Appeal from the Circuit Court of Cook County; the Hon. John J.
Crowley, Judge, presiding.
PRESIDING JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
Defendant, Jeffrey Boswell, was found guilty following a jury trial of murder. (Ill. Rev. Stat. 1983, ch. 38, par. 9-1.) He was sentenced to a term of natural life imprisonment. (Ill. Rev. Stat. 1983, ch. 38, pars. 1005-8-1(a)(1), (c).) Defendant raises several issues on appeal. The only issue we deemed dispositive is the question concerning the trial court's refusal to ask certain questions tendered by defense counsel during voir dire.
As defendant does not contest the sufficiency of the evidence to support his conviction, we summarize the evidence presented at trial as follows. On September 9, 1980, at about 10:30 p.m., the victim, Dorothy Guyton, along with Norine Williams, Nancy Wamble and two others, were standing on a street corner when they were approached by a man identified by Williams and Wamble as the defendant. The defendant made a derogatory remark and an argument ensued between the defendant and the victim. At that point, the defendant pulled out a revolver. The argument subsided a few minutes later and the defendant withdrew his gun. A bottle of liquor was then purchased and after it was consumed by the group, the victim's four friends left and went upstairs to Williams' apartment, a short distance away. Shortly thereafter, a gunshot was heard, and the victim was found lying at the bottom of the stairs leading to Williams' apartment, mortally wounded.
On September 24, 1980, Williams and Wamble identified defendant from a group of photographs shown to them by police. On October 1, a police officer prepared a sworn complaint for preliminary examination charging the defendant with the murder of Guyton and appeared before a circuit court judge in order to secure a warrant for defendant's arrest. (See Ill. Rev. Stat. 1983, ch. 38, par. 107-9.) A warrant was issued, and defendant was arrested the next day. Defendant was immediately placed in a lineup and was identified by Williams and Wamble. An indictment charging the defendant with murder was filed on October 3, 1980.
Defendant introduced testimony that he was noticeably limping subsequent to his interrogation by police. Defendant did not testify.
Prior to voir dire examination of the jurors, defense counsel submitted a list of supplemental questions, in accordance with Supreme Court Rule 234, which he sought to have the court ask during voir dire. (See 94 Ill.2d R. 234.) Three of those questions concerned the attitude of the jurors towards the failure of a defendant to testify in his own behalf, whether the jurors could render a verdict of not guilty if the State failed to prove its burden beyond a reasonable doubt, and whether the jurors understood the concept that the defendant did not have to offer any evidence in his own behalf but was presumed innocent and had to be proved guilty by the State beyond a reasonable doubt. The trial court rejected these questions on the basis that they covered matters of law about which the jury would be later instructed and that the trial court's question to jurors as to whether they could follow the law as given to them by the trial court was sufficient. Defendant argues that under the recent Illinois Supreme Court decision of People v. Zehr (1984), 103 Ill.2d 472, 468 N.E.2d 1062, the trial court's refusal to ask these questions or otherwise probe the subject matter raised by these questions was reversible error.
Zehr considered the effect of a trial court's failure to ask the same three voir dire questions submitted by a defendant regarding the State's burden of proof, the failure of the defendant to testify in his own behalf, and the presumption of the defendant's innocence. In Zehr, the State had argued that the trial court properly refused to ask these questions as they pertain to matters of law or instructions, which precluded the trial court under Rule 234 from posing the questions tendered. Also, the State there had argued, as it argues here, that jury instructions adequately advised the jurors regarding the subject matter covered by defense counsel's proposed questions. (103 Ill.2d 472, 476-77, 469 N.E.2d 1062.) Rejecting the State's arguments, the supreme court characterized each of these questions as going to the heart of a juror's bias or prejudice, the failure to ask even one of which is sufficient to deprive the defendant of his right to a fair and impartial jury. The court indicated that in order to assure that jurors possess the requisite impartiality, it was essential that jurors be informed that a defendant is presumed innocent, that he is not required to offer any evidence in his own behalf, that he must be proved guilty beyond a reasonable doubt, and that his failure to testify in his own behalf cannot be held against him. (103 Ill.2d 472, 477, 469 N.E.2d 1062.) The court emphasized that if a juror has a prejudice against any of these basic guarantees, jury instructions on these concepts given at the end of the trial would have "little curative effect." (103 Ill.2d 472, 477, 469 N.E.2d 1062.) Although the questions need not be asked in the exact form submitted, the court concluded that the failure to probe the subject matter of the questions proposed results in reversible error. 103 Ill.2d 472, 477-78, 469 N.E.2d 1062.
