Appeal from the Circuit Court of Cook County. 01 CR 22680 Honorable Timothy Joseph Joyce, Judge Presiding.
The opinion of the court was delivered by: Justice Neville
JUSTICE NEVILLE delivered the judgment of the court, with opinion. Justices Murphy and Salone concurred in the judgment and opinion.
¶ 1 A jury found the defendant, Aloysius Oliver, guilty of murder, and the trial court sentenced him to life in prison. On the direct appeal, the appellate court affirmed the trial court's judgment. Oliver then filed the post-conviction petition that is the subject of this appeal. Oliver alleged that he did not authorize his trial counsel to waive his presence during jury selection. He argued that the unauthorized waiver of his presence during a conference in camera on jury selection amounted to ineffective assistance of trial counsel, and the failure to raise the issue of the unauthorized waiver on the direct appeal shows that he had ineffective assistance of appellate counsel. We find that Oliver has not alleged any facts that could support the conclusion that the court empaneled a biased jury, and, therefore, we hold that Oliver has not stated the gist of a claim that a violation of his constitutional rights might warrant a new trial. Accordingly, we affirm.
¶ 3 On August 19, 2001, Officers Vincent Barner, Andre Green and Eric Lee, wearing plain clothes, sat in an unmarked police car on Chicago's south side, watching for signs of illegal drug transactions. They heard a commotion coming from a nearby alley, so they went to investigate. They saw some men hitting another man. Some of the combatants ran from the scene. As the officers gave chase, two bullets struck and killed Lee. Barner arrested Oliver in a nearby gangway.
¶ 4 Police officers made a video recording of a statement Oliver made at the police station later that night. Oliver said he saw Lamar Logan urinating in Oliver's yard, so Oliver and his cousin started hitting and kicking Logan. Oliver ran off when he saw men coming up the alley. When one of the men pointed a gun at Oliver, Oliver fired his gun so that he could escape from the scene. He did not intend to shoot Lee. Prosecutors charged Oliver with the murder of Lee, the aggravated battery of Logan, and aggravated assault for his conduct at the time Barner arrested him.
¶ 5 The trial court denied Oliver's motion to suppress his statement. At the trial, the judge conducted voir dire in open court, with Oliver present. The judge asked the attorneys to come into chambers for the attorneys to decide whom they wanted to exclude from the jury. At the outset of the discussion in chambers, the judge said: "So the record is clear, we are in chambers for the purpose of selection. *** The Defendant has been consulted with by his attorneys, and his appearance is waived. Is that correct, counsel?
Defense counsel answered, "Correct."
¶ 6 In the course of the discussion, defense counsel moved for a mistrial due to the prosecution's exercise of its peremptory challenges to exclude several black venire members from the jury. The trial court denied the motion, noting that the prosecution had at that point accepted only four jurors, and three of the four were black. The court empaneled a jury without any further discussion of the motion for mistrial.
¶ 7 Green testified that when he saw Oliver and Oliver's cousin hitting Logan, Green yelled,
"stop, police." Green saw Oliver run, and then he saw Oliver turn and fire shots at Lee.
¶ 8 Barner testified that he caught up to Oliver and again identified himself as a police officer.
Oliver pointed a gun at Barner and the two of them struggled until another police ...