People v. Brown , 388 Ill. App. 3d 1 ( 2009 )

JUSTICE GARCIA

delivered the opinion of the court:

Following a jury trial, the defendant Dennis Brown was convicted of possession of cocaine with intent to deliver within 1,000 feet of a school and sentenced to five years’ imprisonment. The defendant presents a single issue: whether he was denied “a fair and impartial jury when the trial judge interfered with the selection of an unbiased jury by ordering the first potential juror who admitted that he could not be fair to return to the courtroom and observe Brown’s trial to get an ‘education as to how the system works.’ ” The defendant asserts plain error. Because we find the defendant has failed to meet his burden under the plain error doctrine, we affirm.

BACKGROUND

During voir dire examination, the following colloquy took place between the trial judge and a prospective juror.

“THE COURT: Does anyone have any problems with the charges that I read to you? Okay.

* * *

JUROR: My problem is I have property on the west side and I am familiar with problems to that extent — drug problems and so forth. So I have family members that are going through terrible times, I would say with addictions and so forth, they’re being treated and so forth.

THE COURT: Do you know [the defendant]?

JUROR: No, I don’t.

THE COURT: Have you ever seen him before?

JUROR: No, I have not.

THE COURT: All of us, including myself, have come in contact with this world of drugs. It has [a]ffected members of my family also.

Do you still think you can be fair and impartial?

JUROR: I don’t feel that I can be.

THE COURT: I’m sorry?

JUROR: I don’t feel that I can be.

THE COURT: Because you own property on the west side?

JUROR: No, because of how it [a]ffected me personally; what I have seen, how it [a]ffects society.

THE COURT: You are saying you don’t think you can wait until you have heard all the evidence in this case before you reach a decision concerning [the defendant]; that you have automatically assumed that he is guilty of this charge?

JUROR: Not necessarily. I just have some concerns about illegal drugs and so forth. I know that it is just bad.

THE COURT: I’m just asking you now can you be impartial as to both sides? Can you wait until you have heard the evidence in the case before you come to a conclusion or before you reach a decision as to whether this man is guilty or innocent; yes or no?

JUROR: I don’t think so; no.

THE COURT: Any objection—

MR. DOMINIQUE [Assistant Public Defender]: No objection, your Honor.

MR. CURRAN [Assistant State’s Attorney]: None.

THE COURT: — to excusing [this juror]? All right, [Juror]. We want to thank you for being frank and we’re going to excuse you at this time. But I’m ordering you to return to court tomorrow morning at 11:00 o’clock because I plan on picking 12 individuals who are going to be able to be fair and impartial to both sides in this case and I think you need an education as to how the system works.”

The judge then asked the remaining venire whether anyone else had a problem with the charges, whether anyone had a problem signing a not guilty or guilty verdict form, and whether anyone would hold the defendant’s decision not to testify against him. No other prospective juror indicated that he or she had a problem.

Thereafter, the judge questioned each prospective juror individually, regarding (1) any prior service on a jury; (2) any close contact with a victim of a crime; (3) any criminal arrests; and (4) any involvement in a criminal case as a complainant or a witness. Following the judge’s questioning, the State asked the venire whether anyone had a problem passing judgment on another person because of any religious, ethical, or moral considerations to which no one responded that he or she did. Last, defense counsel questioned 10 prospective jurors concerning their responses to the judge’s questions.

At the jury trial, the evidence showed that on June 13, 2005, at around 11:30 p.m., Officer Joe Dahl and his partner were conducting surveillance near 2210 South Millard in Chicago. There, Officer Dahl observed the defendant engage in four separate hand-to-hand transactions where an unknown individual would hand the defendant money in exchange for a small object. Suspecting that these exchanges were narcotics transactions, Officer Dahl broke surveillance, drove to the defendant’s location, exited his vehicle and witnessed the defendant toss a clear plastic bag containing suspected narcotics onto the ground. While his partner apprehended the defendant, Officer Dahl recovered the plastic bag, which contained a substance that tested positive for cocaine. A custodial search revealed that the defendant possessed $50 in his right pants pocket. The parties stipulated that the distance between 2210 South Millard and Paderewski School, located at 2221 Lawndale Avenue in Chicago, is 75 feet.

