THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ITALO SANDERS, Appellant.
No. 109014
Supreme Court of Illinois
October 7, 2010
238 Ill. 2d 391
CONCLUSION
Based on the foregoing, we find that the trial court’s determination that Kinko’s was liable on the basis of negligent supervision and training is against the manifest weight of the evidence. With respect to the statutory liability claim, we find that plaintiff has forfeited review of the appellate court’s judgment. Thus, we affirm in part and reverse in part the judgment of the appellate court, reverse the judgment of the circuit court against Kinko’s in its entirety and remand to the circuit court with directions to enter judgment in favor of Kinko’s on both counts.
Appellate court judgment affirmed in part and reversed in part; circuit court judgment reversed; cause remanded with directions.
Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Kathryn A. Schierl and Annette Collins, Assistant State’s Attorneys, of counsel), for the People.
JUSTICE GARMAN delivered the judgment of the court, with opinion.
Chief Justice Fitzgerald and Justices Thomas, Kilbride, and Karmeier concurred in the judgment and opinion.
Justice Freeman specially concurred, with opinion, joined by Justice Burke.
OPINION
In 1994, defendant, Italo Sanders, was convicted in the circuit court of Cook County of first degree murder and sentenced to 40 years in prison. The appellate court affirmed his conviction. People v. Sanders, No. 1—94—1710 (1996) (unpublished order under Supreme Court Rule 23). In November 2001, defendant filed a postconviction petition, which the circuit court dismissed. After the appellate court remanded for second-stage proceed-
BACKGROUND
Defendant was charged with the murder of John Pinkerton, which occurred on January 24, 1992. Pinkerton was shot in a stairwell of the Robert Taylor Homes in Chicago, where he was walking with Alexander Robinson and seven-year-old Manuel Woods. Two months later, Pinkerton died from complications of his injuries. Prior to trial, defendant filed a motion in limine to preclude the State from introducing evidence related to street gangs. This evidence consisted of the testimony of Michael Stewart, who was Pinkerton’s brother. At the hearing on defendant’s motion, defense counsel told the court that two days after the shooting, Stewart saw defendant at the Robert Taylor Homes and asked defendant who had shot Pinkerton. Defendant allegedly replied that he could not tell Stewart, but that it was “BD business” and that Pinkerton had not been the intended target. Defendant asked Stewart if Pinkerton was dead and Stewart said no. Defendant smiled and walked away. The trial court denied defendant’s motion, finding that the proposed evidence explained an otherwise inexplicable murder and that the probative value of the evidence outweighed any potential prejudice to defendant.
During jury selection, defense counsel submitted several questions to the trial court concerning possible gang contact or bias. The court refused to ask the questions, stating that an individual juror’s opinion about gangs was not relevant and noting that the submitted questions were highly subjective and might serve to inflame the members of the venire.
At defendant’s trial, then nine-year-old Manuel Woods testified that on January 24, 1992, he lived at the
On three occasions, the jury was shown a photograph of the stairwell at Robert Taylor Homes where the shooting took place. The photo showed gang graffiti on the walls of the stairwell which read, “GDs Die, Bds live.”
Michael Stewart testified that a few days after the shooting, he saw defendant walking on the fifth floor of the Robert Taylor Homes. Stewart had seen defendant in the building several times, but did not know his name. Stewart told defendant that he had seen him in the stairwell the night Pinkerton was shot and he asked defendant who had shot Pinkerton. Defendant asked if Pinkerton was dead and, upon being told Pinkerton was alive, defendant said “it was BD business” and all he could tell Stewart was that Pinkerton was not the intended target. Stewart testified that the term “BD” meant Black Disciples, which was a street gang.
Sometime later, the police recovered a gun from defendant. A firearms expert testified that the bullets recovered from Pinkerton had the same class characteris-
Defendant called three witnesses to testify. His mother, sister, and girlfriend all testified that the three of them and defendant were in defendant’s mother’s apartment at the Robert Taylor Homes at the time of the shooting. They heard the shots and ran out to see what happened. Afterward, they went back into the mother’s apartment and stayed there until defendant walked his girlfriend home about 10 p.m.
During closing arguments, the prosecutor referred to defendant’s alleged gang affiliation and the alleged gang motive for the shooting by repeatedly referring to Stewart’s testimony that defendant told him Pinkerton’s shooting was “BD business.” The jury convicted defendant and the trial court sentenced him to 40 years in prison.
