Appeal from the Circuit Court of Cook County. Honorable Dennis J. Porter, Defendant- Judge Presiding.
The opinion of the court was delivered by: Justice Wolfson
In 1995, Clarence Gardner was convicted of first degree murder and sentenced to 35 years in prison. We affirmed his conviction and sentence on direct appeal in 1996. People v. Gardner, 282 Ill. App. 3d 209, 668 N.E.2d 125 (1996). In December 2000, Gardner filed a post-conviction petition, which the trial court denied as untimely. The trial court also found his petition frivolous and without merit. Gardner appeals the trial court's summary dismissal, contending: (1) the delay in filing the petition was not due to his culpable negligence; and (2) under People v. Strain, 194 Ill. 2d 467, 742 N.E.2d 315 (2000), he was denied his right to a fair trial by the trial court's refusal to ask questions concerning gang bias during voir dire. We reverse and remand for further proceedings.
Gardner was convicted under a theory of accountability for the shooting death of Joseph Waites, Jr. The murder was the result of gang rivalry and much of the evidence at trial focused on Gardner's affiliation with the Gangster Disciples street gang. The facts of the murder are set out in our opinion on direct appeal. See Gardner, 282 Ill. App. 3d at 211-13.
During a pretrial conference, defendant sought to have the trial court ask the following questions during voir dire:
"1. Have you ever known anyone who was in a gang? (If answer is yes, ask follow up questions.)
a. Do you think that someone who is in a gang is necessarily a criminal?
b. Do you understand that it is not a crime just to join a gang?
c. Do you understand that one member of a gang is not legally responsible for the actions of other gang members just because they are in the same gang?
d. Would you be able to put aside any feelings you may have about gangs, and give the defendant a fair trial based on the evidence?" (Emphasis added.)
At the hearing, the trial court discussed the questions with defense counsel:
"THE COURT: *** Now, do you want me to ask a question of the jury - - well, I'll ask if you have a question of the jury which you want asked, I will ask it. I could ask a question something on the order of you - - do you have any connection with gangs or with - - if there were any evidence of gang membership would that influence your outcome or your verdict one way or the other.
[DEFENSE COUNSEL]: We would like you to ask something. And in fact, given that we didn't know until today that we were going to be before you and didn't know how you did voir dire, we had prepared certain questions we were going to tender to the court which include questions of that character. They include other questions, as well.
THE COURT: All right. On the proposed questions, I will ask this question. 'Have you or any member of your immediate family ever had any direct involvement with a street gang.' I'm not going to ask questions A, B, C, and D. All right. I'll follow up on that question. And if they answer yes, I'll see what it is."
During voir dire, the trial court first asked, "Have you or any member of your immediate family had any direct involvement with a street gang?" No prospective juror said he or she had any direct involvement with a gang. Next, the court asked, "Have you or any member of your family had any indirect involvement with a street gang?" One juror answered "yes."
The following exchange took place between the trial court and the juror who answered he had had indirect involvement with a street gang:
"Q: You said you had some indirect involvement with street gangs or [sic] member of your immediate family?
A: I grew up in *** Pilsen street area, also Little Village area. *** I have five brothers. Indirectly we were involved with one gang or another indirectly during our youth.
Q: Is there anything about that that would prevent you from giving both sides a fair trial?
This juror eventually was excused for cause on the State's motion. The motion was based on the juror's answer to a different question. The court did not ask ...