Appeal from the Circuit Court of Cook County. 04 CR 11607 The Honorable Kerry M. Kennedy, Judge Presiding.
The opinion of the court was delivered by: Justice Toomin
JUSTICE TOOMIN delivered the opinion of the court: In this appeal, we revisit the "special circumstances" mandating a trial court to put supplemental questions to prospective jurors regarding racial bias. Defendant, William Johnson, was convicted by a jury of home invasion and armed robbery and sentenced to 10 years' imprisonment for home invasion, enhanced by 15 years for committing the offense while armed with a firearm, together with a consecutive sentence of 15 years for armed robbery. He appeals contending the trial court: (1) erred in rejecting his supplemental questions during voir dire regarding racial and ethnic bias; and (2) failed to comply with the mandate of Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007). For the reasons that follow, we affirm the judgment of the circuit court.
Defendant was jointly indicted, with Jose Torres,*fn1 for various offenses including, inter alia, first degree murder, armed robbery, attempted first degree murder, and home invasion stemming from a series of events that took place on March 26, 2004. Defendant does not challenge the sufficiency of the evidence supporting his conviction. Consequently, we review only the evidence relevant to understand and resolve the procedural issues presented with respect to jury selection.
The State's case against defendant rested primarily on the statement of Jose Torres. Defendant and Torres both worked for an ambulance company and had known each other for about two years leading up to March 2004. Torres testified that defendant was his best friend at that time. Defendant, his wife, Jennifer, and their two children shared their home with defendant's mother-in-law, Barbara Kane.
According to Torres, in mid-March 2004, defendant approached him with a plan to rob Ralph Burke, Barbara Kane's boyfriend. Kane allegedly told defendant that Burke kept large amounts of cash in his home. The plan called for one of them to pose as a postal employee and pretend to deliver a package to Burke's home. When Burke answered the door, the men would "quietly bring him back into his apartment and tie him up and relieve him of any cash that was in the house." Defendant told Torres there was approximately $120,000 in cash in the apartment. Although Torres initially declined defendant's invitation, following further discussions, Torres agreed to join defendant in the robbery.
Torres further testified that on March 26, 2004, defendant arrived at Torres' home carrying a backpack containing a postal jacket and hat, two ski masks, a pair of black gloves, a collapsible baton, and a pistol. Defendant was wearing a dark blue, hooded windbreaker, black jogging pants, and gym shoes. He was also wearing another pair of jogging pants beneath the visible pair. According to Torres, defendant dressed in this manner to add bulk to his frame to frustrate Burke's ability to recognize him. Also, defendant wanted to enter wearing one thing and leave wearing something else, again, to make recognition difficult. Defendant instructed Torres to wear the postal jacket and hat. Torres put on the gloves, but had to tape them because they were too big. Defendant also gave Torres the pistol. Torres brought a "travel suitcase," containing a hammer, screwdriver, tape, and plastic bags.
Defendant drove Torres' car to Burke's residence with Torres riding in the backseat. According to Torres, "[T]he plan was for me to wait for him to open the door to show him that I had a package which was the suitcase, but I panicked. I went too soon. I showed him the pistol." Defendant was standing behind Burke and struck him about the head and torso with the baton. Defendant then opened the door for Torres and took the gun from him. Defendant returned to Burke's apartment and continued beating him. Although Torres initially entered the apartment, he panicked as the beating continued and fled to the parking lot.
Torres testified that he was then struck by a car, while he and defendant were leaving Burke's apartment. Defendant reached into the car and struggled with the driver, who was later determined to be Steven Tischer. As he did so, defendant pulled the pistol out and "clicked it a few times in [the driver's] chest." Torres grabbed defendant and told him they had to go. They fled the scene, disrobing as they went. Torres placed the postal jacket and mask inside the suitcase. Defendant gave him the baton, which Torres placed in the suitcase. Defendant was then confronted by another witness. Ultimately, Torres fled and was taken into custody a short distance away.
The night before the incident, Burke went to defendant's home to say goodbye because he and Barbara were leaving for Hawaii the following day. Defendant left shortly thereafter, and Barbara "thought it was odd that [defendant] didn't stay and visit with [Burke]." Barbara testified that her relationship with defendant was "fine." She described the relationship between defendant and Ralph Burke as friendly.
Ralph Burke testified that in March 2004, he had been dating Barbara Kane, defendant's mother-in-law, for approximately five months. Over that time, he had been with defendant about a dozen times. Burke recounted spending time with defendant and even asking him to help fix his computer. At approximately 10 a.m. on March 26, 2004, Burke was in his apartment talking to his friend Steve Tischer. Burke was scheduled to leave on vacation the following day and was briefing Tischer on housekeeping matters during Burke's absence and asking Tischer to keep an eye on Burke's elderly mother.
During their conversation, the doorbell rang. When Burke opened his apartment door, he saw a masked man in a postal uniform holding a gun and heard him calling Burke's name. As he turned to re-enter his apartment, he was struck on the head with a hard object. The beating continued and Burke was taken toward his kitchen. Burke saw Tischer standing outside on the balcony and tried to get him to call the police. One of the two assailants then left. The one that remained had a gun in his hand. Both of the intruders wore masks during the encounter.