The defendant testified that he was getting into his car to go to a girlfriend’s house when the police approached him with “guns and stuff,” searched his car, and broke into his apartment. The police told the defendant that if he did not tell them “who had some guns,” they were going to plant a bag of narcotics on him. When asked how he knew these individuals were police officers, the defendant responded, “[t]hey stopped me earlier that day in the alley and searched me, took my wallet, took my money, the same police.”

The jury found the defendant guilty. This timely appeal followed.

ANALYSIS

The defendant argues he was denied the right to a fair and impartial jury trial by the trial judge’s actions that discouraged prospective jurors from responding candidly and openly when she excused the first prospective juror that stated he could not put aside his bias against drug-related offenses and punished this prospective juror by ordering him to return to the courtroom the following day to observe the trial process. The defendant admits he failed to preserve this issue for review by not objecting at trial and by not including the issue in his posttrial motion. The defendant asks that we reach this unpreserved error as plain error, arguing that the error denied him the right to a trial before an impartial jury. See People v. Dixon, 382 Ill. App. 3d 233, 244, 887 N.E.2d 577 (2008), citing People v. Herron, 215 Ill. 2d 167, 830 N.E.2d 467 (2005). He asserts the forfeiture rule should not be rigidly applied here where the unpreserved error concerns the conduct of the trial judge, citing People v. Young, 248 Ill. App. 3d 491, 498, 618 N.E.2d 1026 (1993) (forfeiture rule is flexible enough to allow consideration of judicial impropriety).

“The purpose of voir dire is to assure the selection of an impartial panel of jurors who are free from bias or prejudice.” People v. Terrell, 185 Ill. 2d 467, 484, 708 N.E.2d 309 (1998), citing People v. Williams, 164 Ill. 2d 1, 16, 645 N.E.2d 844 (1994). The manner in which voir dire is conducted as well as its scope lie with the discretion of the trial judge. Williams, 164 Ill. 2d at 16. An abuse of that discretion will only be found where the judge’s conduct “thwarted the selection of an impartial jury.” Williams, 164 Ill. 2d at 16.

Initially, we note there is no authority in Illinois that directly addresses the issue at hand — whether the trial judge’s actions in “punishing” the first prospective juror to indicate that he was biased thwarted the selection of an impartial jury. The parties cite to authority from other jurisdictions that supports their respective positions. The defendant points to United States v. Rowe, 106 E3d 1226 (5th Cir. 1997), which he contends should be read in light of the supreme court’s decision in People v. Strain, 194 Ill. 2d 467, 782 N.E.2d 263 (2000), that recognizes the need to probe for bias on the part of prospective jurors. The State points to United States v. Colabella, 448 F.2d 1299 (2d Cir. 1971), and State v. Rannels, 333 N.C. 644, 430 S.E.2d 254 (1993), for its position that on the facts before us, it would be no more than speculation to say the remaining prospective jurors were intimidated into not revealing any bias.

We begin with our own observations regarding the voir dire procedure below. First, the parties agreed to excuse the prospective juror based on his statement that he could not set aside his negative feelings toward the pending drug-related charges. The trial judge granted the parties’ motion and excused the prospective juror. Having accomplished all that could have been accomplished, we question the need for the trial judge to have engaged in a subsequent admonishment of the prospective juror in the presence of the venire. If the trial judge saw a need to instruct the prospective juror on his civic duty to serve on a jury based on what he stated in open court, the trial judge was free to direct the juror to remain until the end of the proceedings that day to speak with him outside the presence of the remaining prospective jurors. This would have avoided creating an appellate issue for the defendant. Second, jury selection was completed that afternoon and the dismissed venire person had satisfied his duty under the “one day/one trial” program established by the chief judge of the circuit court of Cook County. We question the basis to extend that duty. Third, as a juror is entitled to a daily per diem fee for jury service, we see no need to have “educated” the dismissed venire person at the expense of Cook County taxpayers. Fourth, if the trial judge felt the need to educate the venire person as to the workings of our criminal justice system, she should have been willing to convey whatever instruction she deemed warranted directly to the venire person. We see no relation between a claimed inability to set aside a bias and the “education” one might receive by sitting through one day of a trial. Finally, and perhaps most importantly, it cannot be denied that a citizen may have a legitimate inability to set aside a bias, a bias that is not ameliorated by a one-day “education” by sitting in on a trial. The trial judge herself thanked the venire person for “being frank.” It is precisely that “frank” exchange between the prospective juror and the questioner that is the primary objective of voir dire. Anything that might reduce that frank exchange should be avoided.

