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July 11, 1989

J. RONALD HAWS, Respondent

The opinion of the court was delivered by: DUFF


 Early in the morning of October 28, 1982, the doorbell awoke Arthur and Barbara Carlsten from their sleep in their Schaumburg, Illinois, condominium. Arthur "buzzed" the callers into the building, and opened his door to see who they were. They were two men. The Carlstens recognized one of them as Robert Jefferey Burns, who was a friend of the Carlstens' son. The other man, whom the Carlstens had never met before, was Richard Jones.

 Burns asked the Carlstens if their son was home. Barbara muttered that it was a bad time for a visit, and returned to bed. Burns then told Arthur that Burns's car had stalled nearby, and asked if he could use the telephone. Arthur assented, and let the men in. Burns and Jones went to use the telephone in the kitchen. Arthur meanwhile went to his room to put on more clothes. He returned to the living room and encountered Burns, who had emerged from the kitchen. Arthur offered to give Burns and Jones a ride home, but Burns declined. Burns indicated that their calls were not successful, and that he and Jones would probably have to try calling again, perhaps from a nearby convenience store. Arthur then asked if Burns and Jones wished to leave through the front door or through a back door, which was in the kitchen. Burns said that the back would be better, and so Arthur and Burns went to the kitchen.

 Burns went to the back door and started removing a burglar bar installed on it. At that moment Jones grabbed Arthur from behind, and slashed Arthur's throat from below his ear to beneath his collar line. Jones followed this slash with stabs into Arthur's cheeks and elsewhere. As Arthur struggled to ward off Jones's attacks, he pleaded with Burns, "Jeff, why are you letting this happen?" Burns, who was standing three to four feet away watching the melee, only stared in silence.

 During this time Barbara was still in bed. She heard a knock on her bedroom door, and Burns opened it. Burns told Barbara that she should go to the kitchen. As she was putting on her robe, she heard Arthur scream for her. She ran into the living room and saw Burns, who gestured her to the kitchen. Barbara looked in, and saw cabinets torn off the wall, broken cabinet doors, a broken chandelier, and strewn glass. Jones had his back to her, and Barbara rushed up behind him and grabbed hold. Jones spun around and stabbed her in the left side of her face. A bleeding Arthur attempted to strike Jones with a chair, but Jones avoided the blow. As Jones and Arthur struggled, Barbara franticly phoned for help. As she was phoning she noticed Burns, who was standing in the doorway smiling. Jones and Burns hurriedly left the kitchen and the Carlstens' condominium as Barbara finally contacted the operator.

 Shortly thereafter, Schaumburg police picked up Burns as he was making a call from a public telephone. Later that day detectives arrested Jones. Over two years later, a Cook County, Illinois jury found both men guilty of attempted murder, home invasion, three counts of armed violence, and four counts of aggravated battery. The trial judge sentenced Jones to serve concurrent 30-year terms for the attempted murder and home invasion charges, and a five-year concurrent term for aggravated battery. The judge vacated the other judgments against Jones. Burns for his part received concurrent 20-year terms for the attempted murder and home invasion charges, and the same sentence as Jones on one aggravated battery charge. The trial judge vacated all other judgments against Burns.

 Burns now petitions this court for a writ of habeas corpus under 28 U.S.C. § 2254 (1982). He contends that the State of Illinois is imprisoning him illegally, and gives three reasons why. The state has answered and has filed the record in this case in accordance with the Rules Governing § 2254 Proceedings. The court will now address each of Burns's contentions.

