FIRST DIVISION
March 31, 2008
No. 1-04-3369
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 02 CR 26186
)
CLINTON DIXON, ) The Honorable
) Michael P. Toomin,
Defendant-Appellant. ) Judge Presiding.
JUSTICE GARCIA delivered the opinion of the court.
The defendant, Clinton Dixon, contends that the trial court
erred by denying defense counsel's request to strike juror
Emmerson Ratliff for cause and by refusing to allow defense
counsel to question potential jurors about their attitudes
towards drug abuse and addiction. The defendant also contends
that the trial court erred in failing to appoint alternate
counsel to represent him in his pro se posttrial motion for a new
trial.
BACKGROUND
Following a jury trial, the defendant was convicted of home
invasion, residential burglary, armed robbery and first-degree
No. 1-04-3369
murder. The charges against the defendant arose from the home
invasion and stabbing death of James Knight.
Prior to trial, the defendant filed a motion to suppress
alleging, inter alia, that his oral statement to the police and
subsequent videotaped confession were involuntary because he was
experiencing heroin withdrawal at the time he gave his
statements. The defendant also alleged that his statements were
the product of mental and physical abuse by the police. The
defendant also alleged that the police promised him drugs in
exchange for his videotaped confession. During his videotaped
confession, the defendant described himself as "dope sick." The
defendant further alleged that the police provided him with
heroin at the conclusion of his videotaped confession.
The trial court denied the defendant's motion to suppress,
finding that the videotape of the defendant's confession, taken
the day after his oral statement,
"does not reflect any of the significant
signs of heroin withdrawal ***. Notably
absent is evidence of restlessness, yawning,
running of the eyes or nose, increased
sensitivity to pain, severe abdominal
cramping, nausea and vomiting. Other than
defendant's brief episode of contrition, he
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No. 1-04-3369
appears calm, composed and quite normal in
appearance. *** Likewise, his detailed
description of the events leading to and
culminating in the fatal stabbing of James
Knight reflect a keen ability to observe,
recall and relate telling aspects and details
of the crime."
The court found the defendant's claim that he was experiencing
drug withdrawal at the time he gave his statements "dubious" and
rejected it. The court concluded that the defendant's statements
were given freely and voluntarily and, thus, not subject to
suppression.
Before jury selection, Judge Michael Toomin addressed
defense counsel: "I don't think, Mr. Conniff, you've tried a jury
up here. We'll spend a few minutes in chambers after we [do] the
call." The defendant claims that during this conversation in
Judge Toomin's chambers, the judge informed counsel for both
sides that "back-striking" would not be permitted during voir
dire.
Voir dire began with instructions from the court. Twelve
potential jurors were then called as a panel for questioning.
After counsel for the State questioned the members of the panel,
one was removed for cause and another excused by peremptory
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No. 1-04-3369
challenge. The State questioned two substitute members and
accepted and tendered the panel to the defense.
Before he began his questioning of the potential jurors,
defense counsel requested that the court allow him to ask the
potential jurors about their "views toward drug usage or
addiction." Defense counsel explained, " 'Cause we feel that may
bear on some facts in this case. Although it's not a defense, we
will just respectfully ask to be allowed to inquire the jury of
that." The court asked for clarification as to the type of
question defense counsel would ask. Defense counsel clarified:
"[W]hether any particular juror has any
belief about drug usage which, based upon
that belief, would make them believe that
they could not be fair in listening to the
evidence in judging this case based upon the
evidence in this case."
The court responded:
"Well, it seems to me that to ask that
question, you would have to preface it by
telling them what there is about this case
that they may hear that [could] impact upon
drug usage or whatever. I don't know what
would you propose. You just can't ask it in
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No. 1-04-3369
a vacuum because they would have no idea what
you're talking about."
Defense counsel replied:
"Judge, it would be the mere fact that
defendant was using drugs or addicted to
drugs. That fact alone would that affect
your ability to be fair in judging all the
evidence in the case."
