The opinion of the court was delivered by: Justice Harrison
On November 15, 1994, defendant, Edgar Hope, pleaded guilty in the circuit court of Cook County to the murder of Chicago Police Officer James Doyle, the attempted murder of Chicago Police Officer Robert Mantia, and armed violence against Kevin Page and Cynthia Houston in connection with a shooting on a Chicago Transit Authority bus on February 5, 1982. The trial court accepted defendant's guilty pleas and entered findings of guilt on two counts of murder, one count of attempted murder and two counts of armed violence. Ill. Rev. Stat. 1979, ch. 38, pars. 8-4, 9-1(a)(1), (a)(2), 33A-2.
Defendant requested a jury for his capital sentencing hearing. The jury found defendant eligible for the death penalty based upon two statutory aggravating factors: (1) that defendant had murdered a peace officer in the course of performing his official duties (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(b)(1)); and (2) that defendant had murdered two or more individuals (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(b)(3)). After considering the evidence in aggravation and mitigation, the jury found that there were no mitigating factors sufficient to preclude imposition of the death penalty. Accordingly, the trial court sentenced defendant to death. Defendant's death sentence has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a).
This is the third appearance of this death penalty case before this court. See People v. Hope, 137 Ill. 2d 430 (1990); People v. Hope, 147 Ill. 2d 315 (1992). The facts of the case are essentially as set forth in Hope, 137 Ill. 2d at 441-42. In this appeal, defendant presents 11 issues contesting the sentence imposed. The issue dispositive of this appeal concerns the conduct of the voir dire proceedings at defendant's capital sentencing hearing, specifically, the trial court's refusal to question the venirepersons on the issue of interracial crime bias. We find the trial court's refusal to have been reversible error. Accordingly, we affirm defendant's convictions but vacate defendant's sentence of death and remand for a new sentencing hearing.
Defendant is an African-American and his murder victim, Officer Doyle, was white. On the start of the second day of voir dire, defense counsel requested the trial court to propound the following question to the venirepersons: "Would you automatically vote for the death penalty with respect to [defendant] because he is a Black man who has admittedly killed a White police officer?" The trial court ruled that such a question was impermissible because it would run counter to instructions that state racism is to play no role in the conduct of a criminal trial. Defense counsel renewed his request for the proposed voir dire question on the interracial nature of this murder at numerous junctures of jury selection. In addition to citing Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992), defense counsel explained that his request for a question on interracial crime bias was based on due process. Indeed, counsel so frequently repeated this request that, at one point, the trial court informed counsel that he need not state the question or his grounds for objection in depth because: "The Court rules as I have ruled under the previous 86, 85 jurors."
"[D]uring voir dire, the Constitution requires a trial Judge to question venirepersons specifically regarding racial prejudice if 'special circumstances' exist that suggest a constitutionally significant likelihood that racial prejudice might infect a defendant's trial." People v. Peeples, 155 Ill. 2d 422, 459 (1993). Such special circumstances exist where racial issues are " 'inextricably bound up with the conduct of the trial.' " Peeples, 155 Ill. 2d at 459-60, quoting Ristaino v. Ross, 424 U.S. 589, 596-97, 47 L. Ed. 2d 258, 264, 96 S. Ct. 1017, 1021 (1976). In general, that the defendant and victim are of different races does not in itself constitute a special circumstance. Peeples, 155 Ill. 2d at 460. However, when a capital defendant is on trial for an interracial crime, the defendant is entitled at sentencing to have prospective jurors informed of the race of the victim and questioned about racial bias, but only if the defendant specifically requests such an inquiry. Turner v. Murray, 476 U.S. 28, 36-37, 90 L. Ed. 2d 27, 37, 106 S. Ct. 1683, 1688 (1986); People v. Lear, 175 Ill. 2d 262, 270 (1997). In Turner, Justice White stated:
"Because of the range of discretion entrusted to a jury in a capital sentencing hearing, there is a unique opportunity for racial prejudice to operate but remain undetected. *** Fear of blacks, which could easily be stirred up by the violent facts of petitioner's crime, might incline a juror to favor the death penalty.
