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03/28/95 PEOPLE STATE ILLINOIS v. DONALD BOSTON

March 28, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DONALD BOSTON, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE EDWARD M. FIALA, JR., JUDGE PRESIDING.

Presiding Justice Scariano delivered the opinion of the court: DiVITO and McCORMICK, JJ., concur.

The opinion of the court was delivered by: Scariano

PRESIDING JUSTICE SCARIANO delivered the opinion of the court:

On August 17, 1991, Roberto Velasquez, a 23-year-old medical student, was robbed and stabbed to death at a gas station on Roosevelt Road in the City of Chicago. Defendant Donald Boston and codefendant Toney Washington were subsequently arrested and charged by indictment with first degree murder (Ill. Rev. Stat. 1991 ch. 38, par. 9-1 now codified at 720 ILCS 5/9-1 (West 1993)) and armed robbery (Ill. Rev. Stat. 1991 ch. 38, par. 18-2 now codified at 720 ILCS 5/18-2 (West 1993)). *fn1 Defendants were tried in simultaneous jury trials.

During voir dire in defendant's trial, the judge examined prospective juror Leona Ford who stated that she was an administrative assistant with the Cook County State's Attorney's office. She knew a possible witness, Assistant State's Attorney Robert Buckley, and she worked with his sister. *fn2 She stated that she would not give Buckley more credence than other witnesses. She also stated that she was the friend of a police officer and a public defender. She responded to the judge's inquiry regarding her impartiality by indicating that she could be fair and impartial.

After defense counsel raised concerns about Ford, the judge questioned her again. She stated that she worked for the supervisor of the juvenile division and that she had had the job for 18 months. The judge then held a conference in his chambers. He noted that each side had seven peremptory challenges and that defendant had exercised all seven. Defense counsel argued that Ford should be excused for cause because she held a "high position in the State's Attorney's office." The judge refused to grant defendant an additionalperemptory challenge or to excuse Ford for cause, explaining that she did not deal with criminal matters on her job, that she indicated that she could be fair, and that he found her to be "straightforward" and "candid."

Evidence adduced at trial revealed the following. The offense occurred at about 12:15 a.m., just after Velasquez had purchased gas and some gum. The cashier, Hattie Green, witnessed one man, whom she could not identify, attacking Velasquez as he returned to his car. Pamela Mixon and Nikkie Davis, who were waiting for their friend to purchase gas, also witnessed the attack. Mixon identified defendant as the stabber and Davis identified codefendant as his accomplice.

The jury convicted defendant of armed robbery and first degree murder. During the first phase of defendant's sentencing hearing, the judge found him eligible for the death penalty. After hearing testimony regarding defendant's convictions for three armed robberies when he was 16 years old, the judge found a mitigating factor and declined to impose the death penalty. He then sentenced defendant to natural life in the custody of the Illinois Department of Corrections for first degree murder and to a concurrent 30 year sentence for armed robbery. Without objection by defendant, the judge imposed sentence in the absence of a presentence investigation report. Defendant timely appealed.

Defendant argues that the trial court abused its discretion in refusing to excuse juror Ford for cause, thereby denying him his constitutional right to a fair trial. He contends that by allowing an employee of the Cook County State's Attorney to serve on his jury, the court "destroyed any appearance of an impartial jury."

The State initially contends that defendant waived this issue, because although he objected at trial, he did not include this claim of error in his post-trial motion. However, we nonetheless consider this issue because it concerns a fundamental constitutional right. See 134 Ill. 2d R. 615(a).

The right to an impartial jury is so fundamental to due process that any infringement of that right requires reversal by a reviewing court. ( People v. Cole (1973), 54 Ill. 2d 401, 411, 298 N.E.2d 705, 711.) The purpose of voir dire is to eliminate prospective jurors who are not impartial. ( People v. Peeples (1993), 155 Ill. 2d 422, 463, 616 N.E.2d 294, 313, 186 Ill. Dec. 341, cert. denied (1993), U.S. , 126 L. Ed. 2d 578, 114 S.Ct. 613.) Impartiality is not a technical concept, rather it is "a state of mind." ( Cole, 54 Ill. 2d at 413, 298 N.E.2d at 712; see also Peeples, 155 Ill. 2d at 462, 616 N.E.2d at 312-13.) The burden of showing that a juror was partial rests on the party challenging the juror; more than a mere suspicion of bias must be demonstrated. ( Cole, 54 Ill. 2d at 413-15, 298 N.E.2d at 712-13.) The determination of whether a prospective juror is biased is within the sound discretion of the trial judge whose decision will not be reversed unless it is against the manifest weight of the evidence. Cole, 54 Ill. 2d at 414, 298 N.E.2d at 712; People v. Buie (1992), 238 Ill. App. 3d 260, 277, 606 N.E.2d 279, 290, 179 Ill. Dec. 447, appeal denied (1993), 151 Ill. 2d 568, 616 N.E.2d 339.

