People v. Brown

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Appellate Court Date: 2022.05.23

09:35:06 -05'00'

People v. Brown, 2020 IL App (1st) 180826

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption SERVETUS BROWN, Defendant-Appellant.

District & No. First District, Fifth Division

No. 1-18-0826

Filed December 18, 2020

Decision Under Appeal from the Circuit Court of Cook County, No. 17-CR-10469; the

Review Hon. Neera Lall Walsh, Judge, presiding.

Judgment Affirmed in part and vacated in part.

Counsel on James E. Chadd, Douglas R. Hoff, and Kieran M. Wiberg, of State

Appeal Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,

Aline B. Dias, and Conor McNulty, Assistant State’s Attorneys, of

counsel), for the People.

Panel JUSTICE CUNNINGHAM delivered the judgment of the court, with

opinion.

Justices Hoffman and Rochford concurred in the judgment and

opinion.

OPINION

¶1 The defendant-appellant Servetus Brown appeals his conviction of being an armed habitual

criminal, for which he was sentenced to 10 years’ imprisonment. On appeal, the defendant

argues that he was denied his right to be present at a critical stage of trial, where all the juror

strikes were made at sidebar conferences held off the record and outside his presence, and that

his counsel was ineffective for failing to object to this procedure, which did not allow him to

be present at this critical stage. He further argues that his conviction for unlawful possession

of a firearm in case No. 96 CR 3273 (01) should be vacated as void ab initio. For the reasons

that follow, we affirm the judgment of the circuit court of Cook County in the instant case but

vacate the defendant’s conviction in case No. 96 CR 3273 (01).

¶2 BACKGROUND

¶3 On June 18, 2017, two Chicago police officers, responding to a call of shots fired, were

directed to a black sedan, where the defendant was sitting in the driver’s seat. When the

defendant did not respond to the officers’ repeated requests to exit the vehicle, an officer pulled

him out of the car. The officers then searched the defendant and recovered a gun from his pants

pocket. The officers also recovered two packets of what was later determined to be PCP from

the driver’s seat.

¶4 The defendant was indicted on 21 counts, but the State proceeded to trial on only 2 counts:

armed habitual criminal and possession of a controlled substance.

¶5 A jury trial commenced on January 9, 2018. The court questioned the venire in panels of

four. After questioning the first panel in open court, the court asked to see the attorneys. The

record reflects that a sidebar was held off the record. The court repeated this process for the

second, third, fourth, and fifth panels, holding a sidebar off the record after questioning each

panel.

¶6 In the sixth panel, the court first questioned Dennis Eakright. In response to a question

regarding whether anything would keep him from participating in jury duty, Eakright

responded that he was on medication for injuries he suffered a year ago that left him “not

always focused.” The court then questioned the next panel member, Barbara Hayler, before

asking to see the attorneys and holding another sidebar off the record. Finally, the court

questioned the third panel member, Tyler M. Le Pretre, and held a sidebar off the record.

¶7 Following this last sidebar, the court announced that it had a jury. Among those not selected

for the jury were Dennis Eakright and Barbara Hayler from the sixth panel. After the court

dismissed those who were not selected for the jury, it took a short recess before coming back

on the record and noting that the State, the defendant, and defense counsel were present. The

court then stated: “[W]e just completed jury selection and in the interest of saving a little bit

of time, we had sidebars regarding the challenges for cause and for peremptory challenges and

now we’re going to put them all on the record.”

¶8 The court then named the jurors that the defendant and the State struck for peremptory

challenges. The court further noted that two jurors were dismissed for cause, by agreement.

Dennis Eakright, who was not on the jury, was not mentioned as either a peremptory challenge

or a dismissal for cause. The court finally asked if there was “anything else anyone wants to

put on the record,” to which the State and the defendant responded “no.”

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¶9 At trial, the two arresting officers testified, along with the forensic examiner who tested

the substance recovered from the driver’s seat of the defendant’s car. The State then entered

into evidence a stipulation that the defendant had two prior qualifying convictions. (Those

convictions did not include his 1996 conviction for possession of a firearm.)

¶ 10 The defendant, whose motion for a directed verdict was denied, then rested his case without

putting on any evidence. The jury found the defendant guilty of being an armed habitual

criminal but not guilty of possession of a controlled substance.

¶ 11 In February 2018, the defendant’s motion for a new trial was denied, and the defendant

was sentenced to 10 years’ imprisonment. His motion to reconsider sentence was denied on

March 19, 2018. The defendant filed a notice of appeal the same day.

¶ 12 ANALYSIS

¶ 13 We note that we have jurisdiction to review this matter, as the defendant timely appealed.

Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. July 1, 2017).

¶ 14 The defendant challenges his conviction on the basis that he was deprived of his

constitutional right to be present at a critical stage of proceedings—namely, jury selection.