The State argues that the trial court's comments to the entire venire prior to voir dire examination and during the individual voir dire adequately probed the jurors for any possible bias or prejudice in compliance with the dictates of Zehr. Pursuant to Supreme Court Rule 234, the trial court conducted voir dire examination of prospective jurors. Prior to the individual voir dire, the trial court addressed the entire venire, in which he indicated that a defendant is presumed innocent of the charges against him, that this presumption continues throughout the trial, and that this presumption is only overcome by proof beyond a reasonable doubt introduced by the State. If the presumption is not overcome, the trial court instructed the jurors, the defendant must be found not guilty. Continuing, the trial court told them that the defendant need not prove himself innocent. Finally, the jurors were told that they must be able to follow the law as given to them by the trial court. In examining the various panels, the court specifically asked jurors if after being instructed on the general principles of law governing criminal cases they would follow the law as given them by the court even though they might personally disagree with it.
• 1 After considering the trial court's comments to the jury, we believe that under the rule announced in Zehr those questions concerning the presumption of defendant's innocence and the absence of any burden of proof on the defendant to prove himself innocent, and the State's burden to establish the defendant's guilt beyond a reasonable doubt tendered by defense counsel were sufficiently broached in this case to alleviate any error in these respects. However, while the subject matter of these important guarantees was adequately probed, we cannot also conclude that the matter regarding the defendant's failure to testify in his own behalf was asked or otherwise covered during voir dire. The principle that a defendant's failure to testify in his own behalf cannot be held against him is perhaps the most critical guarantee under our criminal process, and it is vital to the selection of a fair and impartial jury that a juror understand this concept. Given the supreme court's pronouncement that each of these questions is required to be covered during voir dire when requested, we are compelled to reverse the defendant's conviction and remand the cause for a new trial. See People v. Zehr (1984), 103 Ill.2d 472, 477-78, 469 N.E.2d 1062; see also People v. Britz (1984), 128 Ill. App.3d 29, 40, 470 N.E.2d 1059, appeal allowed (1984), 101 Ill.2d 583; cf. People v. Estes (1984), 127 Ill. App.3d 642, 655, 469 N.E.2d 275; but see People v. Leamons (1984), 127 Ill. App.3d 1056, 469 N.E.2d 1137.
In reaching this holding, we reject the State's initial contention that the Zehr decision, decided three years after the trial in the instant case occurred, should be applied prospectively to this case.
As a general rule, a decision will be applied retrospectively unless the court expressly declares its decision to be a "`clear break with the past,'" (United States v. Johnson (1982), 457 U.S. 537, 549, 73 L.Ed.2d 202, 213, 102 S.Ct. 2579, 2587; People v. Tisler (1984), 103 Ill.2d 226, 246, 469 N.E.2d 147), such as when the court explicitly overrules its own past precedent, disapproves a practice it had previously sanctioned, or overturns a well-established body of lower court authority. (People v. Seats (1984), 121 Ill. App.3d 637, 639, 460 N.E.2d 110.) Accordingly, the State maintains that Zehr is a clear break from past supreme court interpretation of Rule 234 so that prospective application of Zehr is required.
• 2 While it is within the court's inherent powers to give a decision prospective or retrospective application (Lane v. Sklodowski (1983), 97 Ill.2d 311, 319, 454 N.E.2d 322), there is no indication in Zehr that the supreme court intended its decision to be applied prospectively. The State relies principally upon Justice Ryan's dissenting opinion in Zehr to support its argument that the majority holding suggests a break with past supreme court authority relating to Rule 234. (People v. Zehr (1984), 103 Ill.2d 472, 481, 469 N.E.2d 1062 (Ryan, J., dissenting).) However, the State's reliance on the dissenting justice's view of the relationship between Rule 234 and the majority opinion is irrelevant in the absence of any express statement by the majority that it was breaking with past interpretation of Rule 234. Zehr expressly overruled no clear past precedent. Nor did Zehr disapprove an established practice that the court had previously sanctioned. The court's own citation of Rule 234 indicates that its ruling was not an abandonment or modification of its prior treatment of its own rule. Nor did it expressly overrule lower court authority which had applied Rule 234. As there is nothing in Zehr which suggests that it should be treated as an exception to the general rule of retroactivity, we conclude that Zehr has retrospective application.
As this cause must be remanded for a new trial, we shall address those additional issues likely to arise again.
• 3 The first issue we shall consider is whether the lineup identification testimony should have been suppressed on the ground that defense ...