Appeal from the Circuit Court of Cook County. Honorable Dennis J. Porter, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Wolfson
Clarence Gardner contends the trial court's failure to ask or to allow his defense counsel to ask gang bias questions to prospective jurors deprived him of an impartial jury. To resolve the issue, we have to determine whether defense counsel actually requested gang bias questions, and, if not, whether the trial court should have asked them anyway.
Following a jury trial, defendant was convicted of first-degree murder under a theory of accountability and sentenced to 35 years' imprisonment. The judgment was affirmed on direct appeal. People v. Gardner, 282 Ill. App. 3d 209, 668 N.E.2d 125 (1996). Defendant subsequently filed a pro se post-conviction petition alleging he was denied a fair trial when the trial judge failed to pose a question on gang bias during voir dire. The trial court summarily dismissed his petition as frivolous and patently without merit. This court reversed the summary dismissal and remanded the cause for second-stage post-conviction proceedings. People v. Gardner, 331 Ill. App. 3d 358, 771 N.E.2d 26 (2002). Defendant now appeals the second-stage dismissal of his post-conviction petition, contending he made a substantial showing of a constitutional violation due to the trial court's error during voir dire. We affirm the trial court.
We set out the facts in our previous opinions. See Gardner, 282 Ill. App. 3d at 211-13; Gardner, 331 Ill. App. 3d at 360-62. We repeat only those facts pertinent to this appeal, but some background is required.
Defendant was convicted under a theory of accountability for the shooting death of Joseph Waites, Jr. The shooting occurred when Waites and other members of his high school football team got into a fight with several gang members, including defendant. "Gang activity was an integral part of [defendant's] trial." Gardner, 331 Ill. App. 3d at 368. At trial, the State presented evidence that defendant was a member of the Gangster Disciples street gang; the shooting occurred in Gangster Disciples' territory; and defendant made several statements telling his fellow gang members to shoot Waites ("Bust him," for example), because he thought Waites belonged to a rival gang.
At a pretrial hearing, defendant filed a written motion requesting certain questions be presented to all potential jurors during voir dire. The motion included the following question:
"1. Have you ever known anyone who was in a gang?
(If answer is yes, ask follow up questions.)
1 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.)
Defense counsel gave the court his written requests during the following exchange:
"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. *** I'll follow up on that question. And if they answer yes, I'll see what it is. All right. On question 2: 'Did you participate in organized sports in high school?'
[DEFENSE COUNSEL]: Your Honor, when we have an opportunity to speak to the jury, may we ask questions in those areas?
THE COURT: No. I don't think it's relevant."
During voir dire, the trial court asked the entire jury pool a series of questions, including, "Have you or any member of your immediate family had any direct involvement with a street gang?" No one raised his or her hand. The court then asked, "Have you or any member of your immediate family had any indirect involvement with a street gang?" One juror raised his hand. The court later asked that juror whether his indirect involvement with gangs would prevent him from giving both sides a fair trial. The juror answered, "no," but later was excused for cause at the State's request based on his answer to another question.
On direct appeal, defendant alleged several trial errors, including the court's failure to ask the gang bias question (question "d" in his written motion) to all prospective jurors during voir dire. This court, without analysis, found the trial court's questions were sufficient to address the possibility of juror bias. Gardner, 282 Ill. App. 3d at 218. They were not. See People v. Strain, 194 Ill. 2d 467, 742 N.E.2d 315 (2000) (gang bias does not depend on one's involvement with gangs).
The Seventh Circuit, sitting en banc, affirmed the federal district court's denial of defendant's petition for writ of habeas corpus. The court held the trial court's actions did not violate defendant's rights under the federal ...