People v. Starks
Annotate this Case
No. 3--94-0308
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit
) Court of the 12th
Plaintiff-Appellee, ) Circuit, Will County,
) Illinois
)
v. ) No. 89-CF-665
)
DAVID STARKS, ) Honorable
) Rodney Lechwar
Defendant-Appellant. ) Judge, Presiding
_________________________________________________________________
OPINION
________________________________________________________________
In July 1989, defendant, inmate David Starks, along with
inmates Salvatore Giancana and William Cabrera, were charged by
indictment with two Counts of first degree murder (720 ILCS 5/9-
1(a)(West 1992)) for the death of a Stateville prison guard,
Lawrence A. Kush, Jr. (the victim). A Will County jury convicted
defendant of both Counts. The jury directed the court not to
impose the death penalty, and the court sentenced defendant to a
term of natural life imprisonment.
On appeal, defendant raises numerous issues that can be
generally described as errors concerning: shackling, jury
selection, admission and publication to the jury of autopsy
photos, improper prosecutorial remarks during closing argument,
and whether he was denied his right to a fair trial by an
impartial jury. For the following reasons, we affirm.
Prior to trial, defense counsel requested that the court
allow defendant's legs to be unshackled during trial. Although
the court denied this request, it took steps to insure that the
jury would not see defendant shackled, and it permitted defendant
to be present without handcuffs.
During voir dire, certain venire members were examined
outside of defendant's presence. Defendant did not object to
this questioning. However, defense counsel moved for a mistrial,
citing Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), and arguing that the People had exercised
certain peremptory challenges for discriminatory purposes. The
court found that the People's reasons for excluding the venire
members were non-discriminatory and denied the motion.
At trial, testimony was heard by the People's witnesses and
over defense counsel's objection, the court admitted and
published to the jury, autopsy photos of the victim. Following
the People's case-in-chief, the defense rested without presenting
any evidence.
Closing arguments were heard, and following deliberations,
the jury convicted defendant of both Counts. The jury directed
the court not to impose the death penalty and defendant was
sentenced to a term of natural life imprisonment. The court
denied defendant's post-trial motion and defendant appeals.
I. SHACKLING
The issue of shackling is one that rests within the sound
discretion of the court, and absent an abuse of that discretion,
a court's decision will not be overturned on appeal. People v.
Boose, 66 Ill. 2d 261 (1977). A defendant may be shackled when
there is reason to believe that he may attempt to escape, or he
poses a threat to the safety of the courtroom, or to maintain
order during trial. Boose, 66 Ill. 2d at 266.
In this matter, the court based its denial of defendant's
request to remove his shackles on the following permissible
factors: (1) the charge against defendant was serious; (2)
shackles were necessary to prevent flight; (3) defendant's prior
record was indicative of other acts of violence, i. e. at trial
he was serving a sentence for a 1987 conviction of attempt
murder, aggravated battery, and armed robbery; (4) there existed
a potential for mob action or revenge from the victim's family;
and (5) the layout of the courthouse presented security problems
of "monstrous proportions." See Boose, 66 Ill. 2d at 266-67.
Evidence in the record supports the court's decision, and it
is apparent from the record that the court balanced defendant's
right to a fair trial against permissible factors favoring
shackling him. We therefore find that the court did not abuse
its discretion in requiring defendant to remain shackled.
II. PEREMPTORY CHALLENGES.
Defendant next contends that he was denied a fair trial due
to the People's violation of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). The "command of Batson is
to eliminate, not merely to minimize, *** discrimination in jury
selection." U. S. v. David, 803 F.2d 1567, 1571 (1986).
Defendant asserts that during voir dire, the People
peremptorily challenged an African-American, Samuel Abdullah
(Abdullah), and an Asian-American, Yong Gibson (Gibson), for pre-
textual reasons that were not race-neutral.
A "trial court's determination on the ultimate issue of
discrimination is a finding of fact which turns on an evaluation
of credibility, and therefore is entitled to great deference on
appeal [citation] and will not be reversed unless it is clearly
erroneous." People v. Hudson, 157 Ill. 2d 401, 426 (1993).
