People v. Johnson ( 2010 )

FIFTH DIVISION
November 24, 2010
No. 1-09-0879
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) 04 CR 11607
)
WILLIAM JOHNSON, ) The Honorable
) Kerry M. Kennedy,
Defendant-Appellant. ) Judge Presiding.
JUSTICE TOOMIN delivered the opinion of the court:
In this appeal, we revisit the “special circumstances” mandating a trial court to put
supplemental questions to prospective jurors regarding racial bias. Defendant, William Johnson,
was convicted by a jury of home invasion and armed robbery and sentenced to 10 years’
imprisonment for home invasion, enhanced by 15 years for committing the offense while armed
with a firearm, together with a consecutive sentence of 15 years for armed robbery. He appeals
contending the trial court: (1) erred in rejecting his supplemental questions during voir dire
regarding racial and ethnic bias; and (2) failed to comply with the mandate of Supreme Court
Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1,
2007). For the reasons that follow, we affirm the judgment of the circuit court.
1-09-0879
BACKGROUND
Defendant was jointly indicted, with Jose Torres,1 for various offenses including, inter
alia, first degree murder, armed robbery, attempted first degree murder, and home invasion
stemming from a series of events that took place on March 26, 2004. Defendant does not
challenge the sufficiency of the evidence supporting his conviction. Consequently, we review
only the evidence relevant to understand and resolve the procedural issues presented with respect
to jury selection.
The State’s case against defendant rested primarily on the statement of Jose Torres.
Defendant and Torres both worked for an ambulance company and had known each other for
about two years leading up to March 2004. Torres testified that defendant was his best friend at
that time. Defendant, his wife, Jennifer, and their two children shared their home with
defendant’s mother-in-law, Barbara Kane.
According to Torres, in mid-March 2004, defendant approached him with a plan to rob
Ralph Burke, Barbara Kane’s boyfriend. Kane allegedly told defendant that Burke kept large
amounts of cash in his home. The plan called for one of them to pose as a postal employee and
pretend to deliver a package to Burke’s home. When Burke answered the door, the men would
“quietly bring him back into his apartment and tie him up and relieve him of any cash that was in
1
Torres pled guilty prior to trial, testified at defendant’s trial, and is not a party to this
appeal. Torres was charged in those counts alleging attempted first degree murder, home
invasion, defacing identification marks on a firearm, aggravated battery, aggravated unlawful
restraint, and unlawful use of weapon.
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the house.” Defendant told Torres there was approximately $120,000 in cash in the apartment.
Although Torres initially declined defendant’s invitation, following further discussions, Torres
agreed to join defendant in the robbery.
Torres further testified that on March 26, 2004, defendant arrived at Torres’ home
carrying a backpack containing a postal jacket and hat, two ski masks, a pair of black gloves, a
collapsible baton, and a pistol. Defendant was wearing a dark blue, hooded windbreaker, black
jogging pants, and gym shoes. He was also wearing another pair of jogging pants beneath the
visible pair. According to Torres, defendant dressed in this manner to add bulk to his frame to
frustrate Burke’s ability to recognize him. Also, defendant wanted to enter wearing one thing
and leave wearing something else, again, to make recognition difficult. Defendant instructed
Torres to wear the postal jacket and hat. Torres put on the gloves, but had to tape them because
they were too big. Defendant also gave Torres the pistol. Torres brought a “travel suitcase,”
containing a hammer, screwdriver, tape, and plastic bags.
Defendant drove Torres’ car to Burke’s residence with Torres riding in the backseat.
According to Torres, “[T]he plan was for me to wait for him to open the door to show him that I
had a package which was the suitcase, but I panicked. I went too soon. I showed him the pistol.”
Defendant was standing behind Burke and struck him about the head and torso with the baton.
Defendant then opened the door for Torres and took the gun from him. Defendant returned to
Burke’s apartment and continued beating him. Although Torres initially entered the apartment,
he panicked as the beating continued and fled to the parking lot.
Torres testified that he was then struck by a car, while he and defendant were leaving
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Burke’s apartment. Defendant reached into the car and struggled with the driver, who was later
determined to be Steven Tischer. As he did so, defendant pulled the pistol out and “clicked it a
few times in [the driver’s] chest.” Torres grabbed defendant and told him they had to go. They
fled the scene, disrobing as they went. Torres placed the postal jacket and mask inside the
suitcase. Defendant gave him the baton, which Torres placed in the suitcase. Defendant was
then confronted by another witness. Ultimately, Torres fled and was taken into custody a short
distance away.
The night before the incident, Burke went to defendant’s home to say goodbye because he
and Barbara were leaving for Hawaii the following day. Defendant left shortly thereafter, and
Barbara “thought it was odd that [defendant] didn’t stay and visit with [Burke].” Barbara
testified that her relationship with defendant was “fine.” She described the relationship between
defendant and Ralph Burke as friendly.
