People v. Boston

Filed 7/9/08 NO. 4-07-0214

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
MYRON D. BOSTON, ) No. 06CF67
Defendant-Appellant. )
) Honorable
) Kevin P. Fitzgerald,
) Judge Presiding.
_________________________________________________________________

JUSTICE McCULLOUGH delivered the opinion of the court:

A jury found defendant, Myron D. Boston, guilty of two

counts of criminal sexual assault (720 ILCS 5/12-13(a)(1) (West

2004)) and the trial court sentenced him to two consecutive five-

year prison terms. Defendant appeals, arguing (1) he was denied

his right to a fair trial because the State improperly indoctri-

nated prospective jurors with its view of the case and predis-

posed them to accept its theories; (2) he was denied his right to

a fair trial when the court allowed the jury to have transcripts

of the victim's testimony, which overemphasized her version of

the facts; and (3) the State failed to prove him guilty of the

charged offenses beyond a reasonable doubt. We reverse and

remand for a new trial.

The parties are familiar with the evidence presented

and we discuss it only to the extent necessary to put their

arguments in context. On January 18, 2006, the grand jury
indicted defendant on two counts of criminal sexual assault (720

ILCS 5/12-13(a)(1) (West 2004)), alleging he knowingly, by the

use of force or threat of force, committed acts of sexual pene-

tration with the victim, K.B., involving defendant's hand and

penis and K.B.'s vagina. In July 2006, defendant's jury trial

began but it resulted in a mistrial based on a deadlocked jury.

On October 10, 2006, defendant's second jury trial

began. Evidence presented showed defendant and K.B. had a

tumultuous, on-again, off-again dating relationship. K.B.

testified defendant was physically abusive and jealous and often

accused her of being with other men. Over the course of their

relationship, K.B. obtained two orders of protection against

defendant and, in November 2004, she contacted police, alleging

he strangled her with a belt rope and forced her to have sex.

K.B. stated she had one of the protection orders dismissed after

being pressured by defendant and was encouraged by defendant to

recant her allegations in connection with the November 2004

incident. The second order of protection remained in effect as

of the date of the alleged offenses. K.B. acknowledged that,

despite those incidents, she always resumed contact with defen-

dant and the two often engaged in consensual sexual intercourse.

K.B. testified the incidents in question occurred

following a trip she took to Chicago in November 2005. After

returning from the trip, K.B. invited defendant to her home. She

- 2 -
testified he questioned her about her trip and accused her of

being with another man. K.B. asserted defendant became angry,

called her names, and committed the alleged offenses.

The evidence showed defendant denied any sexual contact

with K.B. on the date of the alleged offenses. Later, however,

he acknowledged it had occurred but asserted it was consensual.

Defendant's theory of the case was that any sexual activity

between him and K.B. was consensual and she made her allegations

against him because she was angry about his decision to end their

relationship.

On October 12, 2006, a jury found defendant guilty of

both criminal-sexual-assault counts. On October 18, 2006,

defendant filed a posttrial motion for a new trial. Relevant to

this appeal, he alleged (1) the State failed to prove him guilty

of the charged offenses beyond a reasonable doubt and (2) the

trial court erred by providing the jury with a transcript of

K.B.'s trial testimony during deliberations. On December 15,

2006, the court denied defendant's posttrial motion and sentenced

him to two consecutive five-year prison terms. On December 21,

2006, defendant filed a motion to reconsider his sentence. On

February 16, 2007, the court denied the motion.

This appeal followed.

On appeal, defendant first argues he was denied his

right to a fair trial as a result of the State's actions during

- 3 -
voir dire. Specifically, he contends the State asked prospective

jurors questions that improperly indoctrinated them with the

State's view of the facts and predisposed them to accept its

theory of the case.

The State and defendant agree that the defendant failed

to properly preserve this issue for appellate review by failing

to object to the State's voir dire questions or raise the issue

in a posttrial motion. See People v. Coleman, 227 Ill. 2d 426,

433, 882 N.E.2d 1025, 1028-29 (2008) ("[T]o preserve an issue for

appellate review, a defendant must both object at trial and

present the same issue in a written posttrial motion"). "How-

ever, the forfeiture rule is an admonition to the parties and not

a jurisdictional limitation on the reviewing court." People v.

Chapman, 379 Ill. App. 3d 317, 326, 883 N.E.2d 510, 517 (2007).

Other reviewing courts have declined to apply forfeiture under

circumstances similar to the ones in the case at bar. See People

v. James, 304 Ill. App. 3d 52, 57-58, 710 N.E.2d 484, 489 (1999);

People v. Bell, 152 Ill. App. 3d 1007, 1017, 505 N.E.2d 365, 372

(1987). We likewise decline to apply forfeiture and address the

merits of the issue.

"A defendant's right to a jury trial mandates a fair

trial by a panel of impartial jurors." People v. Gay, 377 Ill.

