Appeal from the Circuit Court of Kane County. No. 96--CF--2254 Honorable, John L. Petersen, Judge, Presiding.
The opinion of the court was delivered by: Justice Galasso
On December 10, 1996, the defendant, Nathaniel C. Allen, was indicted for possession of a controlled substance with intent to deliver (720 ILCS 570/401 (West 1996)) and unlawful possession of a controlled substance (720 ILCS 570/402 (West 1996)). The defendant's jury trial on these charges commenced on February 23, 1998. Following trial, the defendant was found guilty of both offenses. After the denial of the defendant's posttrial motion, he was sentenced to a term of 15 years' imprisonment in the Department of Corrections on the possession with intent to deliver conviction. No sentence was imposed on the possession conviction. After his motion to reduce sentence was denied, the defendant filed this timely appeal.
On appeal, the defendant raises the following issues: (1) whether the trial court committed reversible error when it refused to permit the defendant's attorneys to directly question prospective jurors, and (2) whether the trial court committed reversible error when it considered improper factors in sentencing the defendant.
The issues raised in this case do not require a detailed statement of facts. By way of background, the defendant was charged with the offenses in this case based upon information received from a police informant. Prior to jury selection in this case, the following colloquy took place:
"MS. COLTON [one of defendant's attorneys]: Judge, also we have a-- I learned through co-counsel about a questioning procedure regarding jury voir dire I would bring to the Court's attention, that although our Criminal Codes for 1997 do not have the updated Rule 234, I did receive through Mr. Morelli a couple of months ago, and also received through the Appellate Defender's Office, that that has been amended, including language that includes shall permit the parties to supplement the examination by direct inquiry as the Court deems proper for a reasonable period of time. We are asking this Court respectfully to allow us to have a reasonable period of time to ask questions of the potential jurors in this case. I do have that language for the Court.
THE COURT: That's denied. I don't think in a case of this nature it's at all necessary."
Prior to 1997, Supreme Court Rule 431 (177 Ill. 2d R. 431), which governs the voir dire examination of jurors in criminal trials, provided that such examination would be conducted in accordance with Supreme Court Rule 234 (177 Ill. 2d R. 234). Prior to 1997, Rule 234 stated as follows:
"The court shall conduct the voir dire examination of prospective jurors by putting to them questions it thinks appropriate touching their qualifications to serve as jurors in the case on trial. The court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate, or may permit the parties to supplement the examination by such direct inquiry as the court deems proper. Questions shall not directly or indirectly concern matters of law or instructions. The court may acquaint prospective jurors with the general duties and responsibilities of jurors." (Emphasis added.) 103 Ill. 2d R. 234.
Effective May 1, 1997, Rule 431 was amended. Under the amendments, Rule 431 incorporated that portion of Rule 234 providing that the trial court was responsible for conducting voir dire and that the trial court may permit additional questions to be submitted. However, amended Rule 431 then continues on as follows:
"and shall permit the parties to supplement the examination by such direct inquiry as the court deems proper for a reasonable period of time depending upon the length of examination by the court, the complexity of the case, and the nature of the charges." (Emphasis added.) 177 Ill. 2d R. 431(a).
The amended Rule 431 also provides that the court "shall" rather than "may" acquaint prospective jurors with the general duties and responsibilities of jurors. Finally, the amendments added subsection (b), which provides as follows:
"If requested by the defendant, the court shall ask each potential juror, individually or in a group, whether that juror understands and accepts the following principles: (1) that the defendant is presumed innocent of the charge(s) against him or her; (2) that before a defendant can be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any evidence on his or her own behalf; and (4) that the defendant's failure to testify cannot be held against him or her; however, no inquiry of a prospective juror shall be made into the defendant's failure to testify when the defendant objects.
The court's method of inquiry shall provide each juror with an opportunity to respond to specific questions concerning the principles set out in this section." 177 Ill. 2d R. 431(b). The Committee Comments to the amended Rule 431 state as follows:
"The new language is intended to ensure compliance with the requirements of People v. Zehr, 103 Ill. 2d 472 (1984). It seeks to end the practice where the judge makes a broad statement of the applicable law followed by a general question concerning the juror's ...