Ralph Burke testified that in March 2004, he had been dating Barbara Kane, defendant’s
mother-in-law, for approximately five months. Over that time, he had been with defendant about
a dozen times. Burke recounted spending time with defendant and even asking him to help fix
his computer. At approximately 10 a.m. on March 26, 2004, Burke was in his apartment talking
to his friend Steve Tischer. Burke was scheduled to leave on vacation the following day and was
briefing Tischer on housekeeping matters during Burke’s absence and asking Tischer to keep an
eye on Burke’s elderly mother.
During their conversation, the doorbell rang. When Burke opened his apartment door, he
saw a masked man in a postal uniform holding a gun and heard him calling Burke’s name. As he
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turned to reenter his apartment, he was struck on the head with a hard object. The beating
continued and Burke was taken toward his kitchen. Burke saw Tischer standing outside on the
balcony and tried to get him to call the police. One of the two assailants then left. The one that
remained had a gun in his hand. Both of the intruders wore masks during the encounter.
Steve Tischer testified that he was leaving Burke’s home when the home invasion
occurred. He saw the masked individual striking Burke. Tischer proceeded to his car intent on
driving around looking for a police officer. As he entered the car, two masked men approached
from behind the building. One of them, a light-skinned African-American, put a gun to his head
and pulled the trigger five times, but the gun never fired.
Tischer then saw the two men reenter Burke’s building, and he made a U-turn and drove
toward them. The men then exited the building and the shorter of the two men, later determined
to be Torres, was holding a suitcase. As Tischer followed the men, Torres removed his mask,
revealing his full face to Tischer. When Tischer’s car was between the two men, defendant again
pointed the gun at Tischer and pulled the trigger. The two men separated and Tischer followed
Torres. A concerned citizen came over and detained Torres. Tischer took the suitcase from him
and placed it in his car. When police arrived and took Torres into custody, Tischer turned over
the suitcase to them. Thereafter, Tischer identified defendant, whom police had in custody. He
thought he recognized defendant as the son-in-law of Burke’s girlfriend.
Betty Johnson testified to seeing her friend, Clara Daniels, return to their apartment
complex in her green Saturn automobile. Johnson saw Daniels carrying bags in from her car and
proceeded downstairs to help her with them. Johnson’s attention was drawn to the landing above
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her when she heard Daniels and saw someone with Daniels. Then, Daniels came down the stairs,
carrying her wallet and keys, with a man behind her. The man, wearing dark clothes and a mask,
was pointing a gun at Johnson’s face. Johnson then descended the stairs and yelled out for help.
As she headed down, she turned back to see the man reach for Daniels. Upon reaching the
bottom of the stairs, she heard a “thug” and Daniels was lying at the bottom of the stairs. When
Johnson returned to the parking lot, she noticed that Daniels’ car was gone. While a responding
officer reported that Daniels said the offender was possibly Hispanic, she denied saying she that
she believed the offender was a male Hispanic. According to Daniels, she “couldn’t tell. I had
no idea.”
Daniels was hospitalized and then placed in a rehabilitation center. She died there on
April 10, 2004, as a result of a blood clot that initially formed in her legs and progressed to her
lungs. The medical examiner concluded the manner of death was homicide. However, a defense
expert opined that the clot developed because she was taken off her blood-thinning medication
while at the rehabilitation center.
Shortly after the green Saturn was located, defendant was taken into custody. He was
first observed standing on the deck of a home adjacent to Evergreen Cemetery. Although he told
a responding officer that he lived there, the officer spoke to a neighbor and confirmed that no one
should be there at that time of day. Officers then searched the area surrounding the house.
Defendant was found hiding in a garbage can, wearing a “tight” black T-shirt and a pair of white
long underwear bottoms.
During a search of the area, officers found a black glove with duct tape on it lying in an
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intersection. Additionally, a black ski mask was found atop a garbage can near where the Saturn
was abandoned. A jacket with a silver cellular phone and a 9-millimeter round in the pocket,
was found in another garbage can in the same location. Approximately 25 feet from the second
garbage can, another officer located a gun next to a garage. In an adjacent alley, an officer
located a pair of black gloves and a pair of black pants in two separate garbage cans.
Following the arrest of defendant and Torres, a search of the black duffel bag taken from
Torres was found to contain a hammer, a screwdriver, clear tape, and blue plastic garbage bags.
The blue hooded postal jacket was also recovered from Torres, which contained a collapsible
baton in the pocket. Additionally, a black glove, which matched a second one found along the
defendants’ escape route, was found in the duffel bag. Another 9-millimeter round was found
during the processing of Burke’s residence. A jacket and backpack were located on the roof of a
shed in the area approximately two days later. The jacket was determined to contain the keys for
the green Saturn, as well as a 9-millimeter shell casing. The backpack was marked with “W
Johnson” inside one of its flaps.
During processing at Cook County jail and Cermak Hospital, defendant spoke to Torres.
