People v. Manning

Docket No. 109029.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

ARTHUR R. MANNING, Appellant.

Opinion filed February 3, 2011.

JUSTICE GARMAN delivered the judgment of the court, with

opinion.

Justices Thomas and Theis concurred in the judgment and opinion.

Chief Justice Kilbride specially concurred, with opinion.

Justice Karmeier specially concurred, with opinion.

Justice Freeman dissented, with opinion, joined by Justice Burke.

OPINION

Following a jury trial in the circuit court of Du Page County,

defendant, Arthur R. Manning, was convicted of one count of

possession of a controlled substance with intent to deliver (720 ILCS

570/401(a)(2)(A) (West 2004)) and one count of possession of a

controlled substance (720 ILCS 570/402(c) (West 2004)). He was

sentenced to concurrent prison terms of 11 years and 3 years,

respectively. The appellate court affirmed defendant’s convictions and

sentences. No. 2–07–0846 (unpublished order under Supreme Court

Rule 23).

BACKGROUND

Defendant was arrested after allegedly selling cocaine to an

undercover police officer posing as a taxi driver and to a man posing

as a passenger. The passenger went into a duplex located at 37 Sunset

Court in Bensenville. He returned to the taxi with defendant, who then

sold the passenger cocaine. When the officer asked to purchase

cocaine, defendant went back inside the duplex and returned with

cocaine that he then sold to the officer. Following defendant’s arrest,

a search warrant was executed at the duplex. Cocaine was found

inside a mattress in the basement, along with men’s clothing, more

cocaine, a digital scale, and a razor blade. Cocaine was also found in

other rooms of the duplex and heroin was found in a freezer.

During voir dire, defense counsel told the members of the venire

that at the trial, they would hear evidence that defendant is a

registered sex offender and that his registered residence address was

not at 37 Sunset Court. Counsel thus questioned potential jurors

about what impact, if any, defendant’s sex offender status would have

on their ability to be fair and impartial.

During questioning by the trial court, juror 165 (hereafter referred

to as A.C.) stated that he came to the United States from Romania six

years before and was in the printing business. He stated he could be

fair to both sides and would judge the believability of all witnesses

using the same standard for everyone. He had no criminal record, had

never been a crime victim, and had not been involved in any lawsuits.

A.C. stated that he had received two speeding tickets since he came

to this country. Defense counsel then questioned A.C. When counsel

asked A.C. how he felt about sex offenders, A.C. responded that they

should be “locked up for life.” The following exchange then occurred:

“Q. What if the law permitted that he not be locked up for

life or she not be locked up for life? Do you still think that

should be the case? Do you think you would be able to listen

to a case and render a judgment on a case that’s separate and

distinct from the sex offender case?

A. Yes.

Q. Even though that person may have that background?

A. Yes.

Q. Is that background going to influence you at all do you

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believe in your decision on the case?

A. I don’t think so.

Q. You don’t think so?

A. No.

Q. Can you be more specific? Can you say that it’s not

going to?

A. No.

Q. You cannot?

A. No. I said it’s not going to change. I cannot be fair with

the case.

Q. You can be fair, or you cannot?

A. No, I cannot be fair.

Q. You can be fair?

A. No, I cannot be fair. I could not be fair also.”

Defense counsel did not move to strike A.C. for cause nor did he

use a peremptory challenge to remove him from the jury. Counsel did

excuse another juror who said her opinion of defendant “dropped

drastically” when she learned of his sex offender status. In all, counsel

used five of defendant’s seven available peremptory challenges.

At the trial, special agent Matthew Gainer of the Illinois State

Police testified that at the time of defendant’s arrest, he was assigned

to the Du Page County Metropolitan Enforcement Group, which

investigated street-level narcotics trafficking. On July 14, 2005,

Gainer and his fellow officers were investigating defendant. Gainer

posed as a taxi driver. He and a passenger in the car drove to 37

Sunset Court in Bensenville, where Gainer parked the car. The

passenger went inside and when he came back out, defendant was

with him. The two stood by the passenger door of the car, where the

passenger purchased two bags of crack cocaine from defendant for

$40. Gainer asked if he could purchase some cocaine. Defendant went

back into 37 Sunset Court and returned a short time later. Defendant

gave Gainer three bags of crack cocaine in exchange for $60.

Defendant then returned to the residence.

Gainer further testified that he and other officers executed a search

warrant at the residence on July 28, 2005. They searched the

basement, where they found men’s clothing and three bags of cocaine,

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a scale, and identification documents. In another part of the residence,

the officers found two more bags of cocaine. Gainer seized

defendant’s Illinois identification card, issued on January 29, 1995,

with an address of 37 Sunset Court. He also seized a checkbook with

the address of 212 West Sunny Lane. Officers also found a piece of

mail addressed to defendant at the Sunset Court address and another

addressed to him at the West Sunny Lane address with a forwarding

address to Sunset Court.

Officer Michael Hanrahan testified that he and another officer

spoke to defendant at the police station. While taking defendant’s

personal history, defendant told them that he lived at 37 Sunset Court.

After waiving his Miranda rights, defendant gave a statement in which

he again said that he lived at 37 Sunset Court, that he had resided

there for approximately 10 months, and that he had sold cocaine there

for a year. Defendant told the officers they could find heroin in a

freezer at the residence that he was holding for someone else. When

this information was relayed to officers on the scene, they found 14

tinfoil packets of heroin in the freezer. Defendant prepared a written

statement in which he again confirmed his residence as 37 Sunset

Court.

Former Bensenville police detective Maria Hernandez testified that

she monitored sex offenders. As a registered sex offender, defendant

was not allowed to live within 500 feet of a park. Because the

residence at 37 Sunset Court was closer than 500 feet to a park,

Hernandez ordered defendant to move in December 2004. She could

not verify whether he had complied, although defendant told her he

had moved to Maywood.

Bensenville police officer Todd Zoglman testified that in May

2005, he stopped defendant for driving on a suspended license. The

Secretary of State’s records showed defendant’s address as in

Maywood. However, suspended licenses could not be updated and

Zoglman testified that the records on defendant’s identification card

listed his current address as 37 Sunset Court.

