Opinion
No. 1-17-2833
04-23-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DWIGHT COVERSON, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
No. 16 CR 829
Honorable Raymond Myles, Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court.
Justice Connors and Justice Oden Johnson concurred in the judgment.
ORDER
¶ 1 Held: We affirm defendant's conviction after a jury trial of delivery of a controlled substance where (1) his trial counsel was not ineffective in stating during opening argument that the jury would hear testimony about another person who sold the drugs to the undercover officer, and (2) the trial court's conduct during voir dire did not interfere with the selection of a fair and impartial jury.
¶ 2 I. JURISDICTION
¶ 3 The trial court sentenced defendant on October 18, 2017, and defendant filed a notice of appeal that same day. Accordingly, this court has jurisdiction pursuant to Article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, §6) and Rule 603 (eff. Feb. 6, 2013) and Rule 606 (eff. July 1, 2017), governing appeals from a final judgment of conviction in a criminal case entered below.
¶ 4 II. BACKGROUND
¶ 5 Defendant Dwight Coverson was charged with one count of unlawful delivery of a controlled substance. During jury selection the court asked venire members, "Have you, a close friend or family member ever been charged with a similar offense as the defendant is charged with today? If so, please raise your hand." Several people raised their hands and the court proceeded to question them. When the court reached prospective juror K.S., the following exchanged occurred:
"Q. Ms. Shorter. Have you or a relative had similar charges?
A. Yes.
Q. And the fact that you had these charges or your relative had these charges, would it keep you from being fair and impartial today?
A. Yes.
Q. It would keep you from being fair and impartial?
A. Yes.
Q. Why?
A. Because I've been through - I'm just going to say not guilty.
Q. You're going to say not guilty without hearing any evidence?
A. Uh-huh. Just by what you said.
Q. What did I say?
A. Substance charges.
Q. I can't hear you.
A. Substance charges.
Q. Something charges?
A. Substance charges.
Q. Subsequent charges? Substance charges?"
A. Uh-huh.
Q. What does that mean?
A. It's dealing with drugs so I'm not - I don't - all I know is he's not guilty.
Q. You haven't heard any of the evidence.
A. [No response.]
Q. Well let me say this. I just wont let you go home. You may have to come back another day and serve on another jury, either here or Downtown. From what you're telling me, you're telling me you don't want to serve on a jury. Period. That's what it sounds like to me.
A. No, because he's -
Q. I'm just letting you know that if I have to let you go, then your name will go back into the jury pool. At some point, you either come back to this building or you go Downtown. Okay?
A. Uh-huh.
Q. I'm not just addressing it to her but to anybody who wants to give an answer and says, well, if I tell the judge this he'll let me go. That will not happen. Your name will be put back into the pool and then you may have to serve either some time soon or some time later. Okay? Because we all have a civic duty to serve on juries. It may be inconvenient. But if you had a case, either civil or criminal, you would want your neighbors to hear your side of the case and not just say guilty or not just say innocent without listening to any evidence. That's unfair to our system. In the American system, we have a system where you listen to the evidence and then make a decision. Okay?
Anybody have any questions about what I just said?
[No responses.]
COURT: These are rights that - the defendant is entitled to a fair and impartial trial."
The court then questioned two other jurors who had raised their hands, and both indicated that having a family member with similar charges against them would not affect their ability to be fair and impartial in this case.
¶ 6 The court proceeded with questioning the venire members about other biases they may have. When it asked whether anyone knew of judges, prosecutors, attorneys or law enforcement members, a number of hands went up. The court responded, "That's a wrong question" and there was laughter.
¶ 7 During the examination of the first panel of prospective jurors, the court again questioned Ms. Shorter:
"Q. Very good. Have you ever been accused of a crime?
A. Expungement.
Q. Expungement? Okay.
Anything about that experience would prevent you from being fair and impartial in this case?
