dissenting:
In this case we are called upon to construe Supreme Court Rule 608(a)(9) (210 Ill. 2d R. 608(a)(9)). When interpreting supreme court rules, our court is guided by the same principles applicable to the construction of statutes. In re Estate of Rennick, 181 Ill. 2d 395, 404 (1998); 134 Ill. 2d R. 2(a) & Committee Comments. With rules as with statutes, our goal is to ascertain and give effect to the drafters’ intention. In re Storment, 203 Ill. 2d 378, 390 (2002). The most reliable indicator of intent is the language used, which must be given its plain and ordinary meaning. Robidoux v. Oliphant, 201 Ill. 2d 324, 332 (2002).
The language of the rule at issue here provides that, in cases not involving a death sentence, “court reporting personnel *** shall take the record of the proceedings regarding the selection of the jury.” (Emphasis added.) 210 Ill. 2d R. 608(a)(9). Generally, use of the term “shall” indicates an intention to impose a mandatory obligation. People v. Thomas, 171 Ill. 2d 207, 222 (1996). There is no reason to ascribe a different meaning to the term here. The circuit court was therefore under an obligatory duty to have the jury selection proceedings recorded.
The more difficult question posed by this appeal is what, if any, consequences should flow from the fact that the dictates of Rule 608(a)(9) were not followed. This is a separate and distinct inquiry. As our court endeavored to explain in People v. Robinson, 217 Ill. 2d 43, 51-54 (2005), it is one thing to hold that a governmental entity is under an obligatory duty which it is required to perform, as opposed to a permissive power which it may exercise or not as it chooses. It is something else entirely to hold that the entity’s failure to comply with its obligation should invalidate the action to which that obligation relates. The former inquiry concerns what has been described as the mandatory-permissive dichotomy. The latter, and the one which concerns us now, is the so-called mandatory-directory dichotomy. People v. Robinson, 217 Ill. 2d at 51-53; O’Brien v. White, 219 Ill. 2d 86, 96 (2006). Whether a statutory command is mandatory or directory presents a question of law, which we review de novo. O’Brien v. White, 219 Ill. 2d at 97. The same is true where, as here, the command is rule-based.
While use of the word “shall” normally denotes that something is mandatory when dealing with the mandatory-permissive dichotomy, the term is not determinative when, as in this case, the mandatory-directory dichotomy is at issue. People v. Robinson, 217 Ill. 2d at 53-54. The court must look instead to other factors. In assessing whether a requirement should be read as mandatory rather than directory, a court should consider whether the authors of the requirement specified what should happen if the requirement is not met. When a provision expressly prescribes a consequence for failure to obey its terms, that is strong evidence that the requirements of the provision were intended to be mandatory. People v. Robinson, 217 Ill. 2d at 54.
No such prescription was made here. Neither Rule 608(a)(9) nor any other subpart of Rule 608 specifies what, if anything, should happen when the voir dire is not recorded in a noncapital case. That does not necessarily preclude the conclusion that the rule’s provisions are mandatory and not merely directory. In People v. Campbell, 224 Ill. 2d 80 (2006), for example, this court found that the trial court’s failure to comply with the provisions of Supreme Court Rule 401(a) (134 Ill. 2d R. 401(a)), dealing with waiver of counsel, rendered the defendant’s conviction fatally infirm. There, as here, the rule contained no language specifying what would happen if the requirements of the rule were not followed. The committee comments to the rule, however, indicate that it had been amended to conform to the United States Supreme Court’s decision in Argersinger v. Hamlin, 407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006 (1972). As stated in the committee comments, that case held that under the United States Constitution, no imprisonment may be imposed unless the defendant was represented by counsel or has made a knowing and intelligent waiver of his right to counsel. By referencing this authority, the drafters of the rule implicitly recognized that there would be a consequence for noncompliance, a very serious one. In light of that constitutionally based consequence, setting out the repercussions of noncompliance separately was unnecessary.8
No similar circumstances are present in this case. The courts of Illinois have consistently rejected the claim that the failure to record voir dire violates constitutional protections. See, e.g., People v. McClurg, 195 Ill. App. 3d 381 (1990). In contrast to People v. Campbell, the absence in Rule 608(a)(9) of an express consequence for failure to comply with its provisions therefore cannot be attributed to the fact that a constitutionally based remedy is available.
