APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE EARL HOFFENBERG, JUDGE PRESIDING.
As Corrected April 28, 1995. Released for Publication May 26, 1995.
The Honorable Justice Wolfson delivered the opinion of the court: Campbell, P.j. and Braden, J., concur.
The opinion of the court was delivered by: Wolfson
JUSTICE WOLFSON delivered the opinion of the court:
Drug prosecutions can stir emotions in prospective jurors. It happened here. They also can cause prosecutors to engage in rhetorical overkill. That, too, happened here. The defendant contends these events and an evidentiary ruling concerning her proposed character witnesses fatally infected her jury trial.
We affirm her conviction of delivery of a controlled substance and her sentence of nine years' imprisonment.
The defendant had used five of her seven allotted peremptory challenges when the trial judge began questioning prospective juror Richard Kwiecinski. The relevant questions and answers were:
"Q. Did you ever know anybody who had a problem with drugs?
A. Unfortunately quite a few people. My former partner in the commodities ended up having a very serious cocaine problem that led us to dissolve our company, and my wife's two brothers have had drug problems. One of them had to go to Forest Hospital for treatment, and the other one is also involved in commodities, and currently I think he has licked the habit, but there is still a problem with commodities.
Q. Do you know anybody that has actually been involved with a drug abuse program?
A. Yes, one of my brother-in-laws.
Q. Do you know of anyone who has ever died as a result of a drug overdose?
A. Well, my wife's sister, her husband's brother had -- she was on cocaine and had a baby that died from that, and also my wife is in charge of the Snowflake Program or Operation Snowflake at River Trails Grade School which is an anti-drug program, and they're also involved with doing fund raisers for the Merriville Columbia Hospital for, you know, deformed babies from cocaine.
Q. *** This defendant is charged with delivery of a controlled substance: to-wit, cocaine. Do you think that gives you any preconceived notions about the case at all?
A. I would try not to think it would. I don't know what might happen when the trial starts ***.
Q. *** Do you think that you are able to keep an opened [sic] mind, to listen to the State's case, and the defense case as to what extent they want to present any evidence, listen to the evidence and the arguments and listen to the law as they instruct you and then based upon that form your decision?
A. Well, I think I could, yes.
Q. So you think basically you would really try to give both sides a fair trial?
Q. And if you feel the State proves the defendant guilty beyond a reasonable doubt, would you have any problems signing a guilty verdict?
Q. And if they failed to do so, would you have any problems signing a not guilty verdict?
Then the defendant's lawyer asked the prospective juror:
"Q. *** She will testify. Would your decision on her credibility be influenced on what happened to your business?
A. I would try not to let it influence me, but it did have a major effect on my life, and I would try not to have that affect me.
Q. But you don't know if it would or not until we actually start?
The next prospective juror was Donald O'Meara. After he was questioned by court and counsel, the defense exercised its sixth peremptory challenge against a prospective juror named Salazar. Then it asked that juror Kwiecinski be challenged for cause. The judge refused, holding that the juror's answers demonstrated an open mind. The defense then used its final peremptory challenge on Kwiecinski.
When the defense asked for an additional peremptory challenge for juror O'Meara, the trial judge said: "It's seven and seven. That's what you ...