He explained what happened after the two parted ways and how Clara Daniels was involved in
the series of events. Torres described defendant explaining how his plan was to take Daniels
hostage until the situation calmed down. When defendant reached for the woman’s keys, he was
startled by the approach and screaming of another woman. Defendant told Torres he then hit the
first woman in the face. Torres added, “Then he said he tossed the bitch.”
Defendant did not testify at trial, though evidence was presented on his behalf. None of
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that evidence is relevant to the issues considered here.
ANALYSIS
Defendant’s first claim of error stems from the trial court’s refusal to pose certain
supplemental questions to potential jurors during voir dire. The questions appear in the record
on copies of sheets of looseleaf paper, each in a different hand. The questions on the first page
were as follows:
“Will the fact that the Defendant is black cause you to prejudge his guilt[?]
Will the fact that an accomplice witness is [H]ispanic cause you to prejudge
his credibility[?]
Are you related to, or do you care for anyone over the age of eighty. Describe
relationship[?]
Do you have opinion [sic] about whether a criminal Defendant should testify
at his own trial[?]”
The trial judge denied each of these tendered questions. Prior to ruling on the question regarding
defendants testifying, the judge observed, “I think it is covered.” Nevertheless, defense counsel
was afforded an opportunity to argue for his position.
The second set of questions consisted of the following:
“Describe any opinion you may have concerning Hispanic people[.]
Describe any opinion you may have concerning African-American
people.
Do you have any living relatives who are 80 yoa [sic] or older:
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[Undecipherable]
– Who cares for the relative[?]
– How often do you speak to the relative[?]
– How often do you visit the relative[?]”
The trial judge allowed only the third question to be asked. Yet, in his brief, defendant cites only
to the page containing the first set of questions.
Defendant maintains that the proposed questions were necessary as, “[R]ace was an
inherent issue *** because [defendant], an African American, was married to a Caucasian
woman and was accused of committing violent acts towards a member of her family, as well as
against two other Caucasian individuals, with his accomplice, who is Hispanic.” As an initial
matter, we perceive that this narrative overstates the relationship of the victims. While Ralph
Burke was Barbara Kane’s boyfriend for approximately five years leading up to the trial, he was
not family to Jennifer Kane. Likewise, at the time of the alleged offense, Kane and Burke’s
relationship was only five months old.
The State contends that defendant forfeited this argument by failing to object at trial and
not including this matter in his posttrial motion. Defendant counters noting that Supreme Court
Rule 615(a), or the plain-error doctrine, delineates an exception permitting review of issues
otherwise subject to procedural default. People v. Lewis, 234 Ill. 2d 32, 42, 912 N.E.2d 1220,
1226-27 (2009); 134 Ill. 2d R. 615(a). Our supreme court described the circumstances under
which the doctrine is operative in People v. Piatkowski:
“[T]he plain-error doctrine allows a reviewing court to consider unpreserved
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error when (1) a clear or obvious error occurred and the evidence is so closely
balanced that the error alone threatened to tip the scales of justice against the
defendant, regardless of the serousness of the error, or (2) a clear or obvious error
occurred and that error is so serious that it affected the fairness of the defendant’s
trial and challenged the integrity of the judicial process, regardless of the closeness
of the evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403, 411
(2007), citing People v. Herron, 215 Ill. 2d 167, 186-87, 830 N.E.2d 467, 479 (2005).
Rule 615 specifically provides that, “Any error, defect, irregularity, or variance which
does not affect substantial rights shall be disregarded.” 134 Ill. 2d R. 615(a). “Essentially, the
fairness of the trial must be undermined.” People v. Keene, 169 Ill. 2d 1, 17, 660 N.E.2d 901,
910 (1995). Our precedent teaches that the burden of persuasion as to the two prongs falls upon
those defendants seeking the application of the doctrine. People v. Naylor, 229 Ill. 2d 584, 593,
893 N.E.2d 653, 659 (2008). Where a defendant cannot carry the burden, it is incumbent upon
us to honor the procedural default. Naylor, 229 Ill. 2d at 593, 893 N.E.2d at 659-60.
Before approaching the procedural viability of the claim, we must ascertain whether an
error actually occurred. Lewis, 234 Ill. 2d at 43, 912 N.E.2d at 1227, citing People v. Walker,
232 Ill. 2d 113, 124, 902 N.E.2d 691, 697 (2009). Accordingly, we consider the substance of
defendant’s claim of error. Lewis, 234 Ill. 2d at 43, 912 N.E.2d at 1227.
The overarching objective of voir dire is to select a panel of jurors free from bias or
prejudice. People v. Terrell, 185 Ill. 2d 467, 484, 708 N.E.2d 309, 318 (1998). This purpose
adheres to the well-settled principle that defendants in criminal trials have a basic constitutional
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right to an impartial jury. People v. Peeples, 155 Ill. 2d 422, 458-59, 616 N.E.2d 294, 311
(1993). As our supreme court observed in Terrell:
“The primary responsibility of conducting the voir dire examination lies with the trial
court and the manner and scope of such examination rests within that court’s
discretion. [Citations.] Indeed, the trial court possesses great latitude in deciding
what questions to ask during voir dire. [Citation.]” Terrell, 185 Ill. 2d at 484, 708
N.E.2d at 318.
