People v. Prince, 2024 IL App (2d) 230027 (July). Episode 1057 (Duration 9:31)

Defendant clearly attempted to exercise a peremptory challenge immediately after the State accepted and tendered the panel back to the trial court, which ignored defendant’s challenge.

Conviction & Sentence

He was sentenced to three years’ imprisonment for aggravated domestic battery.

Gist

We hold that the trial court abused its discretion because its jury empanelment procedure resulted in the seating of a juror who had expressed clear bias during voir dire questioning. Therefore, the court denied defendant his constitutional right to a fair trial before an impartial jury. 

We reverse and remand for a new trial. 

Facts

Defendant elected to proceed pro se at trial.

During the entirety of voir dire, defendant used a total of five peremptory challenges and unsuccessfully attempted to use a sixth peremptory challenge to excuse venireperson 41.

The record reflects that the parties did not challenge any of the prospective jurors for cause. The only time defendant specifically stated that he had accepted a panel of prospective jurors was when he told the court that he accepted the two alternate jurors.

Issue

On appeal, defendant argues that the trial court abused its discretion and deprived him of a fair trial before an impartial jury because it refused to consider his peremptory challenges to two prospective jurors.

Jury Number 33 in The First Panel

After venireperson 25 was excused, the trial court replaced her with venireperson 33.

After asking venireperson 33 the Rule 431(b) questions, the court told defendant, “you may question this juror.”

Defendant stated, “I don’t have any questions for the jurors in the front row.” The State then asked venireperson 33 a series of questions, including whether she knew anyone who had been the victim of domestic violence. Venireperson 33 responded, “[u]nfortunately, myself.” She stated that her ex-husband had committed domestic violence against her more than 30 years ago. The State asked venireperson 33 how long the domestic violence continued against her. Venireperson 33 replied, “[t]oo long.” In addition, 50 years ago, she witnessed her sister victimized by domestic violence perpetrated by a significant other. When the State asked whether anything about her personal experiences would cause her not to be fair and impartial in this case, she responded, “I don’t think so.” After the State finished questioning venireperson 33, the prosecutor stated, “[w]e would accept [her].” Immediately afterwards and without any further input from the parties, the court stated, “the potential jurors in the first panel have now been accepted as jurors, so the four of you will be jurors in this case.” The court then recessed for a lunch break.

One state selected the second panel it was defendant’s turn to question the second panel, but instead,  Defendant responded, “[b]efore the break, it was sort of abrupt, I didn’t get a chance to thank and excuse the lady in the red jacket in the first row.” 

He was trying to go back to strike #33 from the first panel.

The following colloquy occurred: 

“THE COURT: Okay. At this time you have the opportunity to question the potential jurors in the second panel. The State has accepted those four potential jurors. You have the opportunity to question them to decide if you wish to accept those four jurors. DEFENDANT: Thank you, I understand, but I didn’t get a chance to— THE COURT: I’m saying at this time, these four people in the second panel have been selected by the State to be jurors, so it’s your turn to ask your own questions of the four people in the second panel to decide whether you wish to accept them as well.”

Jury Number 41 in The Second Panel

Defendant responded by excusing venireperson 2 from the panel without asking him any questions. 

The trial court replaced him with venireperson 41 and asked her Rule 431(b) questions.

The court then stated to defendant, “you may question this juror.” Defendant responded, “I don’t have any questions for her.” The court repeated, “[y]ou do not have any questions for her. All right.” The court stated that it was going to accept the panel, but the State interrupted and sought to question venireperson 41. The State asked venireperson 41 a series of questions that revealed her father had committed domestic violence against her mother “maybe about 12 years ago.” In addition, venireperson 41 described witnessing a domestic violence event at a friend’s house, stating, “I could see him hitting the wife, [but] the cops weren’t called [and] it never escalated to a court case or anything of that nature.” The State asked venireperson 41 whether her experience with domestic violence would cause her to be biased during trial. She responded, “[i]t might. I can’t really say it won’t.” The State pursued no further questioning to rehabilitate the impartiality of venireperson 41, nor did the court. After questioning venireperson 41, the State accepted the panel and tendered the panel back to the court. 

The following colloquy immediately ensued: 

“THE COURT: All right, thank you. All right. DEFENDANT: Your Honor, I’d like to thank and excuse juror No. 41. THE COURT: No, you’ve accepted the panel. DEFENDANT: I did not accept the panel. THE COURT: So the individuals in the second panel have now been selected as jurors, and you can go to the jury room with the bailiff at this time.”

