Appeal from Circuit Court of Livingston County Honorable Jennifer H. Bauknecht, Judge Presiding. No. 08-CF-33
JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
Justice Myerscough concurred with the judgment and opinion.
Justice Pope dissented, with opinion.
Defendant, Darious M. Bowens, admitted at his January 2009 trial that he stabbed his girlfriend, Belinda Butler, 23 times in her chest, back, and arms. Despite this admission, he denied that he intended to kill her. Apparently unpersuaded, a jury convicted defendant of attempt (first degree murder) (720 ILCS 5/8-4, 9-1(a)(1) (West 2008)), aggravated domestic battery (720 ILCS 5/12-3.3 (West 2008)), and two counts of aggravated battery (720 ILCS 5/12-3 (West 2008)). The trial court later sentenced him to 24 years in prison.
Defendant appeals, arguing that he was denied a fair trial. Specifically, defendant contends that the trial court erred by failing to (1) excuse the trial judge's husband from the jury for cause; (2) comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007); (3) allow him to impeach Butler with evidence of her prior felony conviction; (4) restrict the State from introducing a knife that was unconnected to him or the crime; (5) bar the State's lead investigator from sitting at the State's counsel table throughout the case; and (6) grant his motion to refer to Butler's alcohol consumption during closing arguments. As part of his argument, defendant contends that the cumulative effect of these errors justifies a new trial.
Defendant also appeals his sentence, arguing that the trial court improperly increased his prison sentence from 20 years to 24 years. Because we conclude that (1) defendant received a fair trial and (2) the court did not increase his sentence, we affirm.
A. The State's Charges and Defendant's Trial Strategy In February 2008, the State charged defendant with (1)
attempt (first degree murder) (720 ILCS 5/8-4, 9-1(a)(1) (West 2008)), (2) aggravated domestic battery (720 ILCS 5/12-3.3 (West 2008)), and (3) two counts of aggravated battery (720 ILCS 5/12-3 (West 2008)), alleging that defendant repeatedly stabbed Butler, intending to kill her.
Before discussing the evidence presented at defendant's January 2009 trial, we note that this case is rather unusual, given that defendant disputes almost none of the State's evidence. Instead, defendant's trial strategy--which defense counsel explained during his opening statement--was only to convince the jury that the State failed to show that defendant had the requisite intent to kill Butler.
B. The Evidence Presented at Defendant's Trial Butler testified that she and defendant were preparing dinner at her apartment. While their dinner was in the oven, the couple sat on the couch, talking and watching television. As Butler was finishing her second beer, defendant asked her whether they were going to have sex. Butler responded, "No." Defendant asked her whether she was still attracted to him, but Butler did not respond. Defendant then sat up on the edge of the couch, shook his head and said, "I'm sorry. I've got to do this." Butler asked defendant whether she should be scared and he responded, "Yes."
Butler told defendant that she was going to call the police and reached for her cellular telephone. Before she could get to her phone, however, defendant was on top of her, stabbing her in the chest with a knife. Butler tried to get away, pleading for defendant to stop. Defendant stabbed Butler repeatedly in the chest, back, and arms. Suddenly, defendant stopped stabbing Butler, threw the knife into the hallway, and said, "I've got to get the fuck out of here." Defendant took Butler's cellular telephone and left.
Butler dragged herself next door to Gerry Gilmor's apartment. She banged on the door and pleaded, "Gerry, help me. He stabbed me. Please don't let me die."
Gilmor testified that she heard (1) pounding on the wall that she shared with Butler and (2) Butler yelling defen- dant's name. Shortly thereafter, Gilmor heard Butler at her kitchen door, pleading, "Miss Gerry, Miss Gerry, please don't let me die." Gilmor rushed outside to find Butler sprawled half-on and half-off her porch. Gilmor called 9-1-1 and tried to stop the bleeding.
