People v. Houston

• Citation: 226 Ill.2d 135,874 N.E.2d 23
• Decision Date: 02 August 2007
• Docket Number: No. 102225.,102225.
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Aaron Jamar HOUSTON, Appellant.
• Court: Supreme Court of Illinois

874 N.E.2d 23

226 Ill.2d 135

The PEOPLE of the State of Illinois, Appellee, v. Aaron Jamar HOUSTON, Appellant.

No. 102225.

Supreme Court of Illinois.

August 2, 2007.

Robert Agostinelli, Ottawa, Thomas A. Lilien, Deputy Defenders, Sherry R. Silvern, Assistant Defender, both of Elgin, all of the Office of the State Appellate Defender, for appellant.

Lisa Madigan, Attorney General, Springfield, Kevin Lyons, State's Attorney, Peoria (Gary Feinerman, Solicitor General, Michael M. Glick, Jay Paul Hoffmann, Assistant Attorneys General, Chicago, of counsel), for the People.

OPINION

Justice FREEMAN delivered the judgment of the court, with opinion:

After a jury trial in the circuit court of Peoria County, defendant Aaron Jamar Houston was convicted of the offense of armed robbery (720 ILCS 5/18—2(a) (West 2000)). The circuit court imposed a sentence of 20 years' imprisonment. The appellate court affirmed his conviction and sentence in all respects. 363 Ill.App.3d 567, 300 Ill.Dec. 207, 843 N.E.2d 465. We granted leave to appeal. 210 Ill.2d R. 315. For the reasons set forth below, we remand the cause to the circuit court with directions.

BACKGROUND

The charges against defendant arose from an armed robbery of a restaurant on July 11, 2002. The case was tried before a jury. Before trial began, the court inquired of the State and defense counsel as to their preferences regarding recording of the voir dire of the jury:

"[THE COURT:] Counsel, what do you want to do relative to having a court reporter take the actual voir dire; do you wish to have it recorded or not?

[Defense Counsel:] I don't need it recorded.

[State:] No, People waive.

THE COURT: Then the court reporter will be waived for the actual taking of the voir dire. [To the court reporter:] When I read the list of witnesses and put the 12 in the box, then you're free to go.

[Defense Counsel:] Judge, subject to coming up—

THE COURT: That's right, she'll be available."

Voir dire commenced without being recorded by the court reporter. The court went back on the record after the 12 jurors had been picked to indicate that at that point there was only one prospective juror remaining as a possible alternate. The court stated that it was too late in the day to request additional prospective jurors, so either the parties could agree to go to trial with a single alternate juror if the final prospective juror was acceptable, or return the following day, pick two alternate jurors and proceed at that point. Defense counsel and the State each indicated that it would be acceptable to go to trial with a single alternate juror. After confirming that this was acceptable to both parties, the court stated: "Okay. And I take it you continue your waiving of the court reporter for the voir dire for the alternate?" Defense counsel and the State each assented, and the court reporter was again excused. The alternate was apparently deemed acceptable, and the case proceeded to trial.

At the close of evidence, the jury found defendant guilty of armed robbery. The trial court then set June 13, 2003, as the date for posttrial motions and sentencing. On April 24, 2003, defendant sent the court a handwritten pro se motion for a new trial, which the court received on April 28. In addition to pointing out alleged inconsistencies in the testimony that formed the basis of his conviction, defendant also complained regarding the composition of his jury. Specifically, defendant, who is African-American, wrote to the judge as follows:

"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 * * *."

Defendant further alleged, in his pro se motion, that the lone African-American juror, a woman, stated during voir dire that she did not know defendant, but that defendant subsequently learned that this juror did in fact know him. Defendant alleged, in addition, that the prosecution wanted this person on the jury because her brother had recently been murdered. In defendant's view, she had strong feelings "about guns and people being shot."

On May 14, 2003, defense counsel filed a motion for a new trial. In this motion, defense counsel stated, in relevant part: "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 said black lady did know him."

On June 13, 2003, the trial court held the previously scheduled hearing on the motion for a new trial. During this hearing, defense counsel emphasized, in particular, the allegation regarding the African-American juror "who denied, in effect, that she knew anyone, any of the parties, the Court, or anyone else." The State responded that defendant never made this objection during voir dire. The State added that "there were several peremptory challenges used, at least seven by the defense; I think six by the State."

