People v. Manning ( 2011 )

Docket No. 109029.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
ARTHUR R. MANNING, Appellant.
Opinion filed February 3, 2011.
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Justices Thomas and Theis concurred in the judgment and opinion.
Chief Justice Kilbride specially concurred, with opinion.
Justice Karmeier specially concurred, with opinion.
Justice Freeman dissented, with opinion, joined by Justice Burke.
OPINION
Following a jury trial in the circuit court of Du Page County,
defendant, Arthur R. Manning, was convicted of one count of
possession of a controlled substance with intent to deliver (720 ILCS
570/401(a)(2)(A) (West 2004)) and one count of possession of a
controlled substance (720 ILCS 570/402(c) (West 2004)). He was
sentenced to concurrent prison terms of 11 years and 3 years,
respectively. The appellate court affirmed defendant’s convictions and
sentences. No. 2–07–0846 (unpublished order under Supreme Court
Rule 23).
BACKGROUND
Defendant was arrested after allegedly selling cocaine to an
undercover police officer posing as a taxi driver and to a man posing
as a passenger. The passenger went into a duplex located at 37 Sunset
Court in Bensenville. He returned to the taxi with defendant, who then
sold the passenger cocaine. When the officer asked to purchase
cocaine, defendant went back inside the duplex and returned with
cocaine that he then sold to the officer. Following defendant’s arrest,
a search warrant was executed at the duplex. Cocaine was found
inside a mattress in the basement, along with men’s clothing, more
cocaine, a digital scale, and a razor blade. Cocaine was also found in
other rooms of the duplex and heroin was found in a freezer.
During voir dire, defense counsel told the members of the venire
that at the trial, they would hear evidence that defendant is a
registered sex offender and that his registered residence address was
not at 37 Sunset Court. Counsel thus questioned potential jurors
about what impact, if any, defendant’s sex offender status would have
on their ability to be fair and impartial.
During questioning by the trial court, juror 165 (hereafter referred
to as A.C.) stated that he came to the United States from Romania six
years before and was in the printing business. He stated he could be
fair to both sides and would judge the believability of all witnesses
using the same standard for everyone. He had no criminal record, had
never been a crime victim, and had not been involved in any lawsuits.
A.C. stated that he had received two speeding tickets since he came
to this country. Defense counsel then questioned A.C. When counsel
asked A.C. how he felt about sex offenders, A.C. responded that they
should be “locked up for life.” The following exchange then occurred:
“Q. What if the law permitted that he not be locked up for
life or she not be locked up for life? Do you still think that
should be the case? Do you think you would be able to listen
to a case and render a judgment on a case that’s separate and
distinct from the sex offender case?
A. Yes.
Q. Even though that person may have that background?
A. Yes.
Q. Is that background going to influence you at all do you
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believe in your decision on the case?
A. I don’t think so.
Q. You don’t think so?
A. No.
Q. Can you be more specific? Can you say that it’s not
going to?
A. No.
Q. You cannot?
A. No. I said it’s not going to change. I cannot be fair with
the case.
Q. You can be fair, or you cannot?
A. No, I cannot be fair.
Q. You can be fair?
A. No, I cannot be fair. I could not be fair also.”
Defense counsel did not move to strike A.C. for cause nor did he
use a peremptory challenge to remove him from the jury. Counsel did
excuse another juror who said her opinion of defendant “dropped
drastically” when she learned of his sex offender status. In all, counsel
used five of defendant’s seven available peremptory challenges.
At the trial, special agent Matthew Gainer of the Illinois State
Police testified that at the time of defendant’s arrest, he was assigned
to the Du Page County Metropolitan Enforcement Group, which
investigated street-level narcotics trafficking. On July 14, 2005,
Gainer and his fellow officers were investigating defendant. Gainer
posed as a taxi driver. He and a passenger in the car drove to 37
Sunset Court in Bensenville, where Gainer parked the car. The
passenger went inside and when he came back out, defendant was
with him. The two stood by the passenger door of the car, where the
passenger purchased two bags of crack cocaine from defendant for
$40. Gainer asked if he could purchase some cocaine. Defendant went
back into 37 Sunset Court and returned a short time later. Defendant
gave Gainer three bags of crack cocaine in exchange for $60.
Defendant then returned to the residence.
Gainer further testified that he and other officers executed a search
warrant at the residence on July 28, 2005. They searched the
basement, where they found men’s clothing and three bags of cocaine,
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a scale, and identification documents. In another part of the residence,
the officers found two more bags of cocaine. Gainer seized
defendant’s Illinois identification card, issued on January 29, 1995,
with an address of 37 Sunset Court. He also seized a checkbook with
the address of 212 West Sunny Lane. Officers also found a piece of
mail addressed to defendant at the Sunset Court address and another
addressed to him at the West Sunny Lane address with a forwarding
address to Sunset Court.
Officer Michael Hanrahan testified that he and another officer
spoke to defendant at the police station. While taking defendant’s
personal history, defendant told them that he lived at 37 Sunset Court.
After waiving his Miranda rights, defendant gave a statement in which
he again said that he lived at 37 Sunset Court, that he had resided
there for approximately 10 months, and that he had sold cocaine there
for a year. Defendant told the officers they could find heroin in a
freezer at the residence that he was holding for someone else. When
this information was relayed to officers on the scene, they found 14
tinfoil packets of heroin in the freezer. Defendant prepared a written
statement in which he again confirmed his residence as 37 Sunset
Court.
Former Bensenville police detective Maria Hernandez testified that
she monitored sex offenders. As a registered sex offender, defendant
was not allowed to live within 500 feet of a park. Because the
residence at 37 Sunset Court was closer than 500 feet to a park,
Hernandez ordered defendant to move in December 2004. She could
not verify whether he had complied, although defendant told her he
had moved to Maywood.
Bensenville police officer Todd Zoglman testified that in May
2005, he stopped defendant for driving on a suspended license. The
Secretary of State’s records showed defendant’s address as in
Maywood. However, suspended licenses could not be updated and
Zoglman testified that the records on defendant’s identification card
listed his current address as 37 Sunset Court.