Defendant testified that he moved from Sunset Court to Maywood

in December 2004. He updated some of his records but not others. He

did register his Maywood address with the local police department. In

March 2005, he was arrested for driving under the influence. A

certified copy of the traffic citation introduced into evidence showed

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defendant’s address as 2033 South Third Avenue in Maywood.

Defendant testified that he frequently visited his girlfriend and her

three children, who lived at the Sunset Court address. On July 28,

2005, he drove to Sunset Court to take his girlfriend to Rockford. The

police drove up and arrested him. When he got to the police station,

an officer told defendant to initial and sign a Miranda waiver. He did

so after reading it. The interrogating officers accused him of selling

drugs. When defendant stated that he wanted an attorney, the officers

told him he would get one later in Wheaton. Defendant testified that

the only reason he wrote and signed a statement was because the

officers threatened to take custody of his girlfriend’s children. The

officers told him to write 37 Sunset Court as his address on his

statement. Defendant denied that he had sold any drugs.

Hanrahan testified in rebuttal, denying defendant’s claim that he

had asked for an attorney. He denied that defendant was threatened

or that he was told to write down the 37 Sunset Court address.

Defendant was convicted and sentenced as stated. On appeal,

defendant argued, inter alia, that his trial counsel was ineffective for

failing to excuse A.C. from the venire due to his statements that he

could not be fair to defendant because of his sex offender status. The

appellate court rejected this argument, noting that under the standard

set forth in Strickland v. Washington, 466 U.S. 668 (1984) (adopted

by this court in People v. Albanese, 104 Ill. 2d 504 (1984)), defendant

must demonstrate both deficient performance and prejudice. The court

noted that, generally, counsel’s conduct during jury selection is

considered to involve matters of trial strategy not subject to scrutiny

under Strickland. The court concluded that defendant failed to

demonstrate prejudice because the evidence against him was

overwhelming. In addition, the court rejected defendant’s argument

that prejudice should be presumed where a biased juror sat on his jury.

No. 2–07–0846 (unpublished order under Supreme Court Rule 23).

This court granted defendant’s petition for leave to appeal. Ill. S. Ct.

R. 315 (eff. Feb. 26, 2010).

ANALYSIS

Defendant argues that his trial counsel rendered deficient

performance in failing to challenge A.C. for cause or exercise a

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peremptory challenge. He further argues that he was prejudiced by

counsel’s failure. In the alternative, he argues that this court should

find that jury bias is presumptively prejudicial under Strickland.

Claims of ineffectiveness of counsel are judged under the familiar

standard set forth in Strickland. A defendant must show that counsel’s

performance fell below an objective standard of reasonableness and

that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different. Strickland, 466 U.S. at 688, 694.

“In order to satisfy the deficient-performance prong of

Strickland, a defendant must show that his counsel’s

performance was so inadequate that counsel was not

functioning as the ‘counsel’ guaranteed by the sixth

amendment. Counsel’s performance is measured by an

objective standard of competence under prevailing

professional norms. Further, in order to establish deficient

performance, the defendant must overcome the strong

presumption that the challenged action or inaction may have

been the product of sound trial strategy. People v. Evans, 186

Ill. 2d 83, 93 (1999); People v. Griffin, 178 Ill. 2d 65, 73-74

(1997). Matters of trial strategy are generally immune from

claims of ineffective assistance of counsel. People v. West, 187

Ill. 2d 418 (1999).” People v. Smith, 195 Ill. 2d 179, 188

(2000).

Defendant first argues that the appellate court applied the wrong

standard of review on the prejudice prong of Strickland. Initially, the

court stated the test correctly, i.e., that defendant must show a

reasonable probability that the result of the proceeding would have

been different. However, later in the opinion, the court stated that it

could not say that the result of defendant’s trial “would have been

different” had A.C. not served on the jury. Defendant also alleges

similar inconsistencies in other cases.

Defendant is correct that the prejudice prong of the Strickland

standard does not require that a defendant demonstrate that the result

of his trial would have been different. Rather, although a defendant

must show a reasonable probability that the result of the proceeding

would have been different, “the prejudice prong of Strickland is not

simply an ‘outcome-determinative’ test but, rather, may be satisfied if

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defendant can show that counsel’s deficient performance rendered the

result of the trial unreliable or the proceeding fundamentally unfair.”

People v. Jackson, 205 Ill. 2d 247, 259 (2001); see also People v.

Evans, 209 Ill. 2d 194, 220 (2004) (“a reasonable probability that the

result would have been different is a probability sufficient to

undermine confidence in the outcome–or put another way, that

counsel’s deficient performance rendered the result of the trial

unreliable or fundamentally unfair”).

Despite the appellate court’s misstatement of the standard, we do

not find that the court erred in applying it to defendant’s case.

In addressing defendant’s ineffectiveness argument, the appellate

court found this court’s decision in People v. Metcalfe, 202 Ill. 2d

544, 562 (2002), to be dispositive of defendant’s appeal. In Metcalfe,

the defendant appealed his conviction on the ground that he was

denied his right to a fair trial when one of the members of his jury, a

woman named Grevus, indicated during voir dire that she could not

be fair and impartial. The appellate court reversed the defendant’s

conviction and remanded for a new trial, holding that the trial court

had a sua sponte duty to excuse Grevus even though defendant’s

counsel had not challenged her for cause or exercised a peremptory

challenge. During voir dire, Grevus indicated that she and her parents

had been crime victims. She had been robbed at gunpoint and the

perpetrator “got off because of a technicality.” Grevus noted that the

defendant’s attorney had tried to discredit her trial testimony

identifying the defendant as the perpetrator. Defense counsel asked

Grevus whether the result of that case would cause her to be biased

in any way. She answered that it would and stated that she felt the

perpetrator was clearly guilty. Defense counsel excused two other

prospective jurors but did not excuse Grevus. The appellate court

reviewed the defendant’s claim under the second prong of the plain-

error rule. The court found that Grevus was biased against the

defendant and held that when a prospective juror indicates bias or

prejudice and counsel does not move to excuse the prospective juror,

the trial court has a sua sponte duty to do so. This court disagreed,

holding that no sua sponte duty exists. Id. at 551, 557.

