal) donned dark clothing and ski masks, armed themselves with guns and went to the street corner where he knew Harris, Buford and several other members of the Gangster Disciples were loitering. Defendant’s claimed intent was to scare the thugs. Defendant recounted how Andrew Redmond lunged toward him as he approached the gang and when Redmond was within approximately three feet of defendant, he fired his weapon.

He also stated he saw Darnell Harris reaching toward his back pocket as if to retrieve a gun. Defendant continued firing his weapon until it was empty of ammunition. The State, on the other hand, posits that defendant was just another thug vying with the Gangster Disciples for valuable territory from which to peddle drugs. Testimony elicited from State witnesses claimed they were merely standing on the corner, unarmed, when two men in ski masks rounded the corner and opened fire on them.

The shooting did not stop until Videl McGee and Andrew Redmond were dead, and Charles Buford lay on the ground, shot twice in the back. Defendant and Edmondson ran to defendant’s home, abandoned the dark clothing and ski masks in the garage, entered the home and went up to the attic apartment. The police arrived at defendant’s home within minutes of the shooting and both defendant and Edmondson were arrested. The jury returned guilty verdicts as to the murder of Andrew Redmond and Videl McGee and the attempted murder of Charles Buford but found the defendant not guilty of attempted murder of Darnell Harris.

On appeal, defendant submits as error at the trial of this cause: (1) the verdicts are logically and legally inconsistent and therefore should have been rejected by the trial court; (2) the absence of the trial judge during the deliberation by the jury was improper and prevented defendant from addressing a legal argument to the court; (3) the trial court improperly refused to tender the jury á second degree murder instruction; (4) the court erred in excluding evidence regarding the victim’s prior convictions where the defense was self-defense; (5) the trial court improperly instructed the jury as to the State witness’ prior convictions; (6) the trial court improperly restricted defendant’s cross-examination of the State’s chief witness; and (7) the trial court erred in refusing to allow defendant to offer evidence correcting alleged perjured testimony by a State witness.

We begin our analysis with an examination of defendant’s contention that the absence of the trial judge denied the defendant due process and was such an affront to the judicial system as to constitute per se reversible error. The gravamen of the issue lies with the fact that the trial judge left the courthouse after tendering the case to the jury and was therefore unavailable to answer questions sent out by the jury, hear legal arguments regarding the tendering of additional instructions to the jury or make any determination regarding the inconsistency of the verdicts.

In support of this contention, defendant cites People v. Vargas, 174 Ill. 2d 355 (1996). The Vargas case discussed the resulting prejudice to a criminal defendant where the trial judge absents himself from the bench during a portion of the trial or where there is a substitution of judges at some point during the evidentiary phase of a felony trial. The supreme court concluded that a judge’s absence from the bench might unduly influence the attitude of the jurors so as to deny defendant an impartial trial. Vargas, 174 Ill. 2d at 364-65. We believe defendant’s reliance on the Vargas case is misplaced.

Illinois law is clear that a defendant is entitled to the judgment of one judge up to the time of the retirement of the jury to consider its verdict. People v. Mays, 23 Ill. 2d 520 (1962); Huwe v. Commonwealth Edison Co., 29 Ill. App. 3d 1085 (1975). Moreover, jury deliberations have long been regarded as a routine matter not requiring the presence of the trial judge. Huwe v. Commonwealth Edison Co., 29 Ill. App. 3d 1085, 1087 (1975); Chicago & Alton R.R. Co. v. Merriman, 86 Ill. App. 454, 455 (1899). Consequently, we do not believe the holding in Vargas is applicable to the facts in the case sub judice.

The mere substitution of judges after the jury begins deliberation is not per se reversible error. Defendant further argues he was prejudiced because the judge who conducted the trial and was familiar with the facts of the case as well as the previous rulings was unavailable to answer the jury’s questions and rule on defendant’s request to submit additional jury instructions. We agree. We have painstakingly reviewed the record and include the salient portions of the transcript of the hearing had before the substitute judge after the jury sent out its questions at approximately 3 p.m.

The two questions tendered by the jury were:

(1) Why is Anthony Hill being charged with attempted first degree murder of Darnell Harris and not of Carlton Logan and Vernon Tony? and,

(2) Is the jury allowed to make a recommendation of leniency toward the defendant? “MR. PETRAKIS [assistant State’s Attorney]: As to the second question, we would ask your Honor to instruct the jury that they are not to consider possible punishment. That punishment is not their function and based on that, they should continue to deliberate. Generally, that’s included in the 101, Judge. I’ve looked at a copy of the jury instructions in the court file, the same juiy instructions that this jury has back there now, and it did not include that language, that they’re not supposed to consider the punishment.

So, since it was omitted there and since the jury apparently has some concern about that, we believe that that would aid the juiy in their deliberations and would aid — aid this jury in reaching a verdict. * * * MR. ADAM [defense counsel]: It is obvious to me, and it’s also equally obvious to me that your Honor, with all due deference, cannot answer that question because you do not know the evidence. * * * THE COURT: Don’t argue to me because I don’t know anything about the facts. MR. ADAM: That’s the problem. >¡i * % That’s why we need Judge Reyna to reassess the situation.