Responding officers testified that Butler was conscious when they arrived. Butler told one officer, "[H]e stabbed me. Please don't let me die." Officers searched Butler's apartment and found (1) a wooden-handled steak knife with a bent blade in the hallway; (2) blood on the walls, kitchen floor, carpet, and couch; and (3) defendant's bloodstained fingerprint on Butler's doorknob.
A 9-1-1 dispatcher testified that she received the emergency call from Gilmor. While she was on the phone with Gilmor, her fellow dispatcher received a call from defendant, who was distraught and crying. Defendant admitted doing something "really bad" and then threatened to kill himself.
Defendant's sister testified that defendant came to the house that she shared with defendant's mother, banging on the door and crying. Once inside, defendant admitted stabbing Butler. Shortly thereafter, defendant used the bathroom to wash Butler's blood from his arms.
Police arrived at defendant's mother's house to find defendant standing in the kitchen, crying and repeatedly telling them, "Just kill me. Just shoot me." Defendant's mother was able to assist officers in arresting her son. Upon his arrest, officers discovered that defendant's shoes and jeans were bloodstained.
The paramedic who responded to the 9-1-1 call testified that Butler had multiple wounds and lacerations. She had lost a lot of blood and was having difficulty breathing. The paramedic explained that when he arrived at Gilmor's apartment, the injuries were so serious that it was "just one of those [situations] where you just kind of say, [']oh, crap['] *** and you *** immediately start addressing the issues at hand." Butler almost lost consciousness at least twice on the way to the hospital.
Butler's emergency-room doctor testified that she appeared to be "critically ill" when she arrived. She was not communicating well and had stab wounds to her torso, arms, armpits, wrists, and back, some of which caused hemorrhages. Those wounds included three stab wounds to the "black box," a term he used to describe the critical area of the back and chest surrounding the heart. Butler was eventually transported by helicopter to a trauma center for additional medical care.
C. The Jury's Verdict and Defendant's Sentence On this evidence, the jury convicted defendant of attempt (first degree murder) (720 ILCS 5/8-4, 9-1(a)(1) (West 2008)), aggravated domestic battery (720 ILCS 5/12-3.3 (West 2008)) and two counts of aggravated battery (720 ILCS 5/12-3 (West 2008)). The trial court later sentenced defendant to 24 years in prison.
II. DEFENDANT'S CLAIM THAT HE DID NOT RECEIVE A FAIR TRIAL Defendant argues that he was denied a fair trial.
Specifically, defendant contends that the trial court erred by failing to (1) excuse the trial judge's husband from the jury for cause; (2) comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007); (3) allow him to impeach Butler with evidence of her prior felony conviction; (4) restrict the State from introducing a knife that was unconnected to him or the crime; (5) bar the State's lead investigator from sitting at the State's counsel table throughout the case; and (6) grant his motion to refer to Butler's alcohol consumption during closing arguments. As part of his argument, defendant contends that the cumulative effect of these errors justifies a new trial. We address defendant's contentions in turn.
A. Defendant's Contention That the Trial Court Erred by Failing To Excuse the Trial Judge's Husband From the Jury for Cause
Defendant contends that the trial court erred by failing to excuse the trial judge's husband from the jury for cause. Specifically, defendant asserts that the court erroneously allowed her husband, Scott Bauknecht, to serve on the jury. For the reasons that follow, we conclude that defendant has waived this contention.
Waiver is the intentional relinquishment of a known right, whereas forfeiture is the failure to make a timely assertion of a known right. People v. Phipps, 238 Ill. 2d 54, 62, 933 N.E.2d 1186, 1191 (2010); Gallagher v. Lenart, 226 Ill. 2d 208, 229, 874 N.E.2d 43, 56 (2007). In the course of representing their clients, trial attorneys may (1) make a tactical decision not to object to otherwise objectionable matters, which thereby waives appeal of such matters, or (2) fail to recognize the objectionable nature of the matter at issue, which results in procedural forfeiture. Lovell v. Sarah Bush Lincoln Health Center, 397 Ill. App. 3d 890, 898, 931 N.E.2d 246, 253 (2010) (holding that a challenge to the opponent's opening statement had not been preserved, with Justice Appleton noting in a special concurrence that defense counsel made a tactical decision not to object, which "[did] not excuse the requirement to do so if the error [was] to be preserved for review" (Lovell, 397 Ill. App. 3d at 902, 931 N.E.2d at 256 (Appleton, J., specially concurring))).