Now He Hires Attorney and Files Post Trial Motion

The jury found defendant guilty.

Defendant subsequently retained an attorney to represent him. 

New defense counsel filed a second motion for new trial on July 17, 2020, arguing, among other things, that the trial court erred in denying defendant’s use of a peremptory challenge to excuse venireperson 41.

• Defendant argued that the court’s denial violated Illinois Supreme Court Rule 434 (eff. Feb. 6, 2013), because the court failed to provide him with the opportunity to accept or reject the panel.
• Defendant contended that he was not afforded a fair opportunity to excuse a juror after detecting bias or hostility.
• He argued that he was not provided notice in advance regarding whether the court had altered the “usual procedure” for exercising peremptory challenges under Rule 434, which does not prohibit “back-striking.”

The trial court denied defendant’s posttrial motions. 

Court said that,  

“The transcript reveals that when the panel was being questioned, [defendant] declined to question juror number 41. The panel at that point was tendered by the Court back to the State. The State accepted the panel after questioning juror number 41. The panel was then tendered as a completed accepted panel to the Court. The defendant’s apparently belated desire to thank and excuse number 41 was not a potential back-striking scenario, because the panel containing number 41 was not present before him. So he was not able at that point to take any action regarding juror number 41, he was simply too late, the trial had already moved forward, and so I do not believe anything with regards to juror number 41 is a basis to grant him a new trial.” 

Defendant Says This Is What Happened

Defendant contends that the trial court improperly conducted voir dire proceedings in a manner that required him to exercise peremptory challenges of venirepersons before he heard their answers to the State’s questions.

In particular, he sought to use his peremptory challenges to excuse venirepersons 41 and 33, but was denied his opportunity to do so after they both had revealed potential bias after questioning by the State.

According to defendant, the fairness issue was further compounded when the court failed to ask him whether he had accepted either of the first two panels. Instead, the court gave defendant the opportunity to ask questions of the venire and, when he asked none, it interpreted his declination as his acceptance of the panels.

Defendant makes two arguments.

Further, defendant in this case never expressly accepted either of the first two panels. 

Therefore, the court denied his right to a fair trial before an impartial jury when it denied his requests to use peremptory challenges to dismiss venirepersons 41 and 33 after they revealed their potential bias against him.

Pertinent Jury Selection Rules and  Procedures

The United States and Illinois Constitutions provide that criminal defendants are guaranteed an impartial jury “ ‘capable and willing to decide the case solely on the evidence before it.’ ” People v. Olinger, 176 Ill. 2d 326, 353 (1997) (quoting Smith v. Phillips, 455 U.S. 209, 217 (1982)); U.S. Const., amends. IV, VI; Ill. Const. 1970, art. I, § 8.

1. “Trial judges should not give grudging acceptance to the defendant’s constitutional right to a fair and impartial jury.” People v. Reid, 272 Ill. App. 3d 301, 309 (1995).
2. A defendant is “entitled to be tried by 12, not 9 or even 10, impartial and unprejudiced jurors.” Parker v. Gladden, 385 U.S. 363, 366 (1966).
3. “The failure to accord an accused a fair hearing violates even the minimal standards of due process.” People v. Cole, 54 Ill. 2d 401, 411 (1973) (citing Turner v. Louisiana, 379 U.S. 466, 471-72 (1965)).
4. Indeed, “[t]he right to a trial by an impartial tribunal is so basic that a violation of the right requires reversal.” Id. 
5. “Impartiality is not a technical concept; rather, it is a ‘state of mind.’ ” Reid, 272 Ill. App. 3d at 307 (quoting Cole, 54 Ill. 2d at 413).
6. “[A] venireman is incompetent to sit as a juror if he cannot be impartial.” (Emphasis in original.) People v. Johnson, 215 Ill. App. 3d 713, 725 (1991). 
7. “More than a mere suspicion of bias must be demonstrated.” Reid, 272 Ill. App. 3d at 307.
8. “The burden of showing that the juror possesses a disqualifying state of mind is on the party challenging the juror.” Id.
9. “That party must show the actual existence of such an opinion in the mind of the juror ‘as will raise the presumption of partiality.’ ” Id. (quoting Cole, 54 Ill. 2d at 413).
10. Our supreme court has stated that “a person is not competent to sit as a juror if his state of mind is such that with him as a member of the jury a party will not receive a fair and impartial trial.” Cole, 54 Ill. 2d at 413.