In assessing an explanation, the focus of the court's
inquiry is on the facial validity of the explanation, and absent
an inherent discriminatory intent in the explanation, the reason
offered is deemed neutral. Hernandez v. New York, 500 U.S. 352,
360, 114 L. Ed. 2d 395, 406, 111 S. Ct. 1859, 1866 (1991). The
explanation is not required to be plausible or persuasive, and a
"'legitimate reason' is not a reason that makes sense, but a
reason that does not deny equal protection." People v. Munson,
171 Ill. 2d 158, 175 (1996), citing Purkett v. Elem, 514 U.S. ,
, 131 L. Ed. 2d 834, 840, 115 S. Ct. 1769, 1771 (1995).
Courts are only required to accept one of the explanations
advanced by the People concerning each venire member. People v.
Britt, 265 Ill. App. 3d 129, 134 (1995), citing People v.
Andrews, 155 Ill. 2d 286, 294. Here, each of the People's
explanations are devoid of any reference to the individual's
race, each contain an acceptable basis that legitimizes the use
of the peremptory challenge, and a person may be peremptorily
challenged on the basis of courtroom conduct or demeanor. See
Munson, 171 Ill. 2d at 178. The People noticed that when asked
about the death penalty, Abdullah's mannerism displayed
hesitation, i. e. he clutched his hand and broke eye contact for
the first time. Also, the People believed that it would have
bothered Gibson to deal with the death penalty. Further, the
People observed that Gibson was quiet and did not appear to be a
strong juror, i. e. the People questioned whether she would
effectively participate in deliberations.
The record indicates that defense counsel did not state that
the People's mannerism and demeanor concerns did not exist, he
only stated that he did not witness them. As the trial court is
in a superior position to determine the credibility of the
People, and it determined that their stated explanations were
non-discriminatory, we are unable to say that the trial court's
decision was clearly erroneous.
III. RIGHT TO BE PRESENT AND TO BE TRIED BY AN IMPARTIAL JURY.
This court in People v. Bennett, 282 Ill. App. 3d 975, 980
(3d Dist. 1996) clearly stated that a defendant's exclusion from
voir dire is an impairment of the right to be present, and is
presumed prejudicial. It should be noted, however, that the
defendant in Bennett objected. In this case, defendant neither
objected to the court's questioning of jurors outside of his
presence, nor did he file a post-trial motion containing such
objection. Therefore, defendant has waived this issue pursuant
to People v. Enoch, 122 Ill. 2d 176 (1988). However, following
People v. Bean, 137 Ill. 2d 65, 80 (1990), this court may
consider the issue under a plain error standard of review
pursuant to Supreme Court Rule 615(a)(134 Ill. 2d R. 615(a)).
Plain error occurs when a defendant is deprived of a substantial
right, or when an error is made in a case where the evidence is
closely balanced. Bean, 137 Ill. 2d at 80.
The evidence in this case is not closely balanced.
Defendant neither questioned the sufficiency of the People's
evidence, nor did he present a defense. In Bean, 137 Ill. 2d at
80, because the evidence was not closely balanced, the Court
stated that only if defendant was deprived of a substantial
right, i. e. a constitutional right, could it find that his
absence from part of voir dire was plain error.
Defendant has the right to appear and defend himself in
person at all stages of trial, including jury selection. Ill.
Const. 1970, art. I, section 8; U.S. Const. amend. XIV. However,
the Illinois Supreme Court and the U. S. Supreme Court have
limited the situations where the denial of the right to be
present is a constitutional violation.
Under Illinois Constitutional law, defendant's right to be
present is not absolute. Defendant is guaranteed the right to be
present at any stage of a criminal proceeding that is critical to
its outcome if his presence would contribute to the fairness of
the procedure. People v. Jones, 185 Ill. App. 3d 208, 214
(1989), citing Kentucky v. Stincer, 482 U.S. 730, 745, 96 L. Ed. 2d 631, 647, 107 S. Ct. 2658, 2667 (1987). Jury selection is a
critical stage of trial. Bean, 137 Ill. 2d 65 at 84.