After listening to the State's opposition to defense counsel's
request, the trial court, in denying the request, stated:
"I have some misgivings of allowing a
question like that[,] that seems to single
out a particular [aspect] of the case. And
to ask for a preview[-]type of an opinion
without really knowing how it fit into the
entire context of the case. It does not
appear to be a question that relates to a
defense that's recognized and so I don't
think the defendant is prejudiced in that
manner that he's being denied the opportunity
to know how a juror may vote dependent upon
drug usage while it's not a defense. It's
just a judgment factor of a defendant. I
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No. 1-04-3369
mean he may or other witnesses may be
addict[s] or use drugs or such, but that's
not what this [defendant is] on trial for and
I don't know what relevance[] [i]t really has
other than to ask for an opinion about how
the juror regards drug usage as such when
it[']s not really an issue in the case. I'm
gonna refuse to allow that."
During the defense's examination of the panel, counsel
exercised three peremptory challenges. Three substitute
potential jurors were then called and questioned by defense
counsel; two were excused by peremptory challenge. Two
replacement members of the panel were called forth and
questioned, Emmerson Ratliff being one of them. When questioned
by the defense, Ratliff testified that the only lawsuits he had
been a party to were his divorce proceeding and a traffic case.
Defense counsel accepted the panel of jurors, including Ratliff,
and tendered the panel to the State.
The State questioned the substitute members of the panel.
During the State's questioning of Ratliff, he answered in the
affirmative when asked whether he could be fair to both sides.
The State then asked Ratliff, "Have you yourself ever been
arrested or charged with anything?" Ratliff answered, "No."
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No. 1-04-3369
After questioning the remaining potential jurors, the State asked
for a sidebar. During the sidebar, the State informed the court
and defense counsel that Ratliff's "rap sheet" indicated that he
had been arrested twice for battery, once in 1982 and again in
1985. Additionally, on his jury questionnaire, Ratliff did not
admit that he had previously been arrested or accused of a crime.
Defense counsel requested that the court remove Ratliff for
cause; the court refused defense counsel's request without
explanation. The State accepted the panel as constituted when
tendered by defense counsel. No further examination of Ratliff
occurred. Ratliff became the jury foreperson.
During the trial, the State introduced the defendant's oral
statement to the police and his subsequent videotaped confession
detailing the events of June 13, 2002. In his oral statement,
given on September 23, 2002, the defendant stated that on June
13, he needed money for drugs. The defendant and his friend
drove to James Knight's house. The defendant entered Mr.
Knight's house by breaking the window on the side door, which he
knew allowed easy access because he had repaired it. As the
defendant was gathering items from the home, he was confronted by
Mr. Knight. Mr. Knight tackled the defendant. When Mr. Knight
realized who the defendant was, he told him that he would not
keep the incident a secret from the defendant's wife and mother-
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No. 1-04-3369
in-law, Jacqueline Byrd, Mr. Knight's live-in girlfriend. Mr.
Knight also told the defendant that he was going to call the
police. The defendant then went to the kitchen and got a butcher
knife. The defendant picked up a television and radio while
holding the knife and attempted to leave the house. The
defendant and Mr. Knight began to struggle. The defendant
stabbed Mr. Knight several times until he felt him go limp. The
defendant left Mr. Knight's house with numerous items, including,
jewelry, a television, a VCR, a DVD player, a radio, and two
stereos. The defendant pawned Mr. Knight's possessions and used
the money to buy drugs. The defendant threw the knife used to
stab Mr. Knight over a fence into a wooded area. Later, the
defendant assisted the police in recovering the knife.
The defendant's videotaped confession was taken on the day
after he gave his oral statement to the police. There were few
differences between the defendant's videotaped statement and his
oral statement. The only difference of note was that in his
videotaped confession, the defendant, for the first time,
mentioned that he was "dope sick" during his statements to the
police. The videotape was played for the jury.
The jury found the defendant guilty of home invasion,
residential burglary, armed robbery, and the first-degree murder
of James Knight.
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No. 1-04-3369
On October 26, 2004, defense counsel filed a motion to
vacate the judgment and grant the defendant a new trial. In
support of the motion, defense counsel argued, inter alia, that
the trial court erred in denying the defendant's pretrial motion
to suppress his videotaped confession and oral statement.
Defense counsel also argued that the trial court erred in
refusing to remove Ratliff for cause because the State did not
disclose Ratliff's prior arrests until after he had been accepted
by the defense as a juror. The court denied the posttrial
motion.