An impartial jury is “made up of persons prepared to exercise their personal judgment, favoring neither prosecution nor accused, standing indifferent to both, and guided only by law and the evidence in the performance of their duties.” People v. Hobbs, 35 Ill. 2d 263, 270 (1966). 

An Equivocal Juror Response

Our supreme court has held that, “[w]hile a prospective juror may be removed for cause when that person’s ‘views would prevent or substantially impair the performance of his duties as a juror’ [citation], an equivocal response does not require that a juror be excused for cause.” People v. Buss, 187 Ill. 2d 144, 187 (1999) (quoting People v. Armstrong, 183 Ill. 2d 130, 143 (1998), and citing People v. Williams, 173 Ill. 2d 48, 67 (1996)).

The Voir Dire Process

The trial court is primarily responsible for initiating and conducting voir dire. People v. Rinehart, 2012 IL 111719, ¶ 16 (citing People v. Strain, 194 Ill. 2d 467, 476 (2000)).

1. In furtherance of the right to an impartial jury, “inquiry is permitted during voir dire to ascertain whether the juror has any bias, opinion, or prejudice that would affect or control the fair determination by him of the issues to be tried.” (Internal quotation marks omitted.) People v. Encalado, 2018 IL 122059, ¶ 24. 
2.  “The purpose of voir dire is to ascertain sufficient information about prospective jurors’ beliefs and opinions so as to allow removal of those members of the venire whose minds are so closed by bias and prejudice that they cannot apply the law as instructed in accordance with their oath.” People v. Cloutier, 156 Ill. 2d 483, 495-96 (1993) (citing People v. Seuffer, 144 Ill. 2d 482, 500, 505 (1991), and Wainright v. Witt, 469 U.S. 412, 424 (1985)).
3. The manner, scope, and extent of voir dire examination rests with the trial court’s discretion. Rinehart, 2012 IL 111719, ¶ 16; People v. Sanders, 238 Ill. 2d 391, 403 (2010). 
4. The trial court abuses its discretion when its conduct “thwarts the purpose of voir dire examination—namely, the selection of a jury free from bias or prejudice.” Rinehart, 2012 IL 111719, ¶ 16; see People v. Clark, 278 Ill. App. 3d 996, 1003 (1996) (“The purpose of voir dire is to enable the trial court to select an impartial jury and to ensure that the attorneys have an informed and intelligent basis on which to exercise peremptory challenges.”). 
5. Stated differently, a trial court “does not abuse its discretion during voir dire if the questions create ‘a reasonable assurance that any prejudice or bias would be discovered.’ ” Rinehart, 2012 IL 111719, ¶ 16 (quoting People v. Dow, 240 Ill. App. 3d 392, 397 (1992)). 

Illinois Supreme Court Rule 431(a)

Illinois Supreme Court Rule 431(a) (eff. July 1, 2012) provides guidance for the exercise of this discretion, stating that the trial court: 

“may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate and shall permit the parties to supplement the examination by such direct inquiry as the court deems proper for a reasonable period of time depending upon the length of examination by the court, the complexity of the case, and the nature of the charges.”

In reviewing the trial court’s determination, the entire voir dire examination of the potential juror should be considered, as opposed to selective responses. Peeples, 155 Ill. 2d at 462-63.

Illinois Supreme Court Rule 434(a)

“A challenge for cause is supported by a specific reason, like bias or prejudice, which disqualifies that potential juror; such challenges are limitless” and left to the circuit court’s discretion. Id

In contrast, a peremptory challenge “need not be supported by any reason, and *** Rule 434 *** allows defendants in a criminal case who are facing imprisonment only seven such challenges (and the State the same).” Id. (citing People v. Bowens, 407 Ill. App. 3d 1094, 1098 (2011)).

Although the trial court does not have a duty to remove a juror sua sponte for cause in the absence of a defendant’s challenge for cause or exercise of a peremptory challenge, it certainly has the discretion to do so to ensure a fair and impartial jury. People v. Metcalfe, 202 Ill. 2d 544, 557 (2002). 

What Is Back Striking?

May you use a peremptory against juror you have previously accepted as part of a panel?