The federal right of criminal defendants to be present at
trial is not an absolute constitutional right, but arises from
the due process clause of the 14th amendment. Stincer, 482 U.S.
at 745, 96 L. Ed. 2d at 647, 107 S. Ct. at 2667; United States
v. Gagnon, 470 U.S. 522, 526, 84 L. Ed. 2d 486, 490, 105 S. Ct. 1482, 1484 (1985); Snyder v. Massachusetts, 291 U.S. 97, 105-06,
78 L. Ed. 674, 678, 54 S. Ct. 330, 332 (1934).
A defendant's due process right of presence under the U. S.
Constitution is violated only when his absence results in his
being denied a fair and just trial. Snyder, 291 U.S. at 107-08,
78 L. Ed. at 679, 54 S. Ct. at 333.
Since the instant defendant was not present during a portion
of voir dire, the fairness of his trial centers upon the
impartiality of his jury. Like the Illinois Constitution, the U.
S. Constitution guarantees defendant an impartial jury, as
opposed to a jury of choice. People v. Henderson, 142 Ill. 2d 258, 291-92 (1990). Therefore, the issue becomes whether
defendant's absence from individual voir dire sessions resulted
in an unfair trial because it caused him to be tried and
convicted by a jury prejudiced against him.
Defendant disputes the fairness of his trial due to the
questioning outside of his presence of two jurors, John Greenwald
(Greenwald) and Brian Smith (Smith), and he questions the
impartiality of his jury because both served on the jury that
convicted him.
Although defendant voiced no objections, there is no
indication in the record that he waived his right to be present.
Further, defense counsel has no power on defendant's behalf to
waive this right. Hopt v. Utah, 110 U.S. 574, 4 S. Ct. 202, 28 L. Ed. 262 (1884); People v. Mallett, 30 Ill. 2d 136 (1964).
The record reveals the following concerning the voir dire
that occurred out of defendant's presence. In regard to
Greenwald, after he had been impaneled he sent a note to the
court that resulted in him being questioned outside of
defendant's presence. During this questioning, Greenwald was
asked whether being selected as a juror, and forced to miss a
business trip his company had mandated him to take, would affect
his ability to pay attention or to be fair and impartial. He
replied, "No." When he indicated that he was uncertain what his
company would do if he missed the trip, he was asked if that
would "cause [him] any concern *** while *** deliberating or
listening ***," and he responded, "No, I don't think so."
In regard to Smith, while in defendant's presence he
revealed that his brother was the victim of a pending attempt
murder case. Smith was asked if there was anything about that
case that would cause him a problem in being fair and impartial
in this matter, and he stated "No." When asked to describe the
situation surrounding his brother's incident, Smith asked to
speak in private because he did not want to jeopardize his
brother's case.
While outside of defendant's presence, Smith noted the
circumstances surrounding his brother's shooting, i. e. location,
injury, etc. The court again asked him if his brother's pending
case would cause him problems with being fair and impartial to
either side in this case, and he responded, "No."
Defendant contends that had he been present to witness
Greenwald and Smith's responses to the court's questions, one or
both of them could have been peremptorily challenged and
excluded. This contention was successfully raised by the
defendant in Bennett, however, Bennett is distinguishable from
the instant matter.
In Bennett, defendant was excluded by the court from 17
individual voir dire sessions involving 16 of 29 potential
jurors, five of whom served on the jury that convicted him.
Initially, defendant was present when the court questioned jurors
in a hallway, however, the court ordered him back into the
courtroom for security reasons, and its erroneous belief that
defendant was not entitled to be present. In Bennett, we held
that defendant was denied his right to be present and his right
to an impartial jury, however, because that defendant had
preserved his issue for appeal, such finding was reached under a
harmless error standard of review, i. e. requiring a showing
beyond a reasonable doubt that the error did not contribute to
defendant's conviction.
Unlike the defendant in Bennett, the instant defendant was
excluded from the questioning of jurors outside of the courtroom
due to his shackles. Further, the record shows that defendant
had the opportunity to assess both jurors' ability to serve prior
to their removal from the courtroom. At the time Greenwald was
questioned outside of defendant's presence, he had been tendered
to and accepted as a juror. After this additional questioning,
the court allowed the parties to back strike and exercise a
peremptory challenge against Greenwald. Further, defendant was
aware that Smith's brother had been the victim of an attempt
murder case prior to the questioning of Smith outside of his
presence. The record also indicates that the court granted
defense counsel's requests "to go over all these jurors with
[defendant]." Therefore, it appears that defendant was afforded
the opportunity to strike both jurors after their questioning
outside of his presence.
