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People v. Kuntu

October 21, 1999

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE, V. JULIUS S. KUNTU, APPELLANT.


The opinion of the court was delivered by: Justice Rathje

-Agenda 22-May 1999.

Defendant, Julius Kuntu, was charged with 28 counts of first degree murder (720 ILCS 5/9-1(a)(2), (a)(3) (West 1998)), 14 counts of aggravated arson (720 ILCS 5/20-1.1(a) (West 1998)), and 1 count of arson (720 ILCS 5/20-1 (West 1998)). Subsequently, the State nol-prossed 14 counts of first degree murder, 11 counts of aggravated arson, and the arson count. A jury convicted defendant of seven counts of first degree murder and one count of aggravated arson. The same jury found that there were no mitigating factors sufficient to preclude a sentence of death, and the trial court sentenced defendant to death. Defendant's execution has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a).

On appeal, defendant raises numerous allegations of error arising during his trial and sentencing hearings. However, we need only address defendant's first contention of error: whether the cause should be remanded for an evidentiary hearing to determine the relationship between the jury foreman and Cook County State's Attorney Richard Devine.

The basis for this argument arises from a letter written by attorney Paul Kosin, the jury foreman, to State's Attorney Devine. Defendant asserts that this letter reveals the possibility of a relationship between Kosin and State's Attorney Devine that Kosin failed to reveal during voir dire.

The letter is written on Kosin's law firm's stationery, and the salutation reads "Dear Dick." Kosin begins by explaining that he has just finished serving as a juror in defendant's trial. He notes that, because the assistant State's Attorneys who presented the case had trouble opening evidence cans, Kosin had considered sending, in jest, paint can openers to State's Attorney Devine to give to the assistant State's Attorneys. Kosin also explains that he was upset to discover that the assistant State's Attorneys had given information to the media that was not available to the jury. The two-page letter then concludes, "Once again congratulations on being where I can write this letter to someone I know and please consider a lengthy tenure in office because, if I ever get into a jury selection for a capital crime again, I'm going to tell the Judge that you're my brother."

Although the letter was written the day after the jury voted to sentence defendant to death, the State did not disclose the letter until one month later, after the trial court had already considered and denied defendant's post-trial motions. After receiving the letter, defendant asked the court to grant him a new trial based on Kosin's failure to reveal his relationship with State's Attorney Devine. The trial court denied defendant's motion.

Defendant asserts that this letter provides evidence of a personal relationship between Kosin and State's Attorney Devine. Defendant further contends that, if such a relationship exists, Kosin had a duty to disclose this relationship during voir dire, when he was questioned about his relationships with other attorneys. Because the letter indicates the possibility of a relationship, defendant concludes that this cause must be remanded for an evidentiary hearing to determine if a relationship exists between Kosin and State's Attorney Devine.

Defendant concedes that, in the trial court, he should have requested an evidentiary hearing. He argues, however, that the letter is sufficient evidence to require the trial court to conduct sua sponte an evidentiary hearing. The State does not argue that defendant has waived his right to request an evidentiary hearing. Instead, it argues only that, under the facts presented, an evidentiary hearing is not warranted. Because the State does not argue that defendant has waived review of this issue and because we may review errors affecting substantial rights (see 134 Ill. 2d R. 615(a)), we find this to be an appropriate circumstance in which to relax the waiver rule and consider the issue on its merits. See People v. Hamilton, 179 Ill. 2d 319, 323 (1997) (explaining that waiver is a limitation on the parties not on the court).

The right to a jury trial is a fundamental right that guarantees a defendant a trial by a panel of impartial jurors. People v. Peeples, 155 Ill. 2d 422, 462 (1993). The failure to afford a defendant a fair trial "violates even the minimal standards of due process" and requires a reversal. People v. Cole, 54 Ill. 2d 401, 411 (1973). Here, we do not know whether defendant was denied his right to a fair tribunal because we do not know what relationship, if any, exists between Kosin and State's Attorney Devine. Both defendant and the State agree that the question of whether a hearing is necessary is determined by applying the test set forth in People v. Towns, 157 Ill. 2d 90 (1993). In Towns, this court held that, "[w]here a defendant does not learn of facts which might support a finding of partiality by a juror until after a verdict, a post-trial evidentiary hearing may be necessary." Towns, 157 Ill. 2d at 102. In order to obtain such a hearing, the defendant must produce "specific, detailed and nonconjectural evidence in support of his position." Towns, 157 Ill. 2d at 102.

Here, defendant has produced a letter that, on its face, reveals that Kosin not only knows State's Attorney Devine, but also that he knows him well enough to address him not as "State's Attorney Devine" or even "Mr. Devine," but as "Dick." An additional indication of a personal relationship between the two is Kosin's statement that he considered sending, in jest, a gift to State's Attorney Devine. Moreover, the letter demonstrates that Kosin felt comfortable enough to joke that, if he were again called for a capital case, he would tell the Judge that he was State's Attorney Devine's brother. Finally, and most importantly, Kosin explicitly states that he's glad that he can write the letter to "someone I know." Although we acknowledge that these facts do not provide conclusive evidence that Kosin and State's Attorney Devine have a relationship that prejudiced defendant's right to a fair trial, we believe that they are sufficiently specific, detailed, and nonconjectural to require the trial court to hold an evidentiary hearing to determine whether such a relationship exists.

We therefore choose to retain jurisdiction over this matter and to remand the cause for an evidentiary hearing at which the trial court shall determine whether a relationship exists between Kosin and State's Attorney Devine, and, if such a relationship exists, whether that relationship prejudiced defendant's right to a fair trial. After holding this factual inquiry, the trial court shall transmit to the clerk of this court, within 120 days of this decision, a report of the court's findings and a record of the proceedings on remand.

In the exercise of this court's supervisory authority, we retain jurisdiction over this appeal and remand this action to the circuit court of Cook County to conduct a hearing in accordance with the foregoing directions.

Cause remanded with ...


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