I do not see and the majority opinion has not identified any other factors that would support a conclusion that failure to comply with the recording requirement of Rule 608(a)(9), in and of itself, renders the subsequent trial invalid. Under the mandatory-directory dichotomy our court has articulated, the rule’s recording requirement is therefore directory. As such, it may be waived by the parties. See, e.g., In re Estate of Zander, 242 Ill. App. 3d 774, 777 (1993).
That the recording requirement may be waived is further supported by comparison to other situations in which waiver is permissible. The courts of Illinois have recognized that criminal defendants may waive such rights as the right to a speedy trial (People v. Laws, 200 Ill. App. 3d 232, 235 (1990)); to counsel (People v. Haynes, 174 Ill. 2d 204, 235 (1996)); to a jury of 12 (People v. Barrier, 359 Ill. App. 3d 639, 642 (2005)); to confront witnesses against them (People v. Campbell, 208 Ill. 2d 203 (2003)); and to be free from double jeopardy (People v. Dieterman, 243 Ill. App. 3d 838, 843 (1993)). All of these rights are more significant than the right to have jury-selection proceedings recorded. If they can be waived, the right to have jury-selection proceedings recorded must likewise be subject to waiver. Any construction of Supreme Court Rule 608(a)(9) that would yield a contrary result would, in effect, confer greater protection on the right to have jury selection recorded than it would on the right to be tried by a jury. Such a result is absurd. We must therefore reject it. See In re Loss, 119 Ill. 2d 186, 194 (1987) (a rule, like a statute, must be construed to avoid an unjust result).
There is no dispute that a waiver of the recording requirement was made in this case by both the defendant and the State. Having waived strict compliance with Supreme Court Rule 608(a)(9), defendant cannot now assert that the failure to have the jury-selection procedure recorded pursuant to Rule 608(a)(9) was reversible error. To hold otherwise would require us to ignore the well-established principle that a party may not complain of error where doing so is inconsistent with the position he took in the earlier court proceeding or where the alleged error is one to which he consented. McMath v. Katholi, 191 Ill. 2d 251, 256 (2000).
The failure of trial counsel to insist on the presence of court reporting personnel during voir dire is not a novel circumstance. It has been considered by the courts in Illinois on at least six previous occasions. None of those decisions support the majority’s resolution of the case before us today.
People v. Steel, 52 Ill. 2d 442, 452 (1972), was decided by our court over 30 years ago. In an argument that echoes the one made on appeal in this case, the defendant in Steel contended that his trial counsel was incompetent for failing to insist upon the presence of a court reporter during voir dire because, among other things, that failure precluded defendant from establishing that the jury may have been prejudiced against him. We rejected that argument, noting that there, as here, a court reporter was always available and could have been summoned at any time.
A similar situation was present in People v. Thompkins, 121 Ill. 2d 401 (1988). The defendant there also maintained that the performance of his court-appointed counsel was ineffective based, in part, on the lawyer’s failure to insist upon the presence of a court reporter during voir dire. According to the defendant, the failure to record jury selection was prejudicial because it “preclud[ed] his appellate counsel from raising any potential issues regarding improper excusal of prospective jurors.” People v. Thompkins, 121 Ill. 2d at 447. Citing our previous decision in People v. Steel, 52 Ill. 2d 442 (1972), we rejected that contention, holding that the mere failure to obtain the presence of a court reporter during voir dire does not constitute a per se presumption of ineffectiveness of counsel. We further ruled that counsel’s failure to insist upon the presence of the court reporter during a portion of the voir dire proceedings was not such an extreme and limited circumstance, such as the total absence of counsel, that prejudice could be presumed. People v. Thompkins, 121 Ill. 2d at 448.
