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People v. McCormick
State: Illinois
Court: 2nd District Appellate
Docket No: 2-00-1250 Rel
Case Date: 03/21/2002

Nos. 2--00--1250 & 2--00--1256 cons.


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


 

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kendall County.
)
              Plaintiff-Appellee, ) Nos. 00--CF--03
)          00--DT--01
v. )          00--TR--62
)
MICHAEL P. McCORMICK, ) Honorable
) James M. Wilson,
               Defendant-Appellant. ) Judge, Presiding.
 

 



JUSTICE McLAREN delivered the opinion of the court:

After a jury trial, defendant, Michael P. McCormick, was foundguilty of the unlawful possession of less than 15 grams of asubstance containing cocaine (720 ILCS 570/402(c) (West 2000)),driving under the influence of alcohol (625 ILCS 5/11--501(a)(2)(West Supp. 1999)), and failing to yield while entering a highway(625 ILCS 5/11--906 (West 2000)). The trial court sentenced him to18 months' probation conditioned on, among other things, spendingfour weekends in jail. On appeal, defendant argues that the trialcourt's use of a "struck jury" system infringed on his right toperemptory challenges. We affirm.

The record contains no report of the jury selectionproceedings. The common-law record reveals that the venireconsisted of 46 people. Each party submitted a list of sevenperemptory challenges. Three prospective jurors appeared on bothlists. As a result, only 11 prospective jurors were dismissed.

After defendant appealed, the trial court conducted a hearingto certify a bystander's report. See 166 Ill. 2d R. 323(c). Thetestimony received during the hearing reveals that the trial courtutilized a "struck jury" system. See United States v. Ricks, 802F.2d 731, 734-36 (4th Cir. 1986). During the hearing, MichaelPoulakidas, the attorney who represented defendant during thetrial, testified that the trial court assembled all of theprospective jurors in the courtroom. The trial court questionedthem about whether they could be fair and gave counsel theopportunity to submit additional questions. Neither partysubmitted additional questions. Poulakidas testified that "I feltthat the judge was thorough and *** I had my mind made up on myperempt[ory challenges] ***."

After the prospective jurors were questioned, the trial courtdirected the parties to submit their lists of peremptory challengesand asked if they wanted to challenge for cause any venire member.Each party submitted seven peremptory challenges. Poulakidastestified that he identified 13 prospective jurors whom heconsidered questionable. Of those 13, he picked the 7 whom he feltwere the most objectionable. After both sides exercised theirperemptory challenges, the clerk read the names of 12 of theremaining prospective jurors who would serve as jurors. Poulakidasdid not know beforehand which 12 names would be called.

Of the six additional prospective jurors whom Poulakidasconsidered questionable, three were selected as jurors. Poulakidasdid not challenge for cause any of the additional six and did notask for more peremptory challenges. He could not recall whetherthe trial court allowed him additional peremptory challenges.

Eric Weis was the assistant State's Attorney who participatedduring the trial. He testified that the jury selection procedurewas essentially as Poulakidas described. He added, however, thatthe trial court told the parties they could have as many peremptorychallenges as they wanted so long as there were at least 13prospective jurors remaining. Weis typically tried to limit hischallenges to seven. He recalled participating in at least onetrial where defense counsel used more than seven challenges.

After the testimony concluded, the trial court summarized theprocedure it had utilized for the previous 15 or 16 years. Thecourt stated that, after the prospective jurors are questioned, theparties "are asked to use their peremptory challenges. They canwrite down any number they want. It's customary for me to say,however, they can put down as many as they want *** as long as Ihave 12 jurors and *** an alternate ***." During an earlierhearing, the trial court remarked that, "regarding peremptorychallenges, my position is and has always been, as I stated forcounsel, that you could have as many *** as you want as long as Istill have 12 jurors left." From the list of prospective jurorswho survive this process, the clerk randomly selects 12 names.

Defendant's sole contention on appeal is that the juryselection procedure impaired his right to peremptory challenges. According to defendant, because he and the State were required toexercise their challenges contemporaneously and because thechallenges were directed against the entire 46-person venire, thenumber of challenges he was able to exercise effectively wasreduced.

The State is correct that defendant has waived the argumentbecause he never objected during the trial. Defendant was requiredto object during the jury selection process. People v. Robinson,299 Ill. App. 3d 426, 436 (1998). Otherwise, by not giving thetrial court the opportunity to prevent or correct trial errors, adefendant could gain the advantage of obtaining a reversal throughan intentional or inadvertent failure to act. Robinson, 299 Ill.App. 3d at 437. The plain error rule is an exception to the waiverdoctrine and permits the consideration of errors affectingsubstantial rights. It is a limited exception that will preservean issue for review where the evidence was closely balanced or theerror is of such a magnitude that the defendant was denied a fairtrial. Robinson, 299 Ill. App. 3d at 437.

