People v. Houston ( 2007 )

Docket No. 102225.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
AARON JAMAR HOUSTON, Appellant.
Opinion filed August 2, 2007.
JUSTICE FREEMAN delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Fitzgerald, Kilbride, Garman,
and Burke concurred in the judgment and opinion.
Justice Karmeier dissented, with opinion.
OPINION
After a jury trial in the circuit court of Peoria County, defendant
Aaron Jamar Houston was convicted of the offense of armed robbery
(720 ILCS 5/18–2(a) (West 2000)). The circuit court imposed a
sentence of 20 years’ imprisonment. The appellate court affirmed his
conviction and sentence in all respects. 363 Ill. App. 3d 567. We
granted leave to appeal. 210 Ill. 2d R. 315. For the reasons set forth
below, we remand the cause to the circuit court with directions.
BACKGROUND
The charges against defendant arose from an armed robbery of a
restaurant on July 11, 2002. The case was tried before a jury. Before
trial began, the court inquired of the State and defense counsel as to
their preferences regarding recording of the voir dire of the jury:
“[THE COURT:] Counsel, what do you want to do
relative to having a court reporter take the actual voir dire; do
you wish to have it recorded or not?
[Defense Counsel:] I don’t need it recorded.
[State:] No, People waive.
THE COURT: Then the court reporter will be waived for
the actual taking of the voir dire. [To the court reporter:]
When I read the list of witnesses and put the 12 in the box,
then you’re free to go.
[Defense Counsel:] Judge, subject to coming up–
THE COURT: That’s right, she’ll be available.”
Voir dire commenced without being recorded by the court reporter.
The court went back on the record after the 12 jurors had been picked
to indicate that at that point there was only one prospective juror
remaining as a possible alternate. The court stated that it was too late
in the day to request additional prospective jurors, so either the parties
could agree to go to trial with a single alternate juror if the final
prospective juror was acceptable, or return the following day, pick
two alternate jurors and proceed at that point. Defense counsel and
the State each indicated that it would be acceptable to go to trial with
a single alternate juror. After confirming that this was acceptable to
both parties, the court stated: “Okay. And I take it you continue your
waiving of the court reporter for the voir dire for the alternate?”
Defense counsel and the State each assented, and the court reporter
was again excused. The alternate was apparently deemed acceptable,
and the case proceeded to trial.
At the close of evidence, the jury found defendant guilty of armed
robbery. The trial court then set June 13, 2003, as the date for
posttrial motions and sentencing. On April 24, 2003, defendant sent
the court a handwritten pro se motion for a new trial, which the court
received on April 28. In addition to pointing out alleged
inconsistencies in the testimony that formed the basis of his
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conviction, defendant also complained regarding the composition of
his jury. Specifically, defendant, who is African-American, wrote to
the judge as follows:
“I know you tried to be fair as possible and you was but I felt
a predjudice [sic] and discrimanating [sic] patter[n] going on
with the jury. I’m not predjudice [sic] but I strong feel some
of the jury was. I mean let’s look at it eleven white people and
one black person ***.”
Defendant further alleged, in his pro se motion, that the lone African-
American juror, a woman, stated during voir dire that she did not
know defendant, but that defendant subsequently learned that this
juror did in fact know him. Defendant alleged, in addition, that the
prosecution wanted this person on the jury because her brother had
recently been murdered. In defendant’s view, she had strong feelings
“about guns and people being shot.”
On May 14, 2003, defense counsel filed a motion for a new trial.
In this motion, defense counsel stated, in relevant part: “That of the
twelve jurors in this cause, there was only one black and when the
court asked said black lady *** if she knew anyone, either the
attorneys or any of the proposed witnesses or the Defendant[,] she
stated she did not know the Defendant[,] but in reality said Defendant
has subsequently learned that said black lady did know him.”
On June 13, 2003, the trial court held the previously scheduled
hearing on the motion for a new trial. During this hearing, defense
counsel emphasized, in particular, the allegation regarding the
African-American juror “who denied, in effect, that she knew anyone,
any of the parties, the Court, or anyone else.” The State responded
that defendant never made this objection during voir dire. The State
added that “there were several peremptory challenges used, at least
seven by the defense; I think six by the State.”
The trial court denied the motion for a new trial. In explaining this
decision, the trial court specifically addressed the claim regarding the
African-American juror who allegedly denied knowing defendant.
The trial court ruled that there was no factual basis for this claim.
After denying the motion for a new trial, the court conducted a
sentencing hearing. During this hearing, the State acknowledged that,
according to the evidence presented at trial, defendant “was not the
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individual that was armed.” The presentence investigation report
indicated that defendant, who was born on November 15, 1984, left
high school in 1999 when he was about 15 years of age. At the
conclusion of the hearing, the trial court sentenced defendant to 20
years’ imprisonment.
Defendant appealed, and a divided appellate court affirmed his
conviction and sentence. 363 Ill. App. 3d 567. The court found that
the evidence was sufficient to uphold defendant’s conviction, found
no reversible error in the fact that the voir dire was not recorded, and
denied defendant’s claim of ineffective assistance of counsel.
In her dissent, Justice McDade pointed to Supreme Court Rule
608(a)(9), which requires that “court reporting personnel *** take the
record of the proceedings regarding the selection of the jury.” 210 Ill.
2d R. 608(a)(9). Justice McDade noted that the failure to record voir
dire in the case at bar ran directly counter to Rule 608(a)(9), which,
in Justice McDade’s view, was mandatory. She stated: “This is a rule
of criminal procedure and, as is the case with all the supreme court’s
rules that fall into that category, it is mandatory; it is a rule of
procedure, not a mere suggestion.” (Emphasis in original.) 363 Ill.
App. 3d at 579 (McDade, J., dissenting). According to Justice
McDade, the cause should have been remanded for a new trial.
ANALYSIS
Before this court, defendant raises two distinct challenges to his
conviction. The first concerns the voir dire proceedings. The second
relates to trial counsel’s failure to submit a jury instruction. With
regard to the voir dire proceedings, defendant contends that (1) his
trial counsel was ineffective for waiving the court reporter during voir
dire, and (2) the trial court improperly allowed voir dire to proceed
with no court reporter present, thereby depriving defendant of due
process.
We turn first to defendant’s assertions of error during voir dire.
Both of his arguments in this regard concern the failure to record
proceedings in violation of Rule 608 (210 Ill. 2d R. 608).
Preliminarily, we note that article VI of our supreme court rules
governs criminal cases, and within article VI, Rule 608 deals with the
record on appeal. Subsection (a)(9) of Rule 608, which focuses on
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voir dire, provides that, in cases where a sentence of death is not
imposed:
“[T]he court reporting personnel *** shall take the record
of the proceedings regarding the selection of the jury, but the
record need not be transcribed unless a party designates that
such proceedings be included in the record on appeal.”