Although we strongly condemn the practice of conducting voir
dire outside of a defendant's presence, in this situation we find
that defendant failed to prove that such questioning resulted in
the impaneling of a prejudiced jury under Illinois or U.S.
Constitutional law. Thus, no plain error occurred.
IV. AUTOPSY PHOTOS.
The admission of photos of a murder victim is within the
sound discretion of the trial judge, whose decision will not be
reversed absent an abuse of that discretion. People v. Brown,
172 Ill. 2d 1 (1996).
We note that autopsy photos of a crime victim are not
necessarily cumulative merely because there is also oral
testimony describing what the photos depict. People v. Hefley,
109 Ill. App. 3d 74 (1982). Further, autopsy photos may be
admissible to aid the jurors' understanding of expert testimony.
People v. Lucas, 132 Ill. 2d 399 (1989).
The autopsy photos of the present case illustrated the
testimony of forensic pathologist, Dr. Larry Blum, concerning the
location of the victim's injuries, the force used, and the cause
of death. Regardless of the fact that defendant did not dispute
the cause of death or the force used, the People may still prove
every element and relevant fact of the offense charged, and if
autopsy photos are relevant to establish any such fact, they are
admissible despite their gruesome nature. See People v. Bounds,
171 Ill. 2d 1, 46-47 (1995).
In its ruling, the court stated that the autopsy photos were
material on the issues of cause of death and force used to
inflict injuries. The court also found that because the photos
depicted an autopsy that was "clinically done" and "very neat,"
it did not "see that these [autopsy photos] would be unduly
prejudicial." The court was careful to weigh the probative value
of the autopsy photos against any potential prejudice to
defendant, and we find that the court did not abuse its
discretion in admitting and publishing them to the jury.
V. PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENTS.
Not only are the People prohibited during closing arguments
from making comments not based upon, or misstating, the evidence
(People v. Linscott, 142 Ill. 2d 22 (1991)), they are also
prohibited from making comments that disparage the integrity of
defense counsel. People v. Lyles, 106 Ill. 2d 373 (1985).
During closing argument, the People told the jury that they
would hear "certain things brought up by the Defense *** [that]
are either based on speculation rather than the evidence in this
case or are puffs of smoke or smoke screens without any fire."
Defense counsel objected and the court instructed the jury that
the "last comment of counsel for the State is withdrawn."
Although in People v. Emerson, 97 Ill. 2d 487 (1983), our
supreme court found the People's reference to a "smoke screen"
during closing argument improper, we find that case
distinguishable. In Emerson, unlike this case, the People made
additional disparaging comments when they went on to describe the
smoke screen as "composed of lies and misrepresentations and
innuendos *** [stating] all defense attorneys try to 'dirty up
the victim.'" The People's comment in this case does not rise to
the level of disparaging the integrity of the defense as found in
Emerson. In light of this fact, and considering the court
instructed the jury that the comment was withdrawn, we find that
defendant was not prejudiced by the People's remark.
During rebuttal closing arguments, the People commented that
had DNA testing been performed on the blood found on defendant's
shoes, "DNA *** would have told us that it was [the victim's]
blood." Defense counsel objected, arguing that the People's
comments were not based on the evidence. However, in defense
counsel's closing argument, he also commented on DNA testing,
stating that "[t]here could have been enough blood sample here to
run a DNA test *** [and] [i]t would have probably told us a lot.
It could have excluded that blood as being [the victim's] blood."
Considering defendant may not claim error when the People's
remarks have been invited and provoked by defense counsel (People
v. Dixon, 91 Ill. 2d 346 (1982)), and in light of the curative
instruction by the court, i. e. that what lawyers say during
closing arguments are not evidence and any comments not based on
evidence must be disregarded, we find that defendant was not
prejudiced by the remark, and was not denied a fair trial.
CONCLUSION
Based on the foregoing, we find that defendant was not
denied his right to a fair trial by an impartial jury, and we
affirm his conviction on both Counts.
Affirmed.
