THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ARTHUR R. MANNING, Appellant.
No. 109029
Supreme Court of Illinois
February 3, 2011
March 28, 2011
241 Ill. 2d 319
JUSTICES FREEMAN and KARMEIER join in this dissent.
Lisa Madigan, Attorney General, of Springfield (Michael A. Scodro, Solicitor General, and Michael M. Glick and Karl R. Triebel, Assistant Attorneys General, of Chicago, of counsel), for the People.
JUSTICE GARMAN delivered the judgment of the court, with opinion.
Justices Thomas and Theis concurred in the judgment and opinion.
Chief Justice Kilbride specially concurred, with opinion.
Justice Karmeier specially concurred, with opinion.
Justice Freeman dissented, with opinion, joined by Justice Burke.
OPINION
Following a jury trial in the circuit court of Du Page County, defendant, Arthur R. Manning, was convicted of one count of possession of a controlled substance with intent to deliver (
BACKGROUND
Defendant was arrested after allegedly selling cocaine to an undercover police officer posing as a taxi driver and
During voir dire, defense counsel told the members of the venire that at the trial, they would hear evidence that defendant is a registered sex offender and that his registered residence address was not at 37 Sunset Court. Counsel thus questioned potential jurors about what impact, if any, defendant‘s sex offender status would have on their ability to be fair and impartial.
During questioning by the trial court, juror 165 (hereafter referred to as A.C.) stated that he came to the United States from Romania six years before and was in the printing business. He stated he could be fair to both sides and would judge the believability of all witnesses using the same standard for everyone. He had no criminal record, had never been a crime victim, and had not been involved in any lawsuits. A.C. stated that he had received two speeding tickets since he came to this country. Defense counsel then questioned A.C. When counsel asked A.C. how he felt about sex offenders, A.C. responded that they should be “locked up for life.” The following exchange then occurred:
“Q. *** What if the law permitted that he not be locked up for life or she not be locked up for life? Do you still think that should be the case? Do you think you would be able to listen to a case and render a judgment on a case that‘s separate and distinct from the sex offender case?
A. Yes. Q. Even though that person may have that background?
A. Yes.
Q. Is that background going to influence you at all do you believe in your decision on the case?
A. I don‘t think so.
Q. You don‘t think so?
A. No.
Q. Can you be more specific? Can you say that it‘s not going to?
A. No.
Q. You cannot?
A. No. I said it‘s not going to change. I cannot be fair with the case.
Q. You can be fair, or you cannot?
A. No, I cannot be fair.
Q. You can be fair?
A. No, I cannot be fair. I could not be fair also.”
Defense counsel did not move to strike A.C. for cause nor did he use a peremptory challenge to remove him from the jury. Counsel did excuse another juror who said her opinion of defendant “dropped drastically” when she learned of his sex offender status. In all, counsel used five of defendant‘s seven available peremptory challenges.
At the trial, special agent Matthew Gainer of the Illinois State Police testified that at the time of defendant‘s arrest, he was assigned to the Du Page County Metropolitan Enforcement Group, which investigated street-level narcotics trafficking. On July 14, 2005, Gainer and his fellow officers were investigating defendant. Gainer posed as a taxi driver. He and a passenger in the car drove to 37 Sunset Court in Bensenville, where Gainer parked the car. The passenger went inside and when he came back out, defendant was with him. The two stood by the passenger door of the car, where the passenger purchased two bags of crack cocaine from defendant for $40. Gainer asked if he could purchase some cocaine. Defendant went back into 37 Sunset Court and returned a short time
Gainer further testified that he and other officers executed a search warrant at the residence on July 28, 2005. They searched the basement, where they found men‘s clothing and three bags of cocaine, a scale, and identification documents. In another part of the residence, the officers found two more bags of cocaine. Gainer seized defendant‘s Illinois identification card, issued on January 29, 1995, with an address of 37 Sunset Court. He also seized a checkbook with the address of 212 West Sunny Lane. Officers also found a piece of mail addressed to defendant at the Sunset Court address and another addressed to him at the West Sunny Lane address with a forwarding address to Sunset Court.