(Emphasis added.) 210 Ill. 2d R. 608(a)(9).1
Rule 608 does not define the terms “record” and “transcribe.”
Webster’s Third New International Dictionary defines “record” as “an
account in writing or print *** intended to perpetuate a knowledge of
acts or events” and, more specifically, “an official contemporaneous
memorandum stating the proceedings of a court of justice.” Webster’s
Third New International Dictionary 1898 (2002). The term
“transcribe” is defined as “to make a written copy of.” Webster’s
Third New International Dictionary 2426 (2002). While Black’s Law
Dictionary appears to conflate the terms “record” and “transcript”
(Black’s Law Dictionary 1279 (7th ed. 1999) (defining “record” as
including a “transcript of the trial or hearing”)), the sense of Rule
608(a)(9) clearly is that “record,” as in “take the record of the
proceedings regarding the selection of the jury,” is to be differentiated
from a transcription. The rule states: “the record [of the proceedings
regarding the selection of the jury] need not be transcribed unless a
party designates that such proceedings be included in the record on
appeal.” 210 Ill. 2d R. 608(a)(9). The plain meaning of the rule is
that, in cases other than those where a sentence of death is imposed,
a record of the proceedings regarding the selection of the jury is to be
taken but that a transcription, or copy, need not be made unless
1
Prior to 1986, subsection (9) of paragraph (a) provided only that the
“judgment and sentence” in a criminal case were among the items to be
included in the record on appeal. 87 Ill. 2d R. 608(a)(9). Paragraph (a) was
amended in 1986. As amended, subsection (9) required, among other
things, that court reporters in cases where a sentence of death was not
imposed were “to take notes of the jury-selection proceedings, but the
transcription of such notes [was] required only when requested by a party.”
210 Ill. 2d R. 608, Committee Comments, at cclxvii. Though subsection
(a)(9) has undergone minor modifications since then, it has remained
essentially unchanged.
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requested by a party for inclusion in the record on appeal. Of
necessity, if the voir dire record that Rule 608(a)(9) requires to be
taken must be transcribed, if requested, for inclusion in the record on
appeal, this initial record must be complete enough to be so
transcribed and included. Our construction of Rule 608(a)(9) is in
accord with the previous version of the rule, which stated, in pertinent
part: “the court reporter shall take full stenographic notes of the
proceedings regarding the selection of the jury, but the notes need not
be transcribed unless a party designates that such proceedings be
included in the record on appeal.” (Emphases added.) 177 Ill. 2d R.
608(a)(9).
This court has never dealt expressly with Rule 608(a)(9).
However, People v. Thompkins, 121 Ill. 2d 401 (1988), a case which
was cited to us by the State, has been relied upon by our appellate
court in determining whether the failure to ensure the recording of
voir dire, in violation of Rule 608(a)(9), constituted ineffective
assistance of counsel. People v. Ash, 346 Ill. App. 3d 809 (2004);
People v. Morris, 229 Ill. App. 3d 144 (1992). In Thompkins, we
rejected the defendant’s claim that his counsel was per se ineffective
for failure to insist upon the presence of a court reporter during voir
dire. Citing People v. Steel, 52 Ill. 2d 442, 452 (1972), we concluded
that “the mere failure to obtain the presence of a court reporter during
voir dire does not constitute a per se presumption of ineffectiveness
of counsel.” Thompkins, 121 Ill. 2d at 448. In reaching this decision,
we noted that the criteria for determining incompetency of counsel
are “strict.” Thompkins, 121 Ill. 2d at 447. We explained that, under
Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct.
2052 (1984), a defendant arguing ineffective assistance must show
not only that his counsel’s performance was deficient but that the
defendant suffered prejudice as a result. In support of his ineffective-
assistance claim, the defendant in Thompkins pointed to United States
v. Cronic, 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984),
which discussed, among other things, “circumstances that are so
likely to prejudice the accused that the cost of litigating their effect in
a particular case is unjustified.” Cronic, 466 U.S. at 658, 80 L. Ed. 2d
667, 104 S. Ct. at 2046. Thompkins concluded that the defendant’s
reliance on Cronic was “in error.” Thompkins, 121 Ill. 2d at 448. The
court explained: “[T]he failure to insist upon the presence of the court
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reporter during a portion of the voir dire proceedings is not such an
extreme and limited circumstance, such as the total absence of
counsel, where prejudice can be presumed.” Thompkins, 121 Ill. 2d
at 448.
This same principle–that prejudice may not be presumed from the
mere failure to ensure the recording of voir dire–is reflected in People
v. Ash, 346 Ill. App. 3d 809 (2004), and People v. Morris, 229 Ill.
App. 3d 144 (1992). In Ash and Morris, also cited to us by the State,
our appellate court followed Thompkins and concluded that the failure
to ensure the reporting of voir dire, in violation of Rule 608(a)(9),
was not, in and of itself, ineffective assistance. Ash, 346 Ill. App. 3d
at 813; Morris, 229 Ill. App. 3d at 157. We agree with the holdings
in Thompkins, Morris and Ash–and in Steel, also cited to us by the
State–that a waiver of the court reporter for voir dire is not per se
ineffective assistance of counsel, and we hereby reaffirm this
principle.
In the case at bar, defendant, citing to Strickland, argues
ineffective assistance based on his counsel’s waiver of the court
reporter during voir dire. Unlike the defendant in Thompkins,
defendant here does not argue that prejudice should be presumed.
Indeed, defendant in the instant case does not cite to Cronic, which
held that prejudice could be presumed in some instances, such as the
total absence of counsel.
Under the two-prong Strickland test for determining whether
assistance of counsel has been ineffective, a defendant must show that
(1) his counsel’s performance was deficient in that it fell below an
objective standard of reasonableness, and (2) the deficient
performance prejudiced the defendant in that, but for counsel’s
deficient performance, there is a reasonable probability that the result
of the proceeding would have been different. People v. Evans, 209 Ill.
2d 194, 219-20 (2004); People v. Peeples, 205 Ill. 2d 480, 512-13
(2002). In demonstrating, under the first Strickland prong, that his
counsel’s performance was deficient, a defendant must overcome a
strong presumption that, under the circumstances, counsel’s conduct
might be considered sound trial strategy. Peeples, 205 Ill. 2d at 512.
With regard to the second prong of Strickland–the prejudice prong–a
reasonable probability that the result would have been different is a
probability sufficient to undermine confidence in the outcome. Evans,
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209 Ill. 2d at 220; Peeples, 205 Ill. 2d at 513. In order to prevail on
a claim of ineffective assistance, a defendant must satisfy both the
performance and the prejudice prongs of Strickland. Evans, 209 Ill.
2d at 220.