MICHELA, J., with LYTTON, P.J., and HOMER, J. concurring.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit
) Court of the 12th
Plaintiff-Appellee, ) Circuit, Will County,
) Illinois
)
v. ) No. 89-CF-665
)
DAVID STARKS, ) Honorable
) Rodney Lechwar
Defendant-Appellant. ) Judge, Presiding
_________________________________________________________________
OPINION
________________________________________________________________
In July 1989, defendant, inmate David Starks, along with
inmates Salvatore Giancana and William Cabrera, were charged by
indictment with two Counts of first degree murder (720 ILCS 5/9-
1(a)(West 1992)) for the death of a Stateville prison guard,
Lawrence A. Kush, Jr. (the victim). A Will County jury convicted
defendant of both Counts. The jury directed the court not to
impose the death penalty, and the court sentenced defendant to a
term of natural life imprisonment.
On appeal, defendant raises numerous issues that can be
generally described as errors concerning: shackling, jury
selection, admission and publication to the jury of autopsy
photos, improper prosecutorial remarks during closing argument,
and whether he was denied his right to a fair trial by an
impartial jury. For the following reasons, we affirm.
Prior to trial, defense counsel requested that the court
allow defendant's legs to be unshackled during trial. Although
the court denied this request, it took steps to insure that the
jury would not see defendant shackled, and it permitted defendant
to be present without handcuffs.
During voir dire, certain venire members were examined
outside of defendant's presence. Defendant did not object to
this questioning. However, defense counsel moved for a mistrial,
citing Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), and arguing that the People had exercised
certain peremptory challenges for discriminatory purposes. The
court found that the People's reasons for excluding the venire
members were non-discriminatory and denied the motion.
At trial, testimony was heard by the People's witnesses and
over defense counsel's objection, the court admitted and
published to the jury, autopsy photos of the victim. Following
the People's case-in-chief, the defense rested without presenting
any evidence.
Closing arguments were heard, and following deliberations,
the jury convicted defendant of both Counts. The jury directed
the court not to impose the death penalty and defendant was
sentenced to a term of natural life imprisonment. The court
denied defendant's post-trial motion and defendant appeals.
I. SHACKLING
The issue of shackling is one that rests within the sound
discretion of the court, and absent an abuse of that discretion,
a court's decision will not be overturned on appeal. People v.
Boose, 66 Ill. 2d 261 (1977). A defendant may be shackled when
there is reason to believe that he may attempt to escape, or he
poses a threat to the safety of the courtroom, or to maintain
order during trial. Boose, 66 Ill. 2d at 266.
In this matter, the court based its denial of defendant's
request to remove his shackles on the following permissible
factors: (1) the charge against defendant was serious; (2)
shackles were necessary to prevent flight; (3) defendant's prior
record was indicative of other acts of violence, i. e. at trial
he was serving a sentence for a 1987 conviction of attempt
murder, aggravated battery, and armed robbery; (4) there existed
a potential for mob action or revenge from the victim's family;
and (5) the layout of the courthouse presented security problems
of "monstrous proportions." See Boose, 66 Ill. 2d at 266-67.
Evidence in the record supports the court's decision, and it
is apparent from the record that the court balanced defendant's
right to a fair trial against permissible factors favoring
shackling him. We therefore find that the court did not abuse
its discretion in requiring defendant to remain shackled.
II. PEREMPTORY CHALLENGES.
Defendant next contends that he was denied a fair trial due
to the People's violation of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). The "command of Batson is
to eliminate, not merely to minimize, *** discrimination in jury
selection." U. S. v. David, 803 F.2d 1567, 1571 (1986).
Defendant asserts that during voir dire, the People
peremptorily challenged an African-American, Samuel Abdullah
(Abdullah), and an Asian-American, Yong Gibson (Gibson), for pre-
textual reasons that were not race-neutral.
A "trial court's determination on the ultimate issue of
discrimination is a finding of fact which turns on an evaluation
of credibility, and therefore is entitled to great deference on
appeal [citation] and will not be reversed unless it is clearly
erroneous." People v. Hudson, 157 Ill. 2d 401, 426 (1993).