Officer Michael Hanrahan testified that he and another officer spoke to defendant at the police station. While taking defendant‘s personal history, defendant told them that he lived at 37 Sunset Court. After waiving his Miranda rights, defendant gave a statement in which he again said that he lived at 37 Sunset Court, that he had resided there for approximately 10 months, and that he had sold cocaine there for a year. Defendant told the officers they could find heroin in a freezer at the residence that he was holding for someone else. When this information was relayed to officers on the scene, they found 14 tinfoil packets of heroin in the freezer. Defendant prepared a written statement in which he again confirmed his residence as 37 Sunset Court.
Former Bensenville police detective Maria Hernandez testified that she monitored sex offenders. As a registered sex offender, defendant was not allowed to live within 500 feet of a park. Because the residence at 37 Sunset Court was closer than 500 feet to a park, Hernandez ordered defendant to move in December 2004. She could
Bensenville police officer Todd Zoglman testified that in May 2005, he stopped defendant for driving on a suspended license. The Secretary of State‘s records showed defendant‘s address as being in Maywood. However, suspended licenses could not be updated and Zoglman testified that the records on defendant‘s identification card listed his current address as 37 Sunset Court.
Defendant testified that he moved from Sunset Court to Maywood in December 2004. He updated some of his records but not others. He did register his Maywood address with the local police department. In March 2005, he was arrested for driving under the influence. A certified copy of the traffic citation introduced into evidence showed defendant‘s address as 2033 South Third Avenue in Maywood. Defendant testified that he frequently visited his girlfriend and her three children, who lived at the Sunset Court address. On July 28, 2005, he drove to Sunset Court to take his girlfriend to Rockford. The police drove up and arrested him. When he got to the police station, an officer told defendant to initial and sign a Miranda waiver. He did so after reading it. The interrogating officers accused him of selling drugs. When defendant stated that he wanted an attorney, the officers told him he would get one later in Wheaton. Defendant testified that the only reason he wrote and signed a statement was because the officers threatened to take custody of his girlfriend‘s children. The officers told him to write 37 Sunset Court as his address on his statement. Defendant denied that he had sold any drugs.
Hanrahan testified in rebuttal, denying defendant‘s claim that he had asked for an attorney. He denied that defendant was threatened or that he was told to write down the 37 Sunset Court address.
ANALYSIS
Defendant argues that his trial counsel rendered deficient performance in failing to challenge A.C. for cause or exercise a peremptory challenge. He further argues that he was prejudiced by counsel‘s failure. In the alternative, he argues that this court should find that jury bias is presumptively prejudicial under Strickland.
Claims of ineffectiveness of counsel are judged under the familiar standard set forth in Strickland. A defendant must show that counsel‘s performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 688, 694.
“In order to satisfy the deficient-performance prong of Strickland, a defendant must show that his counsel‘s
Defendant first argues that the appellate court applied the wrong standard of review on the prejudice prong of Strickland. Initially, the court stated the test correctly, i.e., that defendant must show a reasonable probability that the result of the proceeding would have been different. However, later in the opinion, the court stated that it could not say that the result of defendant‘s trial “would have been different” had A.C. not served on the jury. Defendant also alleges similar inconsistencies in other cases.
Defendant is correct that the prejudice prong of the Strickland standard does not require that a defendant demonstrate that the result of his trial would have been different. Rather, although a defendant must show a reasonable probability that the result of the proceeding would have been different, “the prejudice prong of Strickland is not simply an ‘outcome-determinative’ test but, rather, may be satisfied if defendant can show that counsel‘s deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair.” People v. Jackson, 205 Ill. 2d 247, 259 (2001); see also People v. Evans, 209 Ill. 2d 194, 220 (2004) (“a reasonable probability that the result would have been different is a probability sufficient to undermine confidence in the outcome—or put another way, that counsel‘s
Despite the appellate court‘s misstatement of the standard, we do not find that the court erred in applying it to defendant‘s case.