Subsequently, the defendant filed a pro se motion for a new
trial. The court asked the defendant to explain each of his
complaints, addressing why he felt he had received inadequate
representation, what counsel should have done, and how it
affected the outcome of his case. The defendant argued that his
trial counsel failed to adequately investigate hospital records
and a videotape that he claimed would show he was at La Rabida
Hospital visiting his hospitalized son at the time of Mr.
Knight's murder on June 13, 2002. The defendant argued that his
confession was false. The defendant also claimed that his trial
counsel was ineffective for failing to call Cornelia Byrd and
Marcio Johnson to testify. The defendant contended that these
witnesses would have contradicted Jacqueline Byrd's trial
9
No. 1-04-3369
testimony. The defendant also argued that although he wanted to
testify, his counsel improperly told him that he should not
testify because the "State's Attorney would eat [him] alive
because [he] had a conviction for home invasion." The defendant
further claimed that counsel threatened that if he testified,
counsel would withdraw from the case. Lastly, the defendant
claimed that there was a conflict of interest with defense
counsel and that his counsel never informed him of the trial
strategy, nor did counsel keep him updated on the case.
The court gave defense counsel an opportunity to respond to
the defendant's allegations. Defense counsel stated:
"Judge, I'm in a bit of a difficult
position because of my representation of [the
defendant].
I can say I met with him sufficient
number of occasions to become aware of his
position in this case.
I can state at the very first interview,
he mentioned La Rabida Hospital.
Subsequently I became aware of information
pursuant to other investigations that we were
doing at the time where I went back and had
additional discussions with [the defendant]
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No. 1-04-3369
based upon information that I was developing
that I had been made aware of, and as a
result of those conversations, I did not
pursue the investigation at La Rabida."
The court responded:
"Well, I can appreciate the position you
say you are in being his lawyer, and perhaps
being asked to divulge what normally would be
considered confidential statements by [the
defendant].
However, also I would point out that
under Krankel and its progeny, when a motion
like this is presented, the teaching of those
cases is that Defense Counsel is relieved of
the burdens of confidentiality because
allegations necessarily are made that call
for answers.
* * *
I'm interested, however, in [the
defendant's] statement here, and as followed
up in the colloquy that you had with him
about La Rabida.
* * *
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No. 1-04-3369
Let me put this, this always boils down
to a defense of alibi.
Was that a potential defense that was
examined, was analyzed?"
Defense counsel replied:
"Judge, it was never a potential defense
after my initial interview with [the
defendant], and it was never a viable
defense, because after the initial interview,
and after I confronted him with other
evidence in the case, the results of the
investigation, and discussed with him things
he had said to me in the initial interview,
certainly admissions were made, and
subsequent discussions with [the defendant]
which ultimately impacted on my advice I gave
him, obviously [regarding] testimony at trial
and whether he should testify."
Defense counsel admitted that he advised the defendant that he
felt it would not be wise to testify in this case, but explained
to the defendant that, ultimately, it was his decision whether he
should testify. Further, defense counsel stated that he never
threatened to withdraw from representation of the defendant if he
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No. 1-04-3369
decided to testify.
In denying the defendant's motion, the trial court explained
that it was required to "conduct a preliminary examination into
such allegations, to determine whether there is sufficient merit
to defer the proceedings." The court acknowledged that if it
found merit in the defendant's allegations, "it would necessitate
appointing other counsel for [the defendant]." After this
preliminary discussion, the court issued its ruling.
"After listening to the Defendant,
[defense counsel] to a certain degree, the
State's Attorney, I don't find any merit in
these allegations that would necessitate
going further with them.
I find that the representation afforded
to [the defendant] was consistent with the
requirements of the seminal cases that guide
us, Strickland versus Washington, that the
Defendant's -- that the representation of
these Defense Counsel was in keeping with the
standards that we expect from counsel ***
that the allegations themselves based upon
them being fleshed out more completely here
do not satisfy the second prong of the
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No. 1-04-3369
Strickland case *** all in all, I do not
believe that this pro se motion has merit to
cause this Court to defer the proceedings,
appoint counsel for him, and start anew with
that aspect of the case."
The court found that defense counsel did not make any threats to
keep the defendant from testifying. The court recalled that it
had questioned the defendant during trial and that the defendant
had stated that he was comfortable with his defense counsel not
calling any witnesses on his behalf. The defendant also answered
"no" when the court asked him "if anybody had threatened [him] to
cause [him] not to testify." The court determined that the
defendant's claims did not justify appointment of alternate
counsel.