2. Challenges for Cause and Peremptory Challenges
Prospective jurors may be challenged in two ways: (1) for cause or (2) peremptorily. A challenge for cause is a "challenge supported by a specified reason, such as bias or prejudice, that would disqualify that potential juror." Black's Law Dictionary 245 (8th ed. 2004). A peremptory challenge, on the other hand, is "[o]ne of a party's limited number of challenges that do not need to be supported by a reason." Black's Law Dictionary 245 (8th ed. 2004) (noting that "a party may not use such a challenge in a way that discriminates against a protected minority"). Challenges for cause are limitless (see Ill. S. Ct. R. 434(c) (eff. May 1, 1985)) and are left to the discretion of the trial court (People v. Ramsey, No. 105942, slip op. at 59 (Oct. 7, 2010). In contrast, peremptory challenges are limited by Supreme Court Rule 434(d), which allows defendants in a criminal case facing imprisonment seven such challenges.
Ill. S. Ct. R. 434(d) (eff. May 1, 1985).
3. The Pertinent Challenges in This Case Following voir dire questioning by the trial court and counsel, the court allowed counsel to strike jurors only within each respective panel of four. Defense counsel exercised four peremptory challenges (potential jurors 70, 10, 66, and 141) before accepting the first panel. During the selection of the second panel, the following exchange occurred regarding prospective juror Bauknecht:
"[DEFENSE COUNSEL]: Judge, I'm going to make a motion for cause on number 7, Bauknecht. I just, I don't have any legitimate legal basis. I don't know the research on this, but it just seems strange enough.
THE COURT: I don't think I can excuse him for cause. I will let you know for the record that we typically don't discuss much about work with each other, and I have gone to great lengths to not discuss anything about this case knowing that he was on upcoming jury duty.
[DEFENSE COUNSEL]: I make the motion for cause. I don't have an argument on it.
THE COURT: I don't think I can excuse him for cause. I don't have a basis for cause. That's denied.
[DEFENSE COUNSEL]: Okay. Judge, I'm going to pause for a second here, please."
Shortly thereafter, defense counsel used his fifth peremptory challenge (potential juror 126). The defense then accepted that panel, which included juror Bauknecht. We note that when defendant accepted this second panel, he still possessed two unexercised peremptory challenges. Later, the defense exercised those last two peremptory challenges (jurors 78 and 149) during the selection of the final panel. In total, defendant exercised (1) four of his peremptory challenges before accepting the first panel of four jurors; (2) one peremptory challenge before accepting the second panel of four jurors, which included juror Bauknecht; and (3) two peremptory challenges before accepting the final panel of four jurors.
4. The Alleged Error in This Case
Defendant claims that the trial court erred by failing to grant his motion to remove juror Bauknecht for cause. As part of his claim, defendant posits that he did not exercise one of his two remaining peremptory challenges to remove juror Bauknecht because he had already allocated those challenges to remove other prospective jurors. As previously indicated, we conclude that defendant has waived his challenge in this regard.
a. The Application of Waiver to This Case
This court has repeatedly stated that "we will review the trial court's ruling on a challenge for cause only when an objectionable juror was forced upon a party after it had exhausted its peremptory challenges." (Emphasis added.) Grady v. Marchini, 375 Ill. App. 3d 174, 179, 874 N.E.2d 179, 184 (2007) (citing Flynn v. Edmonds, 236 Ill. App. 3d 770, 779, 602 N.E.2d 880, 885 (1992)). See People v. Green, 199 Ill. App. 3d 927, 931, 557 N.E.2d 939, 942 (1990) (holding that the defendant was precluded from asserting error where the defendant had used all of his peremptory challenges and did not ask for more).