Defendant testified that he moved from Sunset Court to Maywood
in December 2004. He updated some of his records but not others. He
did register his Maywood address with the local police department. In
March 2005, he was arrested for driving under the influence. A
certified copy of the traffic citation introduced into evidence showed
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defendant’s address as 2033 South Third Avenue in Maywood.
Defendant testified that he frequently visited his girlfriend and her
three children, who lived at the Sunset Court address. On July 28,
2005, he drove to Sunset Court to take his girlfriend to Rockford. The
police drove up and arrested him. When he got to the police station,
an officer told defendant to initial and sign a Miranda waiver. He did
so after reading it. The interrogating officers accused him of selling
drugs. When defendant stated that he wanted an attorney, the officers
told him he would get one later in Wheaton. Defendant testified that
the only reason he wrote and signed a statement was because the
officers threatened to take custody of his girlfriend’s children. The
officers told him to write 37 Sunset Court as his address on his
statement. Defendant denied that he had sold any drugs.
Hanrahan testified in rebuttal, denying defendant’s claim that he
had asked for an attorney. He denied that defendant was threatened
or that he was told to write down the 37 Sunset Court address.
Defendant was convicted and sentenced as stated. On appeal,
defendant argued, inter alia, that his trial counsel was ineffective for
failing to excuse A.C. from the venire due to his statements that he
could not be fair to defendant because of his sex offender status. The
appellate court rejected this argument, noting that under the standard
set forth in Strickland v. Washington, 466 U.S. 668 (1984) (adopted
by this court in People v. Albanese, 104 Ill. 2d 504 (1984)), defendant
must demonstrate both deficient performance and prejudice. The court
noted that, generally, counsel’s conduct during jury selection is
considered to involve matters of trial strategy not subject to scrutiny
under Strickland. The court concluded that defendant failed to
demonstrate prejudice because the evidence against him was
overwhelming. In addition, the court rejected defendant’s argument
that prejudice should be presumed where a biased juror sat on his jury.
No. 2–07–0846 (unpublished order under Supreme Court Rule 23).
This court granted defendant’s petition for leave to appeal. Ill. S. Ct.
R. 315 (eff. Feb. 26, 2010).
ANALYSIS
Defendant argues that his trial counsel rendered deficient
performance in failing to challenge A.C. for cause or exercise a
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peremptory challenge. He further argues that he was prejudiced by
counsel’s failure. In the alternative, he argues that this court should
find that jury bias is presumptively prejudicial under Strickland.
Claims of ineffectiveness of counsel are judged under the familiar
standard set forth in Strickland. A defendant must show that counsel’s
performance fell below an objective standard of reasonableness and
that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. Strickland, 466 U.S. at 688, 694.
“In order to satisfy the deficient-performance prong of
Strickland, a defendant must show that his counsel’s
performance was so inadequate that counsel was not
functioning as the ‘counsel’ guaranteed by the sixth
amendment. Counsel’s performance is measured by an
objective standard of competence under prevailing
professional norms. Further, in order to establish deficient
performance, the defendant must overcome the strong
presumption that the challenged action or inaction may have
been the product of sound trial strategy. People v. Evans, 186
Ill. 2d 83, 93 (1999); People v. Griffin, 178 Ill. 2d 65, 73-74
(1997). Matters of trial strategy are generally immune from
claims of ineffective assistance of counsel. People v. West, 187
Ill. 2d 418 (1999).” People v. Smith, 195 Ill. 2d 179, 188
(2000).
Defendant first argues that the appellate court applied the wrong
standard of review on the prejudice prong of Strickland. Initially, the
court stated the test correctly, i.e., that defendant must show a
reasonable probability that the result of the proceeding would have
been different. However, later in the opinion, the court stated that it
could not say that the result of defendant’s trial “would have been
different” had A.C. not served on the jury. Defendant also alleges
similar inconsistencies in other cases.
Defendant is correct that the prejudice prong of the Strickland
standard does not require that a defendant demonstrate that the result
of his trial would have been different. Rather, although a defendant
must show a reasonable probability that the result of the proceeding
would have been different, “the prejudice prong of Strickland is not
simply an ‘outcome-determinative’ test but, rather, may be satisfied if
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defendant can show that counsel’s deficient performance rendered the
result of the trial unreliable or the proceeding fundamentally unfair.”
People v. Jackson, 205 Ill. 2d 247, 259 (2001); see also People v.
Evans, 209 Ill. 2d 194, 220 (2004) (“a reasonable probability that the
result would have been different is a probability sufficient to
undermine confidence in the outcome–or put another way, that
counsel’s deficient performance rendered the result of the trial
unreliable or fundamentally unfair”).
Despite the appellate court’s misstatement of the standard, we do
not find that the court erred in applying it to defendant’s case.
In addressing defendant’s ineffectiveness argument, the appellate
court found this court’s decision in People v. Metcalfe, 202 Ill. 2d
544, 562 (2002), to be dispositive of defendant’s appeal. In Metcalfe,
the defendant appealed his conviction on the ground that he was
denied his right to a fair trial when one of the members of his jury, a
woman named Grevus, indicated during voir dire that she could not
be fair and impartial. The appellate court reversed the defendant’s
conviction and remanded for a new trial, holding that the trial court
had a sua sponte duty to excuse Grevus even though defendant’s
counsel had not challenged her for cause or exercised a peremptory
challenge. During voir dire, Grevus indicated that she and her parents
had been crime victims. She had been robbed at gunpoint and the
perpetrator “got off because of a technicality.” Grevus noted that the
defendant’s attorney had tried to discredit her trial testimony
identifying the defendant as the perpetrator. Defense counsel asked
Grevus whether the result of that case would cause her to be biased
in any way. She answered that it would and stated that she felt the
perpetrator was clearly guilty. Defense counsel excused two other
prospective jurors but did not excuse Grevus. The appellate court
reviewed the defendant’s claim under the second prong of the plain-
error rule. The court found that Grevus was biased against the
defendant and held that when a prospective juror indicates bias or
prejudice and counsel does not move to excuse the prospective juror,
the trial court has a sua sponte duty to do so. This court disagreed,
holding that no sua sponte duty exists. Id. at 551, 557.