THE COURT: I’m going to wait before I do anything. I’m just going to let them deliberate for a few minutes more. I mean, I would prefer Judge Reyna answering any of these questions. I really would because it’s his — it’s his trial. I mean, I know what answers I would give, and I know what I believe answers that are proper and the answer that should be given, but I prefer that he answer them, so I’m going to wait. I have a death hearing sentence of my own to do upstairs.” The substitute judge then left the courtroom to resume his hearing.

Nothing was sent to the jury — not the “101 instruction” suggested by the State, not the second degree murder instruction suggested by defense counsel and not a note saying “you have everything you need to make a decision” — nothing. Nor was the bailiff instructed to advise the jury it would not be receiving any further direction from the judge.

The substitute judge made the following remarks on the record just prior to accepting the jury’s verdict: “As I thought on the matter, I thought about answering their questions, I decided not to answer their questions, and I believe that that was a correct decision to make because I believe if I did answer their questions, then perhaps some kind of reversible error would have been committed since I was not the trial judge. I’m not familiar with the evidence in the case. However, they appear to be questions that are questions of fact, not of law, and questions that could have been given a direct answer.

As to the second questions, to which there was an objection, I said I could answer the question as to whether or not they could make a recommendation of leniency, and an answer could clearly be given, but perhaps it would have-been reversible error for a judge other than the trial judge to answer a jury’s question.” It is clear the substitute judge did not rule but rather refrained from ruling based upon the misapprehension he lacked authority to respond to the jury’s questions or that it would be appealable error if he made a ruling.

Both the Huwe and Moon courts considered this very issue and concluded that a substitute judge, appointed after the jury begins its deliberations, is in fact vested with the authority to rule on issues that arise during the deliberations. Huwe v. Commonwealth Edison Co., 29 Ill. App. 3d at 1087 (where after jury foreman advised bailiff the jury was deadlocked substitute judge denied motion for mistrial and tendered deadlocked-jury instruction); People v. Moon, 107 Ill. App. 3d 568, 574 (1982) (where substitute judge tendered supplemental jury instruction).

Having concluded the substitution of judge was not itself prejudicial and the substitute judge was vested with the authority to rule, the question then becomes whether the absence of the judge who presided over the trial and was vested with the knowledge of the facts and evidence adduced at trial prejudiced defendant. The trial judge should be present where a motion or other matter develops that requires personal knowledge of the case. Huwe v. Commonwealth Edison Co., 29 Ill. App. 3d 1085, 1087 (1975); People v. Moon, 107 Ill. App. 3d 568, 574 (1982).

Neither Huwe nor Moon addressed this issue as it concluded the jury had been properly instructed. The State maintains the position that the trial court’s nonresponse to the jury’s questions was an appropriate decision and cites People v. Reid, 136 Ill. 2d 27 (1990). Additionally, the State asserts the questions submitted by the jurors related to questions of fact and therefore could not have been properly answered by any trial judge.

It is true that a trial court may exercise its discretion and properly decline to answer a jury’s inquiries where the instructions are legally correct and understandable, further instruction would mislead the jurors, jurors raise questions of fact, or an answer or explanation by the court would likely direct a verdict. People v. Childs, 159 Ill. 2d 217, 228 (1994). ' However, jurors are entitled to have their questions answered. People v. Reid, 136 Ill. 2d at 39.

A trial court has a duty to instruct the jury where clarification is requested, the original instructions are incomplete, and the jurors are manifestly confused. Reid, 136 Ill. 2d at 39, citing People v. Gathings, 99 Ill. App. 3d 1135, 1138 (1981). A trial court’s decision to answer or refrain from answering a question from the jury will not be disturbed absent an abuse of discretion. People v. Reid, 136 Ill. 2d at 38-39. After reviewing the record, we cannot conclude the substitute judge decided the jury’s questions were of the sort that did not require an answer; clearly he did, he stated as much on the record.

He said he knew exactly what response he believed appropriate given the circumstances. But he chose to abstain from making a decision. Abstention is not an appropriate response from a trial judge. We hold that the absence of a ruling where one was required was error and manifestly prejudicial to the defendant. We cannot say that the verdict would not have been different had arguments been heard and rulings rendered.

If a substitution of judge is necessary or unavoidable after a case has been tendered to the jury, we believe it incumbent upon both the predecessor judge to advise his successor colleague as to the salient facts and contested prior rulings which may again become issues to be considered and the successor judge to make rulings he believes appropriate, secure in the knowledge he has the authority to do so. We conclude on review of this issue alone that remand is warranted.

However, defendant maintains the verdicts ultimately rendered by the jury were both legally and logically inconsistent and the doctrine of collateral estoppel prohibits a retrial in this matter. We disagree. Verdicts are legally inconsistent if they necessarily involve the conclusion that the same essential element or elements of each crime were found both to exist and not to exist. People v. Frias, 99 Ill. 2d 193 (1983).