The jury selection procedure here did not deny defendant afair trial. Supreme Court Rule 434 governs jury selection andprovides:

"(a) Impaneling Juries. In criminal cases theparties shall pass upon and accept the jury in panels offour, commencing with the State, unless the court, in itsdiscretion, directs otherwise ***.

* * *

(d) Peremptory Challenges. A defendant tried aloneshall be allowed 14 peremptory challenges in a capitalcase, 7 in a case in which the punishment may beimprisonment in the penitentiary, and 5 in all othercases." 134 Ill. 2d R. 434.

Rule 434(a) expressly grants a trial court the discretion toalter the traditional procedure for empaneling juries so long asthe parties have adequate notice of the system to be used and themethod does not unduly restrict the use of peremptory challenges. People v. Moss, 108 Ill. 2d 270, 275 (1985). The right toperemptory challenges is one of the most important rights grantedto an accused, and its denial or impairment is reversible errorwithout a showing of prejudice. Swain v. Alabama, 380 U.S. 202,219, 13 L. Ed. 2d 759, 772, 85 S. Ct. 824, 835 (1965). Swain doesnot mandate an unbounded peremptory right, however. Moss, 108 Ill.2d at 276. The right to peremptory challenges is not denied orimpaired if the procedure affords both parties a fair opportunityto detect bias or hostility and to excuse any objectionable veniremember. People v. Daniels, 172 Ill. 2d 154, 165 (1996).

Defendant has failed to demonstrate that his peremptory rightwas impaired. First, we note that the absence of a record of thejury selection proceedings makes it very difficult for defendant orthis court to identify specifically how defendant's peremptoryright may have been impaired. As the appellant, defendant has theburden to present a sufficiently complete record to support a claimof error, and any doubts that arise from the incompleteness of therecord will be resolved against defendant. People v. Little, 318Ill. App. 3d 75, 81 (2001). The record does not reveal thatdefendant's right to seven peremptory challenges was impaired.Defense counsel stated that he did not attempt to use more than theseven challenges he actually used or to have any venire memberremoved for cause. Defendant cannot identify a specific juror whomhe was prevented from removing.

During the hearing to create a bystander's report, the trialcourt and the prosecuting attorney stated that the trial courtinformed the parties that they could use as many challenges as theywanted so long as there were enough venire members remaining toseat 12 jurors and an alternate. There is nothing in the recordindicating that this was not the case. Defendant's trial counselclaimed that there were six additional potential jurors whom hewanted removed. According to the limited record before us, therewas no reason why defense counsel could not have used additionalperemptory challenges. Because there were 46 venire members,defendant could have removed the additional six questionableprospective jurors without approaching the trial court's limit.

Accordingly, we conclude that the jury selection procedureutilized here did not impair defendant's peremptory right. Defendant has not identified any error, much less plain error.

We note that a "struck jury" system is potentially rife withproblems. Under the traditional process described in Rule 434(a),the parties exercise their challenges against jurors already seatedin the jury box and who will remain on the jury unless challenged. Where, as here, the parties must exercise their peremptorychallenges against the entire venire and the jurors aresubsequently chosen randomly, a defendant may be required to wastehis peremptory challenges on venire members who have virtually nochance of being selected for the jury. See Ricks, 802 F.2d at 733-34. Also, where, as here, the trial court requires the parties tosubmit their peremptory challenges simultaneously, the defendantmay end up wasting peremptory challenges on prospective jurors thatthe State would have dismissed in the first instance.

Trial courts utilizing such a system must ensure that theprocess does not impair the defendant's peremptory right. A courtpossibly could avoid the problems noted above by limiting the sizeof the venire to the number of jurors required plus the authorizednumber of peremptory challenges or by explaining how the juryultimately will be chosen, e.g., in numerical order. Ricks, 802F.2d at 736-37. Allowing the defendant the additional challenges needed to preserve the peremptory right also may be an option. Because the trial court here allowed an almost unlimited number ofchallenges and there is no indication that the court preventeddefendant from removing an objectionable venire member, theproblems just described were avoided here.

Accordingly, we affirm the judgment of the circuit court ofKendall County.

Affirmed.

BYRNE and KAPALA, JJ., concur.

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