In addition, this court addressed the defendant’s argument that his
trial counsel was ineffective for failing to challenge Grevus and that
prejudice should be presumed due to the fact that an actually biased
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juror served on his jury, invoking the United States Supreme Court’s
decision in United States v. Cronic, 466 U.S. 648 (1984). This court
noted Cronic held that there are certain circumstances that are so
likely to prejudice an accused that the cost of litigating their effect in
a particular case is unjustified. This includes a complete denial of
counsel, where counsel fails to subject the prosecution’s case to any
meaningful adversarial testing. This court found Cronic to be
inapplicable, noting that an attorney’s failure in this regard must be
complete. The defendant in Metcalfe did not claim that his counsel
failed to oppose the prosecution completely during voir dire as a
whole, but only as to one prospective juror. In fact, defense counsel
had exercised five peremptory challenges. Metcalfe, 202 Ill. 2d at 560-
61. Instead, the court addressed the defendant’s argument under the
Strickland standard. Noting that defense counsel’s strategic choices
are virtually unchallengeable, this court rejected the defendant’s claim
that his counsel’s actions were deficient. It was possible that defense
counsel believed Grevus’s bias was directed at the criminal justice
system or at the prosecution, rather than at the defendant himself.
Accordingly, the court found that counsel’s decision not to challenge
Grevus was a matter of trial strategy. This court further found that,
assuming there was deficient performance, the defendant suffered no
prejudice because the evidence at trial was more than sufficient to
prove him guilty beyond a reasonable doubt. Id. at 561-62.
In his petition for leave to appeal, defendant in this case argued
that this court should “reconsider” our decision in Metcalfe because
juror bias is structural error, and since Metcalfe was decided, other
courts have held that a biased juror is inherently prejudicial. Asking
this court to reconsider Metcalfe is tantamount to asking us to
overrule that decision. It is unclear to us how we could reconsider it
without overruling it. Defendant also now argues in his brief that
Metcalfe is distinguishable because the biased juror there only might
have been biased toward the accused, whereas the biased juror here
was deeply biased against defendant. Thus, according to defendant, his
trial counsel’s failure to challenge A.C. for cause or use a peremptory
challenge to remove him from the jury was objectively unreasonable.
We first address defendant’s argument that this court should
overrule Metcalfe.
Defendant argues that prejudice should be “presumed” under
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Strickland. He argues that Strickland assumed jury impartiality in its
prejudice analysis. (Prejudice requires a “showing that counsel’s errors
were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” Strickland, 466 U.S. at 687. “[A] fair trial is one in
which evidence subject to adversarial testing is presented to an
impartial tribunal for resolution of issues defined in advance of the
proceeding.” Id. at 685.) Defendant cites federal cases and cases from
other states which he says found juror bias prejudicial under
Strickland and he asks this court to “refine the Metcalfe analysis” or
“go in a different direction” in light of these cases. As with the request
to reconsider Metcalfe, these suggestions essentially ask this court to
overrule Metcalfe.
Defendant contends that some courts have focused on the lack of
an impartial jury and, thus, the evaluation of prejudice “requires a
showing that, as a result of trial counsel’s failure to exercise
peremptory challenges, the jury panel contained at least one juror who
was biased.” Davis v. Woodford, 384 F.3d 628, 643 (9th Cir. 2004).
Defendant cites as an example the case of People v. Vieyra, 169 P.3d
205 (Colo. App. 2007), in which the defendant alleged in
postconviction proceedings that his trial counsel was ineffective for
failing to exercise an unused peremptory challenge. The court declined
to find that prejudice is presumed when defense counsel fails to
exercise all of the defendant’s peremptory challenges, holding instead
that the defendant must establish prejudice under Strickland. The
court held that the defendant had not done so, noting that he had
failed to establish which juror he would have struck with the
remaining challenge and he had failed to establish facts suggesting bias
on the part of any of the jurors who sat on his jury. Id. at 210.
Another case defendant cites is Whitney v. State, 857 A.2d 625
(Md. App. 2004), where the defendant argued his trial counsel was
ineffective for failing to realize that defendant was entitled to 10
peremptory strikes. The trial court had told counsel that they each had
four strikes and defense counsel failed to object. She exercised all four
of the defendant’s challenges. The appellate court found that counsel’s
performance was objectively unreasonable. In discussing the prejudice
prong of Strickland, the court declined to find that prejudice was
presumed. The court stated that, considering the record, it could not
perceive any prejudice resulting from counsel’s mistake that was
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shown to have resulted in the impairment of the defendant’s right to
a fair and impartial jury and the trial was not unreliable or
fundamentally unfair. Id. at 637. In State v. Carter, 2002 WI App 55,
¶15, 641 N.W.2d 517, the court found that counsel’s failure to strike
or further question a juror who admitted bias denied the defendant an
impartial jury and rendered the outcome of the trial unreliable and
fundamentally unfair, thus presuming prejudice regardless of whether
the deficient performance had any impact on the result of the trial.
Similarly, Virgil v. Dretke, 446 F.3d 598, 613 (5th Cir. 2006), found
that the seating of biased jurors, without more, made the result of the
defendant’s trial unreliable; thus, prejudice was presumed.
Defendant argues that other cases focus on the structural nature
of jury bias. The principal case defendant cites here is Hughes v.
United States, 258 F.3d 453, 463 (6th Cir. 2001). The court held
there that the defendant’s counsel was ineffective for failing to strike
a biased juror. The court further held that the impaneling of a biased
juror requires a new trial and prejudice under Strickland is presumed.
Id.; see also State v. King, 2008 UT 54, ¶18, 190 P.3d 1283 (court
stated that had the deficient performance of the defendant’s counsel
permitted an actually biased juror to be seated, the court would
presume that the defendant’s sixth amendment right to the effective
assistance of counsel had been violated, citing Hughes with approval).
Defendant’s request to this court to overrule Metcalfe implicates
the doctrine of stare decisis. As we have explained:
“The doctrine of stare decisis expresses the policy of the
courts to stand by precedents and not to disturb settled points.
[Citation.] This doctrine is the means by which courts ensure
that the law will not merely change erratically, but will
develop in a principled and intelligible fashion. [Citation.]
Stare decisis enables both the people and the bar of this state
to rely upon [this court’s] decisions with assurance that they
will not be lightly overruled.” (Internal quotation marks
omitted.) People v. Sharpe, 216 Ill. 2d 481, 519 (2005)
(quoting Vitro v. Mihelcic, 209 Ill. 2d 76, 81-82 (2004)).