See also 177 Ill. 2d Rs. 234, 431.
It is axiomatic that, “It is the duty of the trial court to manage the voir dire.” Peeples, 155
Ill. 2d at 459, 616 N.E.2d at 311, citing People v. DeSavieu, 120 Ill. App. 3d 420, 427, 458
N.E.2d 504, 509 (1983). Thus, the decision to permit supplemental questions by counsel duirng
voir dire is within the discretion of the trial court. Peeples, 155 Ill. 2d at 459, 616 N.E.2d at 311.
On review, a trial court will be found to have abused that discretion “only if, after a review of the
record, it is determined that the conduct of the court thwarted the selection of an impartial jury.”
People v. Williams, 164 Ill. 2d 1, 16, 645 N.E.2d 844, 850 (1994). Likewise, judging the veracity
of the responses provided by venirepersons during voir dire is left to the sound discretion of the
trial judge conducting the proceedings. Williams, 164 Ill. 2d at 17, 645 N.E.2d at 851.
The touchstone for inquiry concerning racial prejudice during voir dire derives from
Ristaino v. Ross, 424 U.S. 589, 47 L. Ed. 2d 258, 96 S. Ct. 1017 (1976). In Ristaino, the
Supreme Court observed that defendants do not enjoy a constitutional entitlement to voir dire
questioning “directed to matters that conceivably might prejudice veniremen against him.”
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Ristaino, 424 U.S. at 594, 47 L. Ed. 2d at 263, 96 S. Ct. at 1020. Yet, “[S]ome cases may present
circumstances in which an impermissible threat to the fair trial guaranteed by due process is
posed by a trial court’s refusal to question prospective jurors specifically about racial prejudice
during voir dire.” Ristaino, 594 U.S. at 595, 47 L. Ed. 2d at 263, 96 S. Ct. at 1021.
It is well settled that questioning of potential jurors regarding racial viewpoints is
required only where “ ‘special circumstances’ ” are present, giving rise to a “constitutionally
significant likelihood” that racial prejudice would possibly infect the proceedings. Peeples, 155
Ill. 2d at 459, 616 N.E.2d at 311. Such circumstances exist where issues of race are “
‘inextricably bound up with the conduct of the trial.’ ” Peeples, 155 Ill. 2d at 459-60, 616
N.E.2d at 311, quoting Ristaino, 424 U.S. at 596-97, 47 L. Ed. 2d at 264, 96 S. Ct. at 1021,
explaining Ham v. South Carolina, 409 U.S. 524, 35 L. Ed. 2d 46, 93 S. Ct. 848 (1973).
Decidedly, however, “the mere fact that the petitioner is black and [the] victim is white does not
constitute a ‘special circumstance’ of constitutional proportions.” Turner v. Murray, 476 U.S. 28,
33, 90 L. Ed. 2d 27, 35, 106 S. Ct. 1683, 1687 (1986) (opinion of White, J., joined by Stewart,
Blackmun, and Powell, JJ.).
The highest court in the land has found no constitutional presumption of juror bias for or
against any members of any particular race or ethnic group. Rosales-Lopez v. United States, 451
U.S. 182, 190, 68 L. Ed. 2d 22, 29, 101 S. Ct. 1629, 1635 (1981) (opinion of White, J., joined by
Stewart, Blackmun, and Powell, JJ.). Moreover:
“Only when there are more substantial indications of the likelihood of racial or ethnic
prejudice affecting the jurors in a particular case does the trial court’s denial of a
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defendant’s request to examine the jurors’ ability to deal impartially with this subject
amount to an unconstitutional abuse of discretion.” Rosales-Lopez, 451 U.S. at 190,
68 L. Ed. 2d at 29, 101 S. Ct. at 1635 (opinion of White, J., joined by Stewart,
Blackmun, and Powell, JJ.).
“To be constitutionally compelled, it is not enough that a voir dire question be helpful, rather, the
trial court’s failure to ask the question must render the defendant’s proceedings fundamentally
unfair.” Terrell, 185 Ill. 2d at 485, 708 N.E.2d at 319.
Defendant’s bold characterization of race as an “inherent issue” in the proceedings below
is problematic. Actually, the record belies the claim, as there are but minimal references
concerning race, the majority of which emanate from the defense. At the onset of his opening
statement, defense counsel offered, “[Defendant] is here today because he made the unfortunate
mistake of jogging in a mostly white neighborhood.” Thereafter, counsel wove in an exaggerated
racial thread as he told the jury:
“[Defendant] married a girl named Jennifer who is white. Jennifer’s mom is
Barbara Kane. Barbara Kane at the time all of this happened was dating Ralph
Burke. That’s right. They all know each other, and they know each other well.