In assessing an explanation, the focus of the court's
inquiry is on the facial validity of the explanation, and absent
an inherent discriminatory intent in the explanation, the reason
offered is deemed neutral. Hernandez v. New York, 500 U.S. 352,
360, 114 L. Ed. 2d 395, 406, 111 S. Ct. 1859, 1866 (1991). The
explanation is not required to be plausible or persuasive, and a
"'legitimate reason' is not a reason that makes sense, but a
reason that does not deny equal protection." People v. Munson,
171 Ill. 2d 158, 175 (1996), citing Purkett v. Elem, 514 U.S. ,
, 131 L. Ed. 2d 834, 840, 115 S. Ct. 1769, 1771 (1995).
Courts are only required to accept one of the explanations
advanced by the People concerning each venire member. People v.
Britt, 265 Ill. App. 3d 129, 134 (1995), citing People v.
Andrews, 155 Ill. 2d 286, 294. Here, each of the People's
explanations are devoid of any reference to the individual's
race, each contain an acceptable basis that legitimizes the use
of the peremptory challenge, and a person may be peremptorily
challenged on the basis of courtroom conduct or demeanor. See
Munson, 171 Ill. 2d at 178. The People noticed that when asked
about the death penalty, Abdullah's mannerism displayed
hesitation, i. e. he clutched his hand and broke eye contact for
the first time. Also, the People believed that it would have
bothered Gibson to deal with the death penalty. Further, the
People observed that Gibson was quiet and did not appear to be a
strong juror, i. e. the People questioned whether she would
effectively participate in deliberations.
The record indicates that defense counsel did not state that
the People's mannerism and demeanor concerns did not exist, he
only stated that he did not witness them. As the trial court is
in a superior position to determine the credibility of the
People, and it determined that their stated explanations were
non-discriminatory, we are unable to say that the trial court's
decision was clearly erroneous.
III. RIGHT TO BE PRESENT AND TO BE TRIED BY AN IMPARTIAL JURY.
This court in People v. Bennett, 282 Ill. App. 3d 975, 980
(3d Dist. 1996) clearly stated that a defendant's exclusion from
voir dire is an impairment of the right to be present, and is
presumed prejudicial. It should be noted, however, that the
defendant in Bennett objected. In this case, defendant neither
objected to the court's questioning of jurors outside of his
presence, nor did he file a post-trial motion containing such
objection. Therefore, defendant has waived this issue pursuant
to People v. Enoch, 122 Ill. 2d 176 (1988). However, following
People v. Bean, 137 Ill. 2d 65, 80 (1990), this court may
consider the issue under a plain error standard of review
pursuant to Supreme Court Rule 615(a)(134 Ill. 2d R. 615(a)).
Plain error occurs when a defendant is deprived of a substantial
right, or when an error is made in a case where the evidence is
closely balanced. Bean, 137 Ill. 2d at 80.
The evidence in this case is not closely balanced.
Defendant neither questioned the sufficiency of the People's
evidence, nor did he present a defense. In Bean, 137 Ill. 2d at
80, because the evidence was not closely balanced, the Court
stated that only if defendant was deprived of a substantial
right, i. e. a constitutional right, could it find that his
absence from part of voir dire was plain error.
Defendant has the right to appear and defend himself in
person at all stages of trial, including jury selection. Ill.
Const. 1970, art. I, section 8; U.S. Const. amend. XIV. However,
the Illinois Supreme Court and the U. S. Supreme Court have
limited the situations where the denial of the right to be
present is a constitutional violation.
Under Illinois Constitutional law, defendant's right to be
present is not absolute. Defendant is guaranteed the right to be
present at any stage of a criminal proceeding that is critical to
its outcome if his presence would contribute to the fairness of
the procedure. People v. Jones, 185 Ill. App. 3d 208, 214
(1989), citing Kentucky v. Stincer, 482 U.S. 730, 745, 96 L. Ed. 2d 631, 647, 107 S. Ct. 2658, 2667 (1987). Jury selection is a
critical stage of trial. Bean, 137 Ill. 2d 65 at 84.