Here, defendant challenged juror Bauknecht for cause. When the trial court denied his challenge, defendant did not exercise one of his then-remaining three peremptories to exclude juror Bauknecht. Instead, he peremptorily excused a different prospective juror from that panel and passed the remaining panel, including juror Bauknecht, to the State.
Had defendant used a peremptory challenge for juror Bauknecht and later exhausted all of his peremptory challenges, he could have requested--if necessary--additional peremptory challenges, a request the trial court could have granted at its discretion. Indeed, defendant not only failed to exercise a peremptory challenge to remove juror Bauknecht, he affirmatively accepted the panel upon which juror Bauknecht sat.
Regarding prospective jurors 126, 78, and 149, who were the first three jurors for whom defendant exercised peremptory challenges, we note that defendant did so without first challeng- ing any of them for cause. He challenged juror Bauknecht for cause, but when the trial court denied that challenge, defendant did not use a peremptory challenge to excuse him. Defendant's actions in this regard demonstrate that in his view--at least for purposes of a fair trial--those prospective jurors were not as "bad" as juror Bauknecht. Otherwise, defendant would also have first challenged them for cause.
If defendant believed that a fair trial required juror Bauknecht to be excluded, he should have removed him from the second panel of prospective jurors with one of his remaining peremptory challenges. After all, this record clearly shows that defense counsel understood both the availability of defendant's peremptory challenges and how to use them. These circumstances compel the conclusion that defendant's decision not to peremptorily remove juror Bauknecht was an affirmative acquiescence to Bauknecht's jury service, which thereby constitutes a waiver of this issue on appeal. See People v. Hill, 353 Ill. App. 3d 961, 966-67, 819 N.E.2d 1285, 1290 (2004) (holding that the defendant's acquiescence to a mistrial constituted implicit consent, precluding a later claim of double jeopardy).
A possible explanation for defense counsel's failure to use a peremptory challenge to remove juror Bauknecht might be counsel's attempt to plant a seed of error, the fruit from which defendant is now trying to harvest on appeal. However, the law does not permit a party to intentionally fail to avail himself of the resources provided (in this case, peremptory challenges), only to complain about the result on appeal. See United States v. Boyd, 86 F.3d 719, 721-22 (7th Cir. 1996) ("Many a defendant would like to plant an error and grow a risk-free trial ***. But steps the court takes at the defendant's behest are not reversible, because they are not error ***"). This is not unlike the situation where a deliberating jury sends a note to the trial court and defense counsel does not object to the court's inappropriate response. Such inaction bars the defendant from complaining about that response on appeal. See Palanti v. Dillon Enterprises, Ltd., 303 Ill. App. 3d 58, 63-64, 707 N.E.2d 695, 699 (1999) (concluding that counsel's acquiescence to the court's response to a note from the jury constituted waiver).
b. The Alleged Application of Plain Error to This Case We note that despite defendant's insistence, plain- error analysis does not apply to this case. Plain-error analysis applies to cases involving procedural default (People v. Ahlers, 402 Ill. App. 3d 726, 733-34, 931 N.E.2d 1249, 1255 (2010)), not affirmative acquiescence (see People v. Townsell, 209 Ill. 2d 543, 547-48, 809 N.E.2d 103, 105 (2004)). In a situation like this, where defense counsel affirmatively acquiesces to actions taken by the trial court, a defendant's only challenge may be presented as a claim for ineffective assistance of counsel on collateral attack. (We note that defendant is not contending in this appeal that counsel was ineffective.)
c. The Alleged Application of Structural Error in This Case We likewise reject any notion that juror Bauknecht's jury service somehow constitutes structural error. In so doing, we reiterate our conclusion that no error occurred in this case, given that defendant affirmatively acquiesced to juror Bauknecht's service on his jury. See Boyd, 86 F.3d at 722 ("the steps the court takes at the defendant's behest are not reversible, because they are not error"). However, even if defendant had not affirmatively acquiesced to juror Bauknecht's service, that service--if error at all--would not have been structural error on the facts of this case.