After the court denied the defendant's pro se motion, it
proceeded to sentencing. The court merged the residential
burglary conviction with the home invasion conviction and
sentenced the defendant to consecutive sentences of 25 years for
home invasion, 20 years for armed robbery, and 50 years for
first-degree murder. The defendant timely appeals.
ANALYSIS
I. Challenge for Cause
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No. 1-04-3369
The defendant contends he was denied his right to a fair
trial when the trial court denied his request to excuse Emmerson
Ratliff for cause after he denied ever having been arrested when
questioned during voir dire. The defendant contends a pretrial
arrangement regarding jury selection prevented him from using a
peremptory challenge to dismiss Ratliff. Based on this, the
defendant suggests that the situation presented here is no
different from a situation where a defendant has exhausted his
peremptory challenges before seeking to challenge a prospective
juror for cause. The defendant contends that under these
circumstances, prejudice flowing from the refusal to remove
Ratliff for cause should be presumed, citing People v. Green, 282
Ill. App. 3d 510, 668 N.E.2d 158 (1996).
The State responds the trial court was within its discretion
when it refused the defendant's motion to remove Ratliff for
cause. Additionally, the State contends because the defendant
was not denied his right to exercise a peremptory challenge, he
waived the claim when he failed to use a peremptory challenge at
trial.
A. Standard of Review
The defendant urges us to review this issue by applying a de
novo standard of review. However, a trial court's determination
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No. 1-04-3369
concerning whether to excuse a potential juror for cause is
properly reviewed using an abuse of discretion standard. People
v. Seuffer, 144 Ill. 2d 482, 502, 582 N.E.2d 71 (1991). We are
unpersuaded that departure from an abuse of discretion standard
is appropriate here.
B. Application of Waiver
The defendant recognizes the failure to exhaust peremptory
challenges waives any claim that an objectionable venireperson
was allowed to sit on the jury. See People v. Lake, 298 Ill.
App. 3d 50, 56, 697 N.E.2d 1147 (1998). The defendant contends
waiver is not applicable here because of the manner in which jury
selection was conducted. The defendant claims his trial counsel
had already accepted and tendered the jury panel that included
Ratliff before the State informed defense counsel and the court
of Ratliff's prior arrests. See People v. Martin, 225 Ill. App.
3d 339, 344, 587 N.E.2d 1228 (1992) (new trial ordered where
State did not disclose misrepresentations made by juror and
alternate during voir dire). The defendant argues that because
the panel had been tendered, he was prevented from using one of
his remaining peremptory challenges by the trial court's rule
disallowing back-striking.
Although the conversation in Judge Toomin's chambers
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No. 1-04-3369
regarding the manner of jury selection is not part of the record,
the actual selection of the jury is and so are defense counsel's
comments regarding his claim of trial error based on the "no
back-striking" courtroom rule. In his rebuttal argument on the
defendant's motion for a new trial, defense counsel stated:
"I believe the rule had been set down no
back-striking, and the information had come
out during the State's selection once this
juror was tendered, so at that point, we
didn't have the benefit of peremptory. I
suppose we could have asked for it, but the
Court had already indicated no back-striking
allowed. That's why we made the motion for
cause."
Judge Toomin replied:
"Well, isn't [the prosecution] correct
that the rule addressing jury selection and
challenges to jurors, at least as I have
understood it over the years, was if you do
not exhaust your peremptory challenges, you
cannot complain about what the Court did or
didn't do on a challenge for cause? You used
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No. 1-04-3369
five challenges. My notes reflect that you
had two remaining that weren't used. You
could have stricken the juror *** on your own
motion if you deemed they were some prejudice
to your client."
Defense counsel reiterated his belief that the trial court had
"already indicated previously that no back-striking was allowed."
The court responded, "You didn't ask me if you could exercise a
peremptory." Defense counsel replied, "That's correct. We did
not, Judge."
The defendant argues the trial court's instruction that
prohibited back-striking, which trial counsel referenced in his
comments and which the trial judge did not deny issuing,
establishes that he was barred from exercising a peremptory
challenge to excuse Ratliff from serving as a juror. We
disagree.
