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People v. Bowens

Court of Appeals of Illinois, Fourth District

March 22, 2017

D'ARIOUS M. BOWENS, Defendant-Appellant.

         Appeal from Circuit Court of Livingston County No. 08CF33 Honorable Robert M. Travers, Judge Presiding.

          JUSTICE POPE delivered the judgment of the court, with opinion. Justices Holder White and Steigmann concurred in the judgment and opinion.


          POPE JUSTICE.

         ¶ 1 Defendant, D'Arious M. Bowens, appeals the third-stage denial of his postconviction petition, arguing (1) the trial judge committed reversible error when she allowed her husband to serve on the jury. In the alternative, defendant contends (2) he received ineffective assistance of counsel when his attorney failed to use a peremptory strike against the judge's husband, (3) the $50 court-finance assessment was improperly imposed by the circuit clerk, and (4) he is entitled to per diem credit against his $200 domestic-violence assessment. We affirm in part, vacate in part, and remand with directions.

         ¶ 2 I. BACKGROUND

         ¶ 3 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 5/12-4 (West 2008)), alleging defendant repeatedly stabbed his girlfriend, Belinda Butler, intending to kill her. Defendant's strategy throughout the trial was to admit stabbing Butler but deny he intended to kill her.

         ¶ 4 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 on potential jurors before accepting the first panel. During the selection of the second panel, the following exchange occurred regarding a prospective juror who happened to be the trial judge's husband:

"[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."

         ¶ 5 Shortly thereafter, defendant's trial counsel used his fifth peremptory challenge on another potential juror. The defense then accepted that panel, which included juror Bauknecht. When defendant accepted this second panel, he still possessed two unexercised peremptory challenges. Later, the defense exercised those last two peremptory challenges on two other potential jurors during the selection of the final panel. In sum, 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.

         ¶ 6 During defendant's trial, Butler testified she and defendant were preparing dinner at her apartment. After she placed dinner in the oven, the couple sat down in the living room and began watching television. Defendant asked her whether they were going to have sex that night. Butler responded, "No." Defendant then asked her whether she was still attracted to him, but Butler did not respond. At that point, defendant 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."

         ¶ 7 Butler reached for her cellular telephone and told defendant she was going to call the police. However, before she could get to her phone, defendant got on top of her and began stabbing her in the chest with a knife. Defendant's initial stabs were to the upper left side of Butler's chest near her heart. Butler threw her arms across her chest to try to block him, but defendant continued stabbing and cut her arms. When Butler turned over and tried to lift herself up with her hands, defendant repeatedly stabbed her in the back. After Butler made it to the couch, defendant began stabbing her again. Defendant stopped stabbing Butler after she rolled off the couch and fell to the floor. At that point, he then threw the knife into the hallway and said, "I've got to get the fuck out of here." Butler testified she saw defendant take her cellular telephone and leave the apartment. Thereafter, 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."

         ¶ 8 Gilmor testified she heard (1) pounding on the wall that she shared with Butler and (2) Butler yelling defendant's name. Shortly thereafter, Gilmor heard Butler at her kitchen door, pleading for help. Gilmor rushed outside to find Butler sprawled half on and half off her porch. Gilmor called 911 and tried to stop the bleeding.

         ¶ 9 Stephanie Law, the 911 dispatcher who took Gilmor's call, testified that 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.

         ¶ 10 D'Andrea Amaya, defendant's sister, testified defendant came to the house 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.

         ¶ 11 When police arrived at defendant's mother's house, they found defendant standing in the kitchen, crying and repeatedly telling them, "Just kill me. Just shoot me." Upon his arrest, officers ...

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