People v. Boston ( 2008 )

Filed 7/9/08 NO. 4-07-0214
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
MYRON D. BOSTON, ) No. 06CF67
Defendant-Appellant. )
) Honorable
) Kevin P. Fitzgerald,
) Judge Presiding.
_________________________________________________________________
JUSTICE McCULLOUGH delivered the opinion of the court:
A jury found defendant, Myron D. Boston, guilty of two
counts of criminal sexual assault (720 ILCS 5/12-13(a)(1) (West
2004)) and the trial court sentenced him to two consecutive five-
year prison terms. Defendant appeals, arguing (1) he was denied
his right to a fair trial because the State improperly indoctri-
nated prospective jurors with its view of the case and predis-
posed them to accept its theories; (2) he was denied his right to
a fair trial when the court allowed the jury to have transcripts
of the victim's testimony, which overemphasized her version of
the facts; and (3) the State failed to prove him guilty of the
charged offenses beyond a reasonable doubt. We reverse and
remand for a new trial.
The parties are familiar with the evidence presented
and we discuss it only to the extent necessary to put their
arguments in context. On January 18, 2006, the grand jury
indicted defendant on two counts of criminal sexual assault (720
ILCS 5/12-13(a)(1) (West 2004)), alleging he knowingly, by the
use of force or threat of force, committed acts of sexual pene-
tration with the victim, K.B., involving defendant's hand and
penis and K.B.'s vagina. In July 2006, defendant's jury trial
began but it resulted in a mistrial based on a deadlocked jury.
On October 10, 2006, defendant's second jury trial
began. Evidence presented showed defendant and K.B. had a
tumultuous, on-again, off-again dating relationship. K.B.
testified defendant was physically abusive and jealous and often
accused her of being with other men. Over the course of their
relationship, K.B. obtained two orders of protection against
defendant and, in November 2004, she contacted police, alleging
he strangled her with a belt rope and forced her to have sex.
K.B. stated she had one of the protection orders dismissed after
being pressured by defendant and was encouraged by defendant to
recant her allegations in connection with the November 2004
incident. The second order of protection remained in effect as
of the date of the alleged offenses. K.B. acknowledged that,
despite those incidents, she always resumed contact with defen-
dant and the two often engaged in consensual sexual intercourse.
K.B. testified the incidents in question occurred
following a trip she took to Chicago in November 2005. After
returning from the trip, K.B. invited defendant to her home. She
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testified he questioned her about her trip and accused her of
being with another man. K.B. asserted defendant became angry,
called her names, and committed the alleged offenses.
The evidence showed defendant denied any sexual contact
with K.B. on the date of the alleged offenses. Later, however,
he acknowledged it had occurred but asserted it was consensual.
Defendant's theory of the case was that any sexual activity
between him and K.B. was consensual and she made her allegations
against him because she was angry about his decision to end their
relationship.
On October 12, 2006, a jury found defendant guilty of
both criminal-sexual-assault counts. On October 18, 2006,
defendant filed a posttrial motion for a new trial. Relevant to
this appeal, he alleged (1) the State failed to prove him guilty
of the charged offenses beyond a reasonable doubt and (2) the
trial court erred by providing the jury with a transcript of
K.B.'s trial testimony during deliberations. On December 15,
2006, the court denied defendant's posttrial motion and sentenced
him to two consecutive five-year prison terms. On December 21,
2006, defendant filed a motion to reconsider his sentence. On
February 16, 2007, the court denied the motion.
This appeal followed.
On appeal, defendant first argues he was denied his
right to a fair trial as a result of the State's actions during
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voir dire. Specifically, he contends the State asked prospective
jurors questions that improperly indoctrinated them with the
State's view of the facts and predisposed them to accept its
theory of the case.
The State and defendant agree that the defendant failed
to properly preserve this issue for appellate review by failing
to object to the State's voir dire questions or raise the issue
in a posttrial motion. See People v. Coleman, 227 Ill. 2d 426,
433, 882 N.E.2d 1025, 1028-29 (2008) ("[T]o preserve an issue for
appellate review, a defendant must both object at trial and
present the same issue in a written posttrial motion"). "How-
ever, the forfeiture rule is an admonition to the parties and not
a jurisdictional limitation on the reviewing court." People v.
Chapman, 379 Ill. App. 3d 317, 326, 883 N.E.2d 510, 517 (2007).
Other reviewing courts have declined to apply forfeiture under
circumstances similar to the ones in the case at bar. See People
v. James, 304 Ill. App. 3d 52, 57-58, 710 N.E.2d 484, 489 (1999);
People v. Bell, 152 Ill. App. 3d 1007, 1017, 505 N.E.2d 365, 372
(1987). We likewise decline to apply forfeiture and address the
merits of the issue.
"A defendant's right to a jury trial mandates a fair
trial by a panel of impartial jurors." People v. Gay, 377 Ill.