I’m here to tell you that they knew each other well, and that Ralph Burke will
testify. Ralph Burke is a racist. He has white power propaganda littering his home,
and he is the worst kind of racist. He is the kind that hides it. He will tell you about
the heinous crime of home invasion. He will give you great detail about being
beaten, but he will give you no detail about why. He will attempt to hide from you
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the true nature of his business.
You must require him to explain why he thinks that the son-in-law of his
girlfriend came to his house in the middle of the workday and beat him. If that’s
what indeed he intends to talk about. He will certainly take that witness stand and
point to [defendant] and say, [‘]That’s the person that beat me.[’] He will do that.
And I tell you he must do this because now it is too late to tell the truth and
make himself out to be a fool. But I want you to know that when he takes that
witness stand he will make himself out to be a fool.
His friend, Steven Tischer will back his story and join the ranks of lemmings
who back stories like that because it’s the most convenient thing to do.”
By these comments, defense counsel essentially tainted the proceedings with an issue
irrelevant to the charges, the victims, or the accused. His invective was substantially innuendo,
clearly unsupported by evidence presented at trial. Other than these initial comments, there were
precious few incidental comments or mentions of the race of the perpetrators. Notably, closing
arguments, given by defendant’s other counselor, contained nothing remotely touching upon
racial concerns.
Manifestly, the offenses under consideration were lacking racial content, instead
encompassing coincidence and opportunity. As noted, defendant learned of the alleged stash of
money from his mother-in-law, Barbara Kane, who was dating the victim. Torres claimed he
became involved in the scheme by virtue of his friendship with defendant and difficult financial
straits he was experiencing. Clara Daniels simply was in the wrong place at the wrong time,
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sustaining grievous injury as defendant fled the crime scene.
Additionally, there was no positive identification of the perpetrators at the time of the
incident because they were wearing masks. Instead, Torres was followed by Tischer until police
arrived. Defendant was followed and then tracked by police to the garbage can where he had
secreted himself. In turn, the evidence linking defendant and Torres to the offenses developed
from the testimony of Torres and other witnesses, including those who collected evidence
previously described by Torres. The prosecution below had nothing to do with the racial or
ethnic characteristics of those involved. Neither the State’s theory of the prosecution nor the
evidence demonstrated, in any fashion, that the crimes were motivated by race or ethnicity.
Consequently, posing the proposed questions to the members of venire was irrelevant and,
moreover, would have tended to inject considerations of race into a case where the issue was
absent.
Defendant’s repeated reference to the prominence of interracial relationships to the case is
simply not supported by the record. While the jurors may well have observed or deduced that
defendant was African-American and his wife was Caucasian, this fact had absolutely no bearing
upon the prosecution. Moreover, this position is a remarkable extension of the content of the
proposed questions. None of the questions even remotely addressed matters of interracial
relationships. Instead, they were addressed to vague and general issues of personal opinions and
prejudice. When the proposed questions were discussed on the record, no mention is made nor
argument offered that the questions relate to defendant’s marital status or the interracial nature of
his marriage. The lone argument in this regard is addressed to the general racial status of
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defendant and Torres.
Defendant relies significantly upon the holding in People v. Clark, 278 Ill. App. 3d 996,
664 N.E.2d 146 (1996), in support of his argument that the trial court erred. In Clark, the State
was permitted to pose questions to the prospective jurors concerning their views on interracial
relationships. In doing so, the State endeavored to determine whether the jurors’ ability to be fair
and impartial would be affected where all of the State’s witness, with one exception, were
involved in interracial relationships. Clark, 278 Ill. App. 3d at 1002, 664 N.E.2d at 150. The
trial judge acknowledged that this was a “sensitive issue” and because it could impact on the
jurors’ ability to be fair and impartial the questions were appropriate. In turn, the defense
objection was sustained to the extent of the judge asking this type of question. Clark, 278 Ill.
App. 3d at 1002, 664 N.E.2d at 150. However, the parties were permitted to question the venire
on this subject. Clark, 278 Ill. App. 3d at 1002, 664 N.E.2d at 150.
The court in Clark provided the following context for their assessment:
“While the United States Constitution requires the trial court to question
venirepersons specifically regarding racial prejudice if ‘special circumstances’ exist
that suggest a constitutionally significant likelihood that racial prejudice might infect
a defendant’s trial [citations], that is not the issue in this case. The issue is whether
the trial court abused its discretion by permitting the State to ask the prospective
jurors about possible biases against persons involved in interracial relationships, not
whether defendant has a constitutional right to have the prospective jurors asked that
question.” Clark, 278 Ill. App. 3d at 1004, 664 N.E.2d at 152.