The federal right of criminal defendants to be present at
trial is not an absolute constitutional right, but arises from
the due process clause of the 14th amendment. Stincer, 482 U.S.
at 745, 96 L. Ed. 2d at 647, 107 S. Ct. at 2667; United States
v. Gagnon, 470 U.S. 522, 526, 84 L. Ed. 2d 486, 490, 105 S. Ct. 1482, 1484 (1985); Snyder v. Massachusetts, 291 U.S. 97, 105-06,
78 L. Ed. 674, 678, 54 S. Ct. 330, 332 (1934).
A defendant's due process right of presence under the U. S.
Constitution is violated only when his absence results in his
being denied a fair and just trial. Snyder, 291 U.S. at 107-08,
78 L. Ed. at 679, 54 S. Ct. at 333.
Since the instant defendant was not present during a portion
of voir dire, the fairness of his trial centers upon the
impartiality of his jury. Like the Illinois Constitution, the U.
S. Constitution guarantees defendant an impartial jury, as
opposed to a jury of choice. People v. Henderson, 142 Ill. 2d 258, 291-92 (1990). Therefore, the issue becomes whether
defendant's absence from individual voir dire sessions resulted
in an unfair trial because it caused him to be tried and
convicted by a jury prejudiced against him.
Defendant disputes the fairness of his trial due to the
questioning outside of his presence of two jurors, John Greenwald
(Greenwald) and Brian Smith (Smith), and he questions the
impartiality of his jury because both served on the jury that
convicted him.
Although defendant voiced no objections, there is no
indication in the record that he waived his right to be present.
Further, defense counsel has no power on defendant's behalf to
waive this right. Hopt v. Utah, 110 U.S. 574, 4 S. Ct. 202, 28 L. Ed. 262 (1884); People v. Mallett, 30 Ill. 2d 136 (1964).
The record reveals the following concerning the voir dire
that occurred out of defendant's presence. In regard to
Greenwald, after he had been impaneled he sent a note to the
court that resulted in him being questioned outside of
defendant's presence. During this questioning, Greenwald was
asked whether being selected as a juror, and forced to miss a
business trip his company had mandated him to take, would affect
his ability to pay attention or to be fair and impartial. He
replied, "No." When he indicated that he was uncertain what his
company would do if he missed the trip, he was asked if that
would "cause [him] any concern *** while *** deliberating or
listening ***," and he responded, "No, I don't think so."
In regard to Smith, while in defendant's presence he
revealed that his brother was the victim of a pending attempt
murder case. Smith was asked if there was anything about that
case that would cause him a problem in being fair and impartial
in this matter, and he stated "No." When asked to describe the
situation surrounding his brother's incident, Smith asked to
speak in private because he did not want to jeopardize his
brother's case.
While outside of defendant's presence, Smith noted the
circumstances surrounding his brother's shooting, i. e. location,
injury, etc. The court again asked him if his brother's pending
case would cause him problems with being fair and impartial to
either side in this case, and he responded, "No."
Defendant contends that had he been present to witness
Greenwald and Smith's responses to the court's questions, one or
both of them could have been peremptorily challenged and
excluded. This contention was successfully raised by the
defendant in Bennett, however, Bennett is distinguishable from
the instant matter.
In Bennett, defendant was excluded by the court from 17
individual voir dire sessions involving 16 of 29 potential
jurors, five of whom served on the jury that convicted him.
Initially, defendant was present when the court questioned jurors
in a hallway, however, the court ordered him back into the
courtroom for security reasons, and its erroneous belief that
defendant was not entitled to be present. In Bennett, we held
that defendant was denied his right to be present and his right
to an impartial jury, however, because that defendant had
preserved his issue for appeal, such finding was reached under a
harmless error standard of review, i. e. requiring a showing
beyond a reasonable doubt that the error did not contribute to
defendant's conviction.
Unlike the defendant in Bennett, the instant defendant was
excluded from the questioning of jurors outside of the courtroom
due to his shackles. Further, the record shows that defendant
had the opportunity to assess both jurors' ability to serve prior
to their removal from the courtroom. At the time Greenwald was
questioned outside of defendant's presence, he had been tendered
to and accepted as a juror. After this additional questioning,
the court allowed the parties to back strike and exercise a
peremptory challenge against Greenwald. Further, defendant was
aware that Smith's brother had been the victim of an attempt
murder case prior to the questioning of Smith outside of his
presence. The record also indicates that the court granted
defense counsel's requests "to go over all these jurors with
[defendant]." Therefore, it appears that defendant was afforded
the opportunity to strike both jurors after their questioning
outside of his presence.