We have also acknowledged that stare decisis is not an inexorable
command. However, any departure from that doctrine must be
specially justified; prior decisions should not be overruled absent good
cause. Id. at 519-20.
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We noted in Sharpe that good cause to depart from stare decisis
exists when governing decisions are unworkable or badly reasoned. Id.
at 520. Defendant here has not shown that this is the case with our
decision in Metcalfe. Defendant merely prefers that this court adopt
a different approach to claims of ineffectiveness of counsel during jury
selection because some federal court circuits and a handful of state
courts have done so. This hardly constitutes a groundswell of
opposition to this court’s reasoning in Metcalfe.
In addition, it appears to us that the analysis defendant favors
amounts to little more than an end run around Cronic. Once it is
determined that counsel was deficient for not striking a biased juror,
prejudice is presumed because the defendant was deprived of an
impartial jury and that makes the trial fundamentally unfair. Thus, only
the deficient performance prong of the Strickland test is considered,
the defendant does not have to actually demonstrate prejudice, and a
new trial is required. This court rejected the defendant’s Cronic
argument in Metcalfe, 202 Ill. 2d at 560, and we similarly reject
defendant’s indirect attempt to revisit that argument here.
We now turn to defendant’s argument that his trial counsel was
ineffective for failing to seek juror A.C.’s removal from the jury. As
stated above, counsel’s actions during jury selection are generally
considered a matter of trial strategy. Accordingly, counsel’s strategic
choices are virtually unchallengeable. People v. Palmer, 162 Ill. 2d
465, 476 (1994).
Defendant initially argues that voir dire is not “exempt” from a
Strickland analysis. We point out, however, that this court has never
held that an attorney’s performance during voir dire is not subject to
scrutiny under Strickland, nor does defendant cite any case from this
court so holding. Rather, we have recognized, as have other reviewing
courts, that decisions made during jury selection involve trial strategy
to which courts should be highly deferential. Strickland itself
emphasized the deference due counsel’s strategic decisions:
“Judicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to second-
guess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining counsel’s
defense after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable.
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[Citation.] A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge a
strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered
sound trial strategy.’ See Michel v. Louisiana, [350 U.S. 91,
101 (1955)].” Strickland, 466 U.S. at 689.
Defendant portrays A.C. as unequivocally biased against him. In
doing so, defendant focuses only on the last few answers A.C. gave
in response to trial counsel’s questions. This selective focus on those
answers given by A.C. that suit defendant’s argument skews the
analysis of whether trial counsel was deficient. The entire voir dire of
A.C. should be considered in evaluating whether and to what extent
A.C. exhibited bias against defendant.
Even after saying that he believed sex offenders should be locked
up for life, A.C. stated that, notwithstanding that belief, he would be
able to listen to the evidence and render a decision apart from the sex
offender issue. He said that he did not think a sex offender
background would influence his decision on the case. Not satisfied
with that answer, defense counsel pressed A.C. to state unequivocally
that such a background would not influence his decision. Only then
did A.C. state that he could not be fair with the case. Other
prospective jurors also expressed negative feelings about sex
offenders. Trial counsel exercised peremptory challenges to some, but
not all, of these jurors. For example, juror 41 stated that he had young
children at home. He was uncertain whether he could be neutral in
making a decision about a sex offender. Defense counsel exercised a
peremptory challenge to this juror. Juror 120 stated that a member of
his family had an experience with a sex offender some years ago.
When asked if that would affect him if he were dealing with a sex
offender on an issue that had nothing to do with a sex offense, this
juror stated that it probably would not. Defense counsel did not
exercise any challenge to juror 120.
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Thus, counsel was sensitive to the fact that revealing defendant’s
sex offender status might give rise to doubt on the part of some venire
members that they could be fair and impartial. Defendant’s attorney
was faced with a difficult case, given the strong evidence against
defendant, and his chosen strategy reflected that difficulty.
Highlighting defendant’s sex offender status was a risky choice, given
largely negative views of sex offenders by the general public. Based
upon his decisions as to when to exercise peremptory challenges, it
does not appear that counsel expected prospective jurors to be able to
completely put those views aside.
Considering the entire voir dire of A.C. in context, it is possible
that defendant’s trial counsel decided that A.C. was not unequivocally
biased. In addition, there were other factors that counsel may have
taken into consideration, such as the fact that A.C. was not a native
of this country and that he had had encounters with law enforcement
officers in connection with his two speeding tickets. Attorneys
consider many factors in making their decisions about which jurors to
challenge and which to accept. As we have stated, this is part of trial
strategy, which is generally not subject to challenge under Strickland.
Reviewing courts should hesitate to second-guess counsel’s strategic
decisions, even where those decisions seem questionable.
In People v. Begay, 377 Ill. App. 3d 417 (2007), the defendant
challenged his trial attorney’s failure to seek removal of a juror for
cause. During voir dire, the juror stated that her mother had been
assaulted at knifepoint during a robbery. When the trial court asked
the juror whether that experience would affect her ability to be fair
and impartial, the juror said it would. The court then stated, “All right.
So you wouldn’t be fair, either?” The juror replied, “No.” Id. at 423.
In rejecting the defendant’s argument that her counsel’s performance
was deficient under Strickland, the appellate court theorized that
defense counsel could have believed that the juror would sympathize
with the defendant, who claimed that when the offenses occurred, she
was being attacked by a knife-wielding aggressor. Thus, the appellate
court found trial counsel’s decision to be a strategic one. Id.
Here, A.C., like the juror in Begay, stated that he could not be
fair. However, unlike the juror in Begay, A.C. had earlier stated that
he could be fair and that he believed he could put aside his prejudice
against sex offenders in defendant’s case because no sex offense was
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involved. While some might find defense counsel’s failure to challenge
A.C. questionable, this alone is insufficient to find that counsel’s
conduct was deficient under Strickland. In addition, at the time of
A.C.’s questioning, defense counsel had two remaining peremptory
challenges and three more jurors remained to be seated, as well as an
alternate. Under these circumstances, given A.C.’s conflicting answers
regarding his impartiality, we cannot say that counsel’s decision to
reserve his two remaining peremptory challenges was unreasonable.