On direct appeal, the appellate court affirmed defendant’s conviction and sentence. Before the appellate court, defendant argued, inter alia, that the trial court had erred in refusing to ask potential jurors questions during voir dire concerning potential bias against gangs. The appellate court rejected this argument, concluding that the trial court’s questions were reasonably calculated to expose latent bias and prejudice. Sanders, No. 1—94—1710 (unpublished order under Supreme Court Rule 23).
On November 16, 2001, defendant filed a petition for postconviction relief, in which he alleged that the trial court erred in failing to voir dire potential jurors on the subject of gang bias. Defendant alleged that this failure, together with the State’s reliance on gang-related evidence at trial, deprived him of his right to an impartial jury. In support, he cited this court’s decision in People v. Strain, 194 Ill. 2d 467 (2000), in which the court held that, where gang evidence is to be integral to the defendant’s trial, the trial court must ask potential jurors
On appeal, the appellate court held that Strain announced a new rule and thus could not be applied retroactively to defendant’s case. The court rejected defendant’s reliance on Gardner, finding that, although Strain was doctrinally consistent with prior law, it represented a clear break in placing a “stringent limitation upon the broad range of discretion traditionally afforded to the trial court.” 393 Ill. App. 3d at 166. The appellate court concluded that, because Strain was not applicable to defendant’s case, his postconviction petition was barred by res judicata. In addition, the appellate court noted that, even if it agreed with the Gardner court’s analysis, it would find that defendant’s petition was barred as untimely. 393 Ill. App. 3d at 167.
ANALYSIS
Defendant raises three arguments in this appeal: (1) this court’s decision in Strain did not announce a new
Defendant argues that this court’s decision in Strain applies retroactively to his case.
A postconviction proceeding is a collateral attack on a prior conviction in which a defendant may challenge his conviction or sentence on the basis that his substantial constitutional rights were violated. People v. Beaman, 229 Ill. 2d 56, 71 (2008). Postconviction claims are limited to those claims that were not and could not have been previously adjudicated on direct appeal. People v. Johnson, 206 Ill. 2d 348, 356 (2002). Claims that were raised and decided on direct appeal are barred by res judicata and those claims that could have been raised, but were not, are considered waived. People v. Towns, 182 Ill. 2d 491, 502-03 (1998). Here, the trial court advanced defendant’s petition to third-stage proceedings. However, the court heard no new evidence; rather, the court reviewed the transcripts from the trial and heard arguments of counsel. In addition, the judge who presided over the postconviction hearing was not the same judge who presided at defendant’s trial. Defendant argues, and the State does not disagree, that the judge had no special expertise or familiarity with defendant’s trial. In such circumstances, this court has applied a de novo standard of review. See People v. Caballero, 206 Ill. 2d 65, 88 (2002). In addition, this court applies a de novo standard of review as to questions of law. In re D.S., 198 Ill. 2d 309, 321 (2001).
This court noted that article I, section 13, of the Illinois Constitution of 1970 (
This court noted it had previously recognized that street gangs are regarded with disfavor by other segments of society and that, especially in metropolitan areas, there may be strong prejudice against gangs. For this reason, this court has held that evidence of gang membership or gang-related activity is admissible only where there is sufficient proof that such membership or activity is related to the crime charged. Strain stated that these same concerns dictated its holding that “when testimony regarding gang membership and gang-related activity is to be an integral part of the defendant’s trial, the defendant must be afforded an opportunity to question the prospective jurors, either directly or through questions submitted to the trial court, concerning gang bias.” Strain, 194 Ill. 2d at 477.
The question before us is whether Strain announced a new constitutional rule of criminal procedure. In Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), the United States Supreme Court set forth standards for determining when a case announces a new rule. The Court stated that a case announces a new rule when it breaks new ground or imposes a new obligation on the states or federal government. The result must not be “dictated by precedent existing at the time the defendant’s conviction became final.” (Emphasis in original.) Teague, 489 U.S. at 301, 103 L. Ed. 2d at 349,
The purpose of the Teague framework is to promote the government’s interest in the finality of criminal convictions (Teague, 489 U.S. at 309, 103 L. Ed. 2d at 355, 109 S. Ct. at 1074) and to validate “reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions” (Butler v. McKellar, 494 U.S. 407, 414, 108 L. Ed. 2d 347, 356, 110 S. Ct. 1212, 1217 (1990)). “‘Application of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system. Without finality, the criminal law is deprived of much of its deterrent effect.’” People v. Flowers, 138 Ill. 2d 218, 239 (1990), quoting Teague, 489 U.S. at 309, 103 L. Ed. 2d at 355, 109 S. Ct. at 1074.