A. No.
Q. You can be fair and impartial?
A. Yes.
Q. Have you ever personally appeared in court for any reason, other than what you told me about the expungement?
A. Yes.
Q. And how long ago was the expungement?
A. About six years ago.
Q. And what type of offense was that?
A. This boy (unintelligible). I beat a boy. I beat somebody. Battery.
Q. Like a battery case?
A. Uh-huh.
Q. Anything about that experience would prevent you from being fair and impartial in this case?
A. No.
Q. Okay. Can you set aside any sympathy, bias or prejudice in reaching a decision in this case?
A. Yes."
¶ 8 After questioning the panel, the parties went into the judge's chambers to begin the selection process. The assistant State's attorney requested the removal of Ms. Shorter for cause because she was "very clear" that she could not be fair. Defense counsel objected, arguing that the court had rehabilitated her as indicated by her answers to questions about her expungement. The court agreed with the State that she seemed quite "adamant" that she would "just say not guilty." The court acknowledged that it "took a long time to admonish her *** that her position was unfair," because it believed that her position was "premeditated as to what she was going to say to get out of" jury duty. The court did not think she was "taking the process very seriously" and allowed her dismissal for cause.
¶ 9 After the jury had been selected and the venire was dismissed, the court called to Ms. Shorter and requested that she "return tomorrow [because] I want you to participate in the process. I want you to become more educated in civic responsibilities and civic duty." She agreed to return the next day. The court continued:
"We're going to start at 11:30. Everybody has to come back at 11:30. Plus, you're going to be fed tomorrow. We'll feed you. Okay? Okay? All right? 11:30.
Now, this will be the end of your responsibility. You won't have to come back and go Downtown or anything of that nature? Okay?"
¶ 10 Prior to trial, defense counsel filed a motion to bar the State from impeaching defendant with his prior convictions. Counsel also informed the court that defendant would not testify at trial. The State responded that if defendant changed his mind during trial, it "would be seeking leave to enter certain certified copies of conviction for the purposes solely of attacking the defendant's
credibility." The court ruled, over defense counsel's objection, that the prior convictions would be admissible should defendant testify.
¶ 11 At trial, Officer Shane Jones testified that on December 12, 2015, he was working undercover and planned to purchase narcotics near 1000 West 63rd Street in Chicago, a high narcotics sales area. At around 7 p.m., he was in an unmarked vehicle when he saw an individual "hanging out" in the target area. He attempted to engage the person in conversation about purchasing narcotics. Officer Jones identified defendant as the person he spoke to. He asked defendant where he could get rocks, a street term for crack cocaine.
¶ 12 Defendant told him that he could take him "to a spot to get some," and Officer Jones asked defendant to get into the car. Defendant directed him to 6719 South Sangamon and said that "it would be $30 for two rocks." Officer Jones gave defendant $30 in pre-recorded funds. Defendant exited the car and walked through a gang way. Officer Jones lost sight of him at this point. Five or ten minutes later, he saw defendant at the corner of 6700 South Sangamon, which was about a quarter block from his vehicle. Defendant walked to the car and got inside. Officer Jones observed that "[t]here was another individual who appeared to me to be kind of trailing him or watching him." He kept his eye on this other person, who he described as black male, because he found it strange "that the defendant came from a completely different direction to me and somebody was so close trailing him." Officer Jones was "concerned that maybe this other individual was coming to come to my car or get in my car." The individual stopped walking and did not reach the car.
¶ 13 After defendant got back into the car, he spit two crack cocaine rocks from his mouth into the officer's hand. Officer Jones gave a signal to other officers that a positive transaction had occurred, but he did not place defendant under arrest because it would have posed a safety issue
in the area. Instead, he drove northbound and was stopped at 6710 South Halsted by law enforcement officers. Officers Lee and Papke took defendant into custody. Officer Jones placed the narcotics into a bag with an inventory number and defendant's name. He sealed the bag and dropped it in a safe where it was collected for testing and analysis.
¶ 14 On cross-examination, Officer Jones acknowledged that when he stopped to talk to defendant, defendant was doing nothing illegal and there was no sign that he was selling drugs. He also stated that when defendant was arrested, he did not have money on him. When asked about the other man he saw walking behind defendant, and why he was not included in the report, Officer Jones responded that "[t]he other individual I saw had nothing to do with me purchasing narcotics." When asked whether they pursued the other man to see if he possessed the secured funds, Officer Jones answered, "No, sir." The funds were never recovered.
¶ 15 Officer Marco Davis testified that on December 12, 2015, he was working with a team planning to buy narcotics in a high crime area. He was an undercover surveillance officer, and his job was to monitor Officer Jones and "make sure he is okay." He was working with six other officers. Officer Davis saw a black male approach Officer Jones's vehicle and he identified defendant as that person. After Officer Jones spoke with him, defendant got into the passenger side of the car and they drove away. The car stopped at 6719 South Sangamon, defendant exited, and then he walked to a white-frame two story house at 911 West Marquette Avenue. Officer Davis saw a black male open the door and defendant entered. Two minutes later, defendant came out and walked on the sidewalk towards Officer Jones's vehicle. Defendant entered the vehicle and Officer Jones opened and closed his door a couple of times. This act signaled to other officers that a positive narcotics transaction had occurred.