Thus, we disagree with defendant that A.C. was “plainly and deeply
biased,” and we conclude that counsel’s actions were a part of his trial
strategy and were not deficient under Strickland.
Defendant argues that Metcalfe is distinguishable because this
court found that the prospective juror there, Grevus, could have been
biased against the State and not the defendant; thus, the Metcalfe
juror’s bias was less personal than the alleged bias of A.C. here.
However, the bias of the juror in Metcalfe was very personal. She had
been a crime victim and had had an unfavorable experience at the trial
based on her cross-examination by the defendant’s counsel. While it
is true that Grevus might have been prejudiced toward the criminal
justice system as a whole based on the fact that her attacker was not
convicted, she also may have been prejudiced against defendants and
defense attorneys. Unlike the juror in the instant case, Grevus was
definite that her experiences would affect her ability to be fair and
impartial. A.C. here at first said he could set aside his view of sex
offenders. Taking his entire voir dire questioning into account, A.C.’s
expression of bias was not unequivocal. Thus, we do not find
Metcalfe distinguishable on this basis.
Accordingly, we conclude that trial counsel’s failure to challenge
juror A.C. was not objectively unreasonable and that defendant has
failed to demonstrate that counsel’s performance was deficient under
Strickland.
CONCLUSION
For the reasons stated, we decline to overrule our decision in
Metcalfe. Further, we conclude that the failure of defendant’s trial
attorney to challenge juror A.C. during voir dire was not objectively
unreasonable. Therefore, we affirm the judgment of the appellate
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court.
Appellate court judgment affirmed.
CHIEF JUSTICE KILBRIDE, specially concurring:
Although I agree with the majority that defendant has failed to
make a sufficient showing of ineffective assistance of counsel, I
disagree with its reliance on the first Strickland prong, addressing
instead only the objective reasonableness of trial counsel’s
performance. Because the majority does not reach the merits of the
second Strickland prong, requiring a showing of prejudice, its lengthy
initial discussion of the proper standard of review for the prejudice
prong appears to be unnecessary, as Justice Karmeier notes in his
special concurrence. See slip op. at 6-11. As Justice Karmeier
correctly recognizes, if the majority does not address the merits of the
prejudice prong, its discussion of the standard of review applicable to
that prong is unnecessary. Slip op. at 15 (Karmeier, J., specially
concurring). I do not join Justice Karmeier’s special concurrence,
however, because I believe the court should have limited its discussion
to the prejudice prong.
The prejudice prong should have been addressed by the majority
for two reasons. First, the pressing need in both our appellate court
and the appellate bar for guidance on the proper standard of review of
the Strickland prejudice prong was a probable factor in this court’s
decision to allow defendant’s petition for leave to appeal. Indeed,
defendant specifically asked us to reconsider our decision in Metcalfe
because subsequently “other courts have held that a biased juror is
inherently prejudicial.” Slip op. at 8. If the need for guidance on these
questions were not a significant factor in allowing defendant’s
petition, the majority likely would not have discussed the applicable
standard of review without also addressing the merits of the prejudice
prong.
If the parties’ prejudice prong arguments are not reached, the
overall utility and precedential value of our decision will be severely
limited because our standard of review discussion will be rendered
mere dicta. If, however, this court reaches the merits of defendant’s
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prejudice prong argument, then the majority’s extensive and
persuasive discussion of the applicable standard of review becomes an
integral part of our analysis, delivering vital guidance to our appellate
court and bar.
Second, in addition to guidance, a discussion of the prejudice
prong rather than the performance prong would strengthen this
court’s decision. The greatest weakness in the majority’s analysis is its
failure to explain fully how accepting a potentially biased juror could
be a “reasonable trial strategy,” as Justice Freeman notes in his dissent
(slip op. at 23 (Freeman, J., dissenting, joined by Burke, J.)). Based
on my view that some of A.C.’s answers were not clearly responsive
and others created unresolved conflicts in his position, I disagree with
the dissent’s contention that the record must be read to show A.C.’s
bias (slip op. at 23 (Freeman, J., dissenting, joined by Burke, J.)). I
agree with the dissent, however, that here it is exceedingly difficult to
justify retaining even a potentially biased juror. This difficulty is
further multiplied when defense counsel chooses not to use either of
his remaining peremptory challenges to remove the juror.
An examination of the merits of the prejudice prong would both
eliminate this weakness in the analysis and logically proceed from our
earlier discussion of the standard of review for that prong. Rather than
focus on establishing the reasonable probability that he would not
have been convicted without A.C. on the jury, defendant appears to
rely on his argument that we should reconsider our decision in
Metcalfe. After carefully analyzing this argument, the majority
rejected it (slip op. at 11) and made clear that prejudice will not be
presumed even if “it is determined that counsel was deficient for not
striking a biased juror” (slip op. at 11). Defendant still must show “a
reasonable probability that the result of the proceeding would have
been different.” Slip op. at 6. Without that showing, he cannot meet
his burden on review. Based on my reading of A.C.’s statements and
defendant’s arguments, defendant has failed to overcome his burden
of showing a reasonable probability that A.C.’s alleged bias altered the
outcome of the trial.
Thus, while I agree with the majority’s result and its analysis of
the standard of review under the prejudice prong, I cannot support its
analysis of the performance prong. Accordingly, I respectfully concur
in the majority’s judgment but not its full analysis.
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JUSTICE KARMEIER, specially concurring:
Because I agree with the majority’s determination that defendant
has failed to demonstrate deficient performance of counsel during voir
dire, I find the majority’s discussion of prejudice unnecessary and
therefore I see no need to take a position for or against the views
expressed in that discussion. Only if the majority had determined
counsel’s performance was deficient, resulting in the seating of a
biased juror, would it be necessary to reconcile Metcalfe’s application
of the prejudice prong of Strickland with precedents of this court, and
the United States Supreme Court, suggesting that the service of one
biased juror on the jury would be plain, structural error warranting
automatic reversal.