It is “often difficult” to determine whether a case announces a new rule. Teague, 489 U.S. at 301, 103 L. Ed. 2d at 349, 109 S. Ct. at 1070. This is particularly true where the new decision is reached by an extension of the reasoning of prior cases. Butler, 494 U.S. at 412-13, 108 L. Ed. 2d at 355, 110 S. Ct. at 1216. “[T]he fact that a court says that its decision is within the ‘logical compass’ of an earlier decision, or indeed that it is ‘controlled’ by a
Defendant argues that this court’s holding in Strain derives from the constitutional principle that an accused has the right to an impartial jury. He notes this court has previously stated in People v. Cloutier, 156 Ill. 2d 483, 495-96 (1993), that the purpose of voir dire is to ascertain sufficient information about the beliefs and attitudes of prospective jurors to allow removal of those venire members whose biases and prejudices would prevent them from applying the law as instructed by the trial court. Defendant argues that Strain applied this principle in light of the judicially recognized bias against gang affiliation. Defendant also points to prior cases in which he says this court and the appellate court recognized the potential for bias against gangs among prospective jurors. Thus, defendant argues that Strain was motivated by concerns regarding the prejudicial effect of gang evidence and it relied on prior case law in reaching its holding. For these reasons, Strain did not announce a new rule.
Defendant particularly emphasizes Strain’s statement, after citing cases that had recognized the prejudice
Defendant notes that the appellate court in People v. Gardner, 331 Ill. App. 3d 358 (2002), held that Strain did not announce a new rule. Gardner found that Strain had premised its holding on prior case law concerning the purpose of voir dire, the procedures outlined in Rule 431 (
The State argues that, although Strain may have been doctrinally consistent with the rules regulating voir dire and with case law regarding public disapproval of gang membership, Strain was the first time this court had mandated gang-bias inquiry during voir dire based upon, not just an abuse of discretion, but a denial of the constitutional right to an impartial jury. The State argues this conclusion did not necessarily follow from this court’s rules or existing case law.
This court has long recognized that the scope and extent of voir dire examination rests within the discretion of the trial court. People v. Lobb, 17 Ill. 2d 287, 300 (1959); People v. Buss, 187 Ill. 2d 144, 176 (1999); People v. Williams, 164 Ill. 2d 1, 16 (1994). Although Rule 431 requires the trial court to allow counsel to “supplement
Defendant cites several cases that he believes support his contention that Strain did not announce a new rule. His reasoning is that these cases recognized the disfavor in which street gangs are held by the general public, directly leading, in his view, to this court’s holding in Strain.
In People v. Jimenez, 284 Ill. App. 3d 908 (1996), the defendant was charged with murder. The shooting was gang-related and the State focused on gang affiliation as the motive for the murder. The defendant asked the trial court to question the individual members of the venire on whether the fact that the defendant was a member of a street gang would prevent them from giving him a fair trial. The trial court refused the question. On appeal, the defendant argued that the trial court committed reversible error by refusing to question the venire on the subject of gang affiliation. The appellate court reversed and remanded for a new trial. The court noted that the parties had cited no case requiring the trial court to question prospective jurors about biases against gang members. The court observed that in most Illinois cases, the trial court had permitted such questions to be asked. The
In People v. Pogue, 312 Ill. App. 3d 719 (1999), the defendant was charged with shooting a member of a rival gang. The appellate court reversed and remanded for a new trial on the basis that the trial court had failed to question individual members of the venire concerning the defendant’s right not to testify as required by People v. Zehr, 103 Ill. 2d 472 (1984). Because the issue was likely to recur on retrial, the appellate court also addressed the defendant’s contention that the trial court erred by refusing to ask prospective jurors whether the defendant’s gang affiliation would affect their ability to be fair and impartial. Relying on Jimenez, the appellate court held that the trial court should have questioned the venire concerning gang bias. Specifically, the court noted that, while Jimenez does not impose an affirmative duty on the trial court to make gang bias inquiries sua sponte, “where an appropriate question is tendered prior to voir dire, and the circumstances of the case are such that fundamental fairness requires that the venire be probed on this issue, the refusal to do so constitutes reversible error.” Pogue, 312 Ill. App. 3d at 727.
Defendant also cites People v. Cruz, 164 Ill. App. 3d 802 (1987). There, the trial court allowed the State to
Defendant also cites People v. Smith, 141 Ill. 2d 40, 58 (1990), a capital case involving extensive evidence of gang-related activity. In discussing this evidence and its relevance, this court noted that it has been recognized that, particularly in metropolitan areas, there may be strong prejudice against street gangs.
