People v. Gardner
Decision Date | 11 May 2004 |
Docket Number | No. 1-03-1619.,1-03-1619. |
Citation | 284 Ill.Dec. 527,348 Ill.App.3d 479,810 N.E.2d 180 |
Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Clarence GARDNER, Defendant-Appellant. |
Court | United States Appellate Court of Illinois |
Clark C. Johnson and Christina T. Tomaras, Jenner & Block, LLC, Chicago, for Appellant.
Richard A. Devine, State's Attorney of Cook County, Chicago (Renee Goldfarb, and Annette Collins, of counsel), for Appellee.
Clarence Gardner contends the trial court's failure to ask or to allow his defense counsel to ask gang bias questions to prospective jurors deprived him of an impartial jury. To resolve the issue, we have to determine whether defense counsel actually requested gang bias questions, and, if not, whether the trial court should have asked them anyway. Following a jury trial, defendant was convicted of first-degree murder under a theory of accountability and sentenced to 35 years' imprisonment. The judgment was affirmed on direct appeal. People v. Gardner, 282 Ill.App.3d 209, 217 Ill.Dec. 940, 668 N.E.2d 125 (1996). Defendant subsequently filed a pro se post-conviction petition alleging he was denied a fair trial when the trial judge failed to pose a question on gang bias during voir dire. The trial court summarily dismissed his petition as frivolous and patently without merit. This court reversed the summary dismissal and remanded the cause for second-stage post-conviction proceedings. People v. Gardner, 331 Ill.App.3d 358, 264 Ill.Dec. 622, 771 N.E.2d 26 (2002). Defendant now appeals the second-stage dismissal of his post-conviction petition, contending he made a substantial showing of a constitutional violation due to the trial court's error during voir dire. We affirm the trial court.
We set out the facts in our previous opinions. See Gardner, 282 Ill.App.3d at 211-13, 217 Ill.Dec. 940, 668 N.E.2d 125; Gardner, 331 Ill.App.3d at 360-62, 264 Ill.Dec. 622, 771 N.E.2d 26. We repeat only those facts pertinent to this appeal, but some background is required.
Defendant was convicted under a theory of accountability for the shooting death of Joseph Waites, Jr. The shooting occurred when Waites and other members of his high school football team got into a fight with several gang members, including defendant. "Gang activity was an integral part of [defendant's] trial." Gardner, 331 Ill.App.3d at 368, 264 Ill.Dec. 622, 771 N.E.2d 26. At trial, the State presented evidence that defendant was a member of the Gangster Disciples street gang; the shooting occurred in Gangster Disciples' territory; and defendant made several statements telling his fellow gang members to shoot Waites ("Bust him," for example), because he thought Waites belonged to a rival gang.
At a pretrial hearing, defendant filed a written motion requesting certain questions be presented to all potential jurors during voir dire. The motion included the following question:
Defense counsel gave the court his written requests during the following exchange:
During voir dire, the trial court asked the entire jury pool a series of questions, including, "Have you or any member of your immediate family had any direct involvement with a street gang?" No one raised his or her hand. The court then asked, "Have you or any member of your immediate family had any indirect involvement with a street gang?" One juror raised his hand. The court later asked that juror whether his indirect involvement with gangs would prevent him from giving both sides a fair trial. The juror answered, " no," but later was excused for cause at the State's request based on his answer to another question.
On direct appeal, defendant alleged several trial errors, including the court's failure to ask the gang bias question (question "d" in his written motion) to all prospective jurors during voir dire. This court, without analysis, found the trial court's questions were sufficient to address the possibility of juror bias. Gardner, 282 Ill.App.3d at 218, 217 Ill.Dec. 940, 668 N.E.2d 125. They were not. See People v. Strain, 194 Ill.2d 467, 252 Ill.Dec. 65, 742 N.E.2d 315 (2000) ( ).
The Seventh Circuit, sitting en banc, affirmed the federal district court's denial of defendant's petition for writ of habeas corpus. The court held the trial court's actions did not violate defendant's rights under the federal constitution. Gardner v. Barnett, 199 F.3d 915, 921 (7th Cir.1999).
One year later, the Illinois Supreme Court decided Strain. The court held that when gang evidence was to be an integral part of the trial, the failure to ask a gang bias question during voir dire, after the defendant's request, was reversible error under the Illinois Constitution. Strain, 194 Ill.2d at 481, 252 Ill.Dec. 65, 742 N.E.2d 315.
Gardner subsequently filed a post-conviction petition reasserting the voir dire error based on his rights under the Illinois Constitution. The petition was summarily dismissed as untimely and barred by res judicata. On appeal, this court vacated the dismissal and remanded for second-stage proceedings, finding Strain applied retroactively to defendant's case. We instructed the trial court to determine whether Strain provided defendant relief. Gardner, 331 Ill.App.3d at 368, 264 Ill.Dec. 622, 771 N.E.2d 26.
On remand, the trial court heard oral argument on the State's motion to dismiss. The State contended defendant was given the voir dire he requested in his written motion. Defendant argued he requested and was denied permission to ask potential jurors the gang bias question. The trial court reviewed the pretrial voir dire requests in its order dismissing defendant's post-conviction petition. The court explained the statements it made at the pretrial hearing:
The trial court continued in a footnote:
The trial court determined the venire was questioned regarding gang bias in the manner defendant requested. The trial court also concluded it had no duty to conduct a gang bias inquiry sua sponte and dismissed defendant's post-conviction petition.
A post-conviction proceeding is a collateral attack on a conviction resulting from a substantial denial of the petitioner's rights under the United States Constitution or the Illinois Constitution. People v. Coleman, 183 Ill.2d 366, 379, 233 Ill.Dec. 789, 701 N.E.2d 1063 (1998). Post-conviction petitions are adjudicated through a three-stage process set forth by the Post-Conviction Hearing Act. 725 ILCS 5/122-1 et seq. (West 2002).
In the first stage, the petition must state the gist of a constitutional claim or it will be summarily dismissed. People v. Edwards, 197 Ill.2d 239, 244, 258 Ill.Dec. 753, 757 N.E.2d 442 (2001). If the petition survives the first stage, the State is allowed to file a motion to dismiss. Edwards, 197 Ill.2d at 245, 258 Ill.Dec. 753, 757 N.E.2d 442. At the second stage, the petitioner must make a substantial showing of a constitutional violation to survive dismissal. Edwards, 197 Ill.2d at 246, 258 Ill.Dec. 753, 757 N.E.2d 442. Only then will the petition advance to the third stage, an evidentiary hearing. Edwards, 197 Ill.2d at 246, 258 Ill.Dec. 753, 757 N.E.2d 442; 725 ILCS 5/122-6 (West 2002).
This case involves a second-stage dismissal. Such dismissals present only legal...
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