JUSTICE FREEMAN, dissenting:
A little over three months ago, this court strongly assured that, if
facts demonstrate that a defendant has been tried by a biased jury, it
“would not hesitate to reverse defendant’s conviction, as a trial before
a biased jury would constitute structural error.” People v. Thompson,
No. 109033, slip op. at 9 (Oct. 21, 2010) (quoting People v. Glasper,
234 Ill. 2d 173, 200-01 (2009)). The indisputable facts of this case
demonstrate that the jury that decided defendant’s case included a
biased juror. The juror in question made it clear during voir dire that
he believed sex offenders like defendant should be locked up for life.
This same juror also unequivocally stated that he could not be fair in
cases involving sex offenders, like defendant. And yet, the court does
not hesitate to affirm this conviction. Because this juror’s presence on
the jury violated defendant’s right to an impartial jury, a new trial is
required. I therefore dissent.
The sixth amendment guarantees the right to an impartial jury to
all persons accused of crimes, and the fourteenth amendment extends
this guarantee to defendants tried in state courts. Duncan v.
Louisiana, 391 U.S. 145, 149 (1968). Apart from granting the right
to an impartial jury trial, the sixth amendment further entitles every
criminal defendant to effective legal counsel. Defendant contends that
it was his counsel’s ineffectiveness that prevented him from receiving
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the impartial jury to which he was entitled under the constitution.
In Strickland v. Washington, 466 U.S. 668 (1984), the United
States Supreme Court set forth a two-part test for analyzing claims of
ineffective assistance of counsel. See also People v. Albanese, 104 Ill.
2d 504 (1984) (adopting Strickland test in Illinois). In order to show
counsel was ineffective for failing to object to the presence of certain
persons on the jury, defendant must prove “counsel’s representation
fell below an objective standard of reasonableness.” (Emphasis
added.) Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). In
addition, defendant must show counsel’s deficient performance
prejudiced the defense. “This requires showing that counsel’s errors
were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” Strickland, 466 U.S. at 687. Because a defendant
must satisfy both components of the Strickland test, the failure to
establish either is fatal to the claim. Id.
Performance Prong
The court resolves defendant’s claim solely on the basis of his
failure to establish deficient performance, holding that the juror in
question was not biased and that, in light of the entire voir dire, “it is
possible that defendant’s trial counsel decided that [the juror] was not
unequivocally biased.” Slip op. at 13. The court further concludes that
because attorneys consider many factors in making their decisions
about which jurors to challenge and which to accept, counsel’s
decision in this case “is part of trial strategy.” Id. As such, his decision
is generally not subject to challenge under Strickland, which means
that this court “should hesitate to second-guess” the decision. Id. I
disagree with this analysis because it transforms the deference
afforded counsel’s decision into nothing more than a judicial
rubberstamp of counsel’s actions. While courts should, of course, be
wary of second-guessing counsel’s action, that hesitancy does not
mean turning a blind eye to deficiencies in performance that render the
resulting trial constitutionally flawed.
It goes without saying that “[a]mong the most essential
responsibilities of defense counsel is to protect his client’s
constitutional right to a fair and impartial jury by using voir dire to
identify and ferret out jurors who are biased against the defense.”
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Miller v. Francis, 269 F.3d 609, 615 (6th Cir. 2001); see United
States v. Blount, 479 F.2d 650, 651 (6th Cir. 1973) (“The primary
purpose of the voir dire of jurors is to make possible the empanelling
of an impartial jury through questions that permit the intelligent
exercise of challenges by counsel.” ); see also Rosales-Lopez v. United
States, 451 U.S. 182, 188 (1981) (acknowledging that voir dire “plays
a critical function in assuring the criminal defendant that his Sixth
Amendment right to an impartial jury will be honored”). Under
Strickland, defense counsel, however, is granted deference when
conducting voir dire. Hughes v. United States, 258 F.3d 453, 457 (6th
Cir. 2001). “An attorney’s actions during voir dire are considered to
be matters of trial strategy. [Citation.] A strategic decision cannot be
the basis for a claim of ineffective assistance unless counsel’s decision
is shown to be so ill-chosen that it permeates the entire trial with
obvious unfairness.” Id. Despite this strong presumption that
counsel’s decisions are based on sound trial strategy, it is insufficient
for counsel to simply articulate a reason for an omission or act alleged
to constitute ineffective assistance of counsel. “The trial strategy itself
must be objectively reasonable.” Miller 269 F.3d at 616.
Because defendant’s claim for ineffective assistance of counsel is
based on his trial counsel’s failure to strike a biased juror, defendant
must show that the juror was actually biased against him. Hughes, 258
F.3d at 458 (quoting Goeders v. Hundley, 59 F.3d 73, 75 (8th Cir.
1995), citing Smith v. Phillips, 455 U.S. 209, 215 (1982)). Generally,
a juror’s “express doubt as to her own impartiality on voir dire does
not necessarily entail a finding of actual bias,” and the United States
Supreme Court has routinely “upheld the impaneling of jurors who
had doubted, or disclaimed outright, their own impartiality on voir
dire.” Id. (analyzing cases).What makes this case different from those
cases where the empaneling of jurors who have indicated bias have
been upheld is that, in such cases, the challenged jurors gave some
subsequent reassurance of impartiality or were sufficiently
rehabilitated by counsel with follow-up questions. See Miller v.
Francis, 269 F.3d 609 (6th Cir. 2001). However, a different result
obtains when follow-up questioning does not result in either a
reassurance of impartiality or rehabilitation.
Hughes v. United States, 258 F.3d 453 (6th Cir. 2001), illustrates
these principles. There, the defendant was tried for theft of
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government property. During voir dire, a juror indicated that because
of her family ties with law enforcement officers, she “did not think”
she “could be fair.” Hughes, 258 F.3d at 455. The trial judge replied
“You don’t think you could be fair?” to which the juror simply
responded, “No.” Hughes, 258 F.3d at 456. The court of appeals held
that counsel’s failure to strike the juror constituted ineffective
assistance of counsel. Actual bias was present because there was no
follow-up to the juror’s statement that she “could not be fair.”
According to the court, when left with only a statement of partiality
without a subsequent assurance of impartiality or rehabilitation
through follow-up questions, juror bias can always be presumed from
such unequivocal statements. Hughes, 258 F.3d at 460.