While we are not provided with a clear definition of the
term "back-striking" as used by the parties, it appears that
back-striking refers to the exercise of a peremptory challenge
against a member of a panel already accepted by counsel that has
not been broken by opposing counsel. See Needy v. Sparks, 51
Ill. App. 3d 350, 361-62, 366 N.E.2d 327 (1977); but see Strawder
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No. 1-04-3369
v. City of Chicago, 294 Ill. App. 3d 399, 402, 690 N.E.2d 640
(1998) ("back-striking" is the striking of "a venireperson from
an already accepted panel, where that panel has been broken by
opposing counsel and retendered"). It seems clear that in the
situation presented here, the removal of Ratliff would have
amounted to a back-strike. That notwithstanding, the real
question before us is whether the defendant was nevertheless
required to seek the exercise of a peremptory challenge against
Ratliff and, if denied that request, to lodge an objection to
preserve the claim of error. See People v. Enoch, 122 Ill. 2d
176, 186, 522 N.E.2d 1124 (1988). The defendant's contention
that such efforts by his trial counsel were not required amounts
to a claim that trial counsel was not required to object in the
face of the trial judge's rule against back-striking. See Enoch,
122 Ill. 2d at 186. That is not how our adversarial system
works. See In re W.C., 167 Ill. 2d 307, 323, 657 N.E.2d 908
(1995) ("It is a fundamental concept of our adversarial system
that counsel object at trial to errors"); Martin, 225 Ill. App.
3d at 342-43 (defense counsel moved for mistrial at end of voir
dire based on no access to rap sheets possessed by State). We
are aware of no authority that holds a claim of error is
preserved where trial counsel has failed to object to a procedure
that he contends prejudiced his client.
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No. 1-04-3369
The presumed prejudice rule of Green based on the claim here
that counsel did not knowingly accept Ratliff at the time he
tendered the panel because he was unaware of Ratliff's background
has no application. As we made clear in Green, the harmless
error rule did not apply because "the issue was raised during
voir dire." Green, 282 Ill. App. 3d at 514. That is not the
case here. The defendant did not raise the issue of removing
Ratliff by exercising a peremptory challenge.
We are not convinced that had counsel sought to use one of
his remaining peremptory challenges against Ratliff he would have
been refused. We note this is not a case of a defendant having
"second thoughts" regarding a prospective juror accepted by him.
Nothing in the examination of Ratliff by either the defense or
the State suggested Ratliff did not answer truthfully the
questions posed. Rather, it was information that only the State
had in its possession that revealed the inconsistency between
Ratliff's answers during voir dire and the arrest record that
appeared to be his. The State properly disclosed that
information to defense counsel and the trial court during the
side-bar. Based on this new information, defense counsel
requested that Ratliff be excused for cause. However, upon that
request being denied, it is unclear why defense counsel did not
20
No. 1-04-3369
seek to exercise a peremptory challenge against Ratliff if, as
the judge noted, sitting Ratliff caused "some prejudice to
[counsel's] client."
We are not convinced that such an attempt would have been
pointless, even in the face of the trial court's general rule
against back-striking. "When information is revealed during voir
dire that tends to contradict a sworn juror's answers, the trial
court should allow further inquiry, and failure to do so can
result in reversible error." Strawder, 294 Ill. App. 3d at 402.
The trial judge's own statements, during the posttrial
proceedings, suggest he would have allowed defense counsel to
exercise a peremptory challenge had such a request been made or,
at least, allowed counsel to conduct further inquiry to confirm
Ratliff the juror was the same Ratliff listed on the rap sheet.
The arrests (not convictions) occurred some 20 years before the
voir dire; it is not beyond reason that the events may have
escaped Ratliff's memory and, thus, did not reflect on his
veracity.
The defendant, not having sought the exercise of a remaining
peremptory challenge, waived any claim of error based on the
trial court's decision not to excuse Ratliff for cause. See
People v. Redmond, 357 Ill. App. 3d 256, 259, 828 N.E.2d 1206
21
No. 1-04-3369
(2005).
II. Voir dire on Drug Abuse and Addiction
Next, the defendant contends that the trial court erred when
it denied defense counsel's request to question the prospective
jurors during voir dire regarding their attitudes concerning drug
addiction and abuse. The defendant claims that the court's
alleged error denied his defense counsel the ability to ascertain
juror bias and to intelligently exercise the defendant's
peremptory challenges.