¶ 16 On cross-examination, Officer Davis acknowledged that when defendant started walking back to Officer Jones's car, there was another black male walking with him. Officer Davis included this detail in his report because he believed that defendant and this other male were connected in some way. When defense counsel asked whether that other man walked all the way to Officer Jones's car with defendant, Officer Davis answered, "No, he didn't." He stated that the other man paused about 30 feet from the vehicle and then he "started approaching the car somewhat a little closer." The man continued toward the vehicle but he never got "close enough to touch." According to Officer Davis, none of the officers approached this other person.
¶ 17 Doris Benkowski testified that she is a forensic scientist specializing in drug chemistry. She tested the substance inventoried by Officer Jones and it tested positive for the presence of cocaine.
¶ 18 Officer Joseph Papke testified that on December 12, 2015, he was the undercover enforcement officer working with the group. He was in an unmarked police car with officer Duran Lee. He received a notification from the surveillance team that a positive narcotics purchase had occurred, so he stopped Officer Jones's vehicle at 6710 South Halsted. He approached the passenger side while Officer Lee approached the driver's side. Officer Papke identified defendant as the person he placed under arrest.
¶ 19 Defense counsel moved for a directed verdict, which the trial court denied. After the State rested its case, the defense rested without calling any witnesses. In closing argument, defense counsel emphasized that when Officer Jones stopped to talk with defendant on the street, defendant was only walking and did not signal or otherwise indicate that he had drugs to sell. He continued:
"What kind of drug dealer walks down the street not saying anything or making any kind of motion to say I have drugs and then gets in the car and drives all the way to his house from 900 East 63rd to 67th and Sangamon and has no drugs on him.
And has no money on him. And has no cell phone. And has no pager. And has no scanner and didn't ask the undercover for his ID who gets out of the car, goes to get drugs.
And then gets back in the car and say [sic], can I still get my ride home? Does that make sense?"
Counsel also talked about the other person seen with defendant:
"The other difference is the undercover officer [says] there's another black man starts walking with [defendant]. And then he stopped 30 feet away. And he never comes in any closer.
It wasn't important to him. He didn't include it in his report. It wasn't relevant. But [Officer Davis] included it in his report. And it was different.
He said gets about 30 feet hesitates and then keeps walking to the car. He's within touching distance of the vehicle. Nothing is done further after that.
***
"You have questions. You have doubt. I want you to go back there and talk about those questions. There is reasonable doubt."
¶ 20 After closing arguments, the jury found defendant guilty of unlawful delivery of a controlled substance. The trial court denied defense counsel's motion for a new trial. Defendant filed a pro se motion to reconsider that ruling, arguing that he did not testify because the court would have allowed the State to present his prior convictions as impeachment if he testified. He
alleged that had he testified, he would have told the jury that he did not deliver drugs to Officer Jones. Rather, he only showed him where he could obtain the drugs himself and in exchange for that information, Jones would share one of the bags with defendant. The court did not allow defendant to argue his pro se motion because he was represented by counsel at the time.
¶ 21 At the sentencing hearing, defendant made a statement in allocution. He stated that on the day in question, he was walking home after visiting his brother at the hospital when Officer Jones approached him. When he asked where he could find a couple bags of crack, defendant told him "I don't know what to tell you, man," and asked for a ride home because it was cold. Officer Jones agreed to give him a ride and after he got into the car, the officer told defendant that if he showed him where to buy drugs, he would get some for defendant. When they got to the location, a "drug dealer" came to the vehicle and sold Officer Jones three bags of crack cocaine for $30. He then handed one of the bags to defendant.
¶ 22 After the hearing, defendant was sentenced as a Class X offender due to his criminal history. The court considered all of the statutory factors in mitigation and aggravation, and imposed the minimum sentence of six years' imprisonment. Defendant filed a motion to reconsider his sentence, which was denied. He filed this timely appeal.