The federal courts have spoken at length about jurors’ phrases
such as “I think I can be fair,” noting that such statements “are not
necessarily construed as equivocation.” Miller v. Webb, 385 F.3d 666,
675 (6th Cir. 2004). In Miller v. Webb, for example, the court
acknowledged “venire members commonly couch their responses to
questions concerning bias in terms of ‘I think.’ Therefore, the use of
such language cannot necessarily be construed as equivocation.
[Citation.] For a juror to say, ‘I think I could be fair, but ...,’ without
more, however, must be construed as a statement of equivocation. It
is essential that a juror swear that [she] could set aside any opinion
[she] might hold and decide the case on the evidence.” (Internal
quotation marks omitted.) Miller, 385 F.3d at 675. Thus, when a juror
makes a statement that she “thinks she can be fair,” but immediately
qualifies it with a statement of partiality, courts presume actual bias
because proper juror rehabilitation and juror assurances of impartiality
are absent. Miller, 385 F.3d at 675. This is so because courts have
recognized that the sixth amendment guarantees the right to a jury that
will hear the case impartially, not one that “tentatively promises to
try.” Wolfe v. Brigano, 232 F.3d 499, 502-03 (6th Cir. 2000).
The Seventh Circuit has also acknowledged the problems inherent
with juror statements regarding the ability to be fair. In Thompson v.
Altheimer & Gray, 248 F.3d 621 (7th Cir. 2001), the court held that
a trial judge committed error by failing to strike for cause a juror
whose responses to voir dire questioning manifested a degree of bias.
The juror stated the following during voir dire questioning: “I think
I bring a lot of background to this case, and I can’t say that it’s not
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going to cloud my judgment. I can try to be as fair as I can, as I do
every day.” Id. at 624. The trial judge in reviewing the statements
noted that the juror “said she would try to be fair, but *** expressed
no confidence in being able to succeed in the attempt.” (Emphasis
omitted.) Id. at 626. Judge Posner, writing for the court, which was
unanimous on this issue, noted that if the juror had “said she could not
be fair, the judge would of course have had to strike her for cause.”
(Emphasis in original.) Id.
Challenges for cause are subject to approval by the trial court, and
the court must excuse a prospective juror if actual bias is discovered
during voir dire. As the foregoing discussion makes clear,
notwithstanding the general deference given to trial counsel’s strategic
decisions, courts will find deficient performance under Strickland if an
impaneled juror’s honest responses to questions on voir dire would
have given rise to a valid challenge for cause.
The court today does not acknowledge any of the foregoing
principles and does not review the voir dire in light of them. The voir
dire at issue in this case began with the judge asking general questions
about the juror’s ability to be fair. At this point, there had been no
mention of registered sex offenders, but that changed once defense
counsel brought up the subject of fairness to registered sex offenders
to the juror:
“[Defense counsel]: I will ask a question that seems to be
getting concern here. If you are aware of somebody who is a
registered sex offender, how do you feel about that?
A. Feel should be locked up for life.
Q. Locked up for life. What if the law permitted that he
not be locked up for life or she not be locked up for life? Do
you still think that should be the case? Do you think you
would be able to listen to a case and render a judgment on a
case that’s separate and distinct from the sex offender case?
A. Yes.
Q. Even though that person may have that background?
A. Yes.
Q. Is that background going to influence you at all do you
believe in your decision in this case?
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A. I don’t think so.
Q. You don’t think so?
A. No.
Q. Can you be more specific? Can you say that it’s not
going to?
A. No.
Q. You cannot?
A. No. I said it’s not going to change. I cannot be fair with
the case.
Q. You can be fair or you cannot?
A. No, I cannot be fair.
Q. You can be fair?
A. No, I cannot be fair. I could not be fair also.”
It is clear that once the juror stated that sex offenders should “be
locked up for life,” defense counsel attempted to rehabilitate the juror
in the manner set forth in the cases I discussed earlier. The problem,
though, is that the juror was not amenable to rehabilitation. Indeed,
the juror’s response of “yes” to defense’s counsel’s ambiguous and
compound questions cannot be read as an affirmative statement of
impartiality because it is difficult to tell to which part of the compound
questions he was responding. The most that could be said of that
exchange is that it is ambiguous. Then, when the juror stated that he
“didn’t think” a sex offender background would influence him, defense
counsel properly attempted to rehabilitate the juror by having him
state affirmatively whether he could or could not be fair. The more
defense counsel attempted to do this, the more the juror became
unequivocal, repeating four times that he “cannot be fair.” As the
Sixth Circuit pointed out in Miller, when a juror, such as the one here,
makes a statement indicating that he thinks he can be fair, but then
immediately qualifies it with a statement of partiality, courts may
presume actual bias due to the absence of proper rehabilitation and
assurances of impartiality. Miller, 385 F.3d at 675. Once the juror
here continued to state that he could not be fair, it amounted to an
express and unrebutted admission of bias. In other words, there was
an absence of an affirmative and believable statement that this juror
could set aside his opinion of sex offenders and decide the case on the
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evidence and in accordance with the law. This juror was unable to
“swear that [he] could set aside any opinion [he] might hold and
decide the case on the evidence.” Id.
Defendant’s reliance on this latter portion of the voir dire does not
“skew[ ]” the analysis of whether counsel was ineffective, as the court
today suggests. Slip op. at 12. Rather, it affirmatively demonstrates
that, in response to follow-up questioning, the juror could not state
for the record that he could be fair, but rather insisted that he could
not be fair. Thus, I have no trouble concluding that this juror was
actually biased against defendant. I therefore strongly disagree with
the court’s conclusion that the juror was not even biased to begin
with, an incredible holding in light of the transcript. Id. at 14.
The court also states that because defendant’s status as a sex
offender was important to the defense’s theory of the case, counsel’s
“strategic” decision to seat him is “virtually unchallengeable.” Id. at
8. What this strategy was with respect to this juror is never explained
by the court and for good reason: having a juror who has stated that
(1) he cannot be fair toward sex offenders and (2) sex offenders
should be locked up forever cannot objectively be considered
reasonable trial strategy in a case involving a sex offender. In light of
his statements, the juror could not have given any credence to the
defense’s theory. Indeed, according to this juror, defendant should not
have even been walking the streets in the first place due to his prior
sex offense conviction. “Virtually unchallengeable” does not mean that
a court of review must suspend all disbelief. Rather, the reviewing
court must be able to identify an “objectively” reasonable strategy
(Miller, 269 F.3d at 616), a fact acknowledged by the Chief Justice in
his special concurrence. See slip op. at 16 (Kilbride, C.J., specially
concurring) (noting his disagreement with the court’s “analysis of the
performance prong”). The cases I cited earlier in this opinion amply
demonstrate that Strickland’s deferential review of trial strategy does
not require courts of review to accept without question that this was
“reasonable” trial “strategy.” I would therefore hold that counsel’s
failure to strike the juror constituted deficient performance under
Strickland.