In addition, this court addressed the defendant’s argument that his

trial counsel was ineffective for failing to challenge Grevus and that

prejudice should be presumed due to the fact that an actually biased

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juror served on his jury, invoking the United States Supreme Court’s

decision in United States v. Cronic, 466 U.S. 648 (1984). This court

noted Cronic held that there are certain circumstances that are so

likely to prejudice an accused that the cost of litigating their effect in

a particular case is unjustified. This includes a complete denial of

counsel, where counsel fails to subject the prosecution’s case to any

meaningful adversarial testing. This court found Cronic to be

inapplicable, noting that an attorney’s failure in this regard must be

complete. The defendant in Metcalfe did not claim that his counsel

failed to oppose the prosecution completely during voir dire as a

whole, but only as to one prospective juror. In fact, defense counsel

had exercised five peremptory challenges. Metcalfe, 202 Ill. 2d at 560-

61. Instead, the court addressed the defendant’s argument under the

Strickland standard. Noting that defense counsel’s strategic choices

are virtually unchallengeable, this court rejected the defendant’s claim

that his counsel’s actions were deficient. It was possible that defense

counsel believed Grevus’s bias was directed at the criminal justice

system or at the prosecution, rather than at the defendant himself.

Accordingly, the court found that counsel’s decision not to challenge

Grevus was a matter of trial strategy. This court further found that,

assuming there was deficient performance, the defendant suffered no

prejudice because the evidence at trial was more than sufficient to

prove him guilty beyond a reasonable doubt. Id. at 561-62.

In his petition for leave to appeal, defendant in this case argued

that this court should “reconsider” our decision in Metcalfe because

juror bias is structural error, and since Metcalfe was decided, other

courts have held that a biased juror is inherently prejudicial. Asking

this court to reconsider Metcalfe is tantamount to asking us to

overrule that decision. It is unclear to us how we could reconsider it

without overruling it. Defendant also now argues in his brief that

Metcalfe is distinguishable because the biased juror there only might

have been biased toward the accused, whereas the biased juror here

was deeply biased against defendant. Thus, according to defendant, his

trial counsel’s failure to challenge A.C. for cause or use a peremptory

challenge to remove him from the jury was objectively unreasonable.

We first address defendant’s argument that this court should

overrule Metcalfe.

Defendant argues that prejudice should be “presumed” under

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Strickland. He argues that Strickland assumed jury impartiality in its

prejudice analysis. (Prejudice requires a “showing that counsel’s errors

were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.” Strickland, 466 U.S. at 687. “[A] fair trial is one in

which evidence subject to adversarial testing is presented to an

impartial tribunal for resolution of issues defined in advance of the

proceeding.” Id. at 685.) Defendant cites federal cases and cases from

other states which he says found juror bias prejudicial under

Strickland and he asks this court to “refine the Metcalfe analysis” or

“go in a different direction” in light of these cases. As with the request

to reconsider Metcalfe, these suggestions essentially ask this court to

overrule Metcalfe.

Defendant contends that some courts have focused on the lack of

an impartial jury and, thus, the evaluation of prejudice “requires a

showing that, as a result of trial counsel’s failure to exercise

peremptory challenges, the jury panel contained at least one juror who

was biased.” Davis v. Woodford, 384 F.3d 628, 643 (9th Cir. 2004).

Defendant cites as an example the case of People v. Vieyra, 169 P.3d

205 (Colo. App. 2007), in which the defendant alleged in

postconviction proceedings that his trial counsel was ineffective for

failing to exercise an unused peremptory challenge. The court declined

to find that prejudice is presumed when defense counsel fails to

exercise all of the defendant’s peremptory challenges, holding instead

that the defendant must establish prejudice under Strickland. The

court held that the defendant had not done so, noting that he had

failed to establish which juror he would have struck with the

remaining challenge and he had failed to establish facts suggesting bias

on the part of any of the jurors who sat on his jury. Id. at 210.

Another case defendant cites is Whitney v. State, 857 A.2d 625

(Md. App. 2004), where the defendant argued his trial counsel was

ineffective for failing to realize that defendant was entitled to 10

peremptory strikes. The trial court had told counsel that they each had

four strikes and defense counsel failed to object. She exercised all four

of the defendant’s challenges. The appellate court found that counsel’s

performance was objectively unreasonable. In discussing the prejudice

prong of Strickland, the court declined to find that prejudice was

presumed. The court stated that, considering the record, it could not

perceive any prejudice resulting from counsel’s mistake that was

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shown to have resulted in the impairment of the defendant’s right to

a fair and impartial jury and the trial was not unreliable or

fundamentally unfair. Id. at 637. In State v. Carter, 2002 WI App 55,

¶15, 641 N.W.2d 517, the court found that counsel’s failure to strike

or further question a juror who admitted bias denied the defendant an

impartial jury and rendered the outcome of the trial unreliable and

fundamentally unfair, thus presuming prejudice regardless of whether

the deficient performance had any impact on the result of the trial.

Similarly, Virgil v. Dretke, 446 F.3d 598, 613 (5th Cir. 2006), found

that the seating of biased jurors, without more, made the result of the

defendant’s trial unreliable; thus, prejudice was presumed.

Defendant argues that other cases focus on the structural nature

of jury bias. The principal case defendant cites here is Hughes v.

United States, 258 F.3d 453, 463 (6th Cir. 2001). The court held

there that the defendant’s counsel was ineffective for failing to strike

a biased juror. The court further held that the impaneling of a biased

juror requires a new trial and prejudice under Strickland is presumed.