As previously noted, defendant’s trial counsel twice waived the
presence of the court reporter during voir dire: first, when the court
asked (before the start of trial) if counsel wanted a court reporter
present and counsel answered that none was needed; and second,
when the court asked the same question (later the same day) regarding
voir dire of the alternate juror and counsel repeated his waiver of the
court reporter.
The result of this waiver was that, contrary to the dictates of Rule
608(a)(9), no record was made of what occurred during jury selection.
In the case at bar, this lack of a voir dire record is consequential. As
previously indicated, defendant complained in his pro se motion for
a new trial about the composition of his jury.2 In that motion, after
noting that there were 11 white persons but only one African-
American person on the jury, defendant stated: “I felt a predjudice
[sic] and discrimanating [sic] patter[n] going on with the jury.” This
language echoes language in Batson v. Kentucky, 476 U.S. 79, 97, 90
L. Ed. 2d 69, 88, 106 S. Ct. 1712, 1723 (1986), which held that it was
a violation of the equal protection clause for the prosecution to use a
peremptory challenge to exclude a prospective juror solely on the
basis of race. Though defendant’s pro se motion made no mention of
Batson,3 his complaint about the racial composition of his jury was a
2
Defendant also alleged that the lone African-American juror, a woman,
stated during voir dire that she did not know defendant, but defendant
subsequently learned that she did in fact know him. This allegation of
personal acquaintance is separate and distinct from defendant’s claim of
racial discrimination in jury selection. We agree with the trial court that
there was no factual basis in the record for defendant’s personal-
acquaintance allegation, which plays no part in our decision in the case at
bar.
3
Defense counsel’s motion for a new trial also made no mention of
Batson. This is not surprising, given that, as a result of counsel’s waiver of
the court reporter for voir dire, there was no record of the proceedings
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Batson claim.4 It would be manifestly unfair to require precise legal
reasoning, including citation to authority, in a pro se claim drafted, as
was the instant claim, by an 18-year-old defendant who lacked even
a high school diploma. See, e.g., People v. Smith, 268 Ill. App. 3d
574, 580 (1994) (pro se postconviction petitions are given more
liberal reading than are formal pleadings prepared by counsel).
The difficulty here is that, having raised–or attempted to raise–a
Batson claim, defendant had no voir dire record with which to
support it. According to defendant, the lack of a voir dire record made
it virtually impossible for him to pursue his Batson claim on appeal.
In defendant’s view, “it would not be possible for appellate counsel,
or the appellate court, to assess a Batson issue without a full
recording of the entire voir dire proceedings.” Defendant asserts that
his counsel’s waiver of the court reporter for voir dire satisfies both
prongs of the Strickland test.
Faced with the unusual factual background of this case, we
attempt to determine whether trial counsel’s performance constituted
ineffective assistance. We look first to whether this conduct fell
below an objective standard of reasonableness. As noted, this court’s
rules provide that “the court reporting personnel *** shall take the
record of the proceedings regarding the selection of the jury.”
(Emphasis added.) 210 Ill. 2d R. 608(a)(9). Counsel’s waiving of the
court reporter in the case at bar ran directly counter to Rule 608(a)(9),
regarding jury selection. Had counsel asserted a Batson claim in his motion
for a new trial, he would ultimately have had to argue his own ineffective
assistance in order to explain the complete lack of a voir dire record with
which to support the claim. In view of this situation, it might have been
advisable for the trial court to appoint different counsel to represent
defendant in his posttrial motion. See People v. Moore, 207 Ill. 2d 68
(2003); People v. Krankel, 102 Ill. 2d 181 (1984). Defendant’s trial took
place over two days in mid-April 2003, and the hearing on defendant’s
motion for a new trial was held on June 13, 2003. Had different counsel
been appointed to represent defendant in his posttrial motion, it likely
would have been a fairly simple matter to reconstruct the record of voir dire
at that time, only two months after trial.
4
In its brief to this court, the State does not dispute that defendant’s
complaint about the racial composition of his jury was a Batson claim.
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which was promulgated precisely to avoid the type of situation we
now face. Here, on appeal, defendant’s appellate counsel expressly
refers to the Batson claim initially raised by defendant at the trial
level. Appellate counsel cannot pursue this claim on appeal, however,
because of trial counsel’s failure to comply with our Rule 608(a)(9).
An examination of the procedure used in assessing Batson claims
illustrates the difficulties resulting from trial counsel’s waiver of the
court reporter. Batson established a three-step process for evaluating
alleged discrimination in jury selection:
“First, the defendant must make a prima facie showing that
the prosecutor has exercised peremptory challenges on the
basis of race. [Citation.] Second, once such a showing has
been made, the burden shifts to the State to provide a race-
neutral explanation for excluding each of the venirepersons in
question. [Citation.] Defense counsel may rebut the proffered
explanations as pretextual. [Citation.] Finally, the trial court
determines whether the defendant has met his burden of
demonstrating purposeful discrimination.” People v.
Williams, 209 Ill. 2d 227, 244 (2004).
At the first stage, where the defendant is required to make a prima
facie showing of discrimination, courts are to consider “all relevant
circumstances” in deciding whether such a case has been established.
Batson, 476 U.S. at 96, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723. This
court has held that the following are among the relevant factors to be
considered in determining whether the defendant has demonstrated
purposeful discrimination against African-Americans:5
“(1) racial identity between the defendant and the excluded
venirepersons; (2) a pattern of strikes against African-
American venirepersons; (3) a disproportionate use of
peremptory challenges against African-American
venirepersons; (4) the level of African-American
representation in the venire as compared to the jury; (5) the
5
While Batson and much of its progeny deal with discrimination based
on race, Batson has been extended to bar “discrimination in jury selection
on the basis of gender.” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146,
128 L. Ed. 2d 89, 107, 114 S. Ct. 1419, 1430 (1994).
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prosecutor’s questions and statements during voir dire
examination and while exercising peremptory challenges; (6)
whether the excluded African-American venirepersons were
a heterogeneous group sharing race as their only common
characteristic; and (7) the race of the defendant, victim, and
witnesses.” People v. Williams, 173 Ill. 2d 48, 71 (1996).
Consideration of several of these factors, particularly the second,
third, fifth and sixth, would be difficult if not impossible without a
record of the voir dire proceedings.
In such circumstances, a defendant–such as defendant here–faces
serious obstacles in establishing a prima facie case of discrimination
at the posttrial stage. It follows that, without a record of the
proceedings during jury selection, the defendant would encounter the
same, or greater, obstacles in pursuing a Batson claim on appeal. The
appellate court would find it just as difficult as the trial court to
review such a claim. For these reasons, counsel’s waiver of the court
reporter in the case at bar falls below an objective standard of
reasonableness. We can conceive of no possible strategic advantage
that might have been gained by waiving the court reporter for voir
dire. Defendant has satisfied the performance prong of the Strickland
test by showing that his counsel’s performance was deficient.