We set out these observations because, as we have stated, the exchange was unnecessary in the way it occurred. Our legal analysis, however, focuses on the defendant’s claim that we should find plain error.

For plain error to apply, the defendant must make either of two showings: (1) the evidence was close, regardless of the seriousness of the error; or (2) the error was so serious that the closeness of the evidence does not matter. People v. Parker, 358 Ill. App. 3d 371, 374, 832 N.E.2d 858 (2005). The defendant’s only contention is that the trial judge’s conduct was so serious that he was denied a fair and impartial trial. We examine the authorities cited by the parties to determine whether the defendant has met this second prong showing.

In Rowe, the principal case on which the defendant relies, the defendants argued that certain comments made by the trial judge during voir dire frightened the venire into silence, thus rendering the jury selection process meaningless. Specifically, the defendants pointed to the following exchange between the trial judge and a prospective juror.

“ ‘COURT: Are you telling me that you cannot put aside, you cannot follow the order of this court and put aside your personal opinions, and listen to the evidence in this case and render a fair and impartial verdict? Is that what you’re saying?

A: No. What I’m saying is that I don’t feel that my verdict could be fair.

COURT: That’s just what I’m asking you. Why not? ... You’re refusing to put aside your personal opinions? Is that what you’re telling the court?

A: No, I’m not refusing. I’m just saying that I think that it will affect my decision as far as, you know, as the verdict is concerned.

COURT: All right. Put her on February, March and April’s panel to come back. And you will be coming back again, and again, and again.... And see if you can figure out how to put aside your personal opinions and do your duty to your country as a citizen, because this kind of answer which is clearly made up for the occasion is not really great. You are excused.’ ” Rowe, 106 F.3d at 1228.

Although this interaction occurred at the bar, it later became evident that the entire panel heard the discussion. In the face of the trial judge’s treatment of the first prospective juror to reveal an inability to be unbiased, another prospective juror nonetheless indicated that she had a relationship that might keep her from being fair and impartial, and in the presence of the entire panel, the judge responded:

“ ‘It is appalling, actually, that you would come into a court, and presume that people were guilty because they were standing here charged with a crime. That’s not our system. And apparently you will not, or cannot follow the instructions of the court, so you’re excused. Put her back on the jury panel for February, March and April, and perhaps you can take [sic] some remedial constitutional inquiries in the meantime. Does anyone else feel that these people are guilty, without hearing anything further? Now, I don’t want to scare you into not responding. You will not be taken into custody.’ ” Rowe, 106 F.3d at 1228-29.

“At the end of the voir dire, defense counsel moved to strike the panel on the grounds that in light of the court’s treatment of the two members of the venire who stated their views, other potential jurors were unlikely to speak up and tell the truth about potential bias for fear of the court’s reaction.” Rowe, 106 F.3d at 1229.

The trial court, in response to defense counsel’s motion, “attempted to undo the damage.” Rowe, 106 F.3d at 1229. She asked the venire, “ ‘Is there anyone else, *** and please raise your hand, that was frightened by the court, to where you didn’t want to answer any questions along those lines?’ ” Rowe, 106 F.3d at 1229. No prospective juror answered affirmatively. Rowe, 106 F.3d at 1229.

Following conviction but prior to sentencing, one of the defendants filed a motion for a new trial, alleging that the trial court intimidated the jury panel into silence. According to the motion, a panel member was prepared to testify that after the initial exchange between the trial court and the potential juror who reported bias, she “felt like she had no recourse but to sit there and keep her mouth shut, and that was the best thing she could do.” Rowe, 106 F.3d at 1229. The trial judge denied the motion.