Although we strongly condemn the practice of conducting voir
dire outside of a defendant's presence, in this situation we find
that defendant failed to prove that such questioning resulted in
the impaneling of a prejudiced jury under Illinois or U.S.
Constitutional law. Thus, no plain error occurred.
IV. AUTOPSY PHOTOS.
The admission of photos of a murder victim is within the
sound discretion of the trial judge, whose decision will not be
reversed absent an abuse of that discretion. People v. Brown,
172 Ill. 2d 1 (1996).
We note that autopsy photos of a crime victim are not
necessarily cumulative merely because there is also oral
testimony describing what the photos depict. People v. Hefley,
109 Ill. App. 3d 74 (1982). Further, autopsy photos may be
admissible to aid the jurors' understanding of expert testimony.
People v. Lucas, 132 Ill. 2d 399 (1989).
The autopsy photos of the present case illustrated the
testimony of forensic pathologist, Dr. Larry Blum, concerning the
location of the victim's injuries, the force used, and the cause
of death. Regardless of the fact that defendant did not dispute
the cause of death or the force used, the People may still prove
every element and relevant fact of the offense charged, and if
autopsy photos are relevant to establish any such fact, they are
admissible despite their gruesome nature. See People v. Bounds,
171 Ill. 2d 1, 46-47 (1995).
In its ruling, the court stated that the autopsy photos were
material on the issues of cause of death and force used to
inflict injuries. The court also found that because the photos
depicted an autopsy that was "clinically done" and "very neat,"
it did not "see that these [autopsy photos] would be unduly
prejudicial." The court was careful to weigh the probative value
of the autopsy photos against any potential prejudice to
defendant, and we find that the court did not abuse its
discretion in admitting and publishing them to the jury.
V. PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENTS.
Not only are the People prohibited during closing arguments
from making comments not based upon, or misstating, the evidence
(People v. Linscott, 142 Ill. 2d 22 (1991)), they are also
prohibited from making comments that disparage the integrity of
defense counsel. People v. Lyles, 106 Ill. 2d 373 (1985).
During closing argument, the People told the jury that they
would hear "certain things brought up by the Defense *** [that]
are either based on speculation rather than the evidence in this
case or are puffs of smoke or smoke screens without any fire."
Defense counsel objected and the court instructed the jury that
the "last comment of counsel for the State is withdrawn."
Although in People v. Emerson, 97 Ill. 2d 487 (1983), our
supreme court found the People's reference to a "smoke screen"
during closing argument improper, we find that case
distinguishable. In Emerson, unlike this case, the People made
additional disparaging comments when they went on to describe the
smoke screen as "composed of lies and misrepresentations and
innuendos *** [stating] all defense attorneys try to 'dirty up
the victim.'" The People's comment in this case does not rise to
the level of disparaging the integrity of the defense as found in
Emerson. In light of this fact, and considering the court
instructed the jury that the comment was withdrawn, we find that
defendant was not prejudiced by the People's remark.
During rebuttal closing arguments, the People commented that
had DNA testing been performed on the blood found on defendant's
shoes, "DNA *** would have told us that it was [the victim's]
blood." Defense counsel objected, arguing that the People's
comments were not based on the evidence. However, in defense
counsel's closing argument, he also commented on DNA testing,
stating that "[t]here could have been enough blood sample here to
run a DNA test *** [and] [i]t would have probably told us a lot.
It could have excluded that blood as being [the victim's] blood."
Considering defendant may not claim error when the People's
remarks have been invited and provoked by defense counsel (People
v. Dixon, 91 Ill. 2d 346 (1982)), and in light of the curative
instruction by the court, i. e. that what lawyers say during
closing arguments are not evidence and any comments not based on
evidence must be disregarded, we find that defendant was not
prejudiced by the remark, and was not denied a fair trial.
CONCLUSION
Based on the foregoing, we find that defendant was not
denied his right to a fair trial by an impartial jury, and we
affirm his conviction on both Counts.
Affirmed.
MICHELA, J., with LYTTON, P.J., and HOMER, J. concurring.
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