Having concluded that counsel’s performance was professionally
deficient, we turn to the question of whether this conduct resulted in
prejudice to defendant. Under Strickland, a defendant establishes
prejudice by showing that there is a reasonable probability that, but
for counsel’s deficient performance, the result of the proceeding
would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Peeples, 205 Ill.
2d at 513; Evans, 209 Ill. 2d at 219-20.
In the case at bar, we cannot say that, as a result of counsel’s
error, there is a reasonable probability that the result would have been
different. We cannot say this because, without a voir dire record–the
absence of which is directly attributable to counsel’s deficient
performance–we have no way of determining the extent to which
defendant was prejudiced. Nevertheless, given the seriousness of
defendant’s claim of racial discrimination in jury selection, we are
reluctant simply to deny defendant all relief based solely on our
inability, because of the lack of a voir dire record, to determine the
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extent of the prejudice suffered by defendant. In our view, a middle
course is preferable.
In Simmons v. Beyer, 44 F.3d 1160 (3d Cir. 1995), as a result of
the delay between the defendant’s conviction and his direct appeal in
state court, portions of the trial record, “including a lengthy in camera
voir dire of prospective jurors,” were missing. Simmons, 44 F.3d at
1164. Faced with this situation, the state appellate court “remanded
the case for the limited purpose of reconstructing the record, and the
judges who had presided over the jury selection and the remainder of
the trial and sentencing held reconstruction hearings.” Simmons, 44
F.3d at 1164.6 Similarly, in In re Taylor, 272 Wis. 2d 642, 679
N.W.2d 893 (App. 2004), also a Batson case, the proceedings on voir
dire were not recorded. On remand, the trial court in Taylor held a
hearing “at which the voir dire process was ‘reconstructed’ from
testimony of the assistant district attorney and defense counsel,
handwritten notes, and a jury panel roster.” Taylor, 272 Wis. 2d at
648, 679 N.W.2d at 896.
Finally, in People v. Hudson, 195 Ill. 2d 117 (2001), this court
remanded a Batson gender-discrimination case to the circuit court for
a hearing to determine if the defendant, who had failed to raise the
gender-discrimination claim in his direct appeal, had shown the
necessary prejudice to excuse his procedural default. The defendant
in Hudson, who was initially sentenced to death, had raised a Batson
race-discrimination claim at the trial level and on direct appeal, but
this claim was rejected. While the defendant’s petition for certiorari
was pending before the United States Supreme Court, that court
decided J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 128 L. Ed. 2d
6
The defendant’s conviction and sentence were subsequently affirmed
on direct appeal in state court, and his petition for habeas corpus relief was
denied by the federal district court. The defendant appealed, and the court
of appeals concluded that the defendant’s Batson claim of discrimination
in jury selection could not be reviewed effectively “without a transcript of
the voir dire to allow the reviewing court to examine whom the assistant
prosecutor excluded and why.” Simmons, 44 F.3d at 1168. The court
emphasized “the seriousness” of the Batson claim, and remanded for the
granting of habeas relief unless the State agreed to retry the defendant
before a properly selected jury. Simmons, 44 F.3d at 1167-68, 1171.
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89, 114 S. Ct. 1419 (1994), which extended Batson to prohibit gender
discrimination in jury selection. The defendant in Hudson filed a
postconviction petition in which he claimed, relying on J.E.B., that a
female African-American venireperson who had been struck by the
State had been excluded on the basis of gender.7 Because the
defendant had failed to raise this gender-discrimination claim in his
direct appeal, this court conducted a cause-and-prejudice analysis to
determine if the defendant’s forfeiture of the claim would be excused.
We concluded that the defendant had shown cognizable cause for his
failure to raise the claim earlier. However, we also concluded that “an
evidentiary hearing [was] needed in order to determine if defendant
ha[d] established the needed prejudice to excuse the procedural
default.” Hudson, 195 Ill. 2d at 127. We stated: “without findings
from such a hearing, it is impossible to determine whether defendant
has established the requisite prejudice.” Hudson, 195 Ill. 2d at 137.
We therefore remanded the cause to the circuit court for a hearing to
determine if the State would have struck the African-American
female “even in the absence of any gender-related reasons.” Hudson,
195 Ill. 2d at 136-37. We noted that, if the hearing demonstrated that
the State would have struck the venireperson even in the absence of
the gender-related reason, the defendant could not be said to have
established prejudice and his claim should be denied. If, on the other
hand, the State was unable to prove this proposition, the defendant
would have met his burden of showing prejudice and relief should be
granted.
The appropriate solution in the case at bar, similar to Simmons,
Taylor and Hudson, is to remand this cause to the circuit court for a
hearing to reconstruct the voir dire record. We adopt this course,
rather than simply denying defendant relief, out of concern for the
seriousness of defendant’s race-discrimination claim. See Simmons,
44 F.3d at 1168 (remanding for the granting of conditional habeas
relief after noting “the seriousness” of the defendant’s Batson claim
and the court’s inability to review the claim absent a transcript of the
voir dire proceedings). As the Court in Batson explained, “[t]he core
7
In attempting to show, at trial, that the reasons for excluding the
venireperson were race-neutral, the State had articulated a potentially
gender-related reason.
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guarantee of equal protection, ensuring citizens that their State will
not discriminate on account of race, would be meaningless were we
to approve the exclusion of jurors on the basis of such assumptions,
which arise solely from the jurors’ race.” Batson, 476 U.S. at 97-98,
90 L. Ed. 2d at 88, 106 S. Ct. at 1723. In this instance, given the risk
that a denial of relief might amount to such approval, we choose to
remand the cause simply to determine whether sufficient information
about the voir dire may be gathered to ensure that racial
discrimination in jury selection is not condoned by this court.
We emphasize the limited scope of our decision. We do not
conclude that the failure to obtain the presence of a court reporter
during voir dire creates, in itself, a per se presumption of ineffective
assistance of counsel. People v. Thompkins, 121 Ill. 2d 401, 448
(1988). Nor do we conclude that the mere failure to record voir dire,
without any claim of error in the jury selection process, requires a
remand for reconstruction of the jury-selection proceedings. See, e.g.,
People v. Culbreath, 343 Ill. App. 3d 998, 1005 (2003). This is not to
say, however, that our rules are unimportant. We point out that the
difficulty presented in the case at bar could have been avoided had the
trial judge simply followed the mandate of Rule 608(a)(9). This court
has often noted that our rules are not mere suggestions. Rather,
“[t]hey have the force of law, and the presumption must be that they
will be obeyed and enforced as written.” Bright v. Dicke, 166 Ill. 2d
204, 210 (1995). The situation here confronting us illustrates the
importance of our rules and the need for compliance with them.