The issue next arose in People v. McClurg, 195 Ill. App. 3d 381 (1990), in which the defendant appealed her conviction for driving under the influence of alcohol. Prior to the commencement of the trial, the court had advised the defendant that there were not enough court reporters to make one available during jury selection, but that a reporter would be available later so that a record could be made. In assailing her conviction, the defendant included among her numerous arguments that the failure of the trial court to provide a court reporter during voir dire deprived her of the ability to preserve her objections for review and denied her right to due process. The appellate court rejected that contention, noting that the rules of our court clearly provide alternative methods for preserving the record where no verbatim transcript is available. In the appellate court’s view, defendant could have availed herself of those rules and submitted a bystander’s report or agreed statement of facts. Because she failed to do either, the court concluded that she had waived any argument concerning the sufficiency of the record and the propriety of the trial court’s rulings during voir dire. People v. McClurg, 195 Ill. App. 3d at 388.
McClurg was followed by People v. Morris, 229 Ill. App. 3d 144 (1992), authored by former Chief Justice McMorrow shortly before she was elected to our court. In that case, which involved a felony prosecution, the court made some preliminary remarks to the initial group of prospective jurors. It then asked defense counsel and the prosecutor to step forward to the bench and stated the following:
“ ‘The court reporter informed me she has an appointment with her doctor. Would you please excuse her for the impaneling of the jurors? Before doing that would all of the perspective [sic] jurors raise their right hands please.
(WHEREUPON THE JURORS WERE SWORN IN.)
THE COURT: Ms. Reporter, you are excused.’ ” People v. Morris, 229 Ill. App. 3d at 154-55.
The court reporter was then excused while voir dire was conducted. That was the only portion of the proceedings for which she was absent. Court reporting was thereafter resumed for opening statements by the State and defense counsel, as well as for the remainder of defendant’s trial. Defendant was subsequently found guilty and sentenced to a term of imprisonment.
On appeal, defendant claimed that the trial court committed reversible error when it permitted jury selection to take place without transcription by a court reporter. Following the approach taken in McClurg, the appellate court rejected this argument, holding that defendant could have obtained a bystander’s report or an agreed statement of facts as permitted under the rules of our court and that his failure to do so precluded him from asserting that the court’s ruling was reversible error. People v. Morris, 229 Ill. App. 3d at 156.
In a related argument, the defendant further contended that his attorney was ineffective for having agreed to excuse the taking of voir dire by a court reporter. The appellate court rejected this argument as well. Citing our decision in People v. Thompkins, 121 Ill. 2d 401, 448 (1988), it held that defense counsel’s failure to obtain the presence of a court reporter for voir dire does not create a per se presumption of ineffective assistance of counsel. To prevail on a claim that the attorney was ineffective, the defendant was required to point to some error in selection of the jury. The court further held that it was incumbent upon the defendant, as appellant, to obtain a bystander’s report, or stipulated statement of facts, in lieu of a verbatim transcript of the voir dire. The court concluded that in the case before it, defendant had failed to satisfy these burdens. He was unable to specify any particular error that occurred during jury selection and failed to procure a bystander’s report or stipulated statement of facts regarding jury selection. As a result, the court rejected defendant’s claim that he was entitled to a new trial. People v. Morris, 229 Ill. App. 3d at 156-57.
People v. Culbreath, 343 Ill. App. 3d 998, 1005-06 (2003), is in accord. In that case, the defendant was tried on two counts of aggravated battery. On the first day of the trial, the presiding judge asked counsel for defendant and the State if either party wanted a court reporter to be present to record the voir dire. The State responded in the negative. Counsel for defendant indicated that he would be willing to waive the presence of a reporter, subject to the understanding the reporter would be nearby in case a record of something needed to be made. The court then excused the court reporter and proceeded with jury selection. A court reporter was present for the remaining proceedings in the case.