The Fifth Circuit Court of Appeals reversed and remanded, finding that the trial court abused its discretion when it failed to dismiss the panel on defense counsel’s motion. Rowe, 106 F.3d at 1230. While acknowledging the presumption that all prospective jurors answer truthfully to questions posed during voir dire, the court of appeals held that this presumption does not apply where potential jurors are given reason to fear reprisals for truthful responses. Rowe, 106 F.3d at 1230. The court noted that both panel members who indicated a potential bias were “accused by the [trial] court of refusing to follow instructions and attempting to avoid jury service, and then sanctioned.” Rowe, 106 F.3d at 1229-30. Thus, the court determined that the trial court abused its discretion because its actions “cut off the vital flow of information from the venire to court.” Rowe, 106 F.3d at 1230. The court in Rowe further held that the prejudice aspect need not be explored, stating that “[d]efendants need not show specific prejudice from a voir dire procedure that cut off meaningful responses to critical questions.” Rowe, 106 F.3d at 1230.

In contrast, the Second Circuit Court of Appeals in Colabella, and the North Carolina Supreme Court in Rannels, found no error in addressing similar claims involving the jury selection process.

In Rannels, the district attorney asked whether any members of the jury pool had personal or business engagements that would detract their attention from the case. Rannels, 333 N.C. at 656, 430 S.E.2d at 260. When one prospective juror expressed that his plans to attend nursing school would be “in the back of [his] mind,” the trial court stated:

“Well, you are going to sit here through the trial of the case, but I’m not going to require you to sit on this case. So when the other jurors are excused, you are to remain in the courtroom.... I want you to sit on the front row, sir, so you can hear what’s going on.” Rannels, 333 N.C. at 656, 430 S.E.2d at 260-61.

Although the defendant argued that the trial court’s actions “chilled” the honest responses of other panel members, the Rannels court determined that nothing in the record substantiated the defendant’s contention. Rannels, 333 N.C. at 656, 430 S.E.2d at 261. Rather, the Rannels court reasoned, “It could just as well be argued that the court’s reaction to the juror’s response reinforced among the other prospective jurors the need to be forthright and honest in their answers.” Rannels, 333 N.C. at 656, 430 S.E.2d at 261. Ultimately, the Rannels court rejected the defendant’s position because it relied on speculation. Rannels, 333 N.C. at 656, 430 S.E.2d at 261.

In Colabella, as here, defense counsel did not “object to the swearing of the jury[, which] indicated that he too believed that the jury as finally selected was not infected with prejudice.” Colabella, 448 E2d at 1303. Here, not only did defense counsel not object, but he was allowed to directly examine the remaining venire persons to ensure that the jury ultimately decided upon would be fair.

Because we find the circumstances in this case to be more closely aligned with the circumstances in Colabella and Rannels, we decline to follow Rowe. To be clear, we have no disagreement with the Rowe decision.¹ However, the differences between Rowe and the instant case are too striking to control the outcome. We note four such differences.

First and foremost, the error in Rowe was preserved. The trial judge was given the opportunity by a defense objection to strike the venire panel and continue with the jury selection with an untainted group of prospective jurors. Thus, the federal court of appeals reviewed the trial judge’s conduct under an abuse of discretion standard.

Second, while the court in Rowe made note that “[defendants need not show specific prejudice from a voir dire procedure that cut off meaningful responses to critical questions” (Rowe, 106 F.3d at 1230), the voir dire procedure undertaken here differed from that in Rowe. See 177 Ill. 2d R. 431 (parties are allowed to supplement the trial court’s examination “by such direct inquiry as the court deems proper”). In Rowe, the trial court did not allow counsel to address the panel directly. Rowe, 106 F.3d at 1227. Here, defense counsel was allowed to question all the prospective jurors after the initial voir dire by the trial judge, doing so only as to some. Defense counsel was free to ask questions that might ferret out actual bias on the part of any of the prospective jurors based on any ground, including whether the trial judge’s treatment of the dismissed prospective juror silenced the remaining prospective jurors that might harbor bias. Apparently, defense counsel saw no need to engage in such questioning.

Third, the court in Rowe, in distinguishing the authority cited by the government, noted that the case before it differed “both in kind and in degree.” Rowe, 106 F.3d at 1228. We find the trial judge’s remarks here differ both in kind and degree from the federal district court’s actions properly criticized in Rowe. While the trial judge here imposed the requirement that the dismissed venire person return the next day, that action did not rise to the penalty imposed in Rowe, where the dismissed juror was ordered to return for the “ ‘jury panel for February, March and April, and perhaps [to take] some remedial constitutional inquiries in the meantime.’ ” Rowe, 106 F.3d at 1228.

