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People v. Brown

Illinois Supreme Court


October 18, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
CORTEZ BROWN, APPELLANT.

The opinion of the court was delivered by: Justice Freeman

UNPUBLISHED

Docket No. 89226-Agenda 4-May 2002.

In the circuit court of Cook County, defendant, Cortez Brown, was convicted of murder and sentenced to death. On direct appeal, this court affirmed defendant's conviction, but vacated his death sentence and remanded for a new sentencing hearing. People v. Brown, 169 Ill. 2d 132, 153, 164 (1996). Following the new sentencing hearing, a jury found defendant eligible for the death penalty and further determined that there were no mitigating circumstances sufficient to preclude the imposition of that sentence. Accordingly, the trial court sentenced defendant to death. That sentence has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a). For the reasons that follow, we vacate defendant's death sentence and remand for a new sentencing hearing.

BACKGROUND

In 1992, defendant was convicted in a bench trial of the June 8, 1990, murder of Curtis Sims and was sentenced to death. On direct appeal, this court affirmed defendant's conviction, but granted him a new sentencing hearing because his waiver of a jury for sentencing was invalid. People v. Brown, 169 Ill. 2d 132, 153, 164 (1996). In a separate proceeding, held before defendant was tried and convicted for the Sims murder, a jury found defendant guilty of the September 16, 1990, murder of Delvin Boelter, and defendant was sentenced to a 35-year prison term. While defendant's appeal was pending in this court for the Sims murder, the appellate court reversed defendant's conviction for the Boelter murder and remanded that cause for a new trial. People v. Brown, No. 1-92-2732 (1995) (unpublished order under Supreme Court Rule 23).

On remand, defendant's two causes were assigned to separate trial courts. Defense counsel in this case asked the trial court to preclude the State from conducting the Boelter retrial before defendant was resentenced for the Sims murder. After hearing argument from defense counsel and the State, the trial court denied defense counsel's request. Thereafter, on February 2, 1997, defendant was again convicted for the murder of Boelter and was sentenced to a 35-year prison term.

On August 25, 1999, jury selection for defendant's new sentencing hearing for the Sims murder commenced. Twelve jurors and two alternates were chosen from two venire panels. During the eligibility phase, the State admitted into evidence certified copies of defendant's murder convictions from the circuit court of Cook County and a certified copy of defendant's birth certificate. In addition, the State presented two witnesses who testified to the facts and circumstances of the Sims and Boelter murders. At the close of the eligibility phase, the jury was given the following aggravating factors to consider in deciding whether defendant was eligible for the death penalty: (1) the murder was committed in a cold, calculated and premeditated manner pursuant to a preconceived plan, scheme, or design to take a human life by unlawful means, and the conduct of the defendant created a reasonable expectation that the death of a human being would result therefrom, or (2) the defendant has been convicted of murdering two or more persons, so long as the deaths were the result of separate acts which the defendant knew would cause death, or create a strong probability of death or great bodily harm to the murdered individual or another. After deliberations, the jury found that defendant was eligible for the death penalty because defendant was 18 years of age at the time of the murder for which he was convicted of in this case and defendant had been convicted of murdering two or more individuals, which were the result of separate acts in which the defendant knew would cause death or create a strong probability of death or great bodily harm to the murdered individual or another. See 720 ILCS 5/9-1(b)(3) (West 1998).

Upon completion of the second stage of the sentencing hearing, and after considering evidence in aggravation and mitigation, the jury found no mitigating factors sufficient to preclude imposition of the death penalty. Accordingly, the trial court sentenced defendant to death.

Defendant appeals directly to this court under Supreme Court Rules 603 and 609(a) (134 Ill. 2d Rs. 603, 609(a)). Additional pertinent facts will be discussed in the context of the issues raised in this appeal.

ANALYSIS

The defendant raises several challenges to the propriety of his remand for a new sentencing hearing. Due to our disposition of this case, however, we address only the following contentions: (1) whether the State manipulated the trial court's docket, and (2) whether the trial court conducted a proper voir dire of the venire.