Defendant was ultimately convicted, sentenced to a term of imprisonment and ordered to pay restitution to his victim. People v. Culbreath, 343 Ill. App. 3d at 1001. On appeal, defendant raised various grounds for assailing the judgment. Among these were: (1) that by conducting voir dire of prospective jurors without a court reporter present to transcribe the proceedings, as required by Supreme Court Rule 608(a)(9) (177 Ill. 2d R. 608(a)(9)), the trial court had violated his right to due process; (2) the failure to have a court reporter present to transcribe voir dire resulted in the denial of his right to effective assistance of appellate counsel; and (3) his trial counsel did not have the authority to waive the court reporter’s presence at voir dire because that decision belonged to defendant alone. People v. Culbreath, 343 Ill. App. 3d at 1005.
The appellate court rejected all these arguments. Following McClurg and Morris, it reiterated the principle that the failure to provide a court reporter during voir dire does not deprive a defendant of due process. It further held that because the rules of this court provide alternate means for preserving the record and because the defendant failed to avail himself of those options, defendant was precluded from arguing that the court’s failure to provide a court reporter during voir dire constituted reversible error. People v. Culbreath, 343 Ill. App. 3d at 1006.
Finally, the appellate court concluded, based on precedent from this court, that the decision to conduct voir dire without a court reporter present was not among those which must be made personally by the defendant. That decision, in the appellate court’s view, could be made by defense counsel. In so ruling, the appellate court rejected the notion that defense counsel’s waiver of the court reporter’s presence for voir dire creates an inherent conflict of interest by creating a situation in which counsel could prevent the defendant from raising claims against him. The reason the waiver does not create a conflict is that it does not, in fact, preclude a defendant from challenging his attorney’s conduct during voir dire. As previously indicated, a defendant may substantiate claims of ineffective representation pertaining to voir dire by means of a bystander’s report or an agreed statement of facts. Neither of those options was attempted by the defendant in that case. People v. Culbreath, 343 Ill. App. 3d at 1007-08.
The sixth and most recent case, People v. Ash, 346 Ill. App. 3d 809, 812-14 (2004), was decided the year after People v. Culbreath, 343 Ill. App. 3d 998 (2003), and involved a similar situation in which the trial court asked counsel for the parties if they wished voir dire to be recorded by a court reporter. Both declined. Defendant was ultimately convicted of a drug-possession offense. As grounds for his appeal, the defendant argued that the trial court committed reversible error by failing to have jury-selection proceedings reported as required by Supreme Court Rule 608(a)(9) and that his trial counsel rendered ineffective assistance by agreeing to waive the recording of voir dire. People v. Ash, 346 Ill. App. 3d at 812.
As in all the cases which preceded it, the appellate court in Ash found these arguments to be without merit. The court opined that the requirements contained in Rule 608(a)(9) could validly be waived by counsel on the defendant’s behalf and that the trial court was entitled to rely on defense counsel’s decision to decline having voir dire recorded. The court further held that defendant had failed to demonstrate that his attorney’s decision to forgo recording of voir dire deprived him of a fair trial. Defendant’s claim was based solely on counsel’s decision to allow voir dire to proceed without a court reporter, and in the court’s view, “[ejxcusing the court reporter from taking notes of voir dire is not, in and of itself, ineffective assistance [citations] or a violation of due process [citations].” People v. Ash, 346 Ill. App. 3d at 813-14.
In light of this unbroken line of precedent, which the appellate court in this case applied properly, the majority’s characterization of the case as unique or unusual is unfounded. The problem presented by this case, failure to record voir dire as Rule 608(a)(9) requires, is, in fact, all too common. Its frequent recurrence is perplexing. Given the clear language of the rule, it is difficult to understand why a trial court would suggest that conducting jury selection without the presence of a court reporter might be appropriate or permissible. As we held in Bright v. Dicke, 166 Ill. 2d 204, 210 (1995), and as the majority reminds us, our rules are not suggestions. They have the force of law, and the presumption must be that they are to be obeyed and enforced as written. Rule 608(a)(9) is no different. If trial courts are unwilling to comply, it is incumbent on us to amend the rule’s provisions to include appropriate consequences for failure to follow it. Fashioning ad hoc remedies as the majority does here is unsound, especially where, as in this case, doing so requires the court to ignore an unbroken line of cases dating back over 30 years.