Finally, the record in Rowe contained the affidavit of a venire person that was prepared to testify that she was intimidated by the trial court’s conduct. Rowe, 106 F.3d at 1229. Here, no showing has been made that the trial judge’s admonishment to a single prospective juror, who was dismissed and then ordered to return the following day, blanketed the remaining venire with intimidation such that no frank exchange could occur.

We find the Rowe case distinguishable from the case before us. The analysis in Rowe does not convince us that the limited remarks and actions of the trial judge here thwarted the selection of an impartial jury. Our conclusion that the defendant has failed to establish that the conduct of the trial judge affected the fairness of the judicial process also rests on the reasoning of the Colabella and Rannels courts.

As in Rannels, there is nothing in the record to substantiate the defendant’s claim that the court’s conduct chilled the responses of the 23 remaining prospective jurors. The defendant even admits that it is “impossible to precisely measure the prejudice [he] suffered as a result of the trial judge’s improper comments.” Nevertheless, the defendant surmises that “[t]he fact that no on else admitted a possible bias supports the likelihood that the judge discouraged them from doing so.” We reject the defendant’s reasoning. As the Rannels court noted, the opposite effect could “just as well be argued.” Rannels, 333 N.C. at 656, 430 S.E.2d at 261. That no other prospective juror reported bias when the trial judge put this question again to the remaining venire, may indicate nothing more than no other potential juror harbored bias or prejudice. This explanation is perhaps entitled to more sway here where the defendant through his counsel was given the opportunity to inquire about possible bias when he conducted voir dire, an opportunity that does not appear to have been provided in Rannels.

While the efforts by the trial judge in Colabella might well serve as an example for the trial judge here in the steps that should be taken when a prospective juror expresses uncertainty in his or her ability to set aside bias, the court of appeals in Colabella also recognized that such efforts may not always succeed. “That a juror might not have been impartial, is indeed, a possibility. But, when we venture into speculation over thoughts or attitudes not manifest, there is always the chance that any jury impaneled to try a case may include an individual whose prejudices have not been revealed. We note that nothing has been called to our attention to indicate that in this case, any juror was in fact not impartial.” Colabella, 448 E2d at 1302. We echo the Colabella court’s observations here. We emphasize there is nothing in the record to indicate that any juror seated in this case was not impartial.

Like the courts in Colabella and Rannels, we reject, as grounded on nothing more than speculation, the defendant’s contention that the conduct engaged in by the trial judge here impacted his right to a fair trial.

We also conclude that the rationale behind applying the forfeiture rule less strictly, as noted in Young, has no place here.

“The making of an objection to questions or comments by a judge poses a practical problem for the trial lawyer. It can prove embarrassing to the lawyer, but, more importantly, assuming that most juries view most judges with some degree of respect, and accord them a knowledge of law somewhat superior to that of the attorneys practicing before the judge, the lawyer who objects to a comment or question by the judge may be viewed with considerable suspicion and skepticism by the very group whom he is trying to convert to his client’s view of the facts, thereby perhaps irreparably damaging his client’s interests.” People v. Sprinkle, 27 Ill. 2d 398, 400, 189 N.E.2d 295 (1963).

Here, the trial judge allowed the defendant the opportunity to ferret out any bias among the remaining potential jurors through voir dire questioning to ensure his right to a fair trial. While “it would have been better if some of the comments [by the trial judge] had not been made,” as we stated in Young, 248 Ill. App. 3d at 503, we see no reason to forego applying the forfeiture rule here.

CONCLUSION

Based on the record before us, we find the voir dire procedure provided by the trial judge below allowed the defendant to sufficiently question prospective jurors to select a fair and impartial jury, even in the face of an exchange by the trial judge with a dismissed prospective juror in the presence of the venire that we find, while unnecessary, did not deprive the defendant of a fair trial. The claimed error by the defendant is forfeited. See People v. Carlson, 79 Ill. 2d 564, 576-77, 404 N.E.2d 233 (1980) (where real justice has not been denied, errors that could have been corrected but not preserved are forfeited).

For the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.

1 We note that in Rowe the federal court of appeals ruled the trial court should have dismissed the entire panel on the defendants’ motion. No similar motion was made here.