In addressing defendant‘s ineffectiveness argument, the appellate court found this court‘s decision in People v. Metcalfe, 202 Ill. 2d 544, 562 (2002), to be dispositive of defendant‘s appeal. In Metcalfe, the defendant appealed his conviction on the ground that he was denied his right to a fair trial when one of the members of his jury, a woman named Grevus, indicated during voir dire that she could not be fair and impartial. The appellate court reversed the defendant‘s conviction and remanded for a new trial, holding that the trial court had a sua sponte duty to excuse Grevus even though defendant‘s counsel had not challenged her for cause or exercised a peremptory challenge. During voir dire, Grevus indicated that she and her parents had been crime victims. She had been robbed at gunpoint and the perpetrator “got off because of a technicality.” Grevus noted that the defendant‘s attorney had tried to discredit her trial testimony identifying the defendant as the perpetrator. Defense counsel asked Grevus whether the result of that case would cause her to be biased in any way. She answered that it would and stated that she felt the perpetrator was clearly guilty. Defense counsel excused two other prospective jurors but did not excuse Grevus. The appellate court reviewed the defendant‘s claim under the second prong of the plain-error rule. The court found that Grevus was biased against the defendant and held that when a prospective juror indicates bias or prejudice and counsel does not move to excuse the prospective juror, the trial court has a sua sponte duty to do so. This court disagreed, holding that no sua sponte duty exists. Id. at 551, 557.
In his petition for leave to appeal, defendant in this case argued that this court should “reconsider” our decision in Metcalfe because juror bias is structural error, and since Metcalfe was decided, other courts have held
We first address defendant‘s argument that this court should overrule Metcalfe.
Defendant argues that prejudice should be “presumed” under Strickland. He argues that Strickland assumed jury impartiality in its prejudice analysis. (Prejudice requires a “showing that counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. “[A] fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding.” Id. at 685.) Defendant cites federal cases and cases from other states which he says found juror bias prejudicial under Strickland and he asks this court to “refine the Metcalfe analysis” or “go in a different direction” in light of these cases. As with the request to reconsider Metcalfe, these suggestions essentially ask this court to overrule Metcalfe.
Defendant contends that some courts have focused on the lack of an impartial jury and, thus, the evaluation of prejudice “requires a showing that, as a result of trial counsel‘s failure to exercise peremptory challenges, the jury panel contained at least one juror who was biased.” Davis v. Woodford, 384 F.3d 628, 643 (9th Cir. 2004). Defendant cites as an example the case of People v. Vieyra, 169 P.3d 205 (Colo. App. 2007), in which the defendant alleged in postconviction proceedings that his trial counsel was ineffective for failing to exercise an unused peremptory challenge. The court declined to find that prejudice is presumed when defense counsel fails to exercise all of the defendant‘s peremptory challenges, holding instead that the defendant must establish prejudice under Strickland. The court held that the defendant had not done so, noting that he had failed to establish which juror he would have struck with the remaining challenge and he had failed to establish facts suggesting bias on the part of any of the jurors who sat on his jury. Id. at 210.
Another case defendant cites is Whitney v. State, 857 A.2d 625 (Md. App. 2004), where the defendant argued his trial counsel was ineffective for failing to realize that defendant was entitled to 10 peremptory strikes. The trial court had told counsel that they each had four strikes and defense counsel failed to object. She exercised all four of the defendant‘s challenges. The appellate court found that counsel‘s performance was objectively unreasonable. In discussing the prejudice prong of Strickland, the court declined to find that prejudice was presumed. The court stated that, considering the record, it could not perceive any prejudice resulting from counsel‘s mistake that was shown to have resulted in the impairment of the defendant‘s right to a fair and impartial jury and the trial was not unreliable or fundamentally unfair. Id. at 637. In State v. Carter, 2002 WI App 55, ¶ 15, 641 N.W.2d 517, the court found that counsel‘s failure to strike or further question a juror who admitted bias denied the defendant an impartial jury and rendered the outcome of the trial unreliable and fundamentally unfair, thus presuming prejudice regardless of whether the deficient performance had any impact on the result of the trial. Similarly, Virgil v. Dretke, 446 F.3d 598, 613 (5th Cir. 2006), found that the seating of biased jurors, without more, made the result of the defendant‘s trial unreliable; thus, prejudice was presumed.