Defendant relies heavily on the Fourth District case, People v. Green (1990), 199 Ill. App. 3d 927, 557 N.E.2d 939, 145 Ill. Dec. 960, appeal denied (1990), 133 Ill. 2d 564, 561 N.E.2d 699, and cert. denied (1991), 498 U.S. 1095, 112 L. Ed. 2d 1069, 111 S.Ct. 984, for his contention that juror Ford was presumptively unfit to serve on his jury. In Green, a prospective juror was, like Ford in the present case, a secretary in the juvenile division of the State's Attorney's office. When defendant's challenge for cause was denied, he used a peremptory challenge to keep her off of the jury. While finding that any claim of error in this regard had not been properly preserved for review, the appellate court nonetheless expressed its disapproval of the trial judge's denial of the challenge for cause. ( Green, 199 Ill. App. 3d at 930, 557 N.E.2d at 941.) The court noted that the prospective juror was an at-will employee who knew the State's Attorney. It found support in Marcin v. Kipfer (1983), 117 Ill. App. 3d 1065, 454 N.E.2d 370, 73 Ill. Dec. 510, a medical malpractice case. In Marcin, the court reversed and remanded for a new trial after holding that two jurors who were the defendant's patients should have been excluded from the jury. The Marcin court observed that the physician-patient relationship has traditionally been one of trust and confidence and that for the jurors to have found for the plaintiff, they would have had to also find that their physician was incompetent. Marcin, 117 Ill. App. 3d at 1067-68, 454 N.E.2d at 371-72.

We question the Green court's reliance on Marcin. A finding for the defendant in Green would not have required the prospective juror, if she had served, to deprecate a person with whom she had a close relationship. The Green court's implicit concern that the prospective juror would feel that her job was at risk or that she would be disloyal to the State's Attorney if she voted for the defense appears to us to have been unfounded. (See Green, 199 Ill. App. 3d at 930, 557 N.E.2d at 941.) The prospective juror stated unequivocally that she could be fair and impartial, and the trial judge had a superior opportunity to assess her credibility. Moreover, we have never recognized a per se rule disqualifying prospective jurors who are employed by the government. People v. Johnson (1991), 215 Ill. App. 3d 713, 725, 575 N.E.2d 1247, 1254, 159 Ill. Dec. 187 (probation officer was not per se unfit to serve on jury); People v. Jones (1987), 162 Ill. App. 3d 487, 493, 515 N.E.2d 471, 475, 113 Ill. Dec. 662 (a prospective juror's previous or present employment as a police officer is not sufficient reason to sustain a challenge for cause), appeal denied (1987), 162 Ill. App. 3d 487, 515 N.E.2d 471, 113 Ill. Dec. 662; People v. Washington (1984), 121 Ill. App. 3d 479, 488, 459 N.E.2d 1029, 1036-37, 76 Ill. Dec. 894 (the presence on the defendant's jury of a police committee member who dealt only with finances and appointments did not deprive him of a fair trial); see also 47 Am. Jur. 2d ยง 327, at 897 (1969 & 1994 Supp.) ("Government employees are not disqualified per se for jury service even in a case where the government is a party, regardless of whether the case is civil or criminal.")

Similarly, Illinois courts have rejected the adoption of a per se rule excluding jurors based on their relationships with persons connected to the trial. ( People v. Leger (1992), 149 Ill. 2d 355, 384-86, 597 N.E.2d 586, 598-99, 173 Ill. Dec. 612 (no error in permitting a juror to serve, even though she knew the murder victim's husband and her daughter attended school with the victim's daughter, when the juror unequivocally stated that she could be fair), cert. denied (1993), U.S. , 122 L. Ed. 2d 683, 113 S.Ct. 1291; People v. Johnson (1992), 149 Ill. 2d 118, 136-38, 594 N.E.2d 253, 263, 171 Ill. Dec. 401 (no error in allowing juror to serve whose brothers-in-law were police officers when the defendant failed to show that the juror had "a disqualifying state of mind as will raise the presumption of partiality"), cert. denied (1993), U.S. , 122 L. Ed. 2d 138, 113 S.Ct. 986; People v. Cobb (1989), 189 Ill. App. 3d 86, 89-90, 544 N.E.2d 1257, 1257-59, 136 Ill. Dec. 482 (denial of challenge for cause upheld even though the prospective juror's son was the assistant State's Attorney who signed the information charging the defendant with the offense), appeal denied (1990), 548 N.E.2d 1072; People v. Gaston (1984), 125 Ill. App. 3d 7, 9, 465 N.E.2d 631, 633, 80 Ill. Dec. 519 (juror's status as a part-time police officer did not automatically disqualify him), cert. denied (1985), 469 U.S. 1221, 84 L. Ed. 2d 351, 105 S.Ct. 1209.) As the Cobb court reasoned, to rule as a matter of law that a prospective juror's familial relationship with an ...


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