¶ 23 III. ANALYSIS
¶ 24 Defendant first contends that his trial counsel was ineffective where he promised in his opening statement that the jury would hear testimony contradicting the State's version of events, but failed to present that evidence at trial. To prevail on his claim, defendant must show that (1) his attorney's performance fell below an object standard of reasonableness, and (2) defendant was prejudiced by his attorney's deficient performance. People v. Hodges, 234 Ill. 2d 1, 17 (2009). The
failure to satisfy either prong precludes a finding of ineffective assistance of counsel. People v. Patterson, 192 Ill. 2d 93, 107 (2000). Defendant must overcome a strong presumption that, under the circumstances, the challenged action or inaction was sound trial strategy. People v. Lopez, 371 Ill.App.3d 920, 929 (2007). "[M]atters relating to trial strategy are generally immune from claims of ineffective assistance of counsel." Id. at 929. We review defendant's ineffective assistance of counsel claim de novo. People v. Taylor, 237 Ill. 2d 68, 75 (2010).
¶ 25 A promise in opening statements that a particular witness will testify can constitute ineffective assistance. See People v. Briones, 352 Ill. App. 3d 913, 919 (2004). However, trial counsel's failure to provide testimony promised in opening statements is not ineffective assistance per se. People v. Manning, 334 Ill. App. 3d 882, 892 (2002). We also recognize "that counsel's decision to abandon a trial strategy during trial may be reasonable under the circumstances and that the decision not to provide promised testimony may be warranted by unexpected events." People v. Wilborn, 2011 IL App (1st) 092802, ¶ 80. Defendant can overcome the presumption that his counsel's actions constituted sound trial strategy if he shows that counsel's decision was "so irrational and unreasonable that no reasonably effective defense attorney, facing similar circumstances, would pursue such a strategy." People v. King, 316 Ill. App. 3d 901, 916 (2000).
¶ 26 In his opening statement, defense counsel argued that defendant was simply requesting a ride from undercover Officer Jones, and the officer responded that he would take defendant home "if you show where the drug dealer is." Defendant directed him to the address of "the guy that sells drugs." Defense counsel continued:
"You'll here [sic] testimony about another person who comes over to the car. And that he, in fact, is the one who sells the drugs. And that the other man leaves. And the undercover officer continues to take [defendant] in his car afterwards."
Defendant argues that counsel promised this evidence, yet no evidence was presented at trial about another drug seller who came to Officer Jones's car. He contends that counsel's performance was deficient where his broken promise "left the jury with no choice but to believe the State's version was correct." As support, defendant cites Harris v. Reed, 894 F.2d 871 (7th Cir. 1990), U.S. ex rel. Hampton v. Leibach, 347 F.3d 219 (7th Cir. 2003), and People v. Briones, 352 Ill. App. 3d 913 (2004).
¶ 27 In Harris, the defendant was charged in the shooting death of Ernest Howard on South Christina Street in Chicago, Illinois. Harris, 894 F.2d at 872. A police report listed the names of witnesses who saw a man flee from the direction of the shooting. One of these witnesses, Leroy Carter, lived on Christina Street near the shooting. He told police that he saw a black male running away from the shooting into a nearby playground. Id. Three days later, Carter identified Melvin McWhorter as the man he saw fleeing from the scene of the shooting. Id. at 873. Another witness who lived on Christina Street, Alice Riles, told police that she saw two men flee from the shooting into a vacant lot near the playground. She later identified McWhorter as one of the men she saw fleeing the scene. Id.
¶ 28 The police questioned McWhorter, who first denied being in the area at the time of the shooting. When he was questioned a second time, McWhorter admitted that he had lied in the first interview, and that he was near the area attempting to buy drugs. He stated that he heard a shot and saw the defendant walking southbound away from the scene. McWhorter remained a prime suspect
until a month later, when an unidentified informant told police that Antonio Slater also witnessed the incident. Police interviewed Slater, who stated that he was in a car near Christina Street when he heard a shot. He then saw a man running toward a light-colored Buick. Slater viewed photographs and identified a picture of the defendant as the man he saw running to the Buick. The defendant was arrested later that day and charged with murder. Id.
¶ 29 In the opening statement, defense counsel emphasized that McWhorter would figure prominently at trial. Counsel stated that the evidence at trial would show that two people were seen running away from the shooting, and one of them was McWhorter. Two witnesses identified him as the person they saw running from the scene. Counsel continued that when police confronted McWhorter, he told them a lie and then changed his story. She called McWhorter "a chief suspect." Id. at 873-74.
¶ 30 At trial, Slater was the only prosecution witness to link defendant to the shooting. After the State rested its case, defense counsel informed the court that he would not put on any witnesses and the defense rested its case. The jury returned a guilty verdict.