Steve Tischer testified that he was leaving Burke's home when the home invasion occurred. He saw the masked individual striking Burke. Tischer proceeded to his car intent on driving around looking for a police officer. As he entered the car, two masked men approached from behind the building. One of them, a light-skinned African-American, put a gun to his head and pulled the trigger five times, but the gun never fired.
Tischer then saw the two men re-enter Burke's building, and he made a U-turn and drove toward them. The men then exited the building and the shorter of the two men, later determined to be Torres, was holding a suitcase. As Tischer followed the men, Torres removed his mask, revealing his full face to Tischer. When Tischer's car was between the two men, defendant again pointed the gun at Tischer and pulled the trigger. The two men separated and Tischer followed Torres. A concerned citizen came over and detained Torres. Tischer took the suitcase from him and placed it in his car. When police arrived and took Torres into custody, Tischer turned over the suitcase to them. Thereafter, Tischer identified defendant, whom police had in custody. He thought he recognized defendant as the son-in-law of Burke's girlfriend.
Betty Johnson testified to seeing her friend, Clara Daniels, return to their apartment complex in her green Saturn automobile. Johnson saw Daniels carrying bags in from her car and proceeded downstairs to help her with them. Johnson's attention was drawn to the landing above her when she heard Daniels and saw someone with Daniels. Then, Daniels came down the stairs, carrying her wallet and keys, with a man behind her. The man, wearing dark clothes and a mask, was pointing a gun at Johnson's face. Johnson then descended the stairs and yelled out for help. As she headed down, she turned back to see the man reach for Daniels. Upon reaching the bottom of the stairs, she heard a "thug" and Daniels was lying at the bottom of the stairs. When Johnson returned to the parking lot, she noticed that Daniels' car was gone. While a responding officer reported that Daniels said the offender was possibly Hispanic, she denied saying she that she believed the offender was a male Hispanic. According to Daniels, she "couldn't tell. I had no idea."
Daniels was hospitalized and then placed in a rehabilitation center. She died there on April 10, 2004, as a result of a blood clot that initially formed in her legs and progressed to her lungs. The medical examiner concluded the manner of death was homicide. However, a defense expert opined that the clot developed because she was taken off her blood-thinning medication while at the rehabilitation center.
Shortly after the green Saturn was located, defendant was taken into custody. He was first observed standing on the deck of a home adjacent to Evergreen Cemetery. Although he told a responding officer that he lived there, the officer spoke to a neighbor and confirmed that no one should be there at that time of day. Officers then searched the area surrounding the house. Defendant was found hiding in a garbage can, wearing a "tight" black T-shirt and a pair of white long underwear bottoms.
During a search of the area, officers found a black glove with duct tape on it lying in an intersection. Additionally, a black ski mask was found atop a garbage can near where the Saturn was abandoned. A jacket with a silver cellular phone and a 9-millimeter round in the pocket, was found in another garbage can in the same location. Approximately 25 feet from the second garbage can, another officer located a gun next to a garage. In an adjacent alley, an officer located a pair of black gloves and a pair of black pants in two separate garbage cans.
Following the arrest of defendant and Torres, a search of the black duffel bag taken from Torres was found to contain a hammer, a screwdriver, clear tape, and blue plastic garbage bags. The blue hooded postal jacket was also recovered from Torres, which contained a collapsible baton in the pocket. Additionally, a black glove, which matched a second one found along the defendants' escape route, was found in the duffel bag. Another 9-millimeter round was found during the processing of Burke's residence. A jacket and backpack were located on the roof of a shed in the area approximately two days later. The jacket was determined to contain the keys for the green Saturn, as well as a 9-millimeter shell casing. The backpack was marked with "W Johnson" inside one of its flaps.
During processing at Cook County jail and Cermak Hospital, defendant spoke to Torres. He explained what happened after the two parted ways and how Clara Daniels was involved in the series of events. Torres described defendant explaining how his plan was to take Daniels hostage until the situation calmed down. When defendant reached for the woman's keys, he was startled by the approach and screaming of another woman. Defendant told Torres he then hit the first woman in the face. Torres added, "Then he said he tossed the bitch."
Defendant did not testify at trial, though evidence was presented on his behalf. None of that evidence is relevant to the issues considered here.
Defendant's first claim of error stems from the trial court's refusal to pose certain supplemental questions to potential jurors during voir dire. The questions appear in the record on copies of sheets of looseleaf paper, each in a different hand. The questions on the first page were as follows:
"Will the fact that the Defendant is black cause you to prejudge his guilt[?] Will the fact that an accomplice witness is [H]ispanic cause you to prejudge his credibility[?]
Are you related to, or do you care for anyone over the age of eighty. Describe relationship[?]
Do you have opinion [sic] about whether a criminal Defendant should testify at his own trial[?]"
The trial judge denied each of these tendered questions. Prior to ruling on the question regarding defendants testifying, the judge observed, "I think it is covered." Nevertheless, defense counsel was afforded an opportunity to argue for his position.
The second set of questions consisted of the following:
"Describe any opinion you may have concerning Hispanic people[.] Describe any opinion you may have concerning African-American people.
Do you have any living relatives who are 80 yoa ...