People v. Brown
| Decision Date | 23 February 2009 |
| Docket Number | No. 1-06-1760.,1-06-1760. |
| Citation | 903 N.E.2d 863,388 Ill. App. 3d 1 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dennis BROWN, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Following a jury trial, the defendant Dennis Brown was convicted of possession of cocaine with intent to deliver within 1,000 feet of a school and sentenced to five years' imprisonment. The defendant presents a single issue: whether he was denied "a fair and impartial jury when the trial judge interfered with the selection of an unbiased jury by ordering the first potential juror who admitted that he could not be fair to return to the courtroom and observe Brown's trial to get an `education as to how the system works.'" The defendant asserts plain error. Because we find the defendant has failed to meet his burden under the plain error doctrine, we affirm.
During voir dire examination, the following colloquy took place between the trial judge and a prospective juror.
Do you still think you can be fair and impartial?
MR. DOMINIQUE [Assistant Public Defender]: No objection, your Honor.
MR. CURRAN [Assistant State's Attorney]: None.
THE COURT:—to excusing [this juror]? All right, [Juror]. We want to thank you for being frank and we're going to excuse you at this time. But I'm ordering you to return to court tomorrow morning at 11:00 o'clock because I plan on picking 12 individuals who are going to be able to be fair and impartial to both sides in this case and I think you need an education as to how the system works."
The judge then asked the remaining venire whether anyone else had a problem with the charges, whether anyone had a problem signing a not guilty or guilty verdict form, and whether anyone would hold the defendant's decision not to testify against him. No other prospective juror indicated that he or she had a problem.
Thereafter, the judge questioned each prospective juror individually, regarding (1) any prior service on a jury; (2) any close contact with a victim of a crime; (3) any criminal arrests; and (4) any involvement in a criminal case as a complainant or a witness. Following the judge's questioning, the State asked the venire whether anyone had a problem passing judgment on another person because of any religious, ethical, or moral considerations to which no one responded that he or she did. Last, defense counsel questioned 10 prospective jurors concerning their responses to the judge's questions.
At the jury trial, the evidence showed that on June 13, 2005, at around 11:30 p.m., Officer Joe Dahl and his partner were conducting surveillance near 2210 South Millard in Chicago. There, Officer Dahl observed the defendant engage in four separate hand-to-hand transactions where an unknown individual would hand the defendant money in exchange for a small object. Suspecting that these exchanges were narcotics transactions, Officer Dahl broke surveillance, drove to the defendant's location, exited his vehicle and witnessed the defendant toss a clear plastic bag containing suspected narcotics onto the ground. While his partner apprehended the defendant, Officer Dahl recovered the plastic bag, which contained a substance that tested positive for cocaine. A custodial search revealed that the defendant possessed $50 in his right pants pocket. The parties stipulated that the distance between 2210 South Millard and Paderewski School, located at 2221 Lawndale Avenue in Chicago, is 75 feet.
The defendant testified that he was getting into his car to go to a girlfriend's house when the police approached him with "guns and stuff," searched his car, and broke into his apartment. The police told the defendant that if he did not tell them "who had some guns," they were going to plant a bag of narcotics on him. When asked how he knew these individuals were police officers, the defendant responded, "[t]hey stopped me earlier that day in the alley and searched me, took my wallet, took my money, the same police."
The jury found the defendant guilty. This timely appeal followed.
The defendant argues he was denied the right to a fair and impartial jury trial by the trial judge's actions that discouraged prospective jurors from responding candidly and openly when she excused the first prospective juror that stated he could not put aside his bias against drug-related offenses and punished this prospective juror by ordering him to return to the courtroom the following day to observe the trial process. The defendant admits he failed to preserve this issue for review by not objecting at trial and by not including the issue in his posttrial motion. The defendant asks that we reach this unpreserved error as plain error, arguing that the error denied him the right to a trial before an impartial jury. See People v. Dixon, 382 Ill.App.3d 233, 244, 320 Ill.Dec. 433, 887 N.E.2d 577 (2008), citing People v. Herron, 215 Ill.2d 167, 294 Ill.Dec. 55, 830 N.E.2d 467 (2005). He asserts the forfeiture rule should not be rigidly applied here where the unpreserved error concerns the conduct of the trial judge, citing People v. Young, 248 Ill.App.3d 491, 498, 188 Ill.Dec. 456, 618 N.E.2d 1026 (1993) ().