¶ 31 The defendant subsequently filed a pro se petition for habeas corpus in federal court, alleging ineffective assistance of counsel. Id. at 875. In reviewing his claim, the seventh circuit noted that defense counsel made no attempt to interview Carter or Riles before trial. The court further noted that "[i]f the jury was willing to credit the testimony of Carter and Riles, it would have further discredited Slater's account, augmented the cross-examination of Slater, and provided the jury with a viable basis for clinging to the presumption that [the defendant] was innocent." Id. at 878. It found that the decision not to present the theory of McWhorter as the offender through the testimony of Carter and Riles, "after preparing the jury for the evidence through the opening,
*** was unreasonable professional conduct." Id. at 879. No trial strategy was involved in the decision, only defense counsel's belief that the prosecution's case was weak and the jury would be out for "'a very short time.'" Id. at 878. When the defense presented no evidence, "counsel left the jury free to believe Slater's account of the incident as the only account." Id.
¶ 32 In Hampton, defense counsel promised the jury in opening statements that "Mr. Hampton will testify and tell you that he was at the concert. Mr. Hampton will tell you that he saw what happened but was not involved with it." Hampton, 347 F.3d at 257. He further promised that "[t]he evidence will show that my client is not a member of any gang nor a part of a gang." Id. Hampton, however, did not testify, nor did the jury hear any evidence establishing that Hampton did not belong to a gang.
¶ 33 The seventh circuit noted that "[w]hen a jury is promised that it will hear the defendant's story from the defendant's own lips, and the defendant then reneges," the broken promise harms the credibility of both counsel and the defendant. Id. "The damage can be particularly acute when it is the defendant himself whose testimony fails to materialize." Id. While "unexpected developments" that warrant a change in trial strategy may justify counsel's actions, this was not such a case. Id. The reasons for the defendant not to testify "were entirely foreseeable at the time [counsel] made his opening statement." Id. at 258.
¶ 34 The court found that to the extent counsel "had legitimate reasons to conclude that Hampton should not testify, it was unreasonable for him to tell the jury that Hampton would take the stand." Id. By promising that he would testify, the jury was led to believe that his version of the events would be "diametrically opposed to that of his accusers." Id. The court continued:
"[T]he jury never heard a second version of what occurred-from Hampton or any other eyewitness; it heard only the State's account of events. And in that context, Hampton's unexplained failure to take the witness stand may well have conveyed to the jury the impression that in fact there was no alternate version of the events that took place, and that the inculpatory testimony of the prosecution's witnesses was essentially correct." Id.
¶ 35 In Briones, the defendant was convicted of criminal damage to property for setting a mobile home on fire. During opening statements, defense counsel stated that the defendant was not at the mobile home at the time of the fire, but instead was with neighbors. Briones, 352 Ill. App. 3d at 914. Defense counsel continued:
"[The defendant] has no obligation to testify. *** But he's going to get up here on this witness stand and he's going to testify and he's going to tell you the truth and he's going to subject himself to rigorous cross-examination by the State and he's going to do that because he's going to tell you the truth." Id. at 915.
¶ 36 Darla Wynn and Michael Peyton, the residents of the mobile home, testified regarding the incident and stated that defendant was present when Darrel Moulton knocked on their door and started arguing with Michael. Not long after, gunshots were fired at their home and they decided to leave. As they drove away in their truck, they heard shouting and heard defendant's voice. They saw defendant, without a shirt, running down the road. Id. at 914. Their neighbor, Don Tate, testified that he heard the gunshots and windows smashing. He saw two men run from the mobile home, along with another man without a shirt. Tate could not positively identify the defendant as the shirtless man. Id.
¶ 37 The defense called Moulton to testify. He stated that he was with Avery Swarms, the defendant's cousin, that night. Id. at 915. During cross-examination, however, Moulton admitted that in his handwritten statement to police, he stated that defendant was present and that he "broke out their back window on their camper shell on the truck." Id.
¶ 38 Conrad and Tina Wynn, the defendant's brother and sister-in-law, testified that they lived near Darla and Michael. On the night of the incident, the defendant was at their home watching a movie with them. While he was there, they heard pounding noises and saw the fire. Conrad testified that about two weeks later, Avery admitted to him that he had committed the offenses. He stated that Avery and defendant looked similar and he sometimes confused the two. Id. Defendant's mother also testified that Avery admitted to burning Darla and Michael's mobile home. Id. at 916.