In an effort to justify its approach, the majority attempts to distinguish this case from past precedent on the grounds that it involves a situation in which the failure to record voir dire is tied to a specific claim of prejudice by the defendant, namely, that it hampered his ability to establish that he was denied equal protection under the principles established by the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). According to the majority, remand for further proceedings is necessary in order to dispel any notion that our court condones racial discrimination in jury selection in contravention of Bat-son. 226 Ill. 2d at 152.
I share my colleagues’ concern with honoring the precepts of Batson. Contrary to the majority, however, I do not believe that this case can properly be characterized as presenting a Batson claim. As a preliminary matter and as the majority acknowledges, no mention of Bat-son was made in either the posttrial motion filed by defense counsel or the pro se posttrial motion submitted by defendant himself. The suggestion that Batson considerations might be relevant was injected into the case for the first time by defendant’s counsel on appeal. Even then, it was not the focus of defendant’s petition for leave to appeal, his brief or his reply brief. In fact, when defendant’s reply brief mentions Batson, it is not to buttress any claim of racial discrimination in this case, but merely to illustrate why defendant believes, as a matter of policy, that strict enforcement of the court reporting requirement in Rule 608(a)(9) is so important. When defendant speaks of possible Raison-related problems in this context, he refers to “a hypothetical defendant,” not himself.
Wholly aside from these considerations, I do not believe that appellate counsel’s Batson analysis is meritorious. That there might be an actual Batson problem in this particular case is predicated on a document styled “affidavit” which was appended to defendant’s pro se posttrial motion and motion to suppress confession. In that affidavit, defendant stated:
“Judge Maher I know you tried to be fair as possible and you was but I felt a predjudice [sic] and discrimanating [sic] patter[n] going on with the jury. I’m not predjudice [sic] but I strong feel some of the jury was. I mean let’s look at it eleven white people and one black person ***.”
The affidavit then continued with the charge that the one black person on the jury was likely to have been biased against defendant because her brother had recently been murdered and she still carried “emotion’s [sic] about guns and people being shot.” In addition, the affidavit asserted that the lone black juror knew defendant and had lied when the court asked here whether she knew anyone involved in the case.
Along with this affidavit, defendant’s appellate counsel also cited an allegation in trial counsel’s posttrial motion regarding the composition of the jury. That allegation, which paraphrased defendant’s affidavit, stated simply that
“of the twelve jurors in this cause, there was only one black and when the court asked said black lady if she knew anyone, either the attorneys or any of the proposed witnesses or the Defendant she stated she did not know the Defendant but in reality said Defendant has subsequently learned that the said black lady did know him.”
Contrary to the majority’s view, these assertions do not echo language in Batson. The Batson decision did not pertain to the bias that may result from personal acquaintance. It did not even address the bias that may result when the members of the jury happen to be of a different race from the defendant. Rather, it was concerned specifically with purposeful discrimination by the State in the selection of the jury through the use of peremptory challenges. Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986).
Nothing in any of the materials filed by defendant or on his behalf in the trial court charges that such purposeful discrimination by the State occurred here. A pattern of discrimination by the jury, which is what defendant alleged, is analytically and constitutionally distinct from a pattern of discriminatory strikes against black venire members by the prosecution, which is what the defendant in Batson alleged. Batson v. Kentucky, 476 U.S. at 83-84, 90 L. Ed. 2d at 78-79, 106 S. Ct. at 1715-16. While it may be true that the jury ended up with 11 white jurors and only one African-American, there is no indication that this composition was the result of anything other than the demographics of Peoria County.