The trial court denied the motion for a new trial. In explaining this decision, the trial court specifically addressed the claim regarding the African-American juror who allegedly denied knowing defendant. The trial court ruled that there was no factual basis for this claim.

After denying the motion for a new trial, the court conducted a sentencing hearing. During this hearing, the State acknowledged that, according to the evidence presented at trial, defendant "was not the individual that was armed." The presentence investigation report indicated that defendant, who was born on November 15, 1984, left high school in 1999 when he was about 15 years of age. At the conclusion of the hearing, the trial court sentenced defendant to 20 years' imprisonment.

Defendant appealed, and a divided appellate court affirmed his conviction and sentence. 363 Ill.App.3d 567, 300 Ill.Dec. 207, 843 N.E.2d 465. The court found that the evidence was sufficient to uphold defendant's conviction, found no reversible error in the fact that the voir dire was not recorded, and denied defendant's claim of ineffective assistance of counsel.

In her dissent, Justice McDade pointed to Supreme Court Rule 608(a)(9), which requires that "court reporting personnel * * * take the record of the proceedings regarding the selection of the jury." 210 Ill.2d R. 608(a)(9). Justice McDade noted that the failure to record voir dire in the case at bar ran directly counter to Rule 608(a)(9), which, in Justice McDade's view, was mandatory. She stated: "This is a rule of criminal procedure and, as is the case with all the supreme court's rules that fall into that category, it is mandatory; it is a rule of procedure, not a mere suggestion." (Emphasis in original.) 363 Ill. App.3d at 579, 300 Ill.Dec. 207, 843 N.E.2d 465 (McDade, J., dissenting). According to Justice McDade, the cause should have been remanded for a new trial.

ANALYSIS

Before this court, defendant raises two distinct challenges to his conviction. The first concerns the voir dire proceedings. The second relates to trial counsel's failure to submit a jury instruction. With regard to the voir dire proceedings, defendant contends that (1) his trial counsel was ineffective for waiving the court reporter during voir dire, and (2) the trial court improperly allowed voir dire to proceed with no court reporter present, thereby depriving defendant of due process.

We turn first to defendant's assertions of error during voir dire. Both of his arguments in this regard concern the failure to record proceedings in violation of Rule 608 (210 Ill.2d R. 608).

Preliminarily, we note that article VI of our supreme court rules governs criminal cases, and within article VI, Rule 608 deals with the record on appeal. Subsection (a)(9) of Rule 608, which focuses on voir dire, provides that, in cases where a sentence of death is not imposed:

"[T]he court reporting personnel * * * shall take the record of the proceedings regarding the selection of the jury, but the record need not be transcribed unless a party designates that such proceedings be included in the record on appeal." (Emphasis added.) 210 Ill.2d R. 608(a)(9).¹

Rule 608 does not define the terms "record" and "transcribe." Webster's Third New International Dictionary defines "record" as "an account in writing or print * * * intended to perpetuate a knowledge of acts or events" and, more specifically, "an official contemporaneous memorandum stating the proceedings of a court of justice." Webster's Third New International Dictionary 1898 (2002). The term "transcribe" is defined as "to make a written copy of." Webster's Third New International Dictionary 2426 (2002). While Black's Law Dictionary appears to conflate the terms "record" and "transcript" (Black's Law Dictionary 1279 (7th ed.1999) (defining "record" as including a "transcript of the trial or hearing")), the sense of Rule 608(a)(9) clearly is that "record," as in "take the record of the proceedings regarding the selection of the jury," is to be differentiated from a transcription. The rule states: "the record [of the proceedings regarding the selection of the jury] need not be transcribed unless a party designates that such proceedings be included in the record on appeal." 210 Ill.2d R. 608(a)(9). The plain meaning of the rule is that, in cases other than those where a sentence of death is imposed, a record of the proceedings regarding the selection of the jury is to be taken but that a transcription, or copy, need not be made unless requested by a party for inclusion in the record on appeal. Of necessity, if the voir dire record that Rule 608(a)(9) requires to be taken must be transcribed, if requested, for inclusion in the record on appeal, this initial...