Id.; see also State v. King, 2008 UT 54, ¶18, 190 P.3d 1283 (court

stated that had the deficient performance of the defendant’s counsel

permitted an actually biased juror to be seated, the court would

presume that the defendant’s sixth amendment right to the effective

assistance of counsel had been violated, citing Hughes with approval).

Defendant’s request to this court to overrule Metcalfe implicates

the doctrine of stare decisis. As we have explained:

“The doctrine of stare decisis expresses the policy of the

courts to stand by precedents and not to disturb settled points.

[Citation.] This doctrine is the means by which courts ensure

that the law will not merely change erratically, but will

develop in a principled and intelligible fashion. [Citation.]

Stare decisis enables both the people and the bar of this state

to rely upon [this court’s] decisions with assurance that they

will not be lightly overruled.” (Internal quotation marks

omitted.) People v. Sharpe, 216 Ill. 2d 481, 519 (2005)

(quoting Vitro v. Mihelcic, 209 Ill. 2d 76, 81-82 (2004)).

We have also acknowledged that stare decisis is not an inexorable

command. However, any departure from that doctrine must be

specially justified; prior decisions should not be overruled absent good

cause. Id. at 519-20.

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We noted in Sharpe that good cause to depart from stare decisis

exists when governing decisions are unworkable or badly reasoned. Id.

at 520. Defendant here has not shown that this is the case with our

decision in Metcalfe. Defendant merely prefers that this court adopt

a different approach to claims of ineffectiveness of counsel during jury

selection because some federal court circuits and a handful of state

courts have done so. This hardly constitutes a groundswell of

opposition to this court’s reasoning in Metcalfe.

In addition, it appears to us that the analysis defendant favors

amounts to little more than an end run around Cronic. Once it is

determined that counsel was deficient for not striking a biased juror,

prejudice is presumed because the defendant was deprived of an

impartial jury and that makes the trial fundamentally unfair. Thus, only

the deficient performance prong of the Strickland test is considered,

the defendant does not have to actually demonstrate prejudice, and a

new trial is required. This court rejected the defendant’s Cronic

argument in Metcalfe, 202 Ill. 2d at 560, and we similarly reject

defendant’s indirect attempt to revisit that argument here.

We now turn to defendant’s argument that his trial counsel was

ineffective for failing to seek juror A.C.’s removal from the jury. As

stated above, counsel’s actions during jury selection are generally

considered a matter of trial strategy. Accordingly, counsel’s strategic

choices are virtually unchallengeable. People v. Palmer, 162 Ill. 2d

465, 476 (1994).

Defendant initially argues that voir dire is not “exempt” from a

Strickland analysis. We point out, however, that this court has never

held that an attorney’s performance during voir dire is not subject to

scrutiny under Strickland, nor does defendant cite any case from this

court so holding. Rather, we have recognized, as have other reviewing

courts, that decisions made during jury selection involve trial strategy

to which courts should be highly deferential. Strickland itself

emphasized the deference due counsel’s strategic decisions:

“Judicial scrutiny of counsel’s performance must be highly

deferential. It is all too tempting for a defendant to second-

guess counsel’s assistance after conviction or adverse

sentence, and it is all too easy for a court, examining counsel’s

defense after it has proved unsuccessful, to conclude that a

particular act or omission of counsel was unreasonable.

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[Citation.] A fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s

challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time. Because of the difficulties

inherent in making the evaluation, a court must indulge a

strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered

sound trial strategy.’ See Michel v. Louisiana, [350 U.S. 91,

101 (1955)].” Strickland, 466 U.S. at 689.

Defendant portrays A.C. as unequivocally biased against him. In

doing so, defendant focuses only on the last few answers A.C. gave

in response to trial counsel’s questions. This selective focus on those

answers given by A.C. that suit defendant’s argument skews the

analysis of whether trial counsel was deficient. The entire voir dire of

A.C. should be considered in evaluating whether and to what extent

A.C. exhibited bias against defendant.

Even after saying that he believed sex offenders should be locked

up for life, A.C. stated that, notwithstanding that belief, he would be

able to listen to the evidence and render a decision apart from the sex

offender issue. He said that he did not think a sex offender

background would influence his decision on the case. Not satisfied

with that answer, defense counsel pressed A.C. to state unequivocally

that such a background would not influence his decision. Only then

did A.C. state that he could not be fair with the case. Other

prospective jurors also expressed negative feelings about sex

offenders. Trial counsel exercised peremptory challenges to some, but

not all, of these jurors. For example, juror 41 stated that he had young

children at home. He was uncertain whether he could be neutral in

making a decision about a sex offender. Defense counsel exercised a

peremptory challenge to this juror. Juror 120 stated that a member of

his family had an experience with a sex offender some years ago.

When asked if that would affect him if he were dealing with a sex

offender on an issue that had nothing to do with a sex offense, this

juror stated that it probably would not. Defense counsel did not

exercise any challenge to juror 120.

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Thus, counsel was sensitive to the fact that revealing defendant’s

sex offender status might give rise to doubt on the part of some venire

members that they could be fair and impartial. Defendant’s attorney

was faced with a difficult case, given the strong evidence against

defendant, and his chosen strategy reflected that difficulty.

Highlighting defendant’s sex offender status was a risky choice, given

largely negative views of sex offenders by the general public. Based

upon his decisions as to when to exercise peremptory challenges, it

does not appear that counsel expected prospective jurors to be able to

completely put those views aside.

Considering the entire voir dire of A.C. in context, it is possible

that defendant’s trial counsel decided that A.C. was not unequivocally

biased. In addition, there were other factors that counsel may have

taken into consideration, such as the fact that A.C. was not a native

of this country and that he had had encounters with law enforcement

officers in connection with his two speeding tickets. Attorneys

consider many factors in making their decisions about which jurors to

challenge and which to accept. As we have stated, this is part of trial

strategy, which is generally not subject to challenge under Strickland.

Reviewing courts should hesitate to second-guess counsel’s strategic

decisions, even where those decisions seem questionable.