The risk of racial prejudice infecting a capital sentencing proceeding is especially serious in light of the complete finality of the death sentence. *** By refusing to question prospective jurors on racial prejudice, the trial Judge failed to adequately protect petitioner's constitutional right to an impartial jury.
We hold that a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias." Turner, 476 U.S. at 35-37, 90 L. Ed. 2d at 35-37, 106 S. Ct. at 1687-88.
After reviewing the record in the case at bar, we find that defendant has established that he was entitled to have the trial court question prospective jurors about interracial crime bias. At the time of defendant's capital sentencing hearing in 1995, both the United States Supreme Court, in Turner, and this court, in Peeples, 155 Ill. 2d at 460-61, had determined that such inquiry was constitutionally mandated when requested under the circumstances present herein. Trial courts are bound to follow case precedent, and for that reason we find that the trial court's failure to do so here was error as a matter of law. See In re Dominique F., 204 Ill. App. 3d 271, 276 (1990), aff'd, 145 Ill. 2d 311 (1991); see also People v. Gillespie, 136 Ill. 2d 496, 502 (1990) (state courts are required to follow United States Supreme Court precedent where the result therein is mandated by the Constitution of the United States).
The State argues that defendant has waived this issue because he did not tender the question until eight prospective jurors, including two who were chosen to sit on the jury, had been voir dired. However, we agree with defendant that where the State failed to challenge the timeliness of defense counsel's proposed inquiry, it has waived the right to raise the issue on appeal. See People v. Holloway, 86 Ill. 2d 78, 91 (1981) (the principle that issues not raised in the trial court are generally waived on appeal applies to the State as well as to the defendant in a criminal case). The State's waiver of the issue aside, we are unconvinced that any tardiness on the part of defense counsel precluded inquiry into potential interracial crime bias. Any inconvenience in making the inquiry of the two previously selected jurors would have been minor, considering its "minimally intrusive" nature and the trial court's discretion to question the jurors collectively. See Turner, 476 U.S. at 37, 90 L. Ed. 2d at 37, 106 S. Ct. at 1689.
Additionally, the State contends that waiver applies because defense counsel argued that the inquiry was mandated by Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992), which does not require questioning on racial bias, rather than citing Turner. The State provides no support for its contention that defense counsel waived his client's constitutional right to a fair sentencing hearing by mistakenly citing a case not directly on point. It is required only that specific " 'issues' " be raised at trial and in a post-trial motion in order to give the trial court an opportunity to correct the error claimed. See People v. Enoch, 122 Ill. 2d 176, 186 (1988), quoting People v. Caballero, 102 Ill. 2d 23, 31-32 (1984).
The State alternatively contends that the voir dire conducted by the trial court sufficiently covered the area of racial bias and therefore ensured that defendant would receive a fair sentencing hearing. It is true that the trial court retains discretion as to the form and number of questions on the subject of interracial crime bias. Turner, 476 U.S. at 37, 90 L. Ed. 2d at 37, 106 S. Ct. at 1688-89. However, our review of the record herein shows that admonishments as to bias based on race, color, religion and natural origin were only given to two of the four venires from which defendant's jury was selected. Indeed, 7 of the 12 jurors who signed defendant's death verdict were never admonished that race or color should play no role in their determinations.
Further, the trial court failed to inform the venirepersons at any time during jury selection that the victim in this case was white. The State urges that the fact four veniremen admitted to being biased against defendant based on his race attests to the adequacy of the trial court's general admonitions to "discover racial bias." However, we agree with defendant that inquiring into bias against defendant based on his race is not the same as inquiring into interracial crime bias. There is a difference between racial prejudice, which depends in no way on the race of the victim, and interracial crime bias. Therefore, where venirepersons are without knowledge that the offense was interracial, the general questions concerning the ability to be fair and impartial are ineffective in ferreting out ...