Defendant argues that other cases focus on the structural nature of jury bias. The principal case defendant cites here is Hughes v. United States, 258 F.3d 453, 463 (6th Cir. 2001). The court held there that the defendant‘s counsel was ineffective for failing to strike a biased juror. The court further held that the impaneling of a biased juror requires a new trial and prejudice under Strickland is presumed. Id.; see also State v. King, 2008 UT 54, ¶ 18, 190 P.3d 1283 (court stated that had the deficient performance of the defendant‘s counsel permitted an actually biased juror to be seated, the court would presume that the defendant‘s sixth amendment right to the effective assistance of counsel had been violated, citing Hughes with approval).
Defendant‘s request to this court to overrule Metcalfe implicates the doctrine of stare decisis. As we have explained:
“The doctrine of stare decisis expresses the policy of the courts to stand by precedents and not to disturb settled points. [Citation.] This doctrine is the means by which courts ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion. [Citation.] Stare decisis enables both the people and the bar of this state to rely upon [this court‘s] decisions with assurance that they will not be lightly overruled.” (Internal quotation marks omitted.) People v. Sharpe, 216 Ill. 2d 481, 519 (2005) (quoting Vitro v. Mihelcic, 209 Ill. 2d 76, 81-82 (2004)).
We have also acknowledged that stare decisis is not an inexorable command. However, any departure from that doctrine must be specially justified; prior decisions should not be overruled absent good cause. Id. at 519-20.
We noted in Sharpe that good cause to depart from stare decisis exists when governing decisions are unworkable or badly reasoned. Id. at 520. Defendant here has
In addition, it appears to us that the analysis defendant favors amounts to little more than an end run around Cronic. Once it is determined that counsel was deficient for not striking a biased juror, prejudice is presumed because the defendant was deprived of an impartial jury and that makes the trial fundamentally unfair. Thus, only the deficient performance prong of the Strickland test is considered, the defendant does not have to actually demonstrate prejudice, and a new trial is required. This court rejected the defendant‘s Cronic argument in Metcalfe, 202 Ill. 2d at 560, and we similarly reject defendant‘s indirect attempt to revisit that argument here.
We now turn to defendant‘s argument that his trial counsel was ineffective for failing to seek juror A.C.‘s removal from the jury. As stated above, counsel‘s actions during jury selection are generally considered a matter of trial strategy. Accordingly, counsel‘s strategic choices are virtually unchallengeable. People v. Palmer, 162 Ill. 2d 465, 476 (1994).
Defendant initially argues that voir dire is not “exempt” from a Strickland analysis. We point out, however, that this court has never held that an attorney‘s performance during voir dire is not subject to scrutiny under Strickland, nor does defendant cite any case from this court so holding. Rather, we have recognized, as have other reviewing courts, that decisions made during jury selection involve trial strategy to which courts should be highly deferential. Strickland itself emphasized the deference due counsel‘s strategic decisions:
“Judicial scrutiny of counsel‘s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel‘s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel‘s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‘s challenged conduct, and to evaluate the conduct from counsel‘s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ See Michel v. Louisiana, 350 U.S. 91, 101 (1955).” Strickland, 466 U.S. at 689.
Defendant portrays A.C. as unequivocally biased against him. In doing so, defendant focuses only on the last few answers A.C. gave in response to trial counsel‘s questions. This selective focus on those answers given by A.C. that suit defendant‘s argument skews the analysis of whether trial counsel was deficient. The entire voir dire of A.C. should be considered in evaluating whether and to what extent A.C. exhibited bias against defendant.
Even after saying that he believed sex offenders should be locked up for life, A.C. stated that, notwithstanding that belief, he would be able to listen to the evidence and render a decision apart from the sex offender issue. He said that he did not think a sex offender background would influence his decision on the case. Not satisfied with that answer, defense counsel pressed A.C. to state unequivocally that such a background would not influence his decision. Only then did A.C. state that he could not be fair with the case. Other prospective jurors also expressed negative feelings about sex offenders. Trial counsel exercised peremptory challenges to some, but not
Thus, counsel was sensitive to the fact that revealing defendant‘s sex offender status might give rise to doubt on the part of some venire members that they could be fair and impartial. Defendant‘s attorney was faced with a difficult case, given the strong evidence against defendant, and his chosen strategy reflected that difficulty. Highlighting defendant‘s sex offender status was a risky choice, given largely negative views of sex offenders by the general public. Based upon his decisions as to when to exercise peremptory challenges, it does not appear that counsel expected prospective jurors to be able to completely put those views aside.