App. 3d 828, 834, 882 N.E.2d 1033, 1038 (2007). "The purpose of

voir dire is to assure the selection of an impartial panel of

- 4 -
jurors free from either bias or prejudice." People v. Williams,

164 Ill. 2d 1, 16, 645 N.E.2d 844, 850 (1994). "[V]oir dire

questions should confirm a prospective juror's ability to set

aside feelings of bias and decide the case on the evidence

presented." Gay, 377 Ill. App. 3d at 835, 882 N.E.2d at 1038.

They must "not directly or indirectly concern matters of law or

instructions." Official Reports Advance Sheet No. 8 (April 11,

2007), R. 431, eff. May 1, 2007. Also, voir dire "is not to be

used as a means of indoctrinating a jury, or impaneling a jury

with a particular predisposition." People v. Bowel, 111 Ill. 2d

58, 64, 488 N.E.2d 995, 998 (1986).

Generally, questions about specific defenses are

excluded from voir dire, i.e., questions about beliefs concerning

mistaken identity, self-defense, or the defense of compulsion.

People v. Mapp, 283 Ill. App. 3d 979, 986-87, 670 N.E.2d 852,

857-58 (1996). An exception exists for matters of intense

controversy when "simply asking jurors whether they could faith-

fully apply the law as instructed [is] not enough to reveal juror

bias and prejudice toward that defense." Mapp, 283 Ill. App. 3d

at 987, 670 N.E.2d at 858. Examples of matters found to be

controversial include the insanity defense, the intoxication

defense, abortion, and the subject of interracial relationships.

Mapp, 283 Ill. App. 3d at 987, 670 N.E.2d at 858.

The trial court has the primary responsibility for

- 5 -
initiating and conducting the voir dire examination. Williams,

164 Ill. 2d at 16, 645 N.E.2d at 850. The manner and scope of

voir dire rests within the court's discretion. Williams, 164

Ill. 2d at 16, 645 N.E.2d at 850. "An abuse of *** discretion

will be found only if, after a review of the record, it is

determined that the conduct of the court thwarted the selection

of an impartial jury." Williams, 164 Ill. 2d at 16, 645 N.E.2d

at 850.

Here, the State questioned the first panel of potential

jurors as follows:

"MS. FOSTER [Assistant States Attorney]:

*** First off, this is a case that involves a

domestic relationship. Is there anyone in

the group that believes incidents that arise

between people who have a dating relation-

ship, so therefore, a domestic[-]type rela-

tionship, should not be handled by the State,

that that[ i]s something personal and the

State should[ no]t become involved in those

types of incidents? *** Now, can we all agre-

e, and if you do[ no]t, just raise your hand,

that regardless of the type or length of the

relationship, that there must be consent

before every sexual act between two people?

- 6 -
 *** And is there anyone that believes if a

person or a woman gets an order of protection

against someone and then invites that person

over that she has the [order of protection]

against, does anyone believe that the invita-

tion itself equals consent to a later sexual

act? *** And along those same lines, the

woman with the order of protection, if she

invites that person over, is there anyone

that believes the woman is responsible for

anything violent that may happen after the

person comes over? *** And is there anyone

that believes a person consents to a sexual

act if they do[ no]t scream or fight or kick

or yell or scratch or hit? Anyone require a

victim to do any of those things while she[

i]s being assaulted? ***."

The record reflects the State asked substantially similar ques-

tions of all potential jurors.

We find the State's questions were improper and served

to pre-educate and indoctrinate jurors as to the State's theory

of the case. Its questions highlighted factual details about the

case and asked prospective jurors to prejudge those facts. The

defense of consent is not so intensely controversial that the

- 7 -
general rule against questions about specific defenses should be

disregarded. Further, we note, the State's questions improperly

concerned matters of law or instruction. The pattern jury

instruction (Illinois Pattern Jury Instructions, Criminal, No.

11.63A, at 570 (4th ed. 2000) (hereinafter IPI Criminal 4th No.

11.63A)) was given to the jury and it provides as follows:

"The word 'consent' means a freely given

agreement to the act of [(sexual penetration)

(sexual conduct)] in question. Lack of ver-

bal or physical resistance or submission by

the victim resulting from the use of force or

threat of force by the defendant *** shall

not constitute consent."

The State questioned prospective jurors about the lack of physi-

cal resistance during a sexual act, a matter directly covered by

IPI Criminal 4th No. 11.63A.

The evidence in the case was close. The State's

improper questions were asked of all prospective jurors and may

have resulted in the selection of a jury that was neither fair

nor impartial. We, therefore, reverse defendant's convictions

and sentences and remand the cause to the trial court for a new

trial. As a result of this holding, it is unnecessary to address

defendant's remaining contentions.

For the reasons stated, we reverse the trial court's

- 8 -
judgment and remand for a new trial.

Reversed and remanded.

APPLETON, P.J., and KNECHT, J., concur.

- 9 -