27 June 2000

PRESIDING JUSTICE COOK delivered the opinion of the court:

A jury convicted defendant James Black on March 21,1996, of four counts of aggravated stalking. The trial courtsentenced him to four concurrent eight-year terms in prison. Ondirect appeal, this court affirmed. People v. Black, No. 4-96-0419 (January 24, 1997) (unpublished order under Supreme CourtRule 23). The case comes to us upon denial of Black's petitionfor postconviction relief (725 ILCS 5/122-1 (West 1998)), whereinBlack alleges the ineffectiveness of both his trial counsel andhis counsel on direct appeal.

Black's trial garnered a considerable amount of publicity in the McLean County area. On March 21, 1996, a jury wasempaneled and opening arguments were heard. On the morning ofMarch 22, an article regarding the trial appeared on page A2 of aBloomington-Normal newspaper, the Pantagraph. The articlecontained several items that Black alleges would have prejudicedany juror who read them. For instance, the article stated thatBlack was being held without bond, "a measure usually restrictedto murder suspects." The article also alleged that Black's trialcounsel, Mark Messman, "agree[d] with most of the informationoutlined by [the State]." The article noted that Black and thecomplaining witness, Jeri Leenders, had gotten engaged despiteBlack's incarceration and a court order barring the two fromhaving any contact. It was the stated opinion of the prosecutorthat the two had "dodge[d]" the order. The entire article isreproduced as an appendix to this decision.

Therefore, on the same morning, before the beginning ofthe State's case in chief, the following conversation was hadoutside the presence of the jury:

"MR. MESSMAN [(Defense counsel)]: I would

note for the record, at least to my recollec-

tion, the jury was not admonished not to read

the paper, listen to the radio, watch TV; and

media coverage was more extensive then [sic]

what I thought it would be.

THE COURT: Me too.

MR. MESSMAN: Maybe the court would want

to explore with the jurors if they saw that.

THE COURT: Why would I want to do that.

I might get the wrong answers. I will ad-

monish them.

MR. MESSMAN: Okay. All right.

(The jury was brought in.)

THE COURT: *** [T]he media coverage in

this case has been more than what I anticipated

or I would have warned you about it and I sus-

pect that some of you seen [sic] or read

things about the case and [I] want to reem-

phasize your verdicts must be based solely on

the evidence presented in open court and not

on anything from any other sources. Those

sources are not subject to the same strict

standard that we are in terms of admissibility

and reliability and so on. I am going to ask

you throughout course of this trial to avoid

listening to radio accounts or television

accounts or anything about this case. I can't

help it if you already have, if you had I

would ask you to put that aside and base your

decision, as a juror, solely on the evidence

presented in court."

Following his convictions, Black apparently retaineddifferent counsel to pursue a direct appeal. Black's appellatecounsel raised neither the trial court's refusal to poll the jurynor Messman's incompetence as part of that appeal. Black thenretained further counsel to represent him at his postconvictionhearing, where he alleged the incompetence of both prior attorneys for failing to raise or follow through with the issue. Atthe postconviction hearing, the trial court stated that thearticle "is not as prejudicial as I thought at the time. Thereare some things in there that are mildly prejudicial." Black isrepresented by the office of the State Appellate Defender (OSAD)before this court.

We first consider whether some aspects of Black'sclaims are forfeited (sometimes referred to as "waived"). Wherean alleged forfeiture stems from ineffectiveness of appellatecounsel, the weight of authority holds that the strict application of the doctrine will be relaxed (People v. Stencil, 306 Ill.App. 3d 273, 276, 713 N.E.2d 1228, 1230 (1999)), although somecourts have noted in passing the ease with which forfeiture maythen be avoided (see People v. Turner, 187 Ill. 2d 406, 412-13,719 N.E.2d 725, 729 (1999)), thereby leading in extreme cases to"ineffective-assistance claims *** resembl[ing] an intricatepuzzle of boxes, each but the largest nestled one within theothers" (People v. Stewart, 141 Ill. 2d 107, 113, 565 N.E.2d968, 971 (1990)). Black's case is fairly straightforward,however. He claims that his appellate counsel should have raisedthe publicity issue. Because he could not have raised appellatecounsel's effectiveness at any time prior to the instant proceeding (which is technically not an appeal, but a collateral attackon the judgment (People v. Whitehead, 169 Ill. 2d 355, 370, 662N.E.2d 1304, 1311 (1996))), we address the merits.

Ineffective assistance claims are decided under thefamiliar standard of Strickland v. Washington, 466 U.S. 668, 80L. Ed. 2d 674, 104 S. Ct. 2052 (1984). A defendant such asBlack, who maintains that appellate counsel rendered ineffectiveassistance by failing to raise a particular issue, must show thatthe failure to raise the issue was objectively unreasonable andthat, but for this failure, his sentence or conviction would havebeen reversed. Stewart, 141 Ill. 2d at 119, 565 N.E.2d at 973. We do not find Black's appellate counsel to have been ineffective.