The trial court denied defense counsel's request, finding
the proposed questioning irrelevant and not related to any
asserted affirmative defense. The court also found that the
defendant would not be prejudiced by its decision not to allow
such questioning of potential jurors.
The manner and scope of voir dire rest within the sound
discretion of the trial court. People v. Williams, 164 Ill. 2d
1, 16, 645 N.E.2d 844 (1994). However, the trial court should
exercise its discretion in a manner that is consistent with the
goals of voir dire. Voir dire is conducted to assure the
selection of an impartial jury, free from bias or prejudice, and
grant counsel an intelligent basis on which to exercise
peremptory challenges. People v. Clark, 278 Ill. App. 3d 996,
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No. 1-04-3369
1003, 664 N.E.2d 146 (1996). Thus, the trial court abuses its
discretion only if the trial court prevents the selection of a
jury that harbors "no bias or prejudice which would prevent them
from returning a verdict according to the law and evidence."
People v. Strain, 194 Ill. 2d 467, 476, 742 N.E.2d 315 (2000).
Initially, the State responds that the defendant has waived
review of this issue because he failed to raise it in his
posttrial motion. Because the defendant did not list this claim
of error in his posttrial motion, the issue is subject to waiver.
See Enoch, 122 Ill. 2d at 186. The defendant replies that waiver
does not apply because his claim of error is based on his
constitutional right to a fair trial and should be examined under
the plain error exception to waiver. Thus, the real question
before us is whether the defendant's claim of error, founded on
the trial court's rejection of the proposed voir dire
questioning, implicates his right to a fair trial before an
impartial jury. If so, we should examine the claim for plain
error. See People v. Herron, 215 Ill. 2d 167, 782 N.E.2d 263
(2002).
The defendant argues drug use and addiction pervaded this
case. As support, the defendant directs our attention to the
State's theory of the case that the defendant killed Mr. Knight
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No. 1-04-3369
in order to obtain money for drugs, the testimony that the
defendant was a heroin addict, and the defendant's statement that
he was "dope sick" during his videotaped confession. The
defendant contends, because drugs were centrally involved in the
events of the case, the trial court's refusal to allow defense
counsel to question the prospective jurors as to their beliefs
regarding drug use and addiction prevented the selection of an
impartial jury.
The defendant cites, as his principal authority for his
claim that the curtailing of voir dire in this case implicated
his constitutional right to a fair trial, People v. Lanter, 230
Ill. App. 3d 72, 595 N.E.2d 210 (1992), and People v. Strain, 194
Ill. 2d 467, 742 N.E.2d 315 (2000).
In Lanter, the Fourth District held defense counsel was
improperly precluded from discovering possible bias of a
potential juror based on her feelings about drugs and alcohol.
Lanter, 230 Ill. App. 3d at 76. The decision in Lanter turned on
the defendant's claim that he was not guilty of the charged
offenses because of his extreme intoxicated state. Lanter, 230
Ill. App. 3d at 73. The Lanter court expressly based its holding
on the claimed intoxication defense. "Not every affirmative
defense is so controversial as to render voir dire questioning
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No. 1-04-3369
appropriate." Lanter, 230 Ill. App. 3d at 76. In contrast to
the Lanter case, drug abuse and addiction is not an affirmative
defense in this case. Accordingly, Lanter provides no support to
the defendant.
In Strain, our supreme court held that when testimony
concerning gang membership and gang-related activity is an
integral part of the defendant's trial, the defendant must be
afforded an opportunity to question prospective jurors concerning
any gang bias. Strain, 194 Ill. 2d at 481. In holding that the
trial court abused its discretion in disallowing such questions,
the supreme court pointed to certain realities: "[S]treet gangs
are regarded with considerable disfavor by other segments of our
society. [Citation.] *** [P]articularly in metropolitan areas,
there may be strong prejudice against street gangs." Strain, 194
Ill. 2d at 477. In recognition of these realities, the court
noted, "[E]vidence indicating a defendant is a member of a gang
or is involved in gang-related activity is admissible only where
there is sufficient proof that membership or activity in the gang
is related to the crime charged." Strain, 194 Ill. 2d at 477.
Based on the supreme court's reasoning regarding gang bias,
the defendant claims the same realities exist about drug
addiction and abuse and, therefore, voir dire probing for such
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No. 1-04-3369
bias must be allowed. This expanded claim of potential juror
bias was anticipated by Justice Heiple in his dissent in Strain.