¶ 39 Avery testified and denied involvement in the incident. He stated that he witnessed the fire from across the street. He also denied telling Conrad or defendant's mother that he had committed the offenses. The defendant did not testify. Id. In rebuttal, however, the State called Officer Robert Squibb, who testified regarding the defendant's postarrest statement. Defendant stated that on the night of the fire, he" spoke with Chrystal Logsdon until approximately 10:45 p.m., went to his grandmother's to watch television, drove around, saw the fire, went to Conrad's home, and watched the fire."
¶ 40 Citing Hampton, the court found that defense counsel's failure to fulfill her promise in the opening statement that the defendant "would tell the truth from his own lips" constituted deficient performance. Id. at 919. It reasoned that in this situation, it is the responsibility of defense counsel "to evidence in the record that she was not deficient" and that the failure to present defendant's testimony "was a result of the defendant's fickleness or of counsel's sound trial strategy." Id. Since
the evidence against the defendant was not overwhelming, the court found that defendant was prejudiced by counsel's deficient conduct and remanded the cause for a new trial. Id. at 921.
¶ 41 These cases are distinguishable from the case at bar. In Harris and Hampton, the promises made by counsel in the opening statement were unreasonable because they created an expectation in the jury to hear a different version of the story than the State would tell. The defense, however, never presented any story and thus the jury was left with "the impression that in fact there was no alternate version of the events that took place, and that the inculpatory testimony of the prosecution's witnesses was essentially correct." Hampton, 347 F.3d at 258. The effect was particularly damaging to the defendant in Harris, where there had been another suspect in the case and the witnesses who identified McWhorter were available, but not called to testify.
¶ 42 Here, defense counsel talked about an alternate story during the opening statement, and brought out evidence at trial to support a theory that another person was the drug dealer. At trial, Officer Jones and Officer Davis confirmed that there was another male present with defendant when he walked back to the car. During cross-examination by defense counsel, Officer Davis stated that he believed defendant and this other male were connected in some way. While there was no testimony that another person came to Officer Jones's car, the testimony elicited by defense counsel showed that another male was present and came close to the car. This testimony supported a version of the events different from the State's, one where defendant only wanted a ride and was merely a source of information rather than a party to the transaction.
¶ 43 Furthermore, unlike Hampton and Briones, defense counsel in this case did not promise the jury that defendant would take the stand. Where defense counsel had promised that the defendant would testify, but defendant did not do so, there is not only the unfulfilled promise of
hearing defendant's version of the events from "his own lips," but also resulting damage to the defense's credibility. See Hampton, 347 F.3d at 257-59. We note, however, that this conduct in and of itself is not reversible error. Although the court in Hampton found defense counsel's conduct unreasonable, it deemed his actions "not so prejudicial that it would support relief in and of itself." Id. at 260.
¶ 44 Under Illinois law, courts must evaluate counsel's performance based on the entire record, not isolated instances. People v. Kluppelberg, 257 Ill. App. 3d 516, 526 (1993). In the opening statement, defense counsel told the jury that they would hear "testimony about another person who comes over to the car." Counsel argued that this person was the actual drug dealer. Officers Jones and Davis testified about another man who was with defendant and who walked towards Officer Jones's car. In closing argument, defense counsel reminded the jury that when Officer Jones stopped to talk to defendant, defendant was not doing anything to indicate he was selling drugs. Defendant had no money or cell phone or pager on him when he was arrested. Counsel also reminded the jury about the other person seen with defendant and questioned why the police did not investigate him further. Counsel argued that the officers' testimony raised questions and he encouraged the jury "to go back there and talk about those questions. There is reasonable doubt." Effective assistance of counsel refers to competent, not perfect, representation. People v. Lopez, 371 Ill.App.3d at 929. We cannot say that defense counsel's conduct was "so irrational and unreasonable that no reasonably effective defense attorney, facing similar circumstances, would pursue such a strategy." People v. King, 316 Ill. App. 3d 901, 916 (2000). Since defendant has not satisfied the first prong of the Strickland analysis, he cannot prevail on his ineffective assistance of counsel claim. Patterson, 192 Ill. 2d at 107.