 Burns first submits that the Illinois trial court asked insufficient questions of the venire in his case about the presumption of innocence and a criminal defendant's right to refrain from testifying. He contends that this deficient inquiry violated his rights to due process and a fair trial under the Sixth and Fourteenth Amendments to the Constitution. The State responds that Burns never raised this objection before the Illinois courts, and for this reason Burns may not raise this objection here. This court disagrees. Contrary to what the Illinois Appellate Court says in this regard, see People v. Jones and Burns, No. 88-221, Mem. Op. at 8 (Ill.App. April 21, 1988), counsel for Jones and Burns did point out to the trial court that it had inadequately probed the issues of the presumption of innocence. See R. 814, 818-21, 824-26. When the trial judge asked the attorneys later if they wished the court to ask supplemental questions, counsel repeated their request for questions into these issues. The trial court declined. See R. 888-89. Jones raised this as an error in a motion for new trial, a motion which Burns joined. See R. 3958, 3614. Burns thus has properly preserved this question for this court's review.

 The voir dire of the venire in a criminal case serves two important functions under our Constitution. It first protects the defendant's right under the Sixth and Fourteenth Amendments to an impartial jury. See Rosales-Lopez v. United States, 451 U.S. 182, 188, 68 L. Ed. 2d 22, 101 S. Ct. 1629 (1981) (White, J.); Ristaino v. Ross, 424 U.S. 589, 595 n.6, 47 L. Ed. 2d 258, 96 S. Ct. 1017 (1976). It also affords the defendant due process, not only in insuring that his case is heard by an impartial finder of fact (a right which harkens back to those under the Sixth and Fourteenth Amendments), but also by allowing a defendant to exercise any peremptory challenges granted to him by the state in an intelligent manner. See Rosales-Lopez, 451 U.S. at 188; Ristaino, 424 U.S. at 595 n.6; U.S. v. Robinson, 832 F.2d 366, 368 (7th Cir. 1987). The constitutional role of the court in voir dire "is simply to ensure that the jury to be impaneled will be an impartial one. To so ensure juror impartiality, the . . . court must make inquiry that is sufficient to allow it to perform its 'responsibility to remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence . . . .'" The court also "must protect 'the defendant's right to exercise peremptory challenges' where they are allowed." Id., quoting Rosales-Lopez, 451 U.S. at 188.

 The Seventh Circuit announced its standard of review of a judge's conduct of voir dire in United States v. Lewin, 467 F.2d 1132, 1137 (7th Cir. 1972): "At some happy mesne point, there must be permitted sufficient questioning to produce, in the light of the factual situation involved in the particular trial, some basis for a reasonably knowledgeable exercise of the right of challenge." While the Lewin court may have announced its standard in terms of Rule 24(a), Fed.R.Crim.P., later courts have employed it in testing the sufficiency of a voir dire under the Sixth Amendment. See, for example, United States v. Hasting, 739 F.2d 1269, 1273 (7th Cir. 1984); Robinson, 832 F.2d at 368; U.S. v. Casey, 835 F.2d 148 (7th Cir. 1987).

 Selection of the jurors in this case proceeded in three stages, which yielded twelve jurors and two alternates. In each stage the trial judge began examination of the prospective jurors by telling all of them that the defendants were presumed to be innocent, and that that presumption remained with the defendants throughout the trial until the jury was satisfied by evidence beyond all reasonable doubt as to the guilt of the defendants. Repeatedly the judge insisted that "the burden of proving the guilt of a defendant beyond all reasonable doubt is on the State. . . . [The defendants] do not have to prove their innocence." R. 845-46. The judge then questioned each prospective juror individually. He asked if each understood the burden of proof, and if each would hesitate to acquit the defendants if the State did not meet its burden. He also asked each prospective juror if he or she could disregard his or her views of the law, and rely solely on the judge's instructions. At the close of evidence these instructions included one to ignore the failure of the defendants to testify, and to uphold the defendants' presumption of innocence.

 Burns next claims that the prosecution violated his rights under the Fifth and Fourteenth Amendments by commenting on his decision not to testify at the trial. Burns submits that the prosecution referred four times in its closing argument to his decision. On the first occasion, the prosecutor indicated to Burns and called him "the forgotten man . . . ." R. 3383. Burns's trial counsel raised no objection to this comment at the time, but he did object in post-trial motions, ...

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