"The purpose of voir dire is to assure the selection of an impartial panel of jurors who are free from bias or prejudice." People v. Terrell, 185 Ill.2d 467, 484, 236 Ill.Dec. 723, 708 N.E.2d 309 (1998), citing People v. Williams, 164 Ill.2d 1, 16, 206 Ill.Dec. 592, 645 N.E.2d 844 (1994). The manner in which voir dire is conducted as well as its scope lie with the discretion of the trial judge. Williams, 164 Ill.2d at 16, 206 Ill.Dec. 592, 645 N.E.2d 844. An abuse of that discretion will only be found where the judge's conduct "thwarted the selection of an impartial jury." Williams, 164 Ill.2d at 16, 206 Ill.Dec. 592, 645 N.E.2d 844.
Initially, we note there is no authority in Illinois that directly addresses the issue at hand—whether the trial judge's actions in "punishing" the first prospective juror to indicate that he was biased thwarted the selection of an impartial jury. The parties cite to authority from other jurisdictions that supports their respective positions. The defendant points to United States v. Rowe, 106 F.3d 1226 (5th Cir.1997), which he contends should be read in light of the supreme court's decision in People v. Strain, 194 Ill.2d 467, 252 Ill.Dec. 65, 742 N.E.2d 315 (2000), that recognizes the need to probe for bias on the part of prospective jurors. The State points to United States v. Colabella, 448 F.2d 1299 (2nd Cir.1971), and State v. Rannels, 333 N.C. 644, 430 S.E.2d 254 (1993), for its position that on the facts before us, it would be no more than speculation to say the remaining prospective jurors were intimidated into not revealing any bias.
We begin with our own observations regarding the voir dire procedure below. First, the parties agreed to excuse the prospective juror based on his statement that he could not set aside his negative feelings toward the pending drug-related charges. The trial judge granted the parties' motion and excused the prospective juror. Having accomplished all that could have been accomplished, we question the need for the trial judge to have engaged in a subsequent admonishment of the prospective juror in the presence of the venire. If the trial judge saw a need to instruct the prospective juror on his civic duty to serve on a jury based on what he stated in open court, the trial judge was free to direct the juror to remain until the end of the proceedings that day to speak with him outside the presence of the remaining prospective jurors. This would have avoided creating an appellate issue for the defendant. Second, jury selection was completed that afternoon and the dismissed venire person had satisfied his duty under the "one day/one trial" program established by the chief judge of the circuit court of Cook County. We question the basis to extend...
To continue reading
Request your trial
-
People v. Trzeciak
...in some way been prejudiced.” Moreover, the trial court's conduct is similar to that of the trial court in People v. Brown, 388 Ill.App.3d 1, 328 Ill.Dec. 203, 903 N.E.2d 863 (2009), which found no error in the jury selection process. There, the court determined the issue forfeited because ......
-
The People Of The State Of Ill. v. Ingram, 1-07-2229.
...We need not conduct a plain error analysis; forfeiture applies to defendant's contention. Defendant's reliance on People v. Brown, 388 Ill.App.3d 1, 328 Ill.Dec. 203, 903 N.E.2d 863 (2009), is misplaced. In Brown, the trial judge reluctantly excused a potential juror who said he could not b......
-
People v. Fountain
...free to inquire directly of the venire to ensure that only “fair and impartial” jurors were selected. See People v. Brown, 388 Ill.App.3d 1, 10, 328 Ill.Dec. 203, 903 N.E.2d 863 (2009) (no reason to forego the application of the forfeiture rule when “the defendant [had] the opportunity to f......
-
People v. Ingram
...not conduct a plain error analysis; forfeiture applies to defendant's contention. Defendant's reliance on People v. Brown, 388 Ill.App.3d 1, 328 Ill.Dec. 203, 903 N.E.2d 863 (2009), is misplaced. In Brown, the trial judge reluctantly excused a potential juror who said he could not be fair a......