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Prejudice Prong
This court, in both Glasper and Thompson, recognized that a trial
before a biased juror would constitute structural error. “[S]tructural
defects in the constitution of the trial mechanism *** defy analysis by
‘harmless-error’ standards.” Arizona v. Fulminante, 499 U.S. 279,
309-10 (1991). The presence of a biased juror is no less a fundamental
structural defect than the presence of a biased judge. Id. As the Eighth
Circuit explained in Johnson v. Armontrout:
“Trying a defendant before a biased jury is akin to providing
him no trial at all. It constitutes a fundamental defect in the
trial mechanism itself. As the district court noted:
‘A defendant charged with a crime is entitled to an
unbiased jury and is entitled to a presumption of innocence
until such time as he is proven guilty beyond a reasonable
doubt. Where you have jurors who before they have heard
any evidence are convinced that the defendant is guilty
[they are] clearly biased against the defendant. [This]
denies the defendant the presumption of innocence and
denies him a fair trial. Are only the innocent entitled to an
unbiased jury or does the right of due process also entitle
the guilty to an impartial trial? This court is of the opinion
that both the innocent and the guilty are entitled to start a
trial without any member of the jury convinced of the
defendant’s guilt.’
Johnson v. Armontrout, No. 90–3426–CV–S–2, slip op. at 7
(W.D. Mo. June 18, 1991). We agree that, in the absence of
a strategic motive, a defendant whose attorney fails to attempt
to remove biased persons from a jury panel is prejudiced.”
Johnson v. Armontrout, 961 F.2d 748, 755 (8th Cir. 1992).
Essentially, Armontrout and the other federal cases like it, including
those cited by defendant, view the resulting trial in instances where a
biased juror has been impaneled as unreliable. It is unreliable because
attempting to weigh this type of error against notions such as the
weight of the evidence or the strength of the State’s case cannot be
done. Why? Because a biased juror is simply not open to weighing
credibility or assessing fairly the competing theories of the case. Jury
instructions that explain legal concepts such as credibility
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determinations and burdens of proof are of no moment to the biased
juror. Stated simply, the biased juror does not care at all about the
relative strengths and weaknesses of the parties’ evidence and pays no
heed to jury instructions. As a result, all the factors that normally
work to present a court of review with a “reliable” verdict on appeal
are absent when a biased juror sits on a jury. The prejudice prong of
Strickland recognizes as much–prejudice is established upon a
“showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Strickland,
466 U.S. at 687.
Our decision in People v. Metcalfe, 202 Ill. 2d 544, 562 (2002),
did not discuss the reliability aspect of the Strickland analysis.
Defendant’s argument, incorrectly characterized by the court as one
that seeks the overruling of Metcalfe (slip op. at 8), merely asks this
court to further clarify the prejudice prong in cases regarding the
impaneling of a biased juror, as the federal courts have done. We need
not overrule Metcalfe to do that, and it is unfair for the court today to
suggest otherwise.1
In any event, it appears that a majority of this court adheres to the
view that even if a biased juror sits on the jury, a defendant must
nevertheless show a reasonable probability that the result of the
proceeding would have been different. See slip op. at 6; see also id. at
16 (Kilbride, C.J., specially concurring). That viewpoint is
incompatible with the United States Supreme Court’s pronouncement
that the participation of such a juror in a trial renders it unreliable and
necessitates that the conviction be reversed. United States v.
Martinez-Salazar, 528 U.S. 304, 316 (2000). It is this unreliability
1
Why the court even reaches the question of whether Metcalfe should be
overruled is never explained. The court holds that defendant has not satisfied
the deficiency prong of Strickland. As noted earlier, the failure to establish
either prong is fatal to an ineffectiveness claim. If counsel’s decision to seat
a juror the court believes was not even biased was objectively reasonable,
then it need not speak to the issue of prejudice at all and its discussion of
Cronic and Metcalfe is purely advisory. This court does not render advisory
opinions. See Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 266
(2010) (Karmeier, J., concurring in part and dissenting in part, joined by
Garman, J.). Justice Karmeier’s special concurrence illustrates my point.
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that satisfies the prejudice prong of Strickland. As the Supreme Court
pointed out, the assessment of prejudice articulated in Strickland
“proceed[s] on the assumption that the decisionmaker is reasonably,
conscientiously, and impartially applying the standards that govern the
decision.” Strickland, 466 U.S. at 695. Obviously, a biased juror
cannot “impartially” apply the standards that govern the decision, and
that is the prejudice that defendant has suffered. In this case, although
defendant was constitutionally entitled to 12 impartial jurors, his
attorney’s conduct resulted in defendant receiving only 11 impartial
jurors. See Parker v. Gladden, 385 U.S. 363, 366 (1966) (per
curiam) (noting, defendant is “entitled to be tried by 12, not 9 or even
10, impartial and unprejudiced jurors”). The Supreme Court
specifically warned against the mechanical applications of the
standards announced in Strickland:
“A number of practical considerations are important for
the application of the standards we have outlined. Most
important, in adjudicating a claim of actual ineffectiveness of
counsel, a court should keep in mind that the principles we
have stated do not establish mechanical rules. Although those
principles should guide the process of decision, the ultimate
focus of inquiry must be on the fundamental fairness of the
proceeding whose result is being challenged. In every case, the
court should be concerned with whether, despite the strong
presumption of reliability, the result of the particular
proceeding is unreliable because of a breakdown in the
adversarial process that our system counts on to produce just
results.” Strickland, 466 U.S. at 696.
The right to a trial before an impartial jury is the core principle of
the American criminal justice system. The court’s decision today
leaves the unsettling impression that this most sacrosanct of rights is
not being fully honored.
JUSTICE BURKE joins in this dissent.
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