To support its view that this case is properly viewed as presenting Batson concerns, the majority asserts that “the State does not dispute that defendant’s complaint about the racial composition of his jury was a Batson claim.” 226 Ill. 2d at 146 n.4. The majority’s implication is that the State, in its brief, somehow conceded that arguments advanced by defendant and his attorney in the trial court were predicated on Batson. The State made no such concession. So far as I can tell, the question of Batson is not even mentioned in the State’s brief. It did not need to be mentioned because it was not essential to the State’s arguments in support of the trial court’s judgment.
In addressing the question of why Batson was not specifically raised in the trial court, my colleagues fail to consider an obvious explanation, namely, that counsel recognized that no grounds for a Batson challenge existed. Instead, the majority intimates that defendant’s trial counsel refrained from invoking Batson out of concern that doing so would have required him to argue his own ineffectiveness. I regard such a suggestion as wholly unjustified. Rather than assuming that an attorney’s representation was tainted by self-interest or otherwise flawed, we must assume, absent evidence to the contrary, that counsel satisfied his professional obligations. Indeed, there is a strong presumption under Illinois law that the performance of a defendant’s attorney fell within the range of reasonably adequate representation. People v. Owens, 129 Ill. 2d 303, 318 (1989). My personal experience has been that such a presumption is justified, particularly when defense counsel is as experienced as defendant’s trial counsel was in this case.
When counsel in this case acquiesced in dispensing with a court reporter for voir dire, they did so with the understanding that the reporter would be available in the event that a problem arose requiring that a record be made. Had the State’s exercise of its peremptory challenges raised a Batson issue, there is no reason to believe that defendant’s lawyer would not have exercised this option and summoned the reporter to record the proceedings. Based on the record before us, it appears that he was diligent in all other aspects of his representation. That he did not deem it necessary to call in the reporter to make a record of what occurred during voir dire is therefore not evidence of lack of effective representation. It is evidence of lack of error.
Finally, I am puzzled by the remedy fashioned by my colleagues. That is so for three reasons. First, remanding for a hearing to reconstruct what took place during voir dire is not a resolution defendant himself has requested. Indeed, in his reply brief defendant contends that anything less than a full recording of the voir dire, which was not made and does not exist, will be inadequate. Second, to the extent that a record of what took place could be reconstructed, the time to attempt such reconstruction was immediately after the trial concluded. As noted in McClurg, Morris, and Culbreath, our rules provide for alternate means for preserving the record, and if a defendant fails to avail himself of those alternatives he cannot complain on appeal that the failure to provide a court reporter during voir dire constitutes reversible error. Third, even if some principle of justice could excuse defendant’s failure to act earlier, the passage of time has probably doomed any realistic hope of reconstructing the record of voir dire now. As a result, the remand ordered by the majority is, in the end, likely to be a meaningless act. The case is almost certain to return to us in essentially the same posture as it is now. What then? Nothing in the majority’s present analysis explains what the next step should be.
For the foregoing reasons, I believe that the majority’s analysis is unsound and that the remedy it fashions is ill conceived. In my view, the appellate court resolved this case correctly under the law. Although the majority did not reach defendant’s remaining issue pertaining to counsel’s failure to tender an instruction on identification, I believe that the appellate court resolved that issue correctly as well. The appellate court’s judgment should therefore be affirmed. Accordingly, I respectfully dissent.
Although the analysis in Campbell purported to rely on the language of Rule 401(a) rather than the underlying constitutional principles governing the right to counsel, the constitutionally based consequences of noncompliance are essential to the result it reached. If the existence of such consequences were absent from the analysis and the case rested solely on the text of the rule, it could not be squared with the analytical framework we set forth in People v. Robinson for understanding the mandatory-directory dichotomy, nor could it be reconciled with decisions such as People v. Henderson, 217 Ill. 2d 449 (2005), where we held that failure to comply with the admonitions required by Supreme Court Rule 605(a), which also employed the word “shall,” did not automatically require reversal and remand in every instance.