If a court does not allow back-striking, you would only be allowed to challenge the new jurors in a panel of four, but not be allowed to strike any of the previously accepted panel members.

If you are permitted to back-strike and exercise a peremptory challenge against jurors previously accepted in prior panels, then an attorney would be able “reopen” a prior panel with a back strike. This can go on until both sides have accepted the panel—or until the parties have exhausted their peremptory challenges.” Clare E. McWilliams, I Strike, You Strike, We all Strike When We Back-Strike, 25 Chi. B. Ass’n Rec. 42, 42 (2011).

Back Striking Traditionally Permitted – People v. Moss

In People v. Moss, 108 Ill. 2d 270, 275 (1985), our supreme court determined whether Rule 434(a) granted the trial court discretion “to prohibit parties from peremptorily challenging those prospective jurors the party has passed upon and tendered.” 108 Ill. 2d at 272.

The Moss court stated that the traditional method of jury selection “permits parties to ‘back-strike’.

The court overruled the defendant’s objection to this procedure. On appeal, the defendant argued that Rule 434(a) does not provide the court with discretion to prohibit peremptory challenges of jurors previously passed upon and tendered by the challenging party. The defendant also contended that his peremptory rights were impaired by the court’s procedure.

The Moss court explained that “[u]ntil both sides have accepted the same panel, either party may peremptorily challenge a venireman previously tendered to the other side.” Id. Notably, “Rule 434(a) does not abrogate the traditional selection procedure; rather, the rule permits the use of the traditional method unless the court directs that a different procedure be used.” Id.

The trial court has the discretion to alter the usual procedure for exercising peremptory challenges “if both parties have adequate notice of the system to be used and the method chosen does not unduly restrict the use of challenges.” Id.; see Walls, 2022 IL App (1st) 200167, ¶ 38.

The supreme court explained that the provision in Rule 434(a), “unless the court in its discretion, directs otherwise,” allows the trial court “to modify the traditional procedure of impaneling juries, and to dispense with the traditional power of back-striking.” Id. at 275. However, this discretion to alter the usual procedure for exercising peremptory challenges is limited to whether “both parties have adequate notice of the system to be used and the method chosen does not unduly restrict the use of challenges.” Id. 

The Moss court held that the trial court did not abuse its discretion when it prohibited backstriking because it “neither denied nor impaired defendant’s peremptory right,” and instead “defined when the right was to be exercised.”

Relevant here, the supreme court further stated that “[a] procedural limitation upon peremptory challenges does not deny or impair the peremptory right if the procedure affords both parties fair opportunity to detect bias or hostility on the part of prospective jurors, and if the procedure allows both parties a fair chance to peremptorily excuse any venireman.” Importantly, the trial court, “prior to initiating voir dire, expressly notified both parties of its prohibition against back-striking, and the court questioned in detail each of the prospective jurors.”

Right To Peremptory Challenges

“The right to peremptory challenges is one of the most important rights granted to an accused because it eliminates ‘extremes of partiality on both sides’ and assures the parties that the case will be decided on the basis of evidence placed before the jurors.” Walls, 2022 IL App (1st) 200167, ¶ 38 (citing People v. Daniels, 172 Ill. 2d 154, 165 (1996)).

“Whether this right has been impaired depends on the specific facts of each case.” Walls, 2022 IL App (1st) 200167, ¶ 38.

What Notice Did Defendant Have Of The Procedure?

In this case, the trial court informed defendant that he had seven peremptory challenges, but otherwise provided no additional instruction regarding jury selection procedure.

Relevant here, the court did not inform the parties regarding its procedure to accept venirepersons to the panel and whether it “directed otherwise” the parties’ order of acceptance under Rule 434(a). When defendant declined to ask questions, the record demonstrates that the court interpreted his declination as acceptance of the venireperson to the panel.

Defendant had no notice that declining to ask questions would mean he accepted the panel.

Moreover, the court had neither prohibited back-striking nor provided “notice of the system to be used” prior to initiating jury selection. Moss, 108 Ill. 2d at 275; Walls, 2022 IL App (1st) 200167, ¶ 38. 

Reversal Caused Because of Venire-Person 41

The trial court called venireperson 41 onto the second panel of prospective jurors after  defendant had exercised a peremptory challenge against venireperson 2.

At that point, defendant had exercised only two of his seven allotted peremptory challenges. The court told defendant “you may question this juror,” but he declined. The court then stated, “[y]ou do not have any questions for her. All right.”