An error is structural when it "renders a criminal trial fundamentally unfair or unreliable in determining guilt or innocence." People v. Averett, 237 Ill. 2d 1, 12-13, 927 N.E.2d 1191, 1198 (2010). We acknowledge that the supreme court has determined that "a trial before a biased tribunal would constitute structural error." People v. Glasper, 234 Ill. 2d 173, 200, 917 N.E.2d 401, 418 (2009) (citing People v. Rivera, 227 Ill. 2d 1, 19-20, 879 N.E.2d 876, 887 (2007)). However, a defendant must demonstrate that such bias actually existed. See Averett, 237
Ill. 2d at 12-13, 927 N.E.2d at 1198 (noting that structural error rarely occurs and has been found where, among other very limited circumstances, a defendant is tried before a biased judge).
Here, defendant has failed to assert actual bias, merely the appearance of such bias. Indeed, defendant acknowledges on appeal that (1) "defense counsel did not allege that there existed any actual bias, but nevertheless, the presence of the judge's spouse on the jury created an appearance of impropriety that should have been remedied" and (2) "the trial judge seating her husband on the jury created an inexcusable appearance of judicial bias." (Emphases in original.)
On this record, we decline to address whether jury service by a trial judge's spouse in a case in which (1) that judge presides and (2) defendant has not acquiesced in that service, might constitute per se reversible trial error. (We note, however, that the record contains no suggestion of some compelling need for why the trial court thought it necessary for her spouse to serve as a juror in a case over which she presided, a circumstance that strikes this court as rather unusual.)
B. Defendant's Contention That the Trial Court Erred by Failing To Comply With Rule 431(b)
Defendant next contends that the trial court erred by failing to comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007). For the reasons that follow, we conclude that defendant has forfeited review of this issue.
1. The Pertinent Portion of the Voir Dire in This Case On the morning of voir dire, the trial court brought all 32 prospective jurors into the courtroom. After describing to the prospective jurors the charges that defendant was facing, the court explained the following principles of law:
"As you will recall, probably all of you have heard this at least once last week, since this is a criminal trial, there are certain propositions of law that you must be willing to follow. Please listen carefully to those propositions as we will be asking each of you if you understand and accept these propositions.
The presumption of innocence stays with *** [d]efendant throughout the trial and is not overcome unless from all of the evidence you believe the State proved *** [d]efendant's guilt beyond a reasonable doubt. The State has the burden of proving *** [d]efendant's guilt beyond a reasonable doubt. *** Defendant does not have to prove his innocence. *** Defendant does not have to present any evidence on his own behalf and does not have to testify if he does not wish to. And if *** [d]efendant does not testify, that fact must not be considered by you in any way in arriving at your verdict."
The court next proceeded to name each of the potential witnesses in the case and explain to the potential jurors that they had a duty not to read or listen to any press reports about the case. The court thereafter called the first 16 potential jurors for questioning.
After asking a series of questions of those potential jurors regarding their knowledge of the case, the court further questioned them as follows:
"THE COURT: *** A few minutes ago, [the court] recited the basic principles of law in a criminal case. Do all of you recall the principles of law that [the court] stated a few minutes ago?
POTENTIAL JURORS: (Nod heads.)
THE COURT: Everybody's indicating yes. Do each of you understand and accept those principles of law? If not, please raise your hand if there's any confusion or concern.
POTENTIAL JURORS: (No response.)
THE COURT: Nobody's raising their hand. Do each of you believe you can give both sides a fair trial in this case?
POTENTIAL JURORS: (Nod heads.)
THE COURT: If not, please raise your hand.
POTENTIAL JURORS: (No response.)"
Counsel and the trial court then proceeded to conduct further voir dire of ...