¶ 45 Defendant next contends that during voir dire, the trial court interfered with the selection of a fair and impartial jury when it shamed a potential juror who said she could not be fair. "The purpose of voir dire is to assure the selection of an impartial panel of jurors free from either bias or prejudice." People v. Williams, 164 Ill. 2d 1, 16 (1994). The trial court has discretion in conducting voir dire, and a reviewing court will find an abuse of that discretion only if the trial court's conduct "thwarted the selection of an impartial jury." Id.
¶ 46 Defendant acknowledges that he forfeited review of this issue, since he did not object or raise the issue in a posttrial motion. This court may review defendant's claim as plain error if "(1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant's trial and affected the integrity of the judicial process, regardless of the closeness of the evidence." People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). But first, we must determine whether any error occurred. Piatkowski, 225 Ill. 2d at 565.
¶ 47 Defendant contends that after Ms. Shorter informed the trial court she would "vote not guilty" regardless of the evidence, the court admonished her in front of the other prospective jurors and told her that her name would be returned to the jury pool and she "may have to come back on another day and serve on another jury, either here or Downtown." Defendant argues that the trial court's conduct discouraged potential jurors from being forthcoming about their ability to be fair.
¶ 48 In United States v. Rowe, 106 F. 3d 1226 (5th Cir. 1997), a case cited by defendant, the district court began the voir dire process by asking about a person who failed to appear. The court told the U.S. Marshal, "I will issue a warrant to have you pick up [that person], have her brought
before this court, and have her show cause why she should not be held in contempt, fined, and/or imprisoned for her nonappearance... Now, aren't you all [members of the panel] glad you appeared?" The record reflected no responses. Id. at 1228.
¶ 49 When the court questioned potential jurors, one approached the bench and stated that she did not think she could be fair because her brother was an undercover narcotics officer and her father was a police officer. The following exchange occurred:
"Q. Are you telling me that you cannot put aside, you cannot follow the order of this court and put aside your personal opinions, and listen to the evidence in this case and render a fair and impartial verdict? Is that what you're saying?
A. No. What I'm saying is that I don't feel that my verdict could be fair.
Q. That's just what I'm asking you. Why not?... You're refusing to put aside your personal opinions? Is that what you're telling the court?
A. No. I'm not refusing. I'm just saying that I think that it will affect my decision as far as, you know, as the verdict is concerned.
Q. All right. Put her on February, March, and April's panel to come back. And you will be coming back again and again, and again...And see if you can figure out how to put aside your personal opinions and do your duty to your country as a citizen, because this kind of answer which is clearly made up for the occasion is not really great. You are excused." Id.
Although the potential juror had approached the bench before this exchange occurred, the entire venire heard the exchange.
¶ 50 After questioning resumed, another potential juror indicated that she had a relationship that she believed would prevent her from being fair and impartial. In the presence of the entire panel, the court responded,
"It is appalling, actually, that you would come into a court, and presume that people were guilty because they were standing here charged with a crime. That's not our system. *** Put her back on the jury panel for February, March and April..." Id.
Defense counsel moved to strike the panel, arguing that the court's treatment of the two venire members likely intimidated the other potential jurors and made it unlikely that they would tell the truth about their biases. The district court denied the motion. After the defendant was convicted, defense counsel filed a motion for a new trial alleging that some weeks after voir dire, a member of the panel approached him at a restaurant and she was prepared to testify that she "'felt like she had no recourse but to sit there and keep her mouth shut, and that was the best thing she could do.'" The court denied the motion. Id. at 1229.
¶ 51 The fifth circuit found that the district court's clear message to potential jurors was that they would be punished for giving truthful responses to its questioning. Id. at 1230. The court told them they would "be coming back again, and again, and again" if they responded affirmatively to the questions about bias. Id. The court's conduct "cut off the vital flow of information from venire to court" and "it became impossible for counsel to get the information from potential jurors necessary for jury selection." Id. The district court abused its discretion in not dismissing the entire panel upon defense counsel's motion. Id.
¶ 52 In People v. Brown, 388 Ill. App. 3d 1, 9 (2009), the court distinguished Rowe where no showing was made that the trial court's admonishment "blanketed the remaining venire with
intimidation such that no frank exchange could occur." After a potential juror stated that they could not be fair or impartial in the case, the trial court dismissed the juror and said in front of the entire venire,
"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." Id. at 3.
The court then asked the remaining venire whether anyone had a problem with the charges, or with signing a guilty or not guilty verdict form, or whether they would hold defendant's decision not to testify against him. No one indicated that they had a problem. Id. After questioning concluded, defense counsel questioned 10 prospective jurors about their answers to the court's questions. Id. Defendant was convicted after a trial and he appealed.