The court stated that it was going to accept the panel when the State interrupted and sought to question venireperson 41.

The State elicited from venireperson 41 that her father had committed domestic violence against her mother and that she had witnessed an act of domestic violence against a friend. When the State asked her whether her experience with domestic violence would cause her to be biased at trial, she responded, “[i]t might. I can’t really say it won’t.”

The State did not ask any further questions, accepted the panel, and tendered the panel back to the court.

Defendant then tried to exercise a peremptory challenge, but the court stated, “[n]o, you’ve accepted the panel.” Defendant responded that he did not accept the panel. The court next stated that “the individuals in the second panel have now been selected as jurors” and called in the third panel of venirepersons. 

Defendant never expressly accepted the second panel of prospective jurors.

The court never asked defendant if he accepted the panel and never informed him that his decision to decline the questioning of venireperson 41 amounted to his acceptance of her to the panel. Even if we accepted the court’s precipitous procedure of accepting the panels in this case, the court did not foreclose the ability to back-strike after acceptance. Nonetheless, defendant attempted to challenge peremptorily venireperson 41 and also raised this challenge in his posttrial motion. Therefore, he did not forfeit his right to challenge the seating of venireperson 41 on the jury. 

Defendant contends that even an experienced attorney could not have been expected to know the court’s idiosyncratic method of jury selection well enough to anticipate that “I have no questions’ would be interpreted by the court as “I accept the panel.” The court never instructed defendant that every time he declined to ask questions of a prospective juror, he would be deemed to have accepted that juror and panel to be seated on the jury. 

Here, the cascade of events that led to the seating of venireperson 41 began with the trial court’s failure to provide the parties with notice of its procedure for empaneling a jury.

See also People v. Walls, 2022 IL App (1st) 200167 (June). Episode 951 (Duration 6:07), which had a weird jury selection process. 

Key Finding

1. The instant case is distinguishable from both Moss and Walls in that the trial court here provided absolutely no instruction whatsoever regarding the jury empaneling process, other than to inform defendant that he had seven peremptory challenges. 
2. Imperative in this case is the trial court’s failure to provide the parties with any guidelines as to how voir dire would be conducted.
3. The trial court did not inform the parties about the empaneling procedure at all, much less sufficiently enough to avoid “limit[ing] their ability to detect juror bias or hostility.” Id. ¶ 40.
4. Fatally, the trial court also never informed the parties what constituted their acceptance of either a venireperson or a panel.
5. The record shows that the court did not deny defendant the opportunity to question the panel and particularly venireperson 41.
6. Because the trial court failed to provide any instruction as to the method and manner of how jury selection would be conducted before proceeding, the record clearly shows that defendant was unaware of what constituted his acceptance of a panel.
7. In this case, the trial court’s failure to provide notice of the jury empaneling procedure both impaired and denied this defendant a fair chance to exercise his peremptory right to excuse venireperson 41, who had clearly expressed that her personal experience with domestic violence would cause her to be biased at trial. Id. at 276.

The manifest weight of the evidence shows that, because the trial court failed to provide notice of any procedure, jury selection was conducted in such a manner that it created the risk that a party could “accept” a venireperson according to the court’s unexplained procedure of acceptance, only to have a venireperson reveal bias when answering questions from the other party. 

That risk came to fruition in this case.

Final Conclusion

1. In sum, the trial court abused its discretion because it failed to inform the parties of its method of conducting jury selection early enough to avoid limiting defendant’s ability to detect juror bias and hostility. 
2. Furthermore, the lack of any notice of the court’s nontraditional method impeded defendant’s ability to exercise peremptory challenges against venirepersons who had expressed potential bias.
3. Indeed, once venireperson 41’s bias or hostility was detected through the State’s questioning, the court’s voir dire procedure did not allow defendant a fair chance to peremptorily excuse her.
4. Ultimately, this conduct thwarted the purpose of voir dire, namely, “the selection of a jury free from bias or prejudice.” Rinehart, 2012 IL 111719, ¶ 16. 
5. Here, because the requisite showing of impairment to peremptory challenge has been established, we presume prejudice to defendant’s right to a fair trial. 

Holding

In this case, defendant was denied his right to an impartial jury, resulting in the denial of a fair trial

Therefore, we reverse the verdict and remand this cause for a new trial.