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.
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
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
"[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
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
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 ...