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In concluding that the trial court did not abuse its discretion, the Clark court observed:
“In our society, there are a considerable number of people of all races who have strong negative
feelings about interracial relationships.” Clark, 278 Ill. App. 3d at 1004, 664 N.E.2d at 152.
Because of the prevalence of interracial relationships amongst the State’s witnesses, it was,
therefore, important and reasonable to inquire into the ability of prospective jurors to be fair and
impartial to those witnesses involved in such relationships. Clark, 278 Ill. App. 3d at 1004, 664
N.E.2d at 152. No such concerns were present in the case sub judice. Likewise, the issue
presented in the case at bar is addressed to whether the trial judge properly exercised his
discretion in refusing to ask the questions submitted. The record does not support a finding that
it was either reasonable or important to probe these areas during voir dire. As noted, the
questions proposed by defense counsel did not address interracial relationships. While interracial
relationships were relevant to the proceedings in Clark, the same cannot be said for defendant’s
case.
Having reviewed the record, we conclude the trial court did not abuse its discretion in
refusing to ask the supplemental voir dire questions addressed to race. There was nothing to be
gained by them and “asking the questions would inject the subject of race into the trial when it
was previously absent.” Peeples, 155 Ill. 2d at 459, 616 N.E.2d at 311. The calculus does not
change in light of defendant’s interracial marriage. That fact was at best tangential to the
proceedings. Moreover, the trial court’s refusal to ask these questions did not thwart the
selection of a fair and impartial jury. Williams, 164 Ill. 2d at 16, 645 N.E.2d at 850; see also
People v. Rivera, 307 Ill. App. 3d 821, 832, 719 N.E.2d 154, 163-64 (1999).
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Similarly to Peeples, the only justification defendant can offer to support a “special
circumstance” is the fact that he is African-American and the victims were white. Peeples, 155
Ill. 2d at 460, 616 N.E.2d at 311, citing People v. Diaz, 123 Ill. App. 3d 239, 242-43, 462 N.E.2d
770, 772-73 (1984). Nonetheless, where there were no racial overtones in the basic facts of the
case, we perceive no abuse of discretion in refusing to pose the supplemental voir dire questions
to the panel. See People v. Fort, 248 Ill. App. 3d 301, 312, 618 N.E.2d 445, 454 (1993)
(rejecting defendant’s contention that the trial court abused its discretion in refusing to ask
“whether the jurors thought that blacks were more likely than whites to commit crimes and
whether the jurors had any racial animosities”). Here, as in Peeples, the trial judge asked each
prospective juror whether sympathy, bias, or prejudice would affect his or her judgment.
Peeples, 155 Ill. 2d at 460, 616 N.E.2d at 311. Thus, “defendant was given sufficient
opportunity to discover any bias or prejudice held by jurors.” Peeples, 155 Ill. 2d at 460, 616
N.E.2d at 311, citing People v. Bunch, 159 Ill. App. 3d 494, 510, 512 N.E.2d 748, 759 (1987).
Consequently, there was no error in the trial court’s ruling and further examination of the
application of the plain-error doctrine is not warranted.
We next consider defendant’s argument that the trial judge violated Supreme Court Rule
431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007), by
failing to adhere to its dictates regarding questioning potential jurors on the concepts commonly
referred to as the Zehr principles. See People v. Zehr, 103 Ill. 2d 472, 469 N.E.2d 1062 (1984).
The State counters that defendant forfeited the issue by failing to object at trial or in his posttrial
motion and, regardless of forfeiture, the trial judge substantially complied with the rule.
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Outside the presence of the venire, after addressing the questions proposed by defendant,
the trial judge stated:
“And again, I would ask that you remind me when you [sic] are doing this. Once I
get on a roll, I may forget something. All right. Are we ready then?”
With that, voir dire commenced. Included in the judge’s prefatory comments were many of the
principles embodied by Rule 431(b), including the presumption of innocence, the burden of proof
imposed on the State throughout, and that defendant is not required to prove his own innocence
or present evidence on his own behalf. Additionally, the jurors were encouraged to be “frank and
open” in their answers to the questions, as “That is the way to ensure fairness to both sides.”
The questioning of each potential juror followed an almost identical pattern, except where
follow-up questions were required. The opening questions were based upon the responses
articulated by jurors on their jury summons. The prospective jurors were asked if they had any
physical limitation that would impact their ability to serve. Their involvement in “clubs, social
organizations or church groups” was also explored. Each person was likewise asked if they
harbored any bias or prejudice against persons accused of crimes or if the type of case before
them would prevent them from being fair or impartial. Additional inquiry focused on whether
there were any reasons why they could not be fair and impartial to both sides and keep an open
mind throughout the trial.
The trial judge then asked:
“Do you understand that the defendant is presumed innocent and does not
have to offer any evidence but must be proven guilty beyond a reasonable doubt by
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the State?”