"As a result of today's decision, other litigants will now demand
that jurors be questioned about an endless list of potential
biases and asked to explain their reactions." Strain, 194 Ill.
2d at 484 (Heiple, J., dissenting).
We confronted a similar claim founded on the supreme court's
reasoning in Strain in People v. Morales, 329 Ill. App. 3d 97,
768 N.E.2d 84 (2002), rev'd on other grounds, 209 Ill. 2d 340
(2004). In Morales, the defendant was convicted of murdering an
individual sent on behalf of a Columbian drug dealer to collect
money for drugs the defendant had received. Morales, 329 Ill.
App. 3d at 102. The defendant claimed he was improperly refused
the opportunity to probe for any bias the venire might have
against drug dealers, citing Strain as authority. We held,
however, that "Strain is limited only to cases involving gang
membership and gang-related evidence." Morales, 329 Ill. App. 3d
at 113-14. We expressly declined to extend Strain to cases
involving possible bias against drug dealers. Morales, 329 Ill.
App. 3d at 113-14.
In the face of our clear holding that the reasoning in
Strain is limited to exposing possible gang bias, the defendant
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No. 1-04-3369
seeks to dismiss Morales as "not good precedent" because the
supreme court reversed the decision in Morales, albeit on grounds
wholly separate and apart from the voir dire issue. We reject
the defendant's assertion. Until told otherwise by our supreme
court, Morales remains good law on the issue before us.
Consequently, in the context of a plain error claim, we are
not persuaded that "the mere fact defendant was using drugs or
addicted to drugs," as defense counsel explained to the trial
judge, is a sufficient ground to probe for possible bias
regarding drug addiction and abuse. We are not persuaded that
such a fact would result in effectively closing the minds of
jurors to the evidence such " 'that they cannot apply the law as
instructed in accordance with their oath.' " Strain, 194 Ill. 2d
at 476, quoting People v. Cloutier, 156 Ill. 2d 483, 495-96, 622
N.E.2d 774 (1993).
Accordingly, the defendant has failed to establish the
claimed-of restriction on voir dire implicated his constitutional
right to a fair trial before an impartial jury. In line with our
holding in Morales, we reject the defendant's claim of plain
error regarding voir dire and find that the issue has been
waived.
III. Alternate Counsel
Lastly, the defendant contends, pursuant to People v.
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No. 1-04-3369
Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984), his cause
should be remanded for appointment of alternate counsel to
represent him in his pro se posttrial motion for a new trial.
The defendant contends that he met the requirement of showing
"possible neglect" of his case by his trial counsel and, thus,
Krankel required the appointment of new counsel. The defendant
contends the court erroneously imposed a greater burden than a
showing of "possible neglect" by requiring him to satisfy both
prongs of Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d
674, 104 S. Ct. 2052 (1984). Finally, he contends the trial
court erred in making credibility determinations during the
Krankel hearing.
In Krankel, the defendant presented a pro se posttrial
motion alleging ineffective assistance of counsel based on
counsel's failure to present an alibi defense that the defendant
asserted was supported by witnesses the defendant provided. The
supreme court agreed with the defendant and the State that
alternate counsel should have been appointed for the defendant in
light of his claim. The court remanded the matter for a new
hearing on the defendant's motion with newly appointed counsel.
Krankel, 102 Ill. 2d at 187-89.
In providing further guidance of the procedures to be
followed by a trial court under Krankel, the Illinois Supreme
28
No. 1-04-3369
Court determined that appointment of new counsel is not
automatically required whenever a defendant presents a pro se
posttrial motion alleging ineffective assistance of counsel. See
People v. Moore, 207 Ill. 2d 68, 77, 797 N.E.2d 631 (2003).
Rather, the trial court must conduct a preliminary inquiry into
the factual basis of the defendant's claim, and if it finds the
claim lacks merit or relates only to matters of trial strategy,
the court may deny the defendant's pro se motion without
appointing new counsel. Moore, 207 Ill. 2d at 77-78. However,
if the defendant's allegations show "possible neglect" of the
case, new counsel should be appointed. Moore, 207 Ill. 2d at 78.