In People v. Begay, 377 Ill. App. 3d 417 (2007), the defendant

challenged his trial attorney’s failure to seek removal of a juror for

cause. During voir dire, the juror stated that her mother had been

assaulted at knifepoint during a robbery. When the trial court asked

the juror whether that experience would affect her ability to be fair

and impartial, the juror said it would. The court then stated, “All right.

So you wouldn’t be fair, either?” The juror replied, “No.” Id. at 423.

In rejecting the defendant’s argument that her counsel’s performance

was deficient under Strickland, the appellate court theorized that

defense counsel could have believed that the juror would sympathize

with the defendant, who claimed that when the offenses occurred, she

was being attacked by a knife-wielding aggressor. Thus, the appellate

court found trial counsel’s decision to be a strategic one. Id.

Here, A.C., like the juror in Begay, stated that he could not be

fair. However, unlike the juror in Begay, A.C. had earlier stated that

he could be fair and that he believed he could put aside his prejudice

against sex offenders in defendant’s case because no sex offense was

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involved. While some might find defense counsel’s failure to challenge

A.C. questionable, this alone is insufficient to find that counsel’s

conduct was deficient under Strickland. In addition, at the time of

A.C.’s questioning, defense counsel had two remaining peremptory

challenges and three more jurors remained to be seated, as well as an

alternate. Under these circumstances, given A.C.’s conflicting answers

regarding his impartiality, we cannot say that counsel’s decision to

reserve his two remaining peremptory challenges was unreasonable.

Thus, we disagree with defendant that A.C. was “plainly and deeply

biased,” and we conclude that counsel’s actions were a part of his trial

strategy and were not deficient under Strickland.

Defendant argues that Metcalfe is distinguishable because this

court found that the prospective juror there, Grevus, could have been

biased against the State and not the defendant; thus, the Metcalfe

juror’s bias was less personal than the alleged bias of A.C. here.

However, the bias of the juror in Metcalfe was very personal. She had

been a crime victim and had had an unfavorable experience at the trial

based on her cross-examination by the defendant’s counsel. While it

is true that Grevus might have been prejudiced toward the criminal

justice system as a whole based on the fact that her attacker was not

convicted, she also may have been prejudiced against defendants and

defense attorneys. Unlike the juror in the instant case, Grevus was

definite that her experiences would affect her ability to be fair and

impartial. A.C. here at first said he could set aside his view of sex

offenders. Taking his entire voir dire questioning into account, A.C.’s

expression of bias was not unequivocal. Thus, we do not find

Metcalfe distinguishable on this basis.

Accordingly, we conclude that trial counsel’s failure to challenge

juror A.C. was not objectively unreasonable and that defendant has

failed to demonstrate that counsel’s performance was deficient under

Strickland.

CONCLUSION

For the reasons stated, we decline to overrule our decision in

Metcalfe. Further, we conclude that the failure of defendant’s trial

attorney to challenge juror A.C. during voir dire was not objectively

unreasonable. Therefore, we affirm the judgment of the appellate

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court.

Appellate court judgment affirmed.

CHIEF JUSTICE KILBRIDE, specially concurring:

Although I agree with the majority that defendant has failed to

make a sufficient showing of ineffective assistance of counsel, I

disagree with its reliance on the first Strickland prong, addressing

instead only the objective reasonableness of trial counsel’s

performance. Because the majority does not reach the merits of the

second Strickland prong, requiring a showing of prejudice, its lengthy

initial discussion of the proper standard of review for the prejudice

prong appears to be unnecessary, as Justice Karmeier notes in his

special concurrence. See slip op. at 6-11. As Justice Karmeier

correctly recognizes, if the majority does not address the merits of the

prejudice prong, its discussion of the standard of review applicable to

that prong is unnecessary. Slip op. at 15 (Karmeier, J., specially

concurring). I do not join Justice Karmeier’s special concurrence,

however, because I believe the court should have limited its discussion

to the prejudice prong.

The prejudice prong should have been addressed by the majority

for two reasons. First, the pressing need in both our appellate court

and the appellate bar for guidance on the proper standard of review of

the Strickland prejudice prong was a probable factor in this court’s

decision to allow defendant’s petition for leave to appeal. Indeed,

defendant specifically asked us to reconsider our decision in Metcalfe

because subsequently “other courts have held that a biased juror is

inherently prejudicial.” Slip op. at 8. If the need for guidance on these

questions were not a significant factor in allowing defendant’s

petition, the majority likely would not have discussed the applicable

standard of review without also addressing the merits of the prejudice

prong.

If the parties’ prejudice prong arguments are not reached, the

overall utility and precedential value of our decision will be severely

limited because our standard of review discussion will be rendered

mere dicta. If, however, this court reaches the merits of defendant’s

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prejudice prong argument, then the majority’s extensive and

persuasive discussion of the applicable standard of review becomes an

integral part of our analysis, delivering vital guidance to our appellate

court and bar.

Second, in addition to guidance, a discussion of the prejudice

prong rather than the performance prong would strengthen this

court’s decision. The greatest weakness in the majority’s analysis is its

failure to explain fully how accepting a potentially biased juror could

be a “reasonable trial strategy,” as Justice Freeman notes in his dissent

(slip op. at 23 (Freeman, J., dissenting, joined by Burke, J.)). Based

on my view that some of A.C.’s answers were not clearly responsive

and others created unresolved conflicts in his position, I disagree with

the dissent’s contention that the record must be read to show A.C.’s

bias (slip op. at 23 (Freeman, J., dissenting, joined by Burke, J.)). I

agree with the dissent, however, that here it is exceedingly difficult to

justify retaining even a potentially biased juror. This difficulty is

further multiplied when defense counsel chooses not to use either of

his remaining peremptory challenges to remove the juror.