App. 3d 828, 834, 882 N.E.2d 1033, 1038 (2007). "The purpose of
voir dire is to assure the selection of an impartial panel of
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jurors free from either bias or prejudice." People v. Williams,
164 Ill. 2d 1, 16, 645 N.E.2d 844, 850 (1994). "[V]oir dire
questions should confirm a prospective juror's ability to set
aside feelings of bias and decide the case on the evidence
presented." Gay, 377 Ill. App. 3d at 835, 882 N.E.2d at 1038.
They must "not directly or indirectly concern matters of law or
instructions." Official Reports Advance Sheet No. 8 (April 11,
2007), R. 431, eff. May 1, 2007. Also, voir dire "is not to be
used as a means of indoctrinating a jury, or impaneling a jury
with a particular predisposition." People v. Bowel, 111 Ill. 2d
58, 64, 488 N.E.2d 995, 998 (1986).
Generally, questions about specific defenses are
excluded from voir dire, i.e., questions about beliefs concerning
mistaken identity, self-defense, or the defense of compulsion.
People v. Mapp, 283 Ill. App. 3d 979, 986-87, 670 N.E.2d 852,
857-58 (1996). An exception exists for matters of intense
controversy when "simply asking jurors whether they could faith-
fully apply the law as instructed [is] not enough to reveal juror
bias and prejudice toward that defense." Mapp, 283 Ill. App. 3d
at 987, 670 N.E.2d at 858. Examples of matters found to be
controversial include the insanity defense, the intoxication
defense, abortion, and the subject of interracial relationships.
Mapp, 283 Ill. App. 3d at 987, 670 N.E.2d at 858.
The trial court has the primary responsibility for
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initiating and conducting the voir dire examination. Williams,
164 Ill. 2d at 16, 645 N.E.2d at 850. The manner and scope of
voir dire rests within the court's discretion. Williams, 164
Ill. 2d at 16, 645 N.E.2d at 850. "An abuse of *** discretion
will be found only if, after a review of the record, it is
determined that the conduct of the court thwarted the selection
of an impartial jury." Williams, 164 Ill. 2d at 16, 645 N.E.2d
at 850.
Here, the State questioned the first panel of potential
jurors as follows:
"MS. FOSTER [Assistant States Attorney]:
*** First off, this is a case that involves a
domestic relationship. Is there anyone in
the group that believes incidents that arise
between people who have a dating relation-
ship, so therefore, a domestic[-]type rela-
tionship, should not be handled by the State,
that that[ i]s something personal and the
State should[ no]t become involved in those
types of incidents? *** Now, can we all agre-
e, and if you do[ no]t, just raise your hand,
that regardless of the type or length of the
relationship, that there must be consent
before every sexual act between two people?
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*** And is there anyone that believes if a
person or a woman gets an order of protection
against someone and then invites that person
over that she has the [order of protection]
against, does anyone believe that the invita-
tion itself equals consent to a later sexual
act? *** And along those same lines, the
woman with the order of protection, if she
invites that person over, is there anyone
that believes the woman is responsible for
anything violent that may happen after the
person comes over? *** And is there anyone
that believes a person consents to a sexual
act if they do[ no]t scream or fight or kick
or yell or scratch or hit? Anyone require a
victim to do any of those things while she[
i]s being assaulted? ***."
The record reflects the State asked substantially similar ques-
tions of all potential jurors.
We find the State's questions were improper and served
to pre-educate and indoctrinate jurors as to the State's theory
of the case. Its questions highlighted factual details about the
case and asked prospective jurors to prejudge those facts. The
defense of consent is not so intensely controversial that the
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general rule against questions about specific defenses should be
disregarded. Further, we note, the State's questions improperly
concerned matters of law or instruction. The pattern jury
instruction (Illinois Pattern Jury Instructions, Criminal, No.
11.63A, at 570 (4th ed. 2000) (hereinafter IPI Criminal 4th No.
11.63A)) was given to the jury and it provides as follows:
"The word 'consent' means a freely given
agreement to the act of [(sexual penetration)
(sexual conduct)] in question. Lack of ver-
bal or physical resistance or submission by
the victim resulting from the use of force or
threat of force by the defendant *** shall
not constitute consent."
The State questioned prospective jurors about the lack of physi-
cal resistance during a sexual act, a matter directly covered by
IPI Criminal 4th No. 11.63A.
The evidence in the case was close. The State's
improper questions were asked of all prospective jurors and may
have resulted in the selection of a jury that was neither fair
nor impartial. We, therefore, reverse defendant's convictions
and sentences and remand the cause to the trial court for a new
trial. As a result of this holding, it is unnecessary to address
defendant's remaining contentions.
For the reasons stated, we reverse the trial court's
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judgment and remand for a new trial.
Reversed and remanded.
APPLETON, P.J., and KNECHT, J., concur.
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