We note that neither Cruz nor Smith involved any issue concerning voir dire. Regarding Jimenez, the appellate court in Pogue recognized that Jimenez imposed no sua sponte duty on the trial court to question the venire regarding gang bias. Rather, Pogue noted that the thrust of Jimenez was that where gang-bias questions are submitted and “fundamental fairness” so dictates, a trial court is required to question potential jurors on gang bias. Pogue, 312 Ill. App. 3d at 727. This amounts to no more than saying that a trial court abuses its discretion in refusing to question the venire concerning gang bias in appropriate cases. These cases cannot be said to lead inevitably to the holding of Strain.
This court has previously held that a new requirement mandating certain questions during voir dire did not apply retroactively. In Zehr, this court held that it was error for the trial court to refuse to ask prospective jurors, upon the defendant’s request, whether they understand and accept the following concepts: (1) the
Despite the importance of the questions mandated by Zehr, this court held in People v. Britz, 112 Ill. 2d 314, 318-19 (1986), a pre-Teague case, that the holding of Zehr was to be given only prospective effect because it represented a change in Illinois law. In support of this holding, the court cited Rule 234’s prohibition of voir dire questions that directly or indirectly concern matters of law or instructions and noted that Zehr represented a departure from that rule. Defendant here attempts to distinguish Britz by noting that while Zehr was contrary to supreme court rules, Strain was in accord with those rules. This claim is inaccurate. As previously noted, the conduct of voir dire has historically been left to the trial court. Strain represented a break from this precedent by removing the trial court’s discretion where gang evidence will be integral to a defendant’s trial. Rule 431 was
In his argument that Strain did not announce a new rule, defendant relies heavily on Strain’s recognition of the disfavor in which gangs are held by the general public and its citation of prior cases that had commented on this fact. However, it does not necessarily follow from this that Strain was a mere extension of this prior precedent. And even if Strain is viewed as an extension of prior precedent, this fact alone would not be enough to find that Strain did not announce a new rule. As we noted earlier, “the fact that a court says that its decision is within the ‘logical compass’ of an earlier decision, or indeed that it is ‘controlled’ by a prior decision, is not conclusive for purposes of deciding whether the current decision is a ‘new rule’ under Teague.” Butler, 494 U.S. at 415, 108 L. Ed. 2d at 356, 110 S. Ct. at 1217. Rather, the key to the determination of whether a new rule was announced is whether courts considering the defendant’s claim at the time his or her conviction became final “would have felt compelled by existing precedent to conclude that the rule *** was required by the Constitution.” Saffle, 494 U.S. at 484, 488, 108 L. Ed. 2d 415, 424, 110 S. Ct. 1257, 1260 (1990); People v. Morris, 236 Ill. 2d at 360.
Defendant has cited no case predating Strain that came to the conclusion that mandated questioning of the venire was required by the Constitution. The case that comes closest to doing so, Jimenez, relied on a California case for its holding. Jimenez, 284 Ill. App. 3d at 912-13. The fact is that, prior to
Defendant, however, analogizes Strain to this court’s decision in People v. Moore, 177 Ill. 2d 421 (1997). There, the issue was whether the decision in People v. Kilpatrick, 167 Ill. 2d 439 (1995), applied retroactively to the defendant’s case. Kilpatrick held that section 5-8-1(c) of the Unified Code of Corrections (Code) prohibits a trial court from imposing a longer sentence on reconsideration, even if the aggregate period of imprisonment remains the same. Kilpatrick, 167 Ill. 2d at 446-47. The defendant in Moore had been given consecutive sentences. The appellate court vacated the sentences as improper and remanded for resentencing. The trial court resentenced the defendant to concurrent terms of imprisonment that equaled the combined length of his prior consecutive sentences. The defendant filed a postconviction petition challenging the sentences. This court held that Kilpatrick did not announce a new rule and was therefore applicable to cases on collateral review. In do-
Moore is distinguishable from Strain. The holding of Kilpatrick was a mere extension of existing law. It was already well settled in Illinois that due process prohibited a judge from increasing a sentence upon resentencing unless justified by a defendant’s conduct occurring after the original sentencing. In addition, the Illinois legisla-
Defendant, however, maintains that there is a difference between a new rule and a “change” in the law and that Strain represents the latter, thus allowing him to avoid the bar of res judicata. In making this argument, defendant relies primarily on Moore and Kilpatrick. Although he agrees that Kilpatrick applied existing precedent and statutory law to the facts of that case, he argues that it nonetheless changed the law, allowing for retroactive application. Defendant points to the fact that the trial court and the appellate court in Kilpatrick had rejected Kilpatrick’s claim. Defendant also notes that, prior to this court’s Kilpatrick decision, the appellate court in People v. Todd, 263 Ill. App. 3d 435 (1994), reached a contrary conclusion to that reached by this court in Kilpatrick. Defendant further asserts that
