The opinion of the court was delivered by: Justice Freeman
Docket No. 88007-Agenda 32-May 2000.
A jury convicted defendant, Terrance Strain, of two counts of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 1992)) in connection with the death of Geary Dow. Subsequently, the trial court sentenced defendant to concurrent prison terms of 45 years for each count of first degree murder. The appellate court reversed defendant's conviction and remanded for a new trial because it found that the trial court committed error in refusing to ask the jury venire two questions submitted by defendant. 306 Ill. App. 3d 328. We allowed the State's petition for leave to appeal (177 Ill. 2d R. 315(a)), and now affirm.
On February 12, 1996, Dow was killed as he stood outside a home on the 120th block of Perry Avenue in Chicago. Dow had gone to the home, along with Terry Bosley, to perform some electrical work. He was shot as he and Bosley waited next to a van for the daughter of the homeowner to give them a ride home.
A few days after the shooting, defendant learned that the police wanted to question him about a homicide. On February 20, 1996, police officer Jerry paged defendant. Defendant responded to the page and suggested a meeting at a gas station in Riverdale. Defendant had acted as a confidential informant for Officer Jerry since 1995. When the police car arrived at the gas station, defendant flagged the car down and got in the car. Officer Jerry took defendant to the police station, where he was placed under arrest.
The State claimed that defendant gave an oral statement while under arrest. Defendant denied making any statement. After a hearing on a motion to suppress, the trial court decided to allow the State to introduce the alleged statement into evidence at trial. The statement contained numerous references to gangs.
The State then moved to allow proof of other crimes at trial. In its motion, the State alleged that members of the Gangster Disciples shot defendant in the leg because defendant was a member of the Black Disciples. In retaliation, defendant attempted to shoot Darryl Burnett, a member of the Gangster Disciples, near the intersection of 120th Street and Perry Avenue. The State argued that defendant's action in killing Geary Dow was yet another attempt to retaliate against the Gangster Disciples. The trial court granted the State's motion, ruling that the evidence of other crimes was admissible to show defendant's state of mind, intent and motive, and relevant to identification.
The trial court recognized that evidence of gang affiliation was to play a part in defendant's trial. Prior to the start of voir dire, the trial judge indicated to the attorneys that he would advise prospective members of the jury there would be evidence of gang involvement at trial. The trial judge noted that he would ask the prospective jurors questions relating to:
"The allegation they or any close member of their family or close friend had any involvement with a gang, could be membership, affiliation, could be a victimization and so the parties then would be fully aware of anything like that."
The trial judge also indicated that, pursuant to Supreme Court Rule 431 (177 Ill. 2d R. 431), he would allow supplemental questioning of the prospective jurors, upon the court's approval of the questions.
The trial judge conducted voir dire of the first panel of the venire, consisting of 20 prospective jurors. The trial judge asked each prospective juror whether the juror, any member of the juror's family or a close friend of the juror had ever been involved in a gang. The trial judge also asked each prospective juror whether the juror could be fair to both sides. Defense counsel then requested that the trial judge ask each prospective juror whether the juror would find defendant less believable if the juror learned that defendant belonged to a gang. This colloquy followed:
"THE COURT: Whom am I supposed to ask that [to]?
MR. STRALKA: Everybody, I know you mentioned you would ask about gangs but the question is have you had any contact with gangs.
THE COURT: Why wasn't this submitted prior to me doing the jury questioning?
MR. STRALKA: I thought you said when you asked about gangs, you would get into it.
THE COURT: I gave specifically what question I would ask and typically the question I have asked.
MR. STRALKA: This is my request for a supplemental question.
THE COURT: That's not supplemental. This is new, a new, separately new question which would require the Court [to] go back and ask each individual juror a question that could have been submitted previously on that.
MR. STRALKA: If the Court would allow me to ask it, I'll ask it.
THE COURT: It's not supplemental.
MR. STRALKA: It's supplemental to the issue of gangs.
THE COURT: To the issue but not the question. I indicated the question to you previously, and you at that point even though it was tardy and not in writing, I would have allowed you to submit this at this time and I would have asked this in tandem with the question if it was submitted but it's not submitted, it's not supplemental, it's different.
Next is if you learned the defendant is and was a member of a gang would it make it more likely than not that ...