The opinion of the court was delivered by: Justice Thomas
Chief Justice Fitzgerald and Justices Freeman, Kilbride, Garman, Karmeier, and Burke concurred in the judgment and opinion.
Following a jury trial in the circuit court of Will County, defendant, Daniel Garstecki, was convicted of driving under the influence of alcohol (625 ILCS 5/11--501(a)(2) (West 2008)) and sentenced to 12 months' conditional discharge. The Appellate Court, Third District, affirmed. 382 Ill. App. 3d 802. Defendant appeals, arguing that the trial court erred in denying his attorney's request to pose supplemental questions directly to the entire venire during voir dire. We affirm.
On October 19, 2006, at approximately 1:30 a.m., Officer Vince Vitacco of the Lockport police department stopped defendant's vehicle when he observed the vehicle swerving between lanes. Officer Joe Dziatkiewicz assisted Vitacco with the stop. Vitacco noticed an odor of alcohol emanating from the vehicle and also observed that defendant's eyes were bloodshot and glassy. Defendant admitted that he had been drinking beer, and Vitacco asked him to perform several field sobriety tests. Vitacco administered the Horizontal Gaze Nystagmus, "walk-and-turn," and "one-leg-stand" tests. He also asked defendant to recite the alphabet from B to Z, without singing. Based on the results of these tests, Vitacco and Dziatkiewicz believed that defendant was intoxicated. The officers arrested defendant and asked him to submit to chemical testing to determine his blood-alcohol content. Defendant refused. Defendant was charged with driving under the influence of alcohol, and his driver's license was summarily suspended.
Defendant's attorney filed a motion in limine, requesting that he be allowed to question the jury venire directly for a reasonable amount of time. Defendant argued that, pursuant to the 1997 amendments to Supreme Court Rule 431 (177 Ill. 2d R. 431), trial courts must allow attorneys to participate in voir dire. Defendant noted that the First and Second Districts had split over whether attorney participation in voir dire is mandatory, and urged the court to follow the First District's view that it is. According to defendant's motion, attorneys are usually more familiar with a case than the trial court and are thus in a better position to probe areas of potential prejudice. Defendant also contended that jurors are likely to be more candid when responding to an attorney than to a judge.
At the hearing on the motion, the trial court asked defense counsel what questions he wanted to pose to the venire. Defense counsel stated that he wished to ask whether each prospective juror: (1) had strong personal feelings about the consumption of alcohol and the operation of a motor vehicle; and (2) would tend to give a policeman's testimony the benefit of the doubt over that of a regular citizen. The court explained that these were areas that it was planning to cover in its own voir dire. The court stated that it would determine whether any of the prospective jurors had religious or moral objections to the use of alcohol and whether that belief would affect his or her ability to be fair and impartial. Further, the court would determine whether any of the prospective jurors had friends or relatives in law enforcement and whether this would affect his or her ability to be fair. The court asked defense counsel if this case involved either a blood draw or complicated legal issues. Defense counsel answered "no," and further agreed with the court that the case did not involve complex issues or scientific or factual matters beyond the ken of the average juror.
The court denied the motion, but said that defense counsel could submit written questions for the court to ask the jury. The court further offered that it planned to ask the prospective jurors whether they had donated money to any group that advocates changes in the DUI laws. Defendant submitted two written questions for the trial court to ask: (1) whether any prospective juror had any personal or moral beliefs about the consumption of alcohol; and (2) whether any prospective juror had donated to or participated in any group that advocates changes in DUI laws.
During voir dire, the trial court asked the prospective jurors about relationships with persons in law enforcement and whether this would affect their ability to be fair and impartial. The court also inquired about any religious, personal, or moral beliefs that any prospective juror had about the consumption of alcohol and also whether any prospective juror had given money to or participated in any groups that seek to change or strengthen DUI laws. If a prospective juror answered any of these questions in the affirmative, the trial court further queried him or her about the extent and nature of the relationship or belief and whether it would affect the prospective juror's ability to give defendant a fair and impartial trial.
Following the court's questioning, it again denied defense counsel's request to question the entire venire, but ruled that prospective jurors who answered the trial court's questions in such a way as to indicate a potential for bias could be questioned further. The trial court identified one prospective juror that it would question further. The State selected no additional jurors for further questioning, and defense counsel identified seven. The eight prospective jurors who were identified for further questioning were then taken to a back hallway of the courthouse, where the trial court questioned them further. Following the trial court's questioning, the attorneys were allowed to question these eight prospective jurors.
The jury trial consisted solely of the testimony of Officers Vitacco and Dziatkiewicz. Defendant did not present a defense. The jury found defendant guilty of driving under the influence of alcohol, and the court sentenced him to 12 months' conditional discharge. Defendant moved for a new trial, arguing that the court had erred in denying his attorney's request to directly question the entire venire. In denying the motion, the court explained that it had allowed defense counsel to further question individual venire members after the court's initial questioning.
Defendant appealed, arguing that (1) the trial court erred in denying his request to directly question the entire venire; and (2) the evidence was insufficient to support his conviction. The appellate court agreed with defendant's first contention but not his second. The court, however, did not find that the trial court's error warranted reversal.
Relevant to the voir dire issue, the appellate court began with Rule 431, which governs voir dire in criminal cases. The pertinent sentence states that the trial court "shall permit the parties to supplement the examination by such direct inquiry as the court deems proper for a reasonable period of time depending upon the length of examination by the court, the complexity of the case, and the nature of the charges." 177 Ill. 2d R. 431. The appellate court noted that a conflict has arisen in the appellate court over how this language should be interpreted. In People v. Allen, 313 Ill. App. 3d 842 (2000), the Second District held that the above language was directory and that it did not mandate attorney participation in voir dire in every case. The Allen court held that the rule requires the trial court to exercise its discretion in favor of allowing direct questioning of prospective jurors, subject to the factors set forth in the rule. Allen, 313 Ill. App. 3d at 847. In Grossman v. Gebarowski, 315 Ill. App. 3d 213 (2000), the First District interpreted Supreme Court Rule 234 (177 Ill. 2d R. 234), the civil counterpart to Rule 431, which contains virtually identical language.*fn1 The First District rejected the Second District's directory reading and held that the provision is mandatory. The First District noted that the rule previously had used the term "may," but that this court had amended the rule to replace "may" with "shall." The First District concluded that this change was intended to make the rule mandatory. Grossman, 315 Ill. App. 3d at 221.
In this case, the Third District agreed with the First District's interpretation and construed Rule 431 to be mandatory with respect to direct attorney questioning of the venire. 382 Ill. App. 3d at 809. The court held that Rule 431 gives attorneys "an absolute right to ask questions directly of prospective jurors limited only by reasonable restrictions of scope and time." 382 Ill. App. 3d at 809. The court reasoned that any other interpretation would render the term "shall" meaningless and superfluous. 382 Ill. App. 3d at 810. Although it acknowledged that the rule contains the phrase "as the court deems proper," the court determined that this language did not give the court discretion to reject counsel's request to supplement the court's direct inquiry, but rather merely granted it the discretion to ...