The jurors were also asked whether they would judge a police officer’s testimony the same way
they judged the testimony of any other type of witness. The final three questions concerned the
prospective jurors’ ability to sign the appropriate verdict form, whether the State proved
defendant guilty beyond a reasonable doubt or failed to do so, and whether they would follow the
law as instructed by the trial judge.
Supreme Court Rule 431(b) provides:
“(b) The court shall ask each potential juror, individually or in a group,
whether that juror understands and accepts the following principles: (1) that the
defendant is presumed innocent of the charge(s) against him or her; (2) that before
a defendant can be convicted the State must prove the defendant guilty beyond a
reasonable doubt; (3) that the defendant is not required to offer any evidence on his
or her own behalf; and (4) that the defendant’s failure to testify cannot be held
against him or her; however, no inquiry of a prospective juror shall be made into the
defendant’s failure to testify when the defendant objects.
The court’s method of inquiry shall provide each juror an opportunity to
respond to specific questions concerning the principles set out in this section.”
Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007.
As this claim of error concerns the interpretation of a supreme court rule, our review is de
novo. People v. Suarez, 224 Ill. 2d 37, 41-42, 862 N.E.2d 977, 979 (2007). Once again, we note
the rules promulgated by our supreme court carry with them the force of law; they are not
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aspirational and are intended to be adhered to as written. See Bright v. Dicke, 166 Ill. 2d 204,
210, 652 N.E.2d 275, 277-78 (1995). Our initial task, then, is to determine whether any error
actually occurred during jury selection. See Lewis, 234 Ill. 2d at 43, 912 N.E.2d at 1227. As this
claim of error centers upon the interpretation of a supreme court rule, we are guided by the same
principles we utilize in construing statutes. People v. Santiago, 236 Ill. 2d 417, 428, 925 N.E.2d
1122, 1128 (2010). The ultimate goal of this undertaking is to determine the intent of the
drafters and give effect to that intent. Santiago, 236 Ill. 2d at 428, 925 N.E.2d at 1128. Our first
step in the process involves applying the plain and ordinary meanings to the words used in the
enactment. Santiago, 236 Ill. 2d at 428, 925 N.E.2d at 1128. In those situations where the
language is clear and unambiguous, we must apply the rule as written, without utilizing any
additional aids for construing it. Santiago, 236 Ill. 2d at 428, 925 N.E.2d at 1128.
As a threshold matter, we are aware that our supreme court recently concluded the
language of Rule 431(b) is, in fact, “clear and unambiguous.” People v. Thompson, No. 109033,
slip op. at 6 (October 21, 2010). Further, the court in Thompson, concluded:
“Rule 431(b), therefore, mandates a specific question and response process.
The trial court must ask each potential juror whether he or she understands and
accepts each of the principles in the rule. The questioning may be performed either
individually or in a group, but the rule requires an opportunity for a response from
each prospective juror on his understanding and acceptance of those principles.”
Thompson, slip op. at 6.
Judging the proceedings below against this backdrop, it is readily apparent that the trial
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court erred. Clearly, the judge failed to ascertain whether the potential jurors understood and
accepted each of the four Zehr principles. Additionally, the court entirely omitted the fourth
principle. What the court employed was a collapsing of the first three principles. Manifestly, our
supreme court’s ruling in Thompson makes clear this inquiry was insufficient to satisfy the
dictates of Rule 431(b).
Defendant’s contention that forfeiture is inapplicable in the present case is unavailing in
light of Thompson. In Thompson, the supreme court rejected the defendant’s argument for
relaxing forfeiture. In doing, the court observed that there was nothing in the record to indicate
the trial court was not amenable to an objection based upon Rule 431. Thompson, slip op. at 11.
The supreme court entertained a presumption the trial court would have followed the dictates of
Rule 431(b), if the matter was brought to its attention. The court concluded: “A simple
objection would have allowed the trial court to correct the error during voir dire. Accordingly,
we conclude there is no compelling reason to relax the forfeiture rule in this case.” Thompson,
slip op. at 11.
The Thompson court’s rationale clearly resonates in the case sub judice. The record
reveals that the court below employed a highly cooperative and transparent approach to voir dire.
Moreover, the parties were encouraged to remind the trial judge of any omissions during the
process. Thus, the record below offers no basis to relax the forfeiture rules. As in Thompson, we
are persuaded the trial judge would have been receptive to an objection on the basis of Rule
431(b), had one been interposed, regardless of whether it came from defendant or the State.
Defendant’s claim is premised solely on the first prong of plain error, that “a clear or
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obvious error occurred and the evidence is so closely balanced that the error alone threatened to
tip the scales of justice against the defendant, regardless of the seriousness of the error.”