We hold that where, as in the unusual case before us, a defendant
attempts to raise in the trial court a Batson claim of discrimination in
jury selection, and the claim may not be pursued because trial counsel
waived the presence of the court reporter for voir dire, in violation of
our Rule 608(a)(9), resulting in the absence of a voir dire record, the
appropriate course, in the first instance, is to remand to the circuit
court for an attempt to reconstruct the record of the proceedings
regarding the selection of the jury.
The dissent criticizes this approach as “ill conceived” and argues
instead that we should simply affirm. Affirmance in this instance
would do nothing to address the difficulty, clearly illustrated in the
case at bar, that results from noncompliance with Rule 608(a)(9). The
dissent itself recognizes the need for such compliance. The dissenting
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justice notes, as do we, that our rules, including Rule 608(a)(9), are
not mere suggestions but rather have the force of law. The dissenting
justice adds, again agreeing with us, that “the presumption must be
that [our rules] are to be obeyed and enforced as written.” Slip op. at
24. However, the dissent’s only answer to the difficulty presented by
noncompliance with Rule 608(a)(9) is that we should “amend the
rule’s provisions to include appropriate consequences for failure to
follow it.” Slip op. at 24. This might be an appropriate remedy for
future cases, but our task here is to address the case that is actually
before us. In this instance, as we have stated, the proper course is to
remand to the circuit court for an attempt to reconstruct the voir dire
record. This is far preferable to the affirmance approach urged by the
dissent, which amounts to acquiescence in the face of noncompliance.
Because of our disposition of this case, we need not address, at
this time, defendant’s other claims that (1) the trial court improperly
allowed voir dire to proceed with no court reporter present, thereby
depriving defendant of due process, and (2) trial counsel failed to
tender a jury instruction on identification, thereby rendering
ineffective assistance.
A number of cases cited by the State held that a trial court’s
failure to provide a court reporter during voir dire was not a violation
of due process. People v. Ash, 346 Ill. App. 3d 809, 813 (2004);
People v. Culbreath, 343 Ill. App. 3d 998, 1005 (2003); People v.
Morris, 229 Ill. App. 3d 144, 156 (1992); People v. McClurg, 195 Ill.
App. 3d 381, 388 (1990). Because we do not address defendant’s due
process claim, we need not consider these cases’ conclusions
regarding this issue.
Pursuant to this court’s supervisory authority, we retain
jurisdiction and remand this cause to the circuit court of Peoria
County for a hearing to reconstruct the voir dire record. This
reconstructed record shall be filed with the clerk of this court within
90 days of the date that this decision becomes final.
CONCLUSION
The cause is remanded to the circuit court with directions to hold
a hearing to reconstruct the record of the voir dire proceedings which
took place at trial.
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Cause remanded with directions.
JUSTICE KARMEIER, dissenting:
In this case we are called upon to construe Supreme Court Rule
608(a)(9) (210 Ill. 2d R. 608(a)(9)). When interpreting supreme court
rules, our court is guided by the same principles applicable to the
construction of statutes. In re Estate of Rennick, 181 Ill. 2d 395, 404
(1998); 134 Ill. 2d R. 2(a) & Committee Comments. With rules as
with statutes, our goal is to ascertain and give effect the drafters’
intention. In re Storment, 203 Ill. 2d 378, 390 (2002). The most
reliable indicator of intent is the language used, which must be given
its plain and ordinary meaning. Robidoux v. Oliphant, 201 Ill. 2d 324,
332 (2002).
The language of the rule at issue here provides that, in cases not
involving a death sentence, “court reporting personnel *** shall take
the record of the proceedings regarding the selection of the jury.”
(Emphasis added.) 210 Ill. 2d R. 608(a)(9). Generally, use of the term
“shall” indicates an intention to impose a mandatory obligation.
People v. Thomas, 171 Ill. 2d 207, 222 (1996). There is no reason to
ascribe a different meaning to the term here. The circuit court was
therefore under an obligatory duty to have the jury selection
proceedings recorded.
The more difficult question posed by this appeal is what, if any,
consequences should flow from the fact that the dictates of Rule
608(a)(9) were not followed. This is a separate and distinct inquiry.
As our court endeavored to explain in People v. Robinson, 217 Ill. 2d
43, 51-54 (2005), it is one thing to hold that a governmental entity is
under an obligatory duty which it is required to perform, as opposed
to a permissive power which it may exercise or not as it chooses. It is
something else entirely to hold that the entity’s failure to comply with
its obligation should invalidate the action to which that obligation
relates. The former inquiry concerns what has been described as the
mandatory-permissive dichotomy. The latter, and the one which
concerns us now, is the so-called mandatory-directory dichotomy.
People v. Robinson, 217 Ill. 2d at 51-53; O’Brien v. White, 219 Ill. 2d
86, 96 (2006). Whether a statutory command is mandatory or
directory presents a question of law, which we review de novo.
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O’Brien v. White, 219 Ill. 2d at 97. The same is true where, as here,
the command is rule-based.
While use of the word “shall” normally denotes that something is
mandatory when dealing with the mandatory-permissive dichotomy,
the term is not determinative when, as in this case, the mandatory-
directory dichotomy is at issue. People v. Robinson, 217 Ill. 2d at 53-
54. The court must look instead to other factors. In assessing whether
a requirement should be read as mandatory rather than directory, a
court should consider whether the authors of the requirement
specified what should happen if the requirement is not met. When a
provision expressly prescribes a consequence for failure to obey its
terms, that is strong evidence that the requirements of the provision
were intended to be mandatory. People v. Robinson, 217 Ill. 2d at 54.
No such prescription was made here. Neither Rule 608(a)(9) nor
any other subpart of Rule 608 specifies what, if anything, should
happen when the voir dire is not recorded in a noncapital case. That
does not necessarily preclude the conclusion that the rule’s provisions
are mandatory and not merely directory. In People v. Campbell, 224
Ill. 2d 80 (2006), for example, this court found that the trial court’s
failure to comply with the provisions of Supreme Court Rule 401(a)
(134 Ill. 2d R. 401(a)), dealing with waiver of counsel, rendered the
defendant’s conviction fatally infirm. There, as here, the rule
contained no language specifying what would happen if the
requirements of the rule were not followed. The committee comments
to the rule, however, indicate that it had been amended to conform to
the United States Supreme Court’s decision in Argersinger v. Hamlin,
407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006 (1972). As stated in the
committee comments, that case held that under the United States
Constitution, no imprisonment may be imposed unless the defendant
was represented by counsel or has made a knowing and intelligent
waiver of his right to counsel. By referencing this authority, the
drafters of the rule implicitly recognized that there would be a
consequence for noncompliance, a very serious one. In light of that
constitutionally based consequence, setting out the repercussions of
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noncompliance separately was unnecessary.8
No similar circumstances are present in this case. The courts of
Illinois have consistently rejected the claim that the failure to record
voir dire violates constitutional protections. See, e.g., People v.