¶ 53 The reviewing court found that the defendant forfeited his claim of error regarding the voir dire process because he failed to preserve the issue for review and the plain error rule did not apply. Although the court deemed the trial court's exchange with the dismissed juror "unnecessary," and questioned the need to admonish the individual in front of the entire venire, defendant was not deprived of a fair trial. Id. at 5, 11. Importantly, defense counsel had an opportunity to "ferret out any bias among the remaining potential jurors" by questioning them during the voir dire process. Id. at 11. Since nothing in the record indicated that the jury was not fair or impartial, the trial court's conduct did not impact defendant's right to a fair trial. Id. Essentially, no error occurred because the jury was fair and impartial. See Williams, 164 Ill. 2d at
16 (the trial court abuses its discretion only if its conduct "thwarted the selection of an impartial jury").
¶ 54 Other courts have cited approvingly to Brown's finding that although the trial court's admonishment may have constituted questionable conduct, there was no plain error because nothing in the record indicated that the jury was biased or impartial. See People v. Trzeciak, 2014 IL App (1st) 100259-B, ¶¶ 78, 84 (in response to a juror who said he "possibly" could not be fair to the prosecution, the trial court stated in front of potential jurors that he would not be excused but would "come back every day of the trial" under the court's order); see also People v. Morales, 2012 IL App (1st) 101911, ¶¶ 11, 58 (in the presence of the entire venire, the trial court told a juror who said she was prejudiced that she may have to go "to the Daley Center to listen to a medical malpractice case" and "[i]t may take a month").
¶ 55 Here, the trial court admonished Ms. Shorter in front of the entire venire that "if I have to let you go, then your name will go back into the jury pool. At some point, you either come back to this building or you go Downtown." Compared to the exchanges in Brown, Trzeciak, and Morales these statements seem less like punishment and more like a warning to a potential juror that being excused this time does not mean she will be free from jury duty in the future. Although the court did have Ms. Shorter return to observe the trial for one day, it gave her this directive after the venire had been dismissed.
¶ 56 Also, unlike Rowe, where the entire venire was likely intimidated by the court as evidenced by a juror's posttrial comments, there is no indication in this record that potential jurors felt they could not be truthful during questioning. After the court's interview with Ms. Shorter, another potential juror freely expressed uncertainty about her ability to be fair:
"Q. Is there anything about you or this case that would prevent you from being a fair and impartial juror in this case?
A. I have a brother whose struggling with substance issues right now.
Q. Okay.
A. I'm understanding that the case has something to do with that topic.
Q. Okay. And can you listen to the evidence as you hear it from the witness stand and then listen to the witnesses, see what they're saying, and make a fair and impartial decision based upon the evidence as heard from the witness stand?
A. I hope so.
Q. Okay. You're expressing some concern because of a family member. What relationship is this family member to you?
A. He's my brother.
Q. How long has he had a situation?
A. For several years.
Q. You've been instrumental in getting him help?
A. Well we all have. I came from a large family.
Q. Okay. All right. And so you think you can set aside that situation in reaching a fair and impartial decision in this case?
A. [No audible response.]
Q. You'll try to be fair and impartial?
A. Yes.
Q. Thank you. Thank you, Ms. Krause."
¶ 57 Defendant, however, argues that this exchange shows the potential juror was intimidated and yielded to "the court's commanding questions." We disagree. The court never admonished her for her answer, but instead tried to ascertain whether she could be fair through further questioning. Defendant's contention that she was intimidated by the court is based on mere speculation, which is insufficient to support his claim. See Trzeciak, 2014 IL App (1st) 100259-B, ¶ 84. Even if we did presume that Ms. Krause was intimidated by the court, nothing in the record indicates that this exchange chilled the responses of the remaining venire members or affected the selection of an impartial jury. Accordingly, we find no error where the conduct engaged in by the trial court did not impact defendant's right to a fair trial. See Brown, 388 Ill. App. 3d at 10. Without error, there can be no plain error. People v. Sims, 192 Ill. 2d 592, 628 (2000).
¶ 58 In sum, we affirm defendant's conviction where defense counsel was not ineffective in making statements during opening argument that there was another person who approached the undercover police car, and there is no evidence in the record that the court's exchange with a potential juror affected the responses of the remaining venire members.
¶ 59 IV. CONCLUSION
¶ 60 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 61 Affirmed.