Logically inconsistent verdicts, on the other hand, arise when verdicts, though not based upon the same elements, involve both the acceptance and rejection of the same theory of the case proposed by the State or defense. People v. Westpfahl, 295 Ill. App. 3d 327, 334 (1998). Logically inconsistent verdicts in criminal trials may stand, while legally inconsistent jury verdicts cannot. People v. Klingenberg, 172 Ill. 2d 270, 275 (1996); People v. Rhoden, 299 Ill. App. 3d 951 (1998). These verdicts may be logically inconsistent as they suggest both a belief and a disbelief of defendant’s theory of self-defense.

However, logical inconsistencies do not mandate a reversal of the defendant’s conviction. People v. Rhoden, 299 Ill. App. 3d 951; see also People v. Whitlock, 174 Ill. App. 3d 749, 764 (1988). As to whether the verdicts are legally inconsistent, defendant contends the verdicts indicate he was simultaneously justified and without justification in his shooting of the victims. Defendant postulates that by returning a verdict of not guilty as to the attempted murder of Harris, the jury believed defendant’s theory of self-defense; he was justified in shooting at Harris.

Therefore, defendant reasons, if he was justified in the shooting of Harris, the doctrine of transferred intent must necessarily be applied and the legal justification for shooting at Harris thereby transferred to the other three victims. We disagree. The doctrine of transferred intent applies to situations where “innocent bystanders” are injured. See People v. Shelton, 293 Ill. App. 3d 747 (1997); People v. Adams, 9 Ill. App. 3d 61 (1972). The doctrine holds that one who intends to kill another and kills an unintended victim is not absolved from answering to the crime of murder. See People v.

Marshall, 398 Ill. 256 (1947). Conversely, when one acts in self-defense and accidentally kills another, he is relieved of criminal liability. People v. Robinson, 163 Ill. App. 3d 754 (1987). In order for the doctrine of transferred intent to apply in this case, defendant must have justifiably shot at Harris and injured three other innocent bystanders. The record clearly indicates that is not what happened. The three other victims were not innocent bystanders, they were Gangster Disciples; members of the very street gang that defendant testified had tormented him for many months.

Moreover, defendant testified he knew Harris, Buford, Redmond and McGee were Gangster Disciples and that he knew they, along with others, were standing on the corner of Cermak and Kildare when he armed himself with a weapon and proceeded to that very corner to scare “them.” Clearly, Buford, Redmond and McGee were intended targets of defendant’s “scare tactics.” It is simply disingenuous to describe these individuals as “innocent bystanders” on appeal when that characterization does not comport with the evidence adduced at trial.

Additionally, defendant’s theory is premised on the presumption the jury found defendant not guilty of the attempted murder of Harris because it believed the asserted defense of self-defense, thereby excusing defendant’s conduct as justified. The truth is we do not know what factors motivated the jury to find defendant not guilty of the attempted murder of Harris.

The relevant question for our consideration, then, is whether the finding of not guilty of the attempted murder of Harris necessarily negates or contradicts the essential elements of the crimes for which he was convicted, i.e., one count of attempted murder and two counts of murder. We conclude it does not. We believe the rationale set forth in People v. Spears, 112 Ill. 2d 396 (1986), and People v. Fornear, 176 Ill. 2d 523 (1997), is dispositive.

Both of those cases determined the essential framework for analyzing the consistency of jury verdicts in the troublesome context of multiple shots or victims is whether the trier of fact could rationally find separable acts accompanied by mental states to support all of the verdicts as legally consistent. Fornear, 176 Ill. 2d at 531-32; Spears, 112 Ill. 2d at 405-06. Here, defendant testified that, at the time of the shootings, he saw Harris reach behind him and defendant believed Harris may have been reaching for a weapon. On the other hand, defendant stated none of the other individuals appeared to be armed.

Based upon defendant’s testimony alone, the jury could have concluded defendant was justified in shooting at Harris based on the reasonable belief Harris was in possession of a gun but not justified in shooting at other individuals whom defendant believed were unarmed. Therefore, we reject defendant’s contention the verdicts were legally inconsistent and hold the verdict finding defendant not guilty of the attempted murder of Harris does not impact the validity of the other three guilty verdicts.

Because we have concluded the verdicts are not legally inconsistent, we need not address defendant’s claim of collateral estoppel. Additionally, after thoroughly reviewing the evidence, we find it to have been sufficient to support each of the guilty verdicts. We therefore find no double jeopardy impediment to a new trial. People v. Porter, 168 Ill. 2d 201, 215 (1995). We have further made no finding as to defendant’s guilt that would be binding on retrial. People v. Jones, 175 Ill. 2d 126, 134 (1997); Porter, 168 Ill. 2d at 215.

Accordingly, the judgment of the trial court as to the three guilty verdicts is reversed and remanded to the trial court for further consideration. The not guilty verdict rendered as to the charge of attempted murder of Darnell Harris remains undisturbed. Reversed and remanded. GALLAGHER, J., concurs.