Considering the entire voir dire of A.C. in context, it is possible that defendant‘s trial counsel decided that A.C. was not unequivocally biased. In addition, there were other factors that counsel may have taken into consideration, such as the fact that A.C. was not a native of this country and that he had had encounters with law enforcement officers in connection with his two speeding tickets. Attorneys consider many factors in making their decisions about which jurors to challenge and which to accept. As we have stated, this is part of trial strategy, which is generally not subject to challenge under Strickland. Reviewing courts should hesitate to second-guess counsel‘s strategic decisions, even where those decisions seem questionable.
Here, A.C., like the juror in Begay, stated that he could not be fair. However, unlike the juror in Begay, A.C. had earlier stated that he could be fair and that he believed he could put aside his prejudice against sex offenders in defendant‘s case because no sex offense was involved. While some might find defense counsel‘s failure to challenge A.C. questionable, this alone is insufficient to find that counsel‘s conduct was deficient under Strickland. In addition, at the time of A.C.‘s questioning, defense counsel had two remaining peremptory challenges and three more jurors remained to be seated, as well as an alternate. Under these circumstances, given A.C.‘s conflicting answers regarding his impartiality, we cannot say that counsel‘s decision to reserve his two remaining peremptory challenges was unreasonable. Thus, we disagree with defendant that A.C. was “plainly and deeply biased,” and we conclude that counsel‘s actions were a part of his trial strategy and were not deficient under Strickland.
Accordingly, we conclude that trial counsel‘s failure to challenge juror A.C. was not objectively unreasonable and that defendant has failed to demonstrate that counsel‘s performance was deficient under Strickland.
CONCLUSION
For the reasons stated, we decline to overrule our decision in Metcalfe. Further, we conclude that the failure of defendant‘s trial attorney to challenge juror A.C. during voir dire was not objectively unreasonable. Therefore, we affirm the judgment of the appellate court.
Appellate court judgment affirmed.
CHIEF JUSTICE KILBRIDE, specially concurring:
Although I agree with the majority that defendant has failed to make a sufficient showing of ineffective as-
The prejudice prong should have been addressed by the majority for two reasons. First, the pressing need in both our appellate court and the appellate bar for guidance on the proper standard of review of the Strickland prejudice prong was a probable factor in this court‘s decision to allow defendant‘s petition for leave to appeal. Indeed, defendant specifically asked us to reconsider our decision in Metcalfe because subsequently “other courts have held that a biased juror is inherently prejudicial.” 241 Ill. 2d at 329-30. If the need for guidance on these questions were not a significant factor in allowing defendant‘s petition, the majority likely would not have discussed the applicable standard of review without also addressing the merits of the prejudice prong.
If the parties’ prejudice prong arguments are not reached, the overall utility and precedential value of our decision will be severely limited because our standard of review discussion will be rendered mere dicta. If, however, this court reaches the merits of defendant‘s prejudice prong argument, then the majority‘s extensive
Second, in addition to guidance, a discussion of the prejudice prong rather than the performance prong would strengthen this court‘s decision. The greatest weakness in the majority‘s analysis is its failure to explain fully how accepting a potentially biased juror could be a “reasonable trial strategy,” as Justice Freeman notes in his dissent (241 Ill. 2d at 348 (Freeman, J., dissenting, joined by Burke, J.)). Based on my view that some of A.C.‘s answers were not clearly responsive and others created unresolved conflicts in his position, I disagree with the dissent‘s contention that the record must be read to show A.C.‘s bias (241 Ill. 2d at 348 (Freeman, J., dissenting, joined by Burke, J.)). I agree with the dissent, however, that here it is exceedingly difficult to justify retaining even a potentially biased juror. This difficulty is further multiplied when defense counsel chooses not to use either of his remaining peremptory challenges to remove the juror.