I. Docket Manipulation

Defendant contends that the State manipulated the trial court's docket by proceeding on defendant's new trial ordered by the appellate court for the murder of Boelter before conducting the new sentencing hearing ordered by this court on his conviction for the murder of Sims. Defendant asserts that the State made a deliberate decision to arrange the proceedings to provide the State with a second aggravating factor in defendant's new sentencing hearing. Defendant argues that the remandment proceedings should have been litigated in the order in which the offenses originally occurred, i.e., the Sims new sentencing hearing should have concluded before the start of the Boelter new trial because Sims was murdered on June 8, 1990, and Boelter was murdered on September 16, 1990.

In support of his contention, defendant cites People v. Albanese, 104 Ill. 2d 504 (1984). There, the defendant argued that the prosecutors manipulated the trial court's docket in his two cases, thereby contributing to the arbitrary and capricious nature of his death sentence. Albanese, 104 Ill. 2d at 532. To support his claim, the defendant affixed a newspaper article to his brief that quoted a prosecutor stating: "If his [the defendant's] conviction should be reversed or if the death penalty were to be vacated, we want to have a second conviction on him as a backup." Albanese, 104 Ill. 2d at 532. This court found that the prosecutor's remark, which was in response to an inquiry as to why more public funds should be spent on a second trial, was entirely proper and failed to establish any attempt to manipulate the trial court's docket so that the defendant's other case would go to trial first. Albanese, 104 Ill. 2d at 532.

In the instant matter, defendant asserts that the State manipulated the trial court's calendar when it acknowledged its intent to pursue defendant's new trial for the murder of Boelter first as a "strategic decision" in order to present an additional aggravating factor at defendant's new sentencing hearing. We disagree. The appellate court's opinion remanding defendant's other cause for a new trial preceded our opinion remanding this cause for a new sentencing hearing. Hence, defendant's new murder trial was already pending in another court room when his remand for a new sentencing hearing commenced. "It is well settled that, when a defendant prevails in an Illinois court of review, a new statutory 120-day [speedy-trial] term will commence running when the mandate issues and is docketed in the trial court." People v. Crane, 195 Ill. 2d 42, 49 n.2 (2001), citing People v. Worley, 45 Ill. 2d 96 (1970). Defendant here had charges pending against him for the murder of Boelter in his other cause. Accordingly, the State was compelled to proceed in a fashion to accord defendant with his speedy-trial rights by pursuing defendant's new trial in a timely manner.

In addition, we note that the State made the above acknowledgment in response to defendant's motion asking the trial court to preclude the State from moving forward on defendant's new trial pending in the other court room. In denying defendant's motion, the trial court stated that "the State is not engaging in any professional impropriety, nor are they trying to manipulate the docket." Likewise, we fail to see how the State manipulated the trial court's calendar by merely pursuing and seeking a conviction in defendant's new trial formerly pending in another court room. Therefore, we find defendant's allegation that the State manipulated the court calendar unpersuasive. Further, we find the State's response to defendant's motion fails to establish any attempt to manipulate the trial court's docket so that defendant's other case would go to trial first.

Defendant also relies on People v. Mallett, 45 Ill. 2d 388 (1970), in support of this contention. There, the defendant argued that he had been prejudiced when the State tried a subsequent robbery charge before it tried him for murder, hence depriving him the opportunity to testify at his murder trial because, if he had done so, the State could have proved he had previously been convicted of robbery, thereby impeaching his credibility. Mallett, 45 Ill. 2d at 396. The defendant in Mallett cited one case to support his argument, namely, Commonwealth v. McIntyre, 417 Pa. 415, 208 A.2d 257 (1965), which stated that since it was within the discretion of the commonwealth to schedule criminal trials, it could not be permitted the opportunity of arranging the trial of cases so that a criminal record might be created where none would otherwise exist if earlier offenses were tried promptly. Mallett, 45 Ill. 2d at 397, citing Commonwealth v. McIntyre, 417 Pa. 415, 422, 208 A.2d 257, 261 (1965). However, this court noted that "[a]ctual manipulation of the court calendar must be proved even under the McIntyre rule." Mallett, 45 Ill. 2d at 397, citing Commonwealth v. Conard, 206 Pa. Super. 33, 211 A.2d 14 (1965). Thus, this court rejected the defendant's argument, first finding that the defendant did not testify and did not raise the objection that he was prevented from testifying, thereby waiving the issue on appeal. Mallett, 45 Ill. 2d at 396. Second, this court found that the delay in trying the murder charge after the robbery charge was not the result of manipulation of the court calendar by the State, but rather was caused to a great extent by the defendant's actions. Mallett, 45 Ill. 2d at 396.