McClurg, 195 Ill. App. 3d 381 (1990). In contrast to People v.
Campbell, the absence in Rule 608(a)(9) of an express consequence
for failure to comply with its provisions therefore cannot be attributed
to the fact that a constitutionally based remedy is available.
I do not see and the majority opinion has not identified any other
factors that would support a conclusion that failure to comply with
the recording requirement of Rule 608(a)(9), in and of itself, renders
the subsequent trial invalid. Under the mandatory-directory
dichotomy our court has articulated, the rule’s recording requirement
is therefore directory. As such, it may be waived by the parties. See,
e.g., In re Estate of Zander, 242 Ill. App. 3d 774, 777 (1993).
That the recording requirement may be waived is further
supported by comparison to other situations in which waiver is
permissible. The courts of Illinois have recognized that criminal
defendants may waive such rights as the right to a speedy trial
(People v. Laws, 200 Ill. App. 3d 232, 235 (1990)), to counsel
(People v. Haynes, 174 Ill. 2d 204, 235 (1996)); to a jury of 12
(People v. Barrier, 359 Ill. App. 3d 639, 642 (2005)); to confront
witnesses against them (People v. Campbell, 208 Ill. 2d 203 (2003));
8
Although the analysis in Campbell purported to rely on the language of
Rule 401(a) rather than the underlying constitutional principles governing
the right to counsel, the constitutionally based consequences of
noncompliance are essential to the result it reached. If the existence of such
consequences were absent from the analysis and the case rested solely on
the text of the rule, it could not be squared with the analytical framework
we set forth in People v. Robinson for understanding the mandatory-
directory dichotomy, nor could it be reconciled with decisions such as
People v. Henderson, 217 Ill. 2d 449 (2005), where we held that failure to
comply with the admonitions required by Supreme Court Rule 605(a),
which also employed the word “shall,” did not automatically require
reversal and remand in every instance.
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and to be free from double jeopardy (People v. Dieterman, 243 Ill.
App. 3d 838, 843 (1993)). All of these rights are more significant
than the right to have jury-selection proceedings recorded. If they can
be waived, the right to have jury-selection proceedings recorded must
likewise be subject to waiver. Any construction of Supreme Court
Rule 608(a)(9) that would yield a contrary result would, in effect,
confer greater protection on the right to have jury selection recorded
than it would on the right to be tried by a jury. Such a result is absurd.
We must therefore reject it. See In re Loss, 119 Ill. 2d 186, 194
(1987) (a rule, like a statute, must be construed to avoid an unjust
result).
There is no dispute that a waiver of the recording requirement was
made in this case by both the defendant and the State. Having waived
strict compliance with Supreme Court Rule 608(a)(9), defendant
cannot now assert that the failure to have the jury-selection procedure
recorded pursuant to Rule 608(a)(9) was reversible error. To hold
otherwise would require us to ignore the well-established principle
that a party may not complain of error where doing so is inconsistent
with the position he took in the earlier court proceeding or where the
alleged error is one to which he consented. McMath v. Katholi, 191
Ill. 2d 251, 256 (2000).
The failure of trial counsel to insist on the presence of court
reporting personnel during voir dire is not a novel circumstance. It
has been considered by the courts in Illinois on at least six previous
occasions. None of those decisions support the majority’s resolution
of the case before us today.
People v. Steel, 52 Ill. 2d 442, 452 (1972), was decided by our
court over 30 years ago. In an argument that echoes the one made on
appeal in this case, the defendant in Steel contended that his trial
counsel was incompetent for failing to insist upon the presence of a
court reporter during voir dire because, among other things, that
failure precluded defendant from establishing that the jury may have
been prejudiced against him. We rejected that argument, noting that
there, as here, a court reporter was always available and could have
been summoned at any time.
A similar situation was present in People v. Thompkins, 121 Ill.
2d 401 (1988). The defendant there also maintained that the
performance of his court-appointed counsel was ineffective based, in
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part, on the lawyer’s failure to insist upon the presence of a court
reporter during voir dire. According to the defendant, the failure to
record jury selection was prejudicial because it “preclud[ed] his
appellate counsel from raising any potential issues regarding
improper excusal of prospective jurors.” People v. Thompkins, 121
Ill. 2d at 447. Citing our previous decision in People v. Steel, 52 Ill.
2d 442 (1972), we rejected that contention, holding that the mere
failure to obtain the presence of a court reporter during voir dire does
not constitute a per se presumption of ineffectiveness of counsel. We
further ruled that counsel’s failure to insist upon the presence of the
court reporter during a portion of the voir dire proceedings was not
such an extreme and limited circumstance, such as the total absence
of counsel, that prejudice could be presumed. People v. Thompkins,
121 Ill. 2d at 448.
The issue next arose in People v. McClurg, 195 Ill. App. 3d 381
(1990), in which the defendant appealed her conviction for driving
under the influence of alcohol. Prior to the commencement of the
trial, the court had advised the defendant that there were not enough
court reporters to make one available during jury selection, but that
a reporter would be available later so that a record could be made. In
assailing her conviction, the defendant included among her numerous
arguments that the failure of the trial court to provide a court reporter
during voir dire deprived her of the ability to preserve her objections
for review and denied her right to due process. The appellate court
rejected that contention, noting that the rules of our court clearly
provide alternative methods for preserving the record where no
verbatim transcript is available. In the appellate court’s view,
defendant could have availed herself of those rules and submitted a
bystander’s report or agreed statement of facts. Because she failed to
do either, the court concluded that she had waived any argument
concerning the sufficiency of the record and the propriety of the trial
court’s rulings during voir dire. People v. McClurg, 195 Ill. App. 3d
at 388.
McClurg was followed by People v. Morris, 229 Ill. App. 3d 144
(1992), authored by former Chief Justice McMorrow shortly before
she was elected to our court. In that case, which involved a felony
prosecution, the court made some preliminary remarks to the initial
group of prospective jurors. It then asked defense counsel and the
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prosecutor to step forward to the bench and stated the following:
“ ‘The court reporter informed me she has an appointment
with her doctor. Would you please excuse her for the
impaneling of the jurors? Before doing that would all of the
perspective [sic] jurors raise their right hands please.
(WHEREUPON THE JURORS WERE SWORN IN.)
THE COURT: Ms. Reporter, you are excused.’ ” People
v. Morris, 229 Ill. App. 3d at 154-55.
The court reporter was then excused while voir dire was conducted.
That was the only portion of the proceedings for which she was
absent. Court reporting was thereafter resumed for opening
statements by the State and defense counsel, as well as for the
remainder of defendant's trial. Defendant was subsequently found
guilty and sentenced to a term of imprisonment.
