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People v. Pineda

June 28, 2004


[6] Appeal from the Circuit Court of Lake County. No. 02-CF-2. Honorable Christopher C. Starck, Judge, Presiding.

[7] The opinion of the court was delivered by: Justice Byrne

[8]  Following a jury trial, defendant, Rudolpho D. Pineda, was convicted of attempted first-degree murder (720 ILCS 5/8--4(a), 9--1(a) (West 2002)) and armed violence (720 ILCS 5/33A--2 (West 2002)). The trial court imposed consecutive prison terms of 23 years for the attempted murder and 15 years for the armed violence. The court also ordered that defendant serve 85% of the 38-year aggregate term. Defendant appeals, arguing that he is entitled to a new trial because (1) the prosecutor indoctrinated the jury during voir dire, (2) the trial court erroneously admitted certain hearsay testimony, and (3) the prosecutor improperly argued that society had an interest in convicting defendant. We reject each of defendant's arguments and affirm his convictions accordingly.

[9]  FACTS

[10]   The evidence at trial indicated that defendant stabbed Bart Borchers and Tony Bryson during a New Year's Eve party at the home of Pat Schifter. The defense theory was that defendant acted in self-defense. Defendant arrived at the party with his girlfriend, Jamie Draper, and her friend, Latosha "Nicky" Cowell. There was conflicting evidence as to whether the partygoers ingested cocaine, marijuana, and large amounts of alcohol. Draper and defendant began arguing soon after they arrived, and Cowell saw Draper kissing Borchers while defendant was outside talking with someone else. Schifter and Bryson eventually asked defendant, Draper, and Cowell to leave, but Draper refused. Cowell overheard Borchers and Draper agree to check into a motel. Borchers and Bryson then confronted defendant in the kitchen and ordered him to leave. Defendant said he would leave with "the girls," but Borchers said "no." At trial, the parties disagreed on the details of the altercation that followed, but there was no question that defendant obtained a steak knife from a kitchen drawer and then cut Borchers and Bryson several times.

[11]   On direct examination, Cowell testified that she did not see defendant stab anyone. By the time she ran into the kitchen, Borchers was already bleeding and the other men were attempting to restrain defendant and wrestle the knife from him. However, on cross-examination Cowell admitted that she provided a different written statement to the police on the night of the incident. Cowell wrote that she saw the entire incident and recalled that Bryson and Borchers did not fight with defendant but instead tried to keep him in the kitchen. According to Cowell's written statement, she saw defendant grab a knife and stab one of the men in the neck. Cowell admitted at trial that the people at the party discussed the events before providing written statements. Cowell's written statement reflected what others had told her rather than her own personal knowledge because the police did not tell her to record only what she saw.

[12]   During closing argument, defense counsel unsuccessfully objected to the following statements made by the prosecutor:

[13]   "Ladies and gentlemen, this is not Bart Borchers versus the defendant. This is not Tony Bryson versus the defendant. This is the People of the State of Illinois versus the defendant. It's all of us. It's society.

[14]   Society is stating in one clear and unequivocal voice that we will not tolerate senseless violence. Over what? The defendant tries to kill two people over what? Because he thinks his girlfriend likes one of those other guys, because his girlfriend won't leave with him, because his girlfriend kisses another guy. That's why in his mind Tony Bryson and Bart Borchers deserved to be stabbed. That's why they almost died. That's why Bart Borchers almost died because he had the gall, the audacity on New Year's Eve at the stroke of midnight to kiss [defendant's] girlfriend. And for that he received a stab to the throat and a stab to the stomach."

[15]   The jury found defendant guilty of attempted first-degree murder and armed violence. The court imposed consecutive prison terms of 23 years for the attempted murder and 15 years for the armed violence. Defendant's timely appeal follows.


[17]   1. Jury Indoctrination

[18]   During voir dire, the prosecutor anticipated that the jury would hear the two inconsistent statements from Cowell at trial. Cowell's written statement provided on the night of the offense would inculpate defendant, but her expected recantation at trial would benefit the defense. Thus, the prosecutor asked 7 of 27 potential jurors whether they believed that a witness's statement made immediately after an incident is generally more accurate than the witness's testimony at trial several weeks or months later. Four individuals who eventually served on the jury responded that a statement made soon after the incident would be more reliable than one offered at trial.

[19]   Defendant argues that the prosecutor's hypothetical questions regarding inconsistent statements were designed to indoctrinate the jury and impeach Cowell before trial. The State responds, with little citation to authority, that a new trial is unnecessary because defendant was not prejudiced by the questions. The State additionally argues that defendant may not complain of the prosecutor's conduct because defense counsel asked potential jurors similar questions to prepare them for the theory of self-defense. Defense counsel asked several potential jurors whether they "could all keep an open mind and consider all the evidence before arriving at a verdict even if it is a situation of self defense?" Each responded that he or she could keep an open mind, and one of the individuals who answered the question ultimately served on the jury.

[20]   Voir dire serves the dual purpose of enabling the trial court to select jurors who are free from bias or prejudice and ensuring that attorneys have an informed and intelligent basis on which to exercise their peremptory challenges. People v. Gregg, 315 Ill. App. 3d 59, 65 (2000). The right to a jury trial guarantees a fair trial by a panel of impartial jurors. It is well established that limitation of voir dire questioning may constitute reversible error where such limitation denies a party a fair opportunity to probe an important area of potential bias or prejudice among prospective jurors. The primary responsibility of conducting the voir dire examination lies with the trial court, and the manner and scope of such examination rest within the discretion of the trial court. The trial court possesses great latitude in deciding what questions to ask during voir dire. Gregg, 315 Ill. App. 3d at 65. The standard for ...

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