An examination of the merits of the prejudice prong would both

eliminate this weakness in the analysis and logically proceed from our

earlier discussion of the standard of review for that prong. Rather than

focus on establishing the reasonable probability that he would not

have been convicted without A.C. on the jury, defendant appears to

rely on his argument that we should reconsider our decision in

Metcalfe. After carefully analyzing this argument, the majority

rejected it (slip op. at 11) and made clear that prejudice will not be

presumed even if “it is determined that counsel was deficient for not

striking a biased juror” (slip op. at 11). Defendant still must show “a

reasonable probability that the result of the proceeding would have

been different.” Slip op. at 6. Without that showing, he cannot meet

his burden on review. Based on my reading of A.C.’s statements and

defendant’s arguments, defendant has failed to overcome his burden

of showing a reasonable probability that A.C.’s alleged bias altered the

outcome of the trial.

Thus, while I agree with the majority’s result and its analysis of

the standard of review under the prejudice prong, I cannot support its

analysis of the performance prong. Accordingly, I respectfully concur

in the majority’s judgment but not its full analysis.

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JUSTICE KARMEIER, specially concurring:

Because I agree with the majority’s determination that defendant

has failed to demonstrate deficient performance of counsel during voir

dire, I find the majority’s discussion of prejudice unnecessary and

therefore I see no need to take a position for or against the views

expressed in that discussion. Only if the majority had determined

counsel’s performance was deficient, resulting in the seating of a

biased juror, would it be necessary to reconcile Metcalfe’s application

of the prejudice prong of Strickland with precedents of this court, and

the United States Supreme Court, suggesting that the service of one

biased juror on the jury would be plain, structural error warranting

automatic reversal.

JUSTICE FREEMAN, dissenting:

A little over three months ago, this court strongly assured that, if

facts demonstrate that a defendant has been tried by a biased jury, it

“would not hesitate to reverse defendant’s conviction, as a trial before

a biased jury would constitute structural error.” People v. Thompson,

No. 109033, slip op. at 9 (Oct. 21, 2010) (quoting People v. Glasper,

234 Ill. 2d 173, 200-01 (2009)). The indisputable facts of this case

demonstrate that the jury that decided defendant’s case included a

biased juror. The juror in question made it clear during voir dire that

he believed sex offenders like defendant should be locked up for life.

This same juror also unequivocally stated that he could not be fair in

cases involving sex offenders, like defendant. And yet, the court does

not hesitate to affirm this conviction. Because this juror’s presence on

the jury violated defendant’s right to an impartial jury, a new trial is

required. I therefore dissent.

The sixth amendment guarantees the right to an impartial jury to

all persons accused of crimes, and the fourteenth amendment extends

this guarantee to defendants tried in state courts. Duncan v.

Louisiana, 391 U.S. 145, 149 (1968). Apart from granting the right

to an impartial jury trial, the sixth amendment further entitles every

criminal defendant to effective legal counsel. Defendant contends that

it was his counsel’s ineffectiveness that prevented him from receiving

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the impartial jury to which he was entitled under the constitution.

In Strickland v. Washington, 466 U.S. 668 (1984), the United

States Supreme Court set forth a two-part test for analyzing claims of

ineffective assistance of counsel. See also People v. Albanese, 104 Ill.

2d 504 (1984) (adopting Strickland test in Illinois). In order to show

counsel was ineffective for failing to object to the presence of certain

persons on the jury, defendant must prove “counsel’s representation

fell below an objective standard of reasonableness.” (Emphasis

added.) Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). In

addition, defendant must show counsel’s deficient performance

prejudiced the defense. “This requires showing that counsel’s errors

were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.” Strickland, 466 U.S. at 687. Because a defendant

must satisfy both components of the Strickland test, the failure to

establish either is fatal to the claim. Id.

Performance Prong

The court resolves defendant’s claim solely on the basis of his

failure to establish deficient performance, holding that the juror in

question was not biased and that, in light of the entire voir dire, “it is

possible that defendant’s trial counsel decided that [the juror] was not

unequivocally biased.” Slip op. at 13. The court further concludes that

because attorneys consider many factors in making their decisions

about which jurors to challenge and which to accept, counsel’s

decision in this case “is part of trial strategy.” Id. As such, his decision

is generally not subject to challenge under Strickland, which means

that this court “should hesitate to second-guess” the decision. Id. I

disagree with this analysis because it transforms the deference

afforded counsel’s decision into nothing more than a judicial

rubberstamp of counsel’s actions. While courts should, of course, be

wary of second-guessing counsel’s action, that hesitancy does not

mean turning a blind eye to deficiencies in performance that render the

resulting trial constitutionally flawed.

It goes without saying that “[a]mong the most essential

responsibilities of defense counsel is to protect his client’s

constitutional right to a fair and impartial jury by using voir dire to

identify and ferret out jurors who are biased against the defense.”

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Miller v. Francis, 269 F.3d 609, 615 (6th Cir. 2001); see United

States v. Blount, 479 F.2d 650, 651 (6th Cir. 1973) (“The primary

purpose of the voir dire of jurors is to make possible the empanelling

of an impartial jury through questions that permit the intelligent

exercise of challenges by counsel.” ); see also Rosales-Lopez v. United

States, 451 U.S. 182, 188 (1981) (acknowledging that voir dire “plays

a critical function in assuring the criminal defendant that his Sixth

Amendment right to an impartial jury will be honored”). Under

Strickland, defense counsel, however, is granted deference when

conducting voir dire. Hughes v. United States, 258 F.3d 453, 457 (6th

Cir. 2001). “An attorney’s actions during voir dire are considered to

be matters of trial strategy. [Citation.] A strategic decision cannot be

the basis for a claim of ineffective assistance unless counsel’s decision

is shown to be so ill-chosen that it permeates the entire trial with

obvious unfairness.” Id. Despite this strong presumption that

counsel’s decisions are based on sound trial strategy, it is insufficient

for counsel to simply articulate a reason for an omission or act alleged

to constitute ineffective assistance of counsel. “The trial strategy itself

must be objectively reasonable.” Miller 269 F.3d at 616.

Because defendant’s claim for ineffective assistance of counsel is

based on his trial counsel’s failure to strike a biased juror, defendant

must show that the juror was actually biased against him. Hughes, 258

F.3d at 458 (quoting Goeders v. Hundley, 59 F.3d 73, 75 (8th Cir.

