Court of Appeals of Illinois, First District, First Division
from the Circuit Court of Cook County. No. 13 CR 922
Honorable Maura Slattery Boyle, Judges Presiding.
JUSTICE MIKVA delivered the judgment of the court, with
opinion. Presiding Justice Connors and Justice Simon
concurred in the judgment and opinion.
1 Defendant Samuel James was charged with various drug- and
firearm-related offenses resulting from events occurring on
November 28, 2012. Following a jury trial, Mr. James was
found guilty of the unlawful and knowing possession of
benzylpiperazine (BZP), a controlled substance (720 ILCS
570/402 (West 2012)); aggravated unlawful use of a weapon
(AUUW), for carrying a firearm without a valid Firearm
Owner's Identification (FOID) card (720 ILCS
5/24-1.6(a)(1), (a)(3)(C) (West 2012)); and armed violence,
based on his possession of the BZP while armed with a firearm
(720 ILCS 5/33A-2(a) (West 2012)). Mr. James was sentenced,
on the charge of armed violence, to 15 years of imprisonment,
followed by 3 years of mandatory supervised release.
2 On appeal, Mr. James argues that (1) the trial court abused
its discretion by failing to inquire during voir
dire regarding potential jurors' feelings about
guns; (2) statements made by the prosecutor during closing
and rebuttal arguments denied Mr. James a fair trial; (3)
under the one-act, one-crime rule, Mr. James's
convictions for possession of a controlled substance and AUUW
should be vacated; and (4) the trial court erroneously failed
to order 303 days of presentence credit for sanitation work
that Mr. James completed while he was incarcerated.
3 For the reasons that follow, we affirm Mr. James's
conviction for armed violence, vacate his convictions for
possession of a controlled substance and AUUW, and correct
the mittimus to reflect both this change and, consistent with
the trial court's oral pronouncements at sentencing, an
award of 303 days of presentence credit, if eligible, for
sanitation work performed by Mr. James while he was
5 On July 15, 2014, the trial court conducted voir
dire of potential jurors. Before beginning, the court
discussed with counsel its typical process. During that
discussion, the following exchange occurred between defense
counsel and the court:
"MR. BEDI [defense counsel]: Do you ask about any strong
feelings about guns one way or the other?
THE COURT: I am always afraid of that. Usually it involves-I
ask, have you ever been a victim of a crime. What I do, if I
get the sense if somebody has been, family member or victim
[sic], I streamline the question and I take the
person in back so there is no other way to contaminate the
rest of the jury. I don't want any statements or ideas to
come out that might affect the rest of the jury. If we have
any individuals that we see that they have a feeling towards
guns I put it on the side. I try to minimize the ripple
6 After the venire was seated, the trial court read the
charges against Mr. James, including the charge of armed
violence for possessing a controlled substance while armed
with a firearm and the charge of AUUW in that he knowingly
carried a firearm while not on his own land and without
having been issued a FOID card. The court admonished the
venire as a group that, among other things, they must follow
the law as instructed, they must not arrive at any
conclusions until all of the evidence was heard, independent
investigation and the consideration of outside information
were not permitted, and the court would ask them questions to
ensure a fair and impartial trial.
7 The trial court then questioned the venire pursuant to
Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). The
court began by asking each prospective juror individually the
same series of preliminary questions: whether they or any of
their family members or close friends had been victims of
crimes, and, if so, whether they could nevertheless remain
impartial; whether they knew any attorneys, judges, or police
officers, and if so, whether they could remain fair and
impartial regardless of these relationships; whether they
would give each witness's testimony the same weight and
level of credibility regardless of the witness's
profession; and, finally, whether they could consider all of
the evidence and apply the law as instructed by the judge in
a fair and impartial manner.
8 These questions elicited responses relating to past
experiences with firearms from several jurors. Edgar Ovalle,
for example, stated that he and his mother owned a store and
she was held up at gunpoint twice, approximately 18 years
ago. However, Mr. Ovalle said that there was nothing about
those events that would prevent him from being fair and
impartial as a juror in this case. Hector Bacajol also stated
that three years ago he was "robbed at gunpoint by the
gangbangers in [his] neighborhood" and ten years ago his
fiancée "was involved in a drive-by shooting in
the neighborhood." Like Mr. Ovalle, Mr. Bacajol denied
that there was anything about these experiences that would
prevent him from being fair or impartial. Mr. James
subsequently used two of his peremptory strikes to eliminate
Mr. Ovalle and Mr. Bacajol.
9 Another potential juror, Dr. Alan Samarel, indicated that
his father-in-law was robbed and shot in Manhattan
approximately 15 years ago but said that there was
"[p]robably not" anything about that event that
would prevent him from being a fair and impartial juror. Dr.
Samarel likewise told the court that there was
"[p]robably not" anything about the fact that his
"closest friend in Chicago" was a criminal defense
lawyer who had talked to Dr. Samarel multiple times about his
cases that would affect his impartiality. However, Dr.
Samarel indicated that "[t]he issue of gun
violence" was an aspect of his relationship with his
uncle, who had been a police detective in the Bronx, that
could affect his ability to remain impartial:
"Q. [The court:] Is there anything about your
acquaintance with your uncle that would prevent you from
being fair and impartial here today?
A. The issue of gun violence.
Q. But I am saying, the fact of him and his work, can you
look at the facts of this case, apply the law that I instruct
you on, assess these witnesses, and be fair and impartial?
A. I think so."
10 The court then conducted an in camera examination
of Dr. Samarel in order to follow up on the nature of his
views on gun violence:
"Q. Hi. Have a seat. So I want to inquire as regards to
your ability. You are prejudiced?
A. Well, it has to do with the way you phrased the question.
You have two people, trained observer, untrained observer
sees something. I would believe the trained observer. So I
consider the police trained observers. Policeman sees
Q. You would give a layperson less credibility? You are
giving one person more credibility by the nature of their
Q. -as opposed to assessing them on the stand? That's
A. Right, because of the nature of their training and
Q. Or is that not wanting to serve?
Q. You indicated an opinion about gun violence.
A. Well, I do have an opinion about gun violence, right.
Q. Are you of the presumption that most of the world accepts
A. Accepts it or?
Q. Encourages it? Likes it?
A. No. I think it-
Q. Okay. So I don't understand. What would that view of
not liking gun violence have to do with-there is no
allegation of violence here other than possession of
controlled substance or possession of a gun. There is no
indication of agg [sic] discharge or any type of
aggravated discharge with a fire weapon. I am a little
confused. I don't like gun violence, I don't like to
see it. So what difference would that make it?
A. Well, the person is accused of possessing a firearm
illegally though, right? This is kind of like a
black-and-white situation, unless there is an illegal search
or something like that.
Q. It's really not a black-and-white situation. It is
looking at the facts, taking your common sense and looking at
something and wanting to do your civic duty and obligation
and serve and assess the case and the facts and the law that
applies in this case.
A. Yeah, but it doesn't change my opinion the fact that,
being a gun owner myself and knowing what goes into
background checks and the whole thing.
Q. So you are not prejudiced against guns, you are just
prejudiced against gun violence.
A. Illegal gun owners. I am prejudiced against, ...