As the defendant in Mallett relied on Commonwealth v. McIntyre, defendant here relies on Commonwealth v. McIntyre via Mallett to support his contention that, on remand, his two causes should have proceeded in the order in which the offenses originally occurred and by not doing so the State manipulated the court's docket to provide the State with a second aggravating factor in defendant's new sentencing hearing. We find defendant's reliance on Mallett to no avail. Just as this court found no actual manipulation of the court calendar in Mallett, we find no actual manipulation of the trial court's calendar in this case.

We note that, initially, defendant was tried and convicted for the September 16, 1990, murder of Boelter before being tried for the June 8, 1990, murder of Sims. Defendant did not then, nor does he now, take issue with his original order of trials. In addition, as mentioned above, the appellate court released its opinion remanding for a new trial regarding the murder of Boelter before we released our opinion remanding for a new sentencing hearing on defendant's conviction for the murder of Sims. Furthermore, both remand causes were assigned to separate court rooms and were never consolidated. Thus, we fail to see how the State actually manipulated this trial court's docket when defendant's new trial was pending in front of another trial court and the State merely proceeded in the same manner as the causes originally advanced.

II. Jury Selection

Voir Dire

Defendant next contends that he should be granted a new sentencing hearing because the trial court, in violation of Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992), erroneously refused, and then failed, to ask all the potential jurors whether they would automatically impose the death penalty if defendant should be convicted of murder. The State responds that defendant has waived this issue since he did not properly preserve it for appeal when he failed to object to the trial court's denial of his proposed voir dire questions. In the alternative, the State argues that the trial court's questioning of the venire was proper and that the trial court did not abuse its discretion in conducting the voir dire.

We address at the outset the State's contention that defendant waived this issue due to his failure to object to the trial court's denial of his proposed venire questions. Normally, an error must be properly preserved in order for it to be brought to the attention of a reviewing court. See People v. Buckley, 40 Ill. App. 3d 750, 751 (1976). An issue is properly preserved for appeal by making the appropriate objections at trial and including these objections in a post-trial motion. See Buckley, 40 Ill. App. 3d at 751. Typically, an issue which is not properly preserved is deemed waived. People v. Ward, 48 Ill. 2d 117, 121 (1971). However, application of the waiver rule is less rigid where the basis for the objection is the trial judge's conduct. People v. Woolley, __ Ill. 2d __ (2002); People v. Smith, 176 Ill. 2d 217, 237 (1997); People v. Nevitt, 135 Ill. 2d 423, 455 (1990); People v. Sprinkle, 27 Ill.2d 398, 401 (1963). In the present case, as seen below, the record reveals that the trial court denied defendant's proposed venire questions because it intended to individually voir dire the venire in accordance with Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968), and Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992). Given the trial court's reassurance to comply with Morgan, defendant did not object to the denial of his proposed Morgan questions. We do note, however, that defendant raised this issue in his amended post-trial motion. The key question then is whether strict compliance with the waiver rule shall apply in a situation where a criminal defendant fails to object to the conduct of the trial court at the time of the occurrence but later objects in a post-trial motion. In the instant matter, we think not. We will not rigidly apply the waiver rule pursuant to the cases cited above since the underlying cause for defendant's failure to object to the trial court's denial of his proposed Morgan questions is clearly based on the trial court's conduct.

As alluded to above, prior to jury selection, defendant submitted nine questions to the trial court for the venire. Defendant's last three questions, in one form or another, asked the venire whether they would automatically vote to impose the death penalty if defendant was convicted of murder. The trial court denied defendant's proposed questions, stating:

"THE COURT: The question proposed by Morgan v. Illinois is whether the individual juror has a strong belief in favor of the death penalty that regardless of the facts of the case or the background of the defendant that they would automatically vote to impose the death penalty because the defendant was found guilty of murder, and would not consider signing a verdict which would result in a sentence of imprisonment. These questions will not be allowed. I will individually voir dire the jurors with regard to Witherspoon and Morgan."

