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People v. McCormick

March 21, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MICHAEL P. MCCORMICK, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kendall County. Nos. 00-CF-03, 00-DT-01, 00-TR-62 Honorable James M. Wilson, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN.

Released for publication March 27, 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MICHAEL P. MCCORMICK, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of Kendall County. Nos. 00-CF-03, 00-DT-01, 00-TR-62 Honorable James M. Wilson, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN.

PUBLISHED

 After a jury trial, defendant, Michael P. McCormick, was found guilty of the unlawful possession of less than 15 grams of a substance containing cocaine (720 ILCS 570/402(c) (West 2000)), driving under the influence of alcohol (625 ILCS 5/11--501(a)(2) (West Supp. 1999)), and failing to yield while entering a highway (625 ILCS 5/11--906 (West 2000)). The trial court sentenced him to 18 months' probation conditioned on, among other things, spending four weekends in jail. On appeal, defendant argues that the trial court's use of a "struck jury" system infringed on his right to peremptory challenges. We affirm.

The record contains no report of the jury selection proceedings. The common-law record reveals that the venire consisted of 46 people. Each party submitted a list of seven peremptory challenges. Three prospective jurors appeared on both lists. As a result, only 11 prospective jurors were dismissed.

After defendant appealed, the trial court conducted a hearing to certify a bystander's report. See 166 Ill. 2d R. 323(c). The testimony received during the hearing reveals that the trial court utilized a "struck jury" system. See United States v. Ricks, 802 F.2d 731, 734-36 (4th Cir. 1986). During the hearing, Michael Poulakidas, the attorney who represented defendant during the trial, testified that the trial court assembled all of the prospective jurors in the courtroom. The trial court questioned them about whether they could be fair and gave counsel the opportunity to submit additional questions. Neither party submitted additional questions. Poulakidas testified that "I felt that the judge was thorough and *** I had my mind made up on my perempt[ory challenges] ***."

After the prospective jurors were questioned, the trial court directed the parties to submit their lists of peremptory challenges and asked if they wanted to challenge for cause any venire member. Each party submitted seven peremptory challenges. Poulakidas testified that he identified 13 prospective jurors whom he considered questionable. Of those 13, he picked the 7 whom he felt were the most objectionable. After both sides exercised their peremptory challenges, the clerk read the names of 12 of the remaining prospective jurors who would serve as jurors. Poulakidas did not know beforehand which 12 names would be called.

Of the six additional prospective jurors whom Poulakidas considered questionable, three were selected as jurors. Poulakidas did not challenge for cause any of the additional six and did not ask for more peremptory challenges. He could not recall whether the trial court allowed him additional peremptory challenges.

Eric Weis was the assistant State's Attorney who participated during the trial. He testified that the jury selection procedure was essentially as Poulakidas described. He added, however, that the trial court told the parties they could have as many peremptory challenges as they wanted so long as there were at least 13 prospective jurors remaining. Weis typically tried to limit his challenges to seven. He recalled participating in at least one trial where defense counsel used more than seven challenges.

After the testimony concluded, the trial court summarized the procedure it had utilized for the previous 15 or 16 years. The court stated that, after the prospective jurors are questioned, the parties "are asked to use their peremptory challenges. They can write down any number they want. It's customary for me to say, however, they can put down as many as they want *** as long as I have 12 jurors and *** an alternate ***." During an earlier hearing, the trial court remarked that, "regarding peremptory challenges, my position is and has always been, as I stated for counsel, that you could have as many *** as you want as long as I still have 12 jurors left." From the list of prospective jurors who survive this process, the clerk randomly selects 12 names.

Defendant's sole contention on appeal is that the jury selection procedure impaired his right to peremptory challenges. According to defendant, because he and the State were required to exercise their challenges contemporaneously and because the challenges were directed against the entire 46-person ...


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