1995), citing Smith v. Phillips, 455 U.S. 209, 215 (1982)). Generally,

a juror’s “express doubt as to her own impartiality on voir dire does

not necessarily entail a finding of actual bias,” and the United States

Supreme Court has routinely “upheld the impaneling of jurors who

had doubted, or disclaimed outright, their own impartiality on voir

dire.” Id. (analyzing cases).What makes this case different from those

cases where the empaneling of jurors who have indicated bias have

been upheld is that, in such cases, the challenged jurors gave some

subsequent reassurance of impartiality or were sufficiently

rehabilitated by counsel with follow-up questions. See Miller v.

Francis, 269 F.3d 609 (6th Cir. 2001). However, a different result

obtains when follow-up questioning does not result in either a

reassurance of impartiality or rehabilitation.

Hughes v. United States, 258 F.3d 453 (6th Cir. 2001), illustrates

these principles. There, the defendant was tried for theft of

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government property. During voir dire, a juror indicated that because

of her family ties with law enforcement officers, she “did not think”

she “could be fair.” Hughes, 258 F.3d at 455. The trial judge replied

“You don’t think you could be fair?” to which the juror simply

responded, “No.” Hughes, 258 F.3d at 456. The court of appeals held

that counsel’s failure to strike the juror constituted ineffective

assistance of counsel. Actual bias was present because there was no

follow-up to the juror’s statement that she “could not be fair.”

According to the court, when left with only a statement of partiality

without a subsequent assurance of impartiality or rehabilitation

through follow-up questions, juror bias can always be presumed from

such unequivocal statements. Hughes, 258 F.3d at 460.

The federal courts have spoken at length about jurors’ phrases

such as “I think I can be fair,” noting that such statements “are not

necessarily construed as equivocation.” Miller v. Webb, 385 F.3d 666,

675 (6th Cir. 2004). In Miller v. Webb, for example, the court

acknowledged “venire members commonly couch their responses to

questions concerning bias in terms of ‘I think.’ Therefore, the use of

such language cannot necessarily be construed as equivocation.

[Citation.] For a juror to say, ‘I think I could be fair, but ...,’ without

more, however, must be construed as a statement of equivocation. It

is essential that a juror swear that [she] could set aside any opinion

[she] might hold and decide the case on the evidence.” (Internal

quotation marks omitted.) Miller, 385 F.3d at 675. Thus, when a juror

makes a statement that she “thinks she can be fair,” but immediately

qualifies it with a statement of partiality, courts presume actual bias

because proper juror rehabilitation and juror assurances of impartiality

are absent. Miller, 385 F.3d at 675. This is so because courts have

recognized that the sixth amendment guarantees the right to a jury that

will hear the case impartially, not one that “tentatively promises to

try.” Wolfe v. Brigano, 232 F.3d 499, 502-03 (6th Cir. 2000).

The Seventh Circuit has also acknowledged the problems inherent

with juror statements regarding the ability to be fair. In Thompson v.

Altheimer & Gray, 248 F.3d 621 (7th Cir. 2001), the court held that

a trial judge committed error by failing to strike for cause a juror

whose responses to voir dire questioning manifested a degree of bias.

The juror stated the following during voir dire questioning: “I think

I bring a lot of background to this case, and I can’t say that it’s not

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going to cloud my judgment. I can try to be as fair as I can, as I do

every day.” Id. at 624. The trial judge in reviewing the statements

noted that the juror “said she would try to be fair, but *** expressed

no confidence in being able to succeed in the attempt.” (Emphasis

omitted.) Id. at 626. Judge Posner, writing for the court, which was

unanimous on this issue, noted that if the juror had “said she could not

be fair, the judge would of course have had to strike her for cause.”

(Emphasis in original.) Id.

Challenges for cause are subject to approval by the trial court, and

the court must excuse a prospective juror if actual bias is discovered

during voir dire. As the foregoing discussion makes clear,

notwithstanding the general deference given to trial counsel’s strategic

decisions, courts will find deficient performance under Strickland if an

impaneled juror’s honest responses to questions on voir dire would

have given rise to a valid challenge for cause.

The court today does not acknowledge any of the foregoing

principles and does not review the voir dire in light of them. The voir

dire at issue in this case began with the judge asking general questions

about the juror’s ability to be fair. At this point, there had been no

mention of registered sex offenders, but that changed once defense

counsel brought up the subject of fairness to registered sex offenders

to the juror:

“[Defense counsel]: I will ask a question that seems to be

getting concern here. If you are aware of somebody who is a

registered sex offender, how do you feel about that?

A. Feel should be locked up for life.

Q. Locked up for life. What if the law permitted that he

not be locked up for life or she not be locked up for life? Do

you still think that should be the case? Do you think you

would be able to listen to a case and render a judgment on a

case that’s separate and distinct from the sex offender case?

A. Yes.

Q. Even though that person may have that background?

A. Yes.

Q. Is that background going to influence you at all do you

believe in your decision in this case?

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A. I don’t think so.

Q. You don’t think so?

A. No.

Q. Can you be more specific? Can you say that it’s not

going to?

A. No.

Q. You cannot?

A. No. I said it’s not going to change. I cannot be fair with

the case.

Q. You can be fair or you cannot?

A. No, I cannot be fair.

Q. You can be fair?

A. No, I cannot be fair. I could not be fair also.”

It is clear that once the juror stated that sex offenders should “be

locked up for life,” defense counsel attempted to rehabilitate the juror

in the manner set forth in the cases I discussed earlier. The problem,

though, is that the juror was not amenable to rehabilitation. Indeed,

the juror’s response of “yes” to defense’s counsel’s ambiguous and

compound questions cannot be read as an affirmative statement of

impartiality because it is difficult to tell to which part of the compound

questions he was responding. The most that could be said of that

exchange is that it is ambiguous. Then, when the juror stated that he

“didn’t think” a sex offender background would influence him, defense

counsel properly attempted to rehabilitate the juror by having him

state affirmatively whether he could or could not be fair. The more

defense counsel attempted to do this, the more the juror became

unequivocal, repeating four times that he “cannot be fair.” As the

Sixth Circuit pointed out in Miller, when a juror, such as the one here,

makes a statement indicating that he thinks he can be fair, but then

immediately qualifies it with a statement of partiality, courts may

presume actual bias due to the absence of proper rehabilitation and

assurances of impartiality. Miller, 385 F.3d at 675. Once the juror

here continued to state that he could not be fair, it amounted to an

express and unrebutted admission of bias. In other words, there was

an absence of an affirmative and believable statement that this juror

could set aside his opinion of sex offenders and decide the case on the

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evidence and in accordance with the law. This juror was unable to

“swear that [he] could set aside any opinion [he] might hold and

decide the case on the evidence.” Id.