An examination of the merits of the prejudice prong would both eliminate this weakness in the analysis and logically proceed from our earlier discussion of the standard of review for that prong. Rather than focus on establishing the reasonable probability that he would not have been convicted without A.C. on the jury, defendant appears to rely on his argument that we should reconsider our decision in Metcalfe. After carefully analyzing this argument, the majority rejected it (241 Ill. 2d at 333) and made clear that prejudice will not be presumed even if “it is determined that counsel was deficient for not striking a biased juror” (241 Ill. 2d at 333). Defendant still must show “a reasonable probability that the result of the proceeding would have been different.” 241 Ill. 2d at 327. Without that showing, he cannot meet his burden
Thus, while I agree with the majority‘s result and its analysis of the standard of review under the prejudice prong, I cannot support its analysis of the performance prong. Accordingly, I respectfully concur in the majority‘s judgment but not its full analysis.
JUSTICE KARMEIER, specially concurring:
Because I agree with the majority‘s determination that defendant has failed to demonstrate deficient performance of counsel during voir dire, I find the majority‘s discussion of prejudice unnecessary and therefore I see no need to take a position for or against the views expressed in that discussion. Only if the majority had determined counsel‘s performance was deficient, resulting in the seating of a biased juror, would it be necessary to reconcile Metcalfe‘s application of the prejudice prong of Strickland with precedents of this court, and the United States Supreme Court, suggesting that the service of one biased juror on the jury would be plain, structural error warranting automatic reversal.
JUSTICE FREEMAN, dissenting:
A little over three months ago, this court strongly assured that, if facts demonstrate that a defendant has been tried by a biased jury, it ” ‘would not hesitate to reverse defendant‘s conviction, as a trial before a biased jury would constitute structural error.’ ” People v. Thompson, 238 Ill. 2d 598, 610 (2010) (quoting People v. Glasper, 234 Ill. 2d 173, 200-01 (2009)). The indisputable facts of this case demonstrate that the jury that decided defendant‘s case included a biased juror. The juror in question made it clear during voir dire that he believed sex offenders like defendant should be locked up for life. This
The
In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth a two-part test for analyzing claims of ineffective assistance of counsel. See also People v. Albanese, 104 Ill. 2d 504 (1984) (adopting Strickland test in Illinois). In order to show counsel was ineffective for failing to object to the presence of certain persons on the jury, defendant must prove “counsel‘s representation fell below an objective standard of reasonableness.” (Emphasis added.) Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). In addition, defendant must show counsel‘s deficient performance prejudiced the defense. “This requires showing that counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. Because a defendant must satisfy both components of the Strickland test, the failure to establish either is fatal to the claim. Id.
Performance Prong
The court resolves defendant‘s claim solely on the basis of his failure to establish deficient performance,
It goes without saying that “[a]mong the most essential responsibilities of defense counsel is to protect his client‘s constitutional right to a fair and impartial jury by using voir dire to identify and ferret out jurors who are biased against the defense.” Miller v. Francis, 269 F.3d 609, 615 (6th Cir. 2001); see United States v. Blount, 479 F.2d 650, 651 (6th Cir. 1973) (“The primary purpose of the voir dire of jurors is to make possible the empanelling of an impartial jury through questions that permit the intelligent exercise of challenges by counsel.“); see also Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) (acknowledging that voir dire “plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored“). Under Strickland, defense counsel, however, is granted deference when conducting voir dire. Hughes v. United States, 258 F.3d 453, 457 (6th Cir. 2001). “An attorney‘s actions during voir dire are considered to be matters of
Because defendant‘s claim for ineffective assistance of counsel is based on his trial counsel‘s failure to strike a biased juror, defendant must show that the juror was actually biased against him. Hughes, 258 F.3d at 458 (quoting Goeders v. Hundley, 59 F.3d 73, 75 (8th Cir. 1995), citing Smith v. Phillips, 455 U.S. 209, 215 (1982)). Generally, a juror‘s “express doubt as to her own impartiality on voir dire does not necessarily entail a finding of actual bias,” and the United States Supreme Court has routinely “upheld the impaneling of jurors who had doubted, or disclaimed outright, their own impartiality on voir dire.” Id. (analyzing cases). What makes this case different from those cases where the empaneling of jurors who have indicated bias have been upheld is that, in such cases, the challenged jurors gave some subsequent reassurance of impartiality or were sufficiently rehabilitated by counsel with follow-up questions. See Miller v. Francis, 269 F.3d 609 (6th Cir. 2001). However, a different result obtains when follow-up questioning does not result in either a reassurance of impartiality or rehabilitation.