However, when the time came for conducting the voir dire, the trial court first proposed this question to all veniremembers: "Do you have any strong feelings either by reason of conscience or religion against the death penalty?" Next, the trial court put forth this question to all veniremembers: "Do any of you have strong feelings or beliefs in favor of the death penalty?" (Hereinafter referred to as the "strong feeling" questions.) The veniremembers who indicated that they had strong feelings in response to either question were sequestered and individually asked by the court: "Would you automatically vote against the death penalty no matter what the facts may be?" or, "If the defendant were found eligible for the death penalty, you would automatically vote to impose the death penalty and would not consider signing a verdict which would result in a sentence of imprisonment?" (Hereinafter referred to as the "automatic" questions.) The persons who answered "yes" to the automatic questions were dismissed for cause. The individuals that did not answer positively to the automatic questions were sent back into the venire. This process was also used on the second venire to distinguish those that should be excused for cause. Upon the completion of jury selection, only one juror of the 12 and two alternates chosen had been asked the automatic question since that juror had originally responded to a strong feeling question.

As noted, defendant claims that the trial court violated Morgan because it refused, and then failed, to ask all prospective jurors whether they would automatically impose the death penalty if defendant was convicted of murder. We agree.

In Morgan, the defendant requested that the trial court ask all prospective jurors whether they would automatically impose the death penalty if they found the defendant guilty. Morgan, 504 U.S. at 723, 119 L. Ed. 2d at 499, 112 S. Ct. at 2226. The trial court refused defendant's request, believing it had already asked the question in a different vein. Morgan, 504 U.S. at 723, 119 L. Ed. 2d at 499, 112 S. Ct. at 2226. The Supreme Court found that the trial court had violated the defendant's due process rights under the fourteenth amendment, which independently requires the impartiality of any jury empaneled to try a cause. Morgan, 504 U.S. at 726, 119 L. Ed. 2d at 500-01, 112 S. Ct. at 2228. The Supreme Court held that if requested by a defendant, a trial court is constitutionally required to ask all potential jurors at voir dire whether they would automatically vote to impose the death penalty should defendant be convicted of murder. Morgan, 504 U.S. at 736, 119 L. Ed. 2d at 507, 112 S. Ct. at 2233. The Supreme Court reasoned:

"A juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do. Indeed, because such a juror has already formed an opinion on the merits, the presence or absence of either aggravating or mitigating circumstances is entirely irrelevant to such a juror. Therefore, based on the requirement of impartiality embodied in the Due Process Clause of the Fourteenth Amendment, a capital defendant may challenge for cause any prospective juror who maintains such views. If even one such juror is empaneled and the death sentence is imposed, the State is disentitled to execute the sentence." Morgan, 504 U.S. at 729, 119 L. Ed. 2d at 502-03, 112 S. Ct. at 2229-30.

In the current case, defendant requested that the trial court ask the venire whether they would automatically impose the death penalty should defendant be convicted of murder. Stating that it would individually voir dire the jurors in accordance with Morgan, the trial court denied defendant's request. However, during voir dire, the trial court only asked the potential jurors whether they would automatically impose the death penalty if they first responded to one of the trial court's strong feeling questions. As a result, the trial court posed the automatic question to only one juror of the 12 and two alternates chosen to sit on defendant's jury. Thus, not only did the trial court refuse to ask defendant's proffered questions to each potential juror, the trial court then failed to properly question the venire in accordance with Morgan. Given the above, we find that the trial court violated Morgan when it erroneously refused to ask defendant's proposed question, and then subsequently failed to ask all potential jurors whether they would automatically impose the death penalty should defendant be convicted of murder.