We disagree with defendant’s argument. This court in Moore stated that the appellate court’s decision in Todd was not a reasonable application of existing precedent and that it conflicted with Pearce and with the plain language of
We therefore conclude that this court’s decision in Strain announced a new constitutional rule of criminal procedure. Under Teague, a new rule may not be applied retroactively except in two limited circumstances: (1) if the new rule places certain kinds of primary, private individual conduct beyond the power of the criminal-law-making authority to proscribe; or (2) if the rule is a watershed rule of criminal procedure, requiring the observance of those procedures that are implicit in the concept of ordered liberty. Teague, 489 U.S. at 311, 313, 103 L. Ed. 2d at 356, 358, 109 S. Ct. at 1076, 1077. The first exception is obviously not applicable. As to the second exception, we note the Supreme Court stated in Teague that it should be limited to those new procedures without which the likelihood of an accurate conviction is seriously diminished. Teague, 489 U.S. at 313, 103 L. Ed. 2d at 358, 109 S. Ct. at 1077. At oral argument in this case, counsel for defendant candidly acknowledged that neither exception applies to Strain and we agree. Thus, the holding of Strain is not retroactive and does not apply to cases on collateral review.
CONCLUSION
For the reasons stated, we hold that this court’s decision in Strain announced a new constitutional rule of criminal procedure and that neither of the Teague exceptions to nonretroactivity apply. Therefore, the holding of Strain does not apply retroactively to cases on collateral review. Defendant’s postconviction petition is thus barred by res judicata. In addition, we overrule the appellate court’s decision in People v. Gardner, 331 Ill. App. 3d 358 (2002), to the extent that case is inconsistent with our holding today.
The judgment of the appellate court is affirmed.
Affirmed.
JUSTICE FREEMAN, specially concurring:
In its opinion, the majority concludes that our prior decision in People v. Strain, 194 Ill. 2d 467 (2000), announced a new constitutional rule of criminal procedure and, therefore, may not be applied retroactively. Although I have no quarrel with the majority’s holding on this issue, I believe my colleagues have erred by not first ad-
“No proceedings under this Article shall be commenced more than 6 months after the denial of a petition for leave to appeal or the date for filing such a petition if none is filed or more than 45 days after the defendant files his or her brief in the appeal of the sentence before the Illinois Supreme Court (or more than 45 days after the deadline for the filing of the defendant’s brief with the Illinois Supreme Court if no brief is filed) or 3 years from the date of conviction, whichever is sooner, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence.”
Thus, the General Assembly has not only established a clear framework within the Act for assessing the timeliness of a postconviction petition, but also has specified
The appellate court, despite acknowledging that the clear language of
As this is the first postconviction petition filed by Sanders, both the Act and our case law make it clear that challenges to timeliness must be evaluated under
In light of the above, I cannot understand why my colleagues do not address this threshold issue and clarify that the appellate court used the wrong standard. The majority’s silence on this issue is even more disturbing in light of the concession made by the State in its brief to this court that the appellate court’s holding with respect to timeliness does “not find support in the Act,” and that the applicable timeliness standard in this appeal is one of culpable negligence. Further, during oral argument, several members of this court repeatedly questioned the parties concerning the timeliness issue and the manner in which it was handled by the appellate panel. Counsel for both the State and petitioner agreed that the culpable negligence standard applies in this case, and that the appellate court erred in employing the cause-and-prejudice test.
It is my view that when the correct standard is applied to Sanders’ postconviction petition, the delay in filing was not due to his culpable negligence. This court has defined culpable negligence as “‘something greater than
Here, Sanders’ petition for leave to appeal to this court with respect to his direct appeal was denied on April 2, 1997 (People v. Sanders, 172 Ill. 2d 563 (1997)), and the six-month statutory postconviction period following that date expired on October 2, 1997. Since he was sentenced on May 4, 1994, the three-year period following that date expired on May 4, 1997. Therefore, under the applicable version of
Accordingly, after having survived this threshold procedural inquiry, it only then becomes appropriate to examine the substantive issue of whether Strain applied retroactively to Sanders’ case. As stated, I am in agreement with my colleagues’ holding that Strain represents a new constitutional rule of criminal procedure that is not to be retroactively applied.
JUSTICE BURKE joins in this special concurrence.