Piatkowski, 225 Ill. 2d at 565, 870 N.E.2d at 411. As noted, the trial court’s error in this case
was clear. Given the nature of the verdicts – that defendant was acquitted of the murder of Clara
Daniels and the attempted murder of Steven Tischer – along with the course of the deliberations,
defendant contends that the evidence was closely balanced and that the error during voir dire
threatened to tip the scales against him. Defendant frames his position as follows:
“The jury was especially concerned about the credibility of Torres, as expressed by
the note it sent the judge. *** The jury was so unsure of [defendant’s] guilt it had
to be sent home and called back for more deliberations the following morning. ***
The fact that the jury did not hear from Johnson could have been the deciding factor
of guilt in the juror’s [sic] minds. Under these circumstances, the court’s failure to
ensure that the jurors would not hold it against Johnson if he did not testify was a
critical error.”
We find defendant’s logic and conclusion to be of rather dubious merit. During
deliberations the jury sent a note to the judge. The trial judge received the note at approximately
9:50 p.m. The record does not make clear when the jury commenced deliberations; that appears
to have occurred during the early evening hours, when the jurors’ dinner was to arrive. The trial
judge shared the note with the parties:
“We cannot reach a consensus on the first two counts of home invasion. What is the
next step?
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The issue we cannot decide on [sic] [defendant] being placed at the scene
solely on Jose Torres’s testimony. Nobody else positively I.D.’d him.”
The trial judge brought the jury into the court room. The jurors were advised that they had
received the evidence, including those exhibits sent into the jury room, and that they should
continue their deliberations. The judge then asked the foreperson if they were close to reaching a
verdict. Upon learning they were not, the court advised the jurors to continue deliberating. At
11:43 p.m., the jurors were excused for the evening. They returned the following morning and
resumed deliberations, at approximately 10:10 a.m. At 11:40 a.m., the jury returned its verdicts,
following approximately 7 to 10 hours of total deliberations.
Based upon this series of events, defendant speculates that defendant’s failure to testify
“could have been the deciding factor.” We decline defendant’s invitation to conclude the
evidence was closely balanced based upon rote speculation about the course of deliberations or
the note from the jury. Our review of the evidence persuades that it was not closely balanced,
notwithstanding the jury’s misgivings about Torres’ testimony were during the first few hours of
deliberations. Moreover, we cannot conclude the trial judge’s failure to ascertain the jurors’
understanding and acceptance that defendant need not testify was as momentous as defendant
now claims.
The note from the jury simply reflected an impasse on the issue of placing defendant on
the scene, as articulated by his codefendant. Had defendant taken the stand, we lack the
omniscience to predict whether he would have offered any persuasive testimony to aid the jury in
this pursuit. Moreover, we cannot identify what occurred in the minds of the individual jurors
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that led them ultimately to reach a consensus. Nonetheless, our review of the record supports the
conclusion that there was sufficient circumstantial evidence to link defendant to the crimes
charged and to support his conviction. Curiously, while defendant claims the evidence was
closely balanced, he offers no challenge to its sufficiency. Because the evidence against
defendant was not, in our view, closely balanced, we must honor the procedural default. Naylor,
229 Ill. 2d at 593, 893 N.E.2d at 659-60.
For the foregoing reasons, we affirm the judgment of the circuit court.
Affirmed.
FITZGERALD SMITH, P.J., with JOSEPH GORDON, J., concur.
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REPORTER OF DECISIONS – ILLINOIS APPELLATE COURT
Please Use
Following (Front Sheet to be Attached to Each Case)
Form:
THE PEOPLE OF THE STATE OF ILLINOIS,
Comple te
TITLE
Plaintiff-Appellee,
of Case
v.
WILLIAM JOHNSON,
Defendant-Appellant.
Docket No.
No. 1-09-0879
COURT Appellate Court of Illinois
First District, FIFTH Division
Opinion November 24, 2010
Filed (Give month, day and year)
JUSTICE TOOMIN delivered the opinion of the court:
JUSTICES
FITZGERALD SMITH, P.J., with JOSEPH GORDON, J. concur [s]
dissent[s]
APPEAL from Lower Court and T rial Judge(s) in form indicated in the margin:
the Circuit Ct. of
Cook County,
Chancery Div. The Honorable Kerry Kennedy, Judge P residing.
Indicate if attorney represents APPELLANTS or APPELLEE S and include
For attorneys of counsel. Indicate the word NONE if not represented.
APPELLANTS,
John Doe, of Attorneys for Plaintiff-Appellee-People of the State of Illinois: Anita Alvarez
Chicago. State’s Attorney
County of Cook
For
APPELLEES, Room 309-Richard J. Daley Center,
Smith and Smith Chicago, IL 60602
of Chicago, Of counsel: Alan Spellberg, Peter Fischer, Sheilah O’Grady
Joseph Brown,
(of Counsel)
Attorneys for Defendant-Appellant: MICHAEL J. PELLETIER
Also add State Appellate Defender
attorneys for
third-party PATRICIA UNSINN
appellants or
Deputy Defender
appellees.
STEPHANIE FISHER
Assistant Appellate Defender
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Office of the State Appellate Defender
203 North LaSalle Street - 24th Floor
Chicago, IL 60601
312/814-5472
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