Both the federal and state constitutions afford defendants the “ ‘general right to be present, not

only at trial, but at all critical stages of the proceedings, from arraignment to sentencing.’ ”

People v. Aguilar, 2020 IL App (1st) 161643, ¶ 38 (quoting People v. Lindsey, 201 Ill. 2d 45,

55 (2002)); see also U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, § 8. While it is well

settled that jury selection is a critical stage of trial (People v. Bean, 137 Ill. 2d 65, 84 (1990)),

it is far less clear whether the exercise of juror challenges is a critical stage of proceedings (see

People v. Spears, 169 Ill. App. 3d 470, 483 (1988); People v. Gentry, 351 Ill. App. 3d 872,

883-84 (2004)). Here, while the defendant was present for voir dire, he was absent from the

conferences where the State and defense counsel made peremptory challenges and challenges

for cause.

¶ 15 At the outset, we note that the defendant did not object to the court’s decision to address

juror challenges in a sidebar off the record at the time of trial or in a posttrial motion, as

required to preserve the issue for review. See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (in

order to preserve error for review, party must object at trial and file written posttrial motion).

Defendant also does not argue plain error, which permits us to review otherwise forfeited issues

if the evidence was closely balanced or if the error was so serious that the defendant was denied

a fair trial. In re Jonathan C.B., 386 Ill. App. 3d 735, 745 (2008). Instead, he argues that his

trial counsel was ineffective for failing to object to the process that allowed the exercise of

challenges to jurors without the defendant being present. A claim of ineffective assistance of

counsel requires a defendant to show that (1) his counsel’s representation fell below an

objective standard of reasonableness and (2) he suffered prejudice in that there is a reasonable

probability that but for counsel’s errors the outcome of the proceeding would have been

different. People v. Rouse, 2020 IL App (1st) 170491, ¶ 46 (citing Strickland v. Washington,

466 U.S. 668, 687-88, 694 (1984)).

¶ 16 Here, we need not evaluate counsel’s performance because the defendant has not shown

prejudice. People v. Campos, 2019 IL App (1st) 152613, ¶ 46. Importantly, the right to

presence at trial is not a freestanding constitutional right; it is a “lesser right” that serves as a

means by which to secure other constitutional rights, such as the right to an impartial jury.

Bean, 137 Ill. 2d at 80-81. It follows that to show prejudice, the defendant must establish that

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he was not tried by an impartial jury. See id. at 81 (holding that defendant was not prejudiced

by absence from in camera voir dire because he did not claim that the jurors selected were not

impartial). This he has not done. The defendant claims that it is impossible for him to make

this showing because the juror strikes were conducted off the record and, therefore, prejudice

should be presumed. But this misses the point. It is of no moment if the stricken jurors would

have been impartial where the defendant has not shown that the chosen jurors were not

impartial. “The United States Constitution, as does the Illinois Constitution, guarantees a

defendant an impartial jury, not a jury of his choice.” (Emphasis added.) Id. at 85. Because the

defendant has not shown prejudice, we reject his claim of ineffective assistance of counsel

arising out of counsel’s decision not to object to the defendant’s absence during the juror

challenge process.

¶ 17 The defendant next challenges his 1996 conviction for unlawful possession of a weapon.

In that case, the defendant was convicted under subsection 24-1(A)(4) of the Criminal Code of

1961 (720 ILCS 5/24-1(a)(4) (West 1994)). That subsection was held unconstitutional in

Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012). Therefore, the defendant now seeks to

vacate that conviction as void ab initio. See People v. Dunmore, 2013 IL App (1st) 121170,

¶ 9 (conviction under facially unconstitutional statute is void).

¶ 18 The State does not dispute that a conviction based on an unconstitutional statute is void,

nor does it dispute the unconstitutionality of subsection 24-1(a)(4). Instead, the State argues

that the defendant may only challenge his 1996 conviction on direct review of that conviction

or in a collateral proceeding, such as a postconviction petition pursuant to the Post-Conviction

Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)), or a petition filed pursuant to section 2-

1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2018)). Not so. Our supreme

court in In re N.G., 2018 IL 121939, ¶¶ 53-54, held that a postconviction petition or a section

2-1401 petition are not “the sole means for collaterally attacking the validity of a conviction

premised on a facially invalid, and indisputably unenforceable, statute.” Instead, the court

explained,

“[W]here a person has been convicted under an unconstitutional statute, he or she may

obtain relief from any court that otherwise has jurisdiction. ***

Simply put, under Illinois law, there is no fixed procedural mechanism or forum,

nor is there any temporal limitation governing when a void ab initio challenge may be

asserted. [Citation.] Under our precedent, it is sufficient if a person subject to a

conviction premised on a facially invalid statute raises his or her challenge through an

appropriate pleading in a court possessing jurisdiction over the parties and the case.”

Id. ¶¶ 56-57.

¶ 19 It is undisputed that this court has jurisdiction over the parties and the case and that the

defendant put forth his challenge through an appropriate pleading—an appellate brief.

Therefore, we vacate as void the defendant’s 1996 conviction in case No. 96 CR 3273 (01).

¶ 20 CONCLUSION

¶ 21 For the reasons stated, we affirm the judgment of the circuit court of Cook County,

convicting the defendant of being an armed habitual criminal, but vacate the defendant’s

conviction in case No. 96 CR 3273 (01) due to the unconstitutionality of the statute upon which

that conviction was premised.

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¶ 22 Affirmed in part and vacated in part.

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