On appeal, defendant claimed that the trial court committed
reversible error when it permitted jury selection to take place without
transcription by a court reporter. Following the approach taken in
McClurg, the appellate court rejected this argument, holding that
defendant could have obtained a bystander's report or an agreed
statement of facts as permitted under the rules of our court and that
his failure to do so precluded him from asserting that the court's
ruling was reversible error. People v. Morris, 229 Ill. App. 3d at 156.
In a related argument, the defendant further contended that his
attorney was ineffective for having agreed to excuse the taking of voir
dire by a court reporter. The appellate court rejected this argument as
well. Citing our decision in People v. Thompkins, 121 Ill. 2d 401, 448
(1988), it held that defense counsel's failure to obtain the presence of
a court reporter for voir dire does not create a per se presumption of
ineffective assistance of counsel. To prevail on a claim that the
attorney was ineffective, the defendant was required to point to some
error in selection of the jury. The court further held that it was
incumbent upon the defendant, as appellant, to obtain a bystander's
report, or stipulated statement of facts, in lieu of a verbatim transcript
of the voir dire. The court concluded that in the case before it,
defendant had failed to satisfy these burdens. He was unable to
specify any particular error that occurred during jury selection and
failed to procure a bystander's report or stipulated statement of facts
-21-
regarding jury selection. As a result, the court rejected defendant’s
claim that he was entitled to a new trial. People v. Morris, 229 Ill.
App. 3d at 156-57.
People v. Culbreath, 343 Ill. App. 3d 998, 1005-06 (2003), is in
accord. In that case, the defendant was tried on two counts of
aggravated battery. On the first day of the trial, the presiding judge
asked counsel for defendant and the State if either party wanted a
court reporter to be present to record the voir dire. The State
responded in the negative. Counsel for defendant indicated that he
would be willing to waive the presence of a reporter, subject to the
understanding the reporter would be nearby in case a record of
something needed to be made. The court then excused the court
reporter and proceeded with jury selection. A court reporter was
present for the remaining proceedings in the case.
Defendant was ultimately convicted, sentenced to a term of
imprisonment and ordered to pay restitution to his victim. People v.
Culbreath, 343 Ill. App. 3d at 1001. On appeal, defendant raised
various grounds for assailing the judgment. Among these were: (1)
that by conducting voir dire of prospective jurors without a court
reporter present to transcribe the proceedings, as required by Supreme
Court Rule 608(a)(9) (177 Ill. 2d R. 608(a)(9)), the trial court had
violated his right to due process; (2) the failure to have a court
reporter present to transcribe voir dire resulted in the denial of his
right to effective assistance of appellate counsel; and (3) his trial
counsel did not have the authority to waive the court reporter's
presence at voir dire because that decision belonged to defendant
alone. People v. Culbreath, 343 Ill. App. 3d at 1005.
The appellate court rejected all these arguments. Following
McClurg and Morris, it reiterated the principle that the failure to
provide a court reporter during voir dire does not deprive a defendant
of due process. It further held that because the rules of this court
provide alternate means for preserving the record and because the
defendant failed to avail himself of those options, defendant was
precluded from arguing that the court’s failure to provide a court
reporter during voir dire constituted reversible error. People v.
Culbreath, 343 Ill. App. 3d at 1006.
Finally, the appellate court concluded, based on precedent from
this court, that the decision to conduct voir dire without a court
-22-
reporter present was not among those which must be made personally
by the defendant. That decision, in the appellate court’s view, could
be made by defense counsel. In so ruling, the appellate court rejected
the notion that defense counsel’s waiver of the court reporter’s
presence for voir dire creates an inherent conflict of interest by
creating a situation in which counsel could prevent the defendant
from raising claims against him. The reason the waiver does not
create a conflict is that it does not, in fact, preclude a defendant from
challenging his attorney’s conduct during voir dire. As previously
indicated, a defendant may substantiate claims of ineffective
representation pertaining to voir dire by means of a bystander’s report
or an agreed statement of facts. Neither of those options was
attempted by the defendant in that case. People v. Culbreath, 343 Ill.
App. 3d at 1007-08.
The sixth and most recent case, People v. Ash, 346 Ill. App. 3d
809, 812-14 (2004), was decided the year after People v. Culbreath,
343 Ill. App. 3d 998 (2003), and involved a similar situation in which
the trial court asked counsel for the parties if they wished voir dire to
be recorded by a court reporter. Both declined. Defendant was
ultimately convicted of a drug-possession offense. As grounds for his
appeal, the defendant argued that the trial court committed reversible
error by failing to have jury-selection proceedings reported as
required by Supreme Court Rule 608(a)(9) and that his trial counsel
rendered ineffective assistance by agreeing to waive the recording of
voir dire. People v. Ash, 346 Ill. App. 3d at 812.
As in all the cases which preceded it, the appellate court in Ash
found these arguments to be without merit. The court opined that the
requirements contained in Rule 608(a)(9) could validly be waived by
counsel on the defendant’s behalf and that the trial court was entitled
to rely on defense counsel’s decision to decline having voir dire
recorded. The court further held that defendant had failed to
demonstrate that his attorney’s decision to forgo recording of voir
dire deprived him of a fair trial. Defendant’s claim was based solely
on counsel’s decision to allow voir dire to proceed without a court
reporter, and in the court’s view, “[e]xcusing the court reporter from
taking notes of voir dire is not, in and of itself, ineffective assistance
[citations] or a violation of due process [citations].” People v. Ash,
346 Ill. App. 3d at 813-14.
-23-
In light of this unbroken line of precedent, which the appellate
court in this case applied properly, the majority’s characterization of
the case as unique or unusual is unfounded. The problem presented
by this case, failure to record voir dire as Rule 608(a)(9) requires, is,
in fact, all too common. Its frequent reoccurrence is perplexing.
Given the clear language of the rule, it is difficult to understand why
a trial court would suggest that conducting jury selection without the
presence of a court reporter might be appropriate or permissible. As
we held in Bright v. Dicke, 166 Ill. 2d 204, 210 (1995), and as the
majority reminds us, our rules are not suggestions. They have the
force of law, and the presumption must be that they are to be obeyed
and enforced as written. Rule 608(a)(9) is no different. If trial courts
are unwilling to comply, it is incumbent on us to amend the rule’s
provisions to include appropriate consequences for failure to follow
it. Fashioning ad hoc remedies as the majority does here is unsound,
especially where, as in this case, doing so requires the court to ignore
an unbroken line of cases dating back over 30 years.
In an effort to justify its approach, the majority attempts to
distinguish this case from past precedent on the grounds that it
involves a situation in which the failure to record voir dire is tied to
a specific claim of prejudice by the defendant, namely, that it
hampered his ability to establish that he was denied equal protection
under the principles established by the United States Supreme Court
in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712
(1986). According to the majority, remand for further proceedings is
necessary in order to dispel any notion that our court condones racial
discrimination in jury selection in contravention of Batson. Slip op.
at 14.