Moreover, we find that the trial court abused its discretion when it refused to ask defendant's proposed Morgan question to all potential jurors. Although it is well settled that the conduct and scope of jury voir dire is within the discretion of the trial court, an abuse of discretion will be found when the trial court's actions have frustrated the purpose of voir dire. Hope, 168 Ill. 2d at 30. The purpose of voir dire is to ascertain sufficient information about prospective jurors' opinions and beliefs so as to allow the removal of those prospective jurors whose minds are so closed by bias and prejudice that they cannot apply the law as instructed. Hope, 168 Ill. 2d at 30. Defendant contends that inquiring as to whether a prospective juror has any strong feelings or beliefs about the death penalty cannot be equated with inquiring as to whether the prospective juror would automatically impose the death penalty. We agree.

In People v. Shaw, 186 Ill. 2d 301, 315 (1998), the trial court inquired as to whether the prospective juror had strong feelings or beliefs about the death penalty. Upon receiving a negative answer, the trial court nevertheless inquired as to whether the prospective juror would automatically vote to impose the death penalty. Shaw, 186 Ill. 2d at 315. Likewise in People v. Macri, 185 Ill. 2d 1 (1998), the trial court "questioned the prospective jurors regarding any religious, moral or personal beliefs they might have against the imposition of the death penalty, whether the jurors could determine facts based upon the evidence presented and then follow the law as instructed, and whether the jurors would automatically vote to impose death in every murder conviction." Macri, 185 Ill. 2d at 36.

In the present case, the trial court's question regarding the prospective juror's feelings and beliefs required a subjective answer from the prospective juror. The question left open the possibility that a prospective juror would vote to impose the death penalty automatically upon a finding of guilt, yet characterize his feelings and beliefs about the death penalty as other than "strong." It matters not whether the prospective juror would do so intentionally or through a misconception that social norms required the imposition of the death sentence upon a finding of guilt. As the Supreme Court stated in Morgan:

"It is true that `[v]oir dire "is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion." ' [Citation.] The Constitution, after all, does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury. Even so, part of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors." Morgan, 504 U.S. at 729, 119 L. Ed. 2d at 503, 112 S. Ct. at 2230.

Thus, in the instant cause, the trial court's questioning was not sufficient to discover the beliefs and opinions of prospective jurors and did not allow for the removal of those prospective jurors who would automatically vote for the death penalty in every case. Consequently, the trial court's actions frustrated the purpose of voir dire and constituted an abuse of discretion. We cannot assume that defendant here was sentenced to death by a jury empaneled in compliance with the fourteenth amendment, given the inadequacy of voir dire. See Morgan, 504 U.S. at 739, 119 L. Ed. 2d at 509, 112 S. Ct. at 2235. Accordingly, we find the trial court's actions insufficient to meet the requirements set forth in Morgan, and hold that the trial court violated defendant's due process rights to an impartial jury. We therefore vacate defendant's death sentence and remand the cause for a new death sentencing hearing. See Morgan, 504 U.S. at 739 n.11, 119 L. Ed. 2d at 509 n.11, 112 S. Ct. at 2235 n.11.

CONCLUSION

For the foregoing reasons, defendant's death sentence is vacated and the cause is remanded to the circuit court for a new death sentencing hearing.

Sentence vacated; cause remanded.

JUSTICE RARICK took no part in the consideration or decision of this case.

JUSTICE KILBRIDE, concurring in part and dissenting in part:

The majority correctly reverses defendant's death sentence and remands for a new sentencing hearing. Nonetheless, for the reasons set forth in my dissents in People v. Hickey, No. 87286, slip op. at 39-43 (September 27, 2001) (Kilbride, J., dissenting), and People v. Simpson, No. 85084, slip op. at 35-39 (September 27, 2001) (Kilbride, J., dissenting), I believe that the majority stops short of granting defendant the relief constitutionally required. This cause should be remanded for a new trial because the proceedings below were not conducted in accordance with the new supreme court rules governing capital cases. The procedures in capital cases prior to this court's adoption of the new rules were inherently unreliable and did not adequately protect a defendant's constitutional rights. Consequently, since the new rules were promulgated to address the deficiencies of constitutional dimension that regularly occurred under the old system, the rules must be applied retroactively to all capital cases currently pending on direct appeal. See People v. Hudson, 195 Ill. 2d 117, 126 (2001), citing Griffith v. Kentucky, 479 U.S. 314, 328, 93 L. Ed. 2d 649, 661, 107 S. Ct. 708, 716 (1987).

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