Hughes v. United States, 258 F.3d 453 (6th Cir. 2001), illustrates these principles. There, the defendant was tried for theft of government property. During voir dire, a juror indicated that because of her family ties with law enforcement officers, she “did not think” she “could be
The federal courts have spoken at length about jurors’ phrases such as “I think I can be fair,” noting that such statements “are not necessarily construed as equivocation.” Miller v. Webb, 385 F.3d 666, 675 (6th Cir. 2004). In Miller v. Webb, for example, the court acknowledged “venire members commonly couch their responses to questions concerning bias in terms of ‘I think.’ Therefore, the use of such language cannot necessarily be construed as equivocation. [Citation.] For a juror to say, ‘I think I could be fair, but ...,’ without more, however, must be construed as a statement of equivocation. It is essential that a juror swear that [she] could set aside any opinion [she] might hold and decide the case on the evidence.” (Internal quotation marks omitted.) Miller, 385 F.3d at 675. Thus, when a juror makes a statement that she “thinks she can be fair,” but immediately qualifies it with a statement of partiality, courts presume actual bias because proper juror rehabilitation and juror assurances of impartiality are absent. Miller, 385 F.3d at 675. This is so because courts have recognized that the
Challenges for cause are subject to approval by the trial court, and the court must excuse a prospective juror if actual bias is discovered during voir dire. As the foregoing discussion makes clear, notwithstanding the general deference given to trial counsel‘s strategic decisions, courts will find deficient performance under Strickland if an impaneled juror‘s honest responses to questions on voir dire would have given rise to a valid challenge for cause.
The court today does not acknowledge any of the foregoing principles and does not review the voir dire in light of them. The voir dire at issue in this case began with the judge asking general questions about the juror‘s ability to be fair. At this point, there had been no mention of registered sex offenders, but that changed once defense counsel brought up the subject of fairness to registered sex offenders to the juror:
“[Defense counsel]: I will ask a question that seems to be getting concern here. If you are aware of somebody who is a registered sex offender, how do you feel about that?
A. Feel should be locked up for life.
Q. Locked up for life. What if the law permitted that he not be locked up for life or she not be locked up for life? Do you still think that should be the case? Do you think you would be able to listen to a case and render a judgment on a case that‘s separate and distinct from the sex offender case?
A. Yes.
Q. Even though that person may have that background?
A. Yes.
Q. Is that background going to influence you at all do you believe in your decision in this case?
A. I don‘t think so.
Q. You don‘t think so?
A. No.
Q. Can you be more specific? Can you say that it‘s not going to?
A. No.
Q. You cannot?
A. No. I said it‘s not going to change. I cannot be fair with the case.
Q. You can be fair or you cannot?
A. No, I cannot be fair.
Q. You can be fair?
A. No, I cannot be fair. I could not be fair also.”
It is clear that once the juror stated that sex offenders should “be locked up for life,” defense counsel attempted to rehabilitate the juror in the manner set forth in the cases I discussed earlier. The problem, though, is that the juror was not amenable to rehabilitation. Indeed, the juror‘s response of “yes” to defense‘s counsel‘s ambiguous and compound questions cannot be read as an affirmative statement of impartiality because it is difficult to tell to which part of the compound questions he was responding. The most that could be said of that exchange is that it is ambiguous. Then, when the juror stated that he “didn‘t think” a sex offender background
Defendant‘s reliance on this latter portion of the voir dire does not “skew[]” the analysis of whether counsel was ineffective, as the court today suggests. 241 Ill. 2d at 334. Rather, it affirmatively demonstrates that, in response to follow-up questioning, the juror could not state for the record that he could be fair, but rather insisted that he could not be fair. Thus, I have no trouble concluding that this juror was actually biased against defendant. I therefore strongly disagree with the court‘s conclusion that the juror was not even biased to begin with, an incredible holding in light of the transcript. Id. at 337.