I share my colleague’s concern with honoring the precepts of
Batson. Contrary to the majority, however, I do not believe that this
case can properly be characterized as presenting a Batson claim. As
a preliminary matter and as the majority acknowledges, no mention
of Batson was made in either the posttrial motion filed by defense
counsel or the pro se posttrial motion submitted by defendant himself.
The suggestion that Batson considerations might be relevant was
injected into the case for the first time by defendant’s counsel on
appeal. Even then, it was not the focus of defendant’s petition for
leave to appeal, his brief or his reply brief. In fact, when defendant’s
-24-
reply brief mentions Batson, it is not to buttress any claim of racial
discrimination in this case, but merely to illustrate why defendant
believes, as a matter of policy, that strict enforcement of the court
reporting requirement in Rule 608(a)(9) is so important. When
defendant speaks of possible Batson-related problems in this context,
he refers to “a hypothetical defendant,” not himself.
Wholly aside from these considerations, I do not believe that
appellate counsel’s Batson analysis is meritorious. That there might
be an actual Batson problem in this particular case is predicated on a
document styled “affidavit” which was appended to defendant’s pro
se posttrial motion and motion to suppress confession. In that
affidavit, defendant stated:
“Judge Maher I know you tried to be fair as possible and you
was but I felt a predjudice [sic] and discrimanating [sic]
patter[n] going on with the jury. I’m not predjudice [sic] but
I strong feel some of the jury was. I mean let’s look at it
eleven white people and one black person ***.”
The affidavit then continued with the charge that the one black person
on the jury was likely to have been biased against defendant because
her brother had recently been murdered and she still carried
“emotion’s [sic] about guns and people being shot.” In addition, the
affidavit asserted that the lone black juror knew defendant and had
lied when the court asked here whether she knew anyone involved in
the case.
Along with this affidavit, defendant’s appellate counsel also cited
an allegation in trial counsel’s posttrial motion regarding the
composition of the jury. That allegation, which paraphrased
defendant’s affidavit, stated simply that
“of the twelve jurors in this cause, there was only one black
and when the court asked said black lady if she knew anyone,
either the attorneys or any of the proposed witnesses or the
Defendant she stated she did not know the Defendant but in
reality said Defendant has subsequently learned that the said
black lady did know him.”
Contrary to the majority’s view, these assertions do not echo
language in Batson. The Batson decision did not pertain to the bias
that may result from personal acquaintance. It did not even address
-25-
the bias that may result when the members of the jury happen to be
of a different race from the defendant. Rather, it was concerned
specifically with purposeful discrimination by the State in the
selection of the jury through the use of peremptory challenges. Batson
v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986).
Nothing in any of the materials filed by defendant or on his behalf
in the trial court charges that such purposeful discrimination by the
State occurred here. A pattern of discrimination by the jury, which is
what defendant alleged, is analytically and constitutionally distinct
from a pattern of discriminatory strikes against black venire members
by the prosecution, which is what the defendant in Batson alleged.
Batson v. Kentucky, 476 U.S. at 83-84, 90 L. Ed. 2d at 78-79, 106 S.
Ct. at 1715-16. While it may be true that the jury ended up with 11
white jurors and only one African American, there is no indication
that this composition was the result of anything other than the
demographics of Peoria County.
To support its view that this case is properly viewed as presenting
Batson concerns, the majority asserts that “the State does not dispute
that defendant’s complaint about the racial composition of his jury
was a Batson claim.” Slip op. at 9 n.4. The majority’s implication is
that the State, in its brief, somehow conceded that arguments
advanced by defendant and his attorney in the trial court were
predicated on Batson. The State made no such concession. So far as
I can tell, the question of Batson is not even mentioned in the State’s
brief. It did not need to be mentioned because it was not essential to
the State’s arguments in support of the trial court’s judgment.
In addressing the question of why Batson was not specifically
raised in the trial court, my colleagues fail to consider an obvious
explanation, namely, that counsel recognized that no grounds for a
Batson challenge existed. Instead, the majority intimates that
defendant’s trial counsel refrained from invoking Batson out of
concern that doing so would have required him to argue his own
ineffectiveness. I regard such a suggestion as wholly unjustified.
Rather than assuming that an attorney’s representation was tainted by
self-interest or otherwise flawed, we must assume, absent evidence
to the contrary, that counsel satisfied his professional obligations.
Indeed, there is a strong presumption under Illinois law that the
performance of a defendant's attorney fell within the range of
-26-
reasonably adequate representation. People v. Owens, 129 Ill. 2d 303,
318 (1989). My personal experience has been that such a presumption
is justified, particularly when defense counsel is as experienced as
defendant’s trial counsel was in this case.
When counsel in this case acquiesced in dispensing with a court
reporter for voir dire, they did so with the understanding that the
reporter would be available in the event that a problem arose
requiring that a record be made. Had the State’s exercise of its
peremptory challenges raised a Batson issue, there is no reason to
believe that defendant’s lawyer would not have exercised this option
and summoned the reporter to record the proceedings. Based on the
record before us, it appears that he was diligent in all other aspects of
his representation. That he did not deem it necessary to call in the
reporter to make a record of what occurred during voir dire is
therefore not evidence of lack of effective representation. It is
evidence of lack of error.
Finally, I am puzzled by the remedy fashioned by my colleagues.
That is so for three reasons. First, remanding for a hearing to
reconstruct what took place during voir dire is not a resolution
defendant himself has requested. Indeed, in his reply brief defendant
contends that anything less than a full recording of the voir dire,
which was not made and does not exist, will be inadequate. Second,
to the extent that a record of what took place could be reconstructed,
the time to attempt such reconstruction was immediately after the trial
concluded. As noted in McClurg, Morris, and Culbreath, our rules
provide for alternate means for preserving the record, and if a
defendant fails to avail himself of those alternatives he cannot
complain on appeal that the failure to provide a court reporter during
voir dire constitutes reversible error. Third, even if some principle of
justice could excuse defendant’s failure to act earlier, the passage of
time has probably doomed any realistic hope of reconstructing the
record of voir dire now. As a result, the remand ordered by the
majority is, in the end, likely to be a meaningless act. The case is
almost certain to return to us in essentially the same posture as it is
now. What then? Nothing in the majority’s present analysis explains
what the next step should be.
For the foregoing reasons, I believe that the majority’s analysis is
unsound and that the remedy it fashions is ill conceived. In my view,
-27-
the appellate court resolved this case correctly under the law.
Although the majority did not reach defendant’s remaining issue
pertaining to counsel’s failure to tender an instruction on
identification, I believe that the appellate court resolved that issue
correctly as well. The appellate court’s judgment should therefore be
affirmed. Accordingly, I respectfully dissent.
-28-