Defendant’s convictions for felony disorderly conduct based on her false report to public employees that she had been threatened by a person with a handgun were vacated and the cause was remanded for a new trial, since the trial court’s decision to allow the State to exercise a peremptory challenge to excuse a juror in the middle of defendant’s trial was both constitutional and statutory error, as well as structural error warranting automatic reversal.
Appeal from the Circuit Court of Winnebago County, No. 10-CF-543; the Hon. Rosemary Collins, Judge, presiding.
Samuel E. Adam, of Law Offices of Samuel E. Adam, of Chicago, for appellant.
Joseph P. Bruscato, State's Attorney, of Rockford (Lawrence M. Bauer and Marshall M. Stevens, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Presiding Justice Burke and Justice Hudson concurred in the judgment and opinion.
¶ 1 Defendant, Marissa L. Brown, appeals from her convictions on three counts of felony disorderly conduct (720 ILCS 5/26-1(a)(4) (West 2010)) (making a false report to public employees). She asserts that we should vacate her convictions and remand for a new trial because the court, in the middle of the trial, allowed the State to exercise a peremptory challenge to excuse a juror (Carl Posley). Following United States v. Harbin, 250 F.3d 532 (7th Cir. 2001), we conclude that allowing the State to so exercise the challenge was structural error. We therefore vacate defendant's convictions and remand for a new trial.
¶ 2 I. BACKGROUND
¶ 3 On February 17, 2010, a grand jury indicted defendant on four counts of disorderly conduct. Each count charged defendant with, on January 5, 2010, telling a public employee or peace officer that an aggravated assault had occurred when no reasonable basis existed for defendant to believe that the offense had occurred. All counts related to defendant's report that a person had threatened her with a handgun in the restroom of Rockford's Roosevelt School; each count related to a different person's hearing the report.
¶ 4 The pretrial filings showed that the parties were concerned about ties between the incident resulting in these charges and the shooting death of Mark Barmore by two Rockford police officers. The connection is not fully explained in the record, but the gist of it is clear from the record: defendant, before the incident, was a witness to Barmore's fatal shooting, which occurred in a local church where defendant's parents were the pastors.
¶ 5 The State sought to exclude any reference to the Barmore matter at trial. In a motion in limine it asked:
"[That] this court specifically exclude and rule as inadmissible all evidence or testimony mentioning, alluding to, or in any way concerning the shooting of Mark Barmore on August 24, 2009, Mark Barmore's name, the name of any family member not previously disclosed to the People in the defense's trial witness list and the defendant's or any other person's involvement in that or any other matter concerning Mark Barmore [except with explicit permission of the court on motion made outside the presence of the jury]."
It also sought to bar any evidence that defendant's actions were the result of post-traumatic stress syndrome or other mental illness. The court granted those motions.
¶ 6 The record–which covers the court dates at which one would expect the court to have given counsel any jury selection instructions that it might have deemed necessary–shows no instructions specific to peremptory challenges.
¶ 7 None of the witnesses (whose names the court read at voir dire) had any obvious connection to the Barmore case. No one gave defendant's parents' names to the potential jurors. None of the questions asked of the potential jurors related to the Barmore case.
¶ 8 The voir dire of juror Posley was unremarkable. Asked if he had any "close friends or relatives" employed in law enforcement, he said that he had a cousin and a friend on the Rockford police force. He said that these connections would not cause him to be biased.
¶ 9 The State apparently used two of its peremptory challenges in selecting the regular jurors, defendant seven. At least two dismissals were potentially ambiguous as transcribed.
¶ 10 Angela Carter, the State's first witness, testified that she was the principal of Roosevelt Alternative High School. On January 5, 2010, she was working in her office when defendant's parents came into the office. She spoke to the parents for a while. Based on what she heard, she called two other school employees to meet with her. With those two and the parents present, Carter made a phone call to defendant. At first, defendant was mumbling and unintelligible. After Carter told her to calm down, defendant said that she had gone into a restroom at school and someone had approached her with a gun. He had waved the gun at her and had told her to shut up. Carter testified further about defendant's description of the incident. In addressing Carter, the State referred to defendant's parents as "the Browns."
¶ 11 On cross-examination, defense counsel asked Carter if she knew defendant's parents:
"Q. [DEFENSE COUNSEL]: And so you knew who [defendant's] ...