In reviewing the posttrial proceedings on the defendant's pro se
motion, our operative concern is to determine "whether the trial
court conducted an adequate inquiry into the defendant's pro se
allegations of ineffective assistance of counsel." Moore, 207
Ill. 2d at 78.
Here, the record demonstrates the trial court adequately
inquiried into the defendant's allegations of ineffective
assistance. The trial court reviewed and inquired into each of
the defendant's allegations. The trial court gave the defendant
the opportunity to argue, explain, and support each allegation.
The trial court listened to the defendant's allegations and
discussed them with the defendant and his trial counsel. After
29
No. 1-04-3369
doing so, the trial court found the representation by the defense
counsel "was in keeping with the standards that we expect from
counsel." A trial court's evaluation of the defendant's claim of
ineffective assistance of counsel may properly be based on the
court's knowledge of defense counsel's performance at trial and
the insufficiency of the defendant's allegations on their face.
See Moore, 207 Ill. 2d at 79. In denying the defendant's motion,
the trial court determined that the alleged errors did not show
possible neglect of his case by his trial counsel. We agree.
We are unpersuaded by the defendant's argument that the
court erroneously required him to satisfy both prongs of
Strickland and erred in making credibility determinations during
the hearing on his motion in violation of Krankel. The
defendant's argument is based on the following statement by the
court:
"I find that the representation afforded
to [the defendant] was consistent with the
requirements of the seminal cases that guide
us, Strickland versus Washington, that the
Defendant's -- that the representation of
these Defense Counsel was in keeping with the
standards that we expect from counsel ***
that the allegations themselves based upon
30
No. 1-04-3369
them being fleshed out more completely here
do not satisfy the second prong of the
Strickland case *** all in all, I do not
believe that this pro se motion has merit to
cause this Court to defer the proceedings,
appoint counsel for him, and start anew with
that aspect of the case."
We find that the trial court's statement, when read in
context, is merely a general statement of the Strickland standard
by which counsel's representation is judged. We do not agree
with the defendant's reading that the trial court required him to
support his request for alternate counsel with something greater
than a showing of possible neglect. After the trial court
listened to the defendant's allegations and his trial counsel's
reply, the court correctly summarized the standard set forth in
Krankel. The court explained that if it found that there was
"sufficient merit" to the defendant's allegations of ineffective
assistance of counsel, it would have to defer the proceedings and
appoint new counsel. The court then ruled, "I don't find any
merit in these allegations that would necessitate going further
with them." Thus, we find the trial court applied the proper
standard in determining whether the defendant demonstrated that
his trial counsel possibly neglected his case.
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No. 1-04-3369
Additionally, we are unpersuaded by the defendant's
contention that the trial court erred in making credibility
determinations during its inquiry under Krankel. We find that
the court properly limited its determination to whether the
defendant showed the requisite possible neglect by his trial
counsel based on the trial court's assessment of his performance
at trial.
Accordingly, we reject the defendant's argument that this
case should be remanded to the trial court for appointment of new
counsel to conduct further proceedings in connection with the
defendant's claims of ineffective assistance of counsel. The
record supports the trial court's conclusion that appointment of
alternate counsel was not warranted.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
circuit court of Cook County.
Affirmed.
CAHILL, P.J., and R. GORDON, J., concur.
32
No. 1-04-3369
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
CLINTON DIXON,
Defendant-Appellant.
________________________________________________________________
No. 1-04-3369
Appellate Court of Illinois
First District, First Division
Filed: March 31, 2008
_________________________________________________________________
JUSTICE GARCIA delivered the opinion of the court.
CAHILL, P.J., and R. GORDON, J., concur.
_________________________________________________________________
Appeal from the Circuit Court of Cook County
Honorable Michael P. Toomin, Judge Presiding
_________________________________________________________________
For DEFENDANT - Michael J. Pelletier, Deputy Defender
APPELLANT Ann B. Mclennan, Assistant Appellate Defender
Office of the State Appellate Defender
203 North LaSalle Street-24th Floor
Chicago, Illinois 60601
For PLAINTIFF - Richard A. Devine, State's Attorney
APPELLEE James E. Fitzgerald, Assistant State's
Attorney
Peter Fischer, Assistant State's Attorney
Christopher Petelle, Assistant State's Attorney
State's Attorney, County of Cook
Richard J. Daley Center, Room 309
Chicago, Illinois 60602
33