Not every newspaper article published requires thecourt to poll a jury. The argument could be made that no harmlies in polling the jury and that whenever the article is prejudicial to some degree the jury must be polled. "It strikes usthat inquiry of the jury is at least a condition essential to theexercise of a sound discretion and that due process ought nothang in balance on the conjecture that no harm was done." Peoplev. Cox, 74 Ill. App. 2d 342, 347, 220 N.E.2d 7, 10 (1966); Peoplev. Crowder, 99 Ill. App. 3d 500, 510, 425 N.E.2d 994, 1001 (1981)(issue is whether trial court abused its discretion in what weassume was its finding that the article was not inflammatory). However, later cases have recognized the existence of countervailing concerns. For example, the harm stemming from the veryact of polling the jury may outweigh any potential for prejudicein the article itself. People v. Barrow, 133 Ill. 2d 226, 264,549 N.E.2d 240, 257 (1989) ("any attempt to have questioned thejurors to ascertain whether they had read the article would havedisclosed the fact there was an article to the entire jury"). Cox itself indicated that the rule was not an absolute one:

"This does not imply that every newspaper

article published during trial requires an

interrogation of the jury. Its nature, con-

tent and prejudicial effect, if any, is to be

resolved by the trial court in an exercise of

sound discretion." Cox, 74 Ill. App. 2d at

347, 220 N.E.2d at 10.

An article that is somewhat prejudicial may not denythe defendant a fair trial, even if the jury is not polled. Barrow, 133 Ill. 2d at 264, 549 N.E.2d at 257; cf. People v.Sundaresh, 153 Ill. App. 3d 930, 938, 506 N.E.2d 672, 677 (1987)("The analysis required by Crowder requires a determination ofwhether the article at issue (not the error) was prejudicial"). We conclude no absolute rule holds that an article which issomewhat prejudicial requires that the jury be polled; rather,the trial court must exercise its discretion in determiningwhether polling is required or whether some other solution ispossible.

We do not find the article at issue here to be soprejudicial as to have required the court to poll the jury. While the article reports upon the views of the various attorneysin the case, the jury was presented directly with these viewsduring argument. And while a juror may have learned from thearticle that Black had been held without bond, during trial thejury was presented with the State's evidence regarding Black'spropensities toward violence. (We note that Black was acquittedof the two stalking counts involving physical harm.) Finally,the prejudicial effect of the fact that Black and Leenders hadbecome engaged, despite the reference to the court orders, isspeculative at best. Consequently, the trial court properlyexercised its discretion in deciding to admonish but not poll thejury.

Last, we note in passing that while Black's trialcounsel sufficiently preserved the issue for review, and thetrial court indicated familiarity with the article, the betterpractice would been to have introduced the article in questionwhen the motion to poll the jury was made. This allows the trialcourt to timely exercise its discretion upon a fully informedbasis. See, e.g., People v. Flores, 128 Ill. 2d 66, 100, 538N.E.2d 481, 495 (1989); People v. Hamilton, 100 Ill. App. 3d 942,956, 427 N.E.2d 388, 399 (1981); People v. Cordova, 83 Ill. App.3d 147, 148-49, 403 N.E.2d 788, 789 (1980).

In sum, we do not find upon review that, had a jurorbeen exposed to this article, its contents were such that Blackwould have been denied a fair trial. Because the trial court wastherefore not required to poll the jury regarding such exposure,Black's appellate counsel was not ineffective for failing toraise this issue on direct appeal.

Affirmed.

STEIGMANN and GARMAN, JJ., concur.

APPENDIX

(Case No. 4-99-0045, People v. James T. Black)

Newspaper Article

Engagement Won't Stop Stalking Trial

Couple reconciled after alleged threats

By Steve Arney

Pantagraph Staff

The alleged stalker is jailed without bond and is on trial. His alleged victim is sitting behind him in the courtroom withhis family members and has become engaged to him.

Reconciliation after the charges are filed is a familiartheme in domestic cases, according to Greg Sams, the McLeanCounty assistant state's attorney prosecuting James Black.

"The fact they reconciled and plan on getting married doesnot negate the offense," Sams said during a break in Thursday'sjury selection. Prosecution is proceeding.

But defense attorney Mark Messman said the case has been"blown out of proportion" in the media and in criminal charges. "He never hurt this girl--not once."

His client, a 34-year-old Streator resident, faces sixcounts of aggravated stalking alleging he harassed, followed andthreatened Jeri Leenders of Bloomington in incidents from February 1995 to Jan. 20.

In opening statements Thursday afternoon, Messman concededBlack may have violated laws, such as violating a court order ofprotection. "It certainly does not rise to the level of stalking, let alone aggravated stalking," he told jurors.

Sams said the evidence will show "this is a case about a manobsessed."

He outlined incidents in a hot-and-cold relationship inwhich he said Black tailed Leenders as she drove, confronted herin uninvited discussions and restrained her to prevent her fromleaving conversations.

On Dec. 1, Sams said, Black restrained her in her apartment,intentionally stabbed himself with a kitchen knife and bruisingher cheek while struggling with her. Defying a court protectionorder, he confronted her Jan. 1 and told her "you might as wellmove out of the state so I don't have to kill you," Sams said. On Jan. 20, according to Sams, he pulled the phone cord out ofher apartment wall to keep her from calling police.

Messman said he agrees with most of the information outlinedby Sams but that the charges are unwarranted.

The case has received considerable media attention, primarily because Sams successfully convinced a judge in late Januaryto keep Black jailed without bond--a measure usually restrictedto murder suspects.

As part of the court order, they were to have no contact.

Leenders is barred from jail visits and blocks were placedon her phone number to prevent Black from calling from the jail.

It leaves a question on how the two became engaged sincethen. Messman declined comment. Sams said he believes the twomanaged to dodge the order and have telephone conversations.

Leenders is expected to testify this morning. The trial isto conclude today or Monday.