The opinion of the court was delivered by: Justice Garman
JUSTICE GARMAN delivered the judgment of the court, with opinion.
Justices Thomas and Theis concurred in the judgment and opinion. Chief Justice Kilbride specially concurred, with opinion.
Justice Karmeier specially concurred, with opinion.
Justice Freeman dissented, with opinion, joined by Justice Burke.
Following a jury trial in the circuit court of Du Page County, defendant, Arthur R. Manning, was convicted of one count of possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(A) (West 2004)) and one count of possession of a controlled substance (720 ILCS 570/402(c) (West 2004)). He was sentenced to concurrent prison terms of 11 years and 3 years, respectively. The appellate court affirmed defendant's convictions and sentences. No. 2--07--0846 (unpublished order under Supreme Court Rule 23).
Defendant was arrested after allegedly selling cocaine to an undercover police officer posing as a taxi driver and to a man posing as a passenger. The passenger went into a duplex located at 37 Sunset Court in Bensenville. He returned to the taxi with defendant, who then sold the passenger cocaine. When the officer asked to purchase cocaine, defendant went back inside the duplex and returned with cocaine that he then sold to the officer. Following defendant's arrest, a search warrant was executed at the duplex. Cocaine was found inside a mattress in the basement, along with men's clothing, more cocaine, a digital scale, and a razor blade. Cocaine was also found in other rooms of the duplex and heroin was found in a freezer.
During voir dire, defense counsel told the members of the venire that at the trial, they would hear evidence that defendant is a registered sex offender and that his registered residence address was not at 37 Sunset Court. Counsel thus questioned potential jurors about what impact, if any, defendant's sex offender status would have on their ability to be fair and impartial.
During questioning by the trial court, juror 165 (hereafter referred to as A.C.) stated that he came to the United States from Romania six years before and was in the printing business. He stated he could be fair to both sides and would judge the believability of all witnesses using the same standard for everyone. He had no criminal record, had never been a crime victim, and had not been involved in any lawsuits. A.C. stated that he had received two speeding tickets since he came to this country. Defense counsel then questioned A.C. When counsel asked A.C. how he felt about sex offenders, A.C. responded that they should be "locked up for life." The following exchange then occurred:
"Q. What if the law permitted that he not be locked up for life or she not be locked up for life? Do you still think that should be the case? Do you think you would be able to listen to a case and render a judgment on a case that's separate and distinct from the sex offender case?
Q. Even though that person may have that background?
Q. Is that background going to influence you at all do you believe in your decision on the case?
Q. Can you be more specific? Can you say that it's not going to?
A. No. I said it's not going to change. I cannot be fair with the case.
Q. You can be fair, or you cannot?
A. No, I cannot be fair. I could not be fair also." Defense counsel did not move to strike A.C. for cause nor did he use a peremptory challenge to remove him from the jury. Counsel did excuse another juror who said her opinion of defendant "dropped drastically" when she learned of his sex offender status. In all, counsel used five of defendant's seven available peremptory challenges.
At the trial, special agent Matthew Gainer of the Illinois State Police testified that at the time of defendant's arrest, he was assigned to the Du Page County Metropolitan Enforcement Group, which investigated street-level narcotics trafficking. On July 14, 2005, Gainer and his fellow officers were investigating defendant. Gainer posed as a taxi driver. He and a passenger in the car drove to 37 Sunset Court in Bensenville, where Gainer parked the car. The passenger went inside and when he came back out, defendant was with him. The two stood by the passenger door of the car, where the passenger purchased two bags of crack cocaine from defendant for $40. Gainer asked if he could purchase some cocaine. Defendant went back into 37 Sunset Court and returned a short time later. Defendant gave Gainer three bags of crack cocaine in exchange for $60. Defendant then returned to the residence.
Gainer further testified that he and other officers executed a search warrant at the residence on July 28, 2005. They searched the basement, where they found men's clothing and three bags of cocaine, a scale, and identification documents. In another part of the residence, the officers found two more bags of cocaine. Gainer seized defendant's Illinois identification card, issued on January 29, 1995, with an address of 37 Sunset Court. He also seized a checkbook with the address of 212 West Sunny Lane. Officers also found a piece of mail addressed to defendant at the Sunset Court address and another addressed to him at the West Sunny Lane address with a forwarding address to Sunset Court.
Officer Michael Hanrahan testified that he and another officer spoke to defendant at the police station. While taking defendant's personal history, defendant told them that he lived at 37 Sunset Court. After waiving his Miranda rights, defendant gave a statement in which he again said that he lived at 37 Sunset Court, that he had resided there for approximately 10 months, and that he had sold cocaine there for a year. Defendant told the officers they could find heroin in a freezer at the residence that he was holding for someone else. When this information was relayed to officers on the scene, they found 14 tinfoil packets of heroin in the freezer. Defendant prepared a written statement in which he again confirmed his residence as 37 Sunset Court.
Former Bensenville police detective Maria Hernandez testified that she monitored sex offenders. As a registered sex offender, defendant was not allowed to live within 500 feet of a park. Because the residence at 37 Sunset Court was closer than 500 feet to a park, Hernandez ordered defendant to move in December 2004. She could not verify whether he had complied, although defendant told her he had moved to Maywood.
Bensenville police officer Todd Zoglman testified that in May 2005, he stopped defendant for driving on a suspended license. The Secretary of State's records showed defendant's address as in Maywood. However, suspended licenses could not be updated and Zoglman testified that the records on defendant's identification card listed his current address as 37 Sunset Court.
Defendant testified that he moved from Sunset Court to Maywood in December 2004. He updated some of his records but not others. He did register his Maywood address with the local police department. In March 2005, he was arrested for driving under the influence. A certified copy of the traffic citation introduced into evidence showed defendant's address as 2033 South Third Avenue in Maywood. Defendant testified that he frequently visited his girlfriend and her three children, who lived at the Sunset Court address. On July 28, 2005, he drove to Sunset Court to take his girlfriend to Rockford. The police drove up and arrested him. When he got to the police station, an officer told defendant to initial and sign a Miranda waiver. He did so after reading it. The interrogating officers accused him of selling drugs. When defendant stated that he wanted an attorney, the officers told him he would get one later in Wheaton. Defendant testified that the only reason he wrote and signed a statement was because the officers threatened to take custody of his girlfriend's children. The officers told him to write 37 Sunset Court as his address on his statement. Defendant denied that he had sold any drugs.
Hanrahan testified in rebuttal, denying defendant's claim that he had asked for an attorney. He denied that defendant was threatened or that he was told to write down the 37 Sunset Court address.
Defendant was convicted and sentenced as stated. On appeal, defendant argued, inter alia, that his trial counsel was ineffective for failing to excuse A.C. from the venire due to his statements that he could not be fair to defendant because of his sex offender status. The appellate court rejected this argument, noting that under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984) (adopted by this court in People v. Albanese, 104 Ill. 2d 504 (1984)), defendant must demonstrate both deficient performance and prejudice. The court noted that, generally, counsel's conduct during jury selection is considered to involve matters of trial strategy not subject to scrutiny under Strickland. The court concluded that defendant failed to demonstrate prejudice because the evidence against him was overwhelming. In addition, the court rejected defendant's argument that prejudice should be presumed where a biased juror sat on his jury. No. 2--07--0846 (unpublished order under Supreme Court Rule 23). This court granted defendant's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).
Defendant argues that his trial counsel rendered deficient performance in failing to challenge A.C. for cause or exercise a peremptory challenge. He further argues that he was prejudiced by counsel's failure. In the alternative, he argues that this court should ...