The court also states that because defendant‘s status as a sex offender was important to the defense‘s theory of the case, counsel‘s “strategic” decision to seat him is “virtually unchallengeable.” Id. at 329. What this
Prejudice Prong
This court, in both Glasper and Thompson, recognized that a trial before a biased juror would constitute structural error. “[S]tructural defects in the constitution of the trial mechanism *** defy analysis by ‘harmless-error’ standards.” Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991). The presence of a biased juror is no less a fundamental structural defect than the presence of a biased judge. Id. As the Eighth Circuit explained in Johnson v. Armontrout:
“Trying a defendant before a biased jury is akin to providing him no trial at all. It constitutes a fundamental defect in the trial mechanism itself. As the district court noted:
‘A defendant charged with a crime is entitled to an unbiased jury and is entitled to a presumption of innocence until such time as he is proven guilty beyond a reasonable doubt. Where you have jurors who before they have heard any evidence are convinced that the defendant is guilty [they are] clearly biased against the defendant. [This] denies the defendant the presumption of innocence and denies him a fair trial. Are only the innocent entitled to an unbiased jury or does the right of due process also entitle the guilty to an impartial trial? This court is of the opinion that both the innocent and the guilty are entitled to start a trial without any member of the jury convinced of the defendant‘s guilt.’ Johnson v. Armontrout, No. 90-3426-CV-S-2, slip op. at 7 (W.D. Mo. June 18, 1991). We agree that, in the absence of a strategic motive, a defendant whose attorney fails to attempt to remove biased persons from a jury panel is prejudiced.” Johnson v. Armontrout, 961 F.2d 748, 755 (8th Cir. 1992).
Essentially, Armontrout and the other federal cases like it, including those cited by defendant, view the resulting trial in instances where a biased juror has been impaneled as unreliable. It is unreliable because attempting to weigh this type of error against notions such as the weight of the evidence or the strength of the State‘s case cannot be done. Why? Because a biased juror is simply not open to weighing credibility or assessing fairly the competing theories of the case. Jury instructions that explain legal concepts such as credibility determinations and burdens of proof are of no moment to the biased juror. Stated simply, the biased juror does not care at all about the relative strengths and weaknesses of the parties’ evidence and pays no heed to jury instructions. As a result, all the factors that normally work to present a court of review with a “reliable” verdict on appeal are absent when a biased juror sits on a jury. The prejudice prong of Strickland recognizes as much—prejudice is
Our decision in People v. Metcalfe, 202 Ill. 2d 544, 562 (2002), did not discuss the reliability aspect of the Strickland analysis. Defendant‘s argument, incorrectly characterized by the court as one that seeks the overruling of Metcalfe (241 Ill. 2d at 329), merely asks this court to further clarify the prejudice prong in cases regarding the impaneling of a biased juror, as the federal courts have done. We need not overrule Metcalfe to do that, and it is unfair for the court today to suggest otherwise.1
In any event, it appears that a majority of this court adheres to the view that even if a biased juror sits on the jury, a defendant must nevertheless show a reasonable probability that the result of the proceeding would have been different. See 241 Ill. 2d at 327; see also id. at 339 (Kilbride, C.J., specially concurring). That viewpoint is incompatible with the United States Supreme Court‘s pronouncement that the participation of such a juror in a trial renders it unreliable and necessitates that the conviction be reversed. United States v. Martinez-Salazar, 528 U.S. 304, 316 (2000). It is this unreliability that satisfies the prejudice prong of Strickland. As the Supreme
“A number of practical considerations are important for the application of the standards we have outlined. Most important, in adjudicating a claim of actual ineffectiveness of counsel, a court should keep in mind that the principles we have stated do not establish mechanical rules. Although those principles should guide the process of decision, the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case, the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.” Strickland, 466 U.S. at 696.
The right to a trial before an impartial jury is the core principle of the American criminal justice system. The court‘s decision today leaves the unsettling impression that this most sacrosanct of rights is not being fully honored.
JUSTICE BURKE joins in this dissent.