Defendant’s reliance on this latter portion of the voir dire does not

“skew[ ]” the analysis of whether counsel was ineffective, as the court

today suggests. Slip op. at 12. Rather, it affirmatively demonstrates

that, in response to follow-up questioning, the juror could not state

for the record that he could be fair, but rather insisted that he could

not be fair. Thus, I have no trouble concluding that this juror was

actually biased against defendant. I therefore strongly disagree with

the court’s conclusion that the juror was not even biased to begin

with, an incredible holding in light of the transcript. Id. at 14.

The court also states that because defendant’s status as a sex

offender was important to the defense’s theory of the case, counsel’s

“strategic” decision to seat him is “virtually unchallengeable.” Id. at

8. What this strategy was with respect to this juror is never explained

by the court and for good reason: having a juror who has stated that

(1) he cannot be fair toward sex offenders and (2) sex offenders

should be locked up forever cannot objectively be considered

reasonable trial strategy in a case involving a sex offender. In light of

his statements, the juror could not have given any credence to the

defense’s theory. Indeed, according to this juror, defendant should not

have even been walking the streets in the first place due to his prior

sex offense conviction. “Virtually unchallengeable” does not mean that

a court of review must suspend all disbelief. Rather, the reviewing

court must be able to identify an “objectively” reasonable strategy

(Miller, 269 F.3d at 616), a fact acknowledged by the Chief Justice in

his special concurrence. See slip op. at 16 (Kilbride, C.J., specially

concurring) (noting his disagreement with the court’s “analysis of the

performance prong”). The cases I cited earlier in this opinion amply

demonstrate that Strickland’s deferential review of trial strategy does

not require courts of review to accept without question that this was

“reasonable” trial “strategy.” I would therefore hold that counsel’s

failure to strike the juror constituted deficient performance under

Strickland.

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Prejudice Prong

This court, in both Glasper and Thompson, recognized that a trial

before a biased juror would constitute structural error. “[S]tructural

defects in the constitution of the trial mechanism *** defy analysis by

‘harmless-error’ standards.” Arizona v. Fulminante, 499 U.S. 279,

309-10 (1991). The presence of a biased juror is no less a fundamental

structural defect than the presence of a biased judge. Id. As the Eighth

Circuit explained in Johnson v. Armontrout:

“Trying a defendant before a biased jury is akin to providing

him no trial at all. It constitutes a fundamental defect in the

trial mechanism itself. As the district court noted:

‘A defendant charged with a crime is entitled to an

unbiased jury and is entitled to a presumption of innocence

until such time as he is proven guilty beyond a reasonable

doubt. Where you have jurors who before they have heard

any evidence are convinced that the defendant is guilty

[they are] clearly biased against the defendant. [This]

denies the defendant the presumption of innocence and

denies him a fair trial. Are only the innocent entitled to an

unbiased jury or does the right of due process also entitle

the guilty to an impartial trial? This court is of the opinion

that both the innocent and the guilty are entitled to start a

trial without any member of the jury convinced of the

defendant’s guilt.’

Johnson v. Armontrout, No. 90–3426–CV–S–2, slip op. at 7

(W.D. Mo. June 18, 1991). We agree that, in the absence of

a strategic motive, a defendant whose attorney fails to attempt

to remove biased persons from a jury panel is prejudiced.”

Johnson v. Armontrout, 961 F.2d 748, 755 (8th Cir. 1992).

Essentially, Armontrout and the other federal cases like it, including

those cited by defendant, view the resulting trial in instances where a

biased juror has been impaneled as unreliable. It is unreliable because

attempting to weigh this type of error against notions such as the

weight of the evidence or the strength of the State’s case cannot be

done. Why? Because a biased juror is simply not open to weighing

credibility or assessing fairly the competing theories of the case. Jury

instructions that explain legal concepts such as credibility

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determinations and burdens of proof are of no moment to the biased

juror. Stated simply, the biased juror does not care at all about the

relative strengths and weaknesses of the parties’ evidence and pays no

heed to jury instructions. As a result, all the factors that normally

work to present a court of review with a “reliable” verdict on appeal

are absent when a biased juror sits on a jury. The prejudice prong of

Strickland recognizes as much–prejudice is established upon a

“showing that counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.” Strickland,

466 U.S. at 687.

Our decision in People v. Metcalfe, 202 Ill. 2d 544, 562 (2002),

did not discuss the reliability aspect of the Strickland analysis.

Defendant’s argument, incorrectly characterized by the court as one

that seeks the overruling of Metcalfe (slip op. at 8), merely asks this

court to further clarify the prejudice prong in cases regarding the

impaneling of a biased juror, as the federal courts have done. We need

not overrule Metcalfe to do that, and it is unfair for the court today to

suggest otherwise.1

In any event, it appears that a majority of this court adheres to the

view that even if a biased juror sits on the jury, a defendant must

nevertheless show a reasonable probability that the result of the

proceeding would have been different. See slip op. at 6; see also id. at

16 (Kilbride, C.J., specially concurring). That viewpoint is

incompatible with the United States Supreme Court’s pronouncement

that the participation of such a juror in a trial renders it unreliable and

necessitates that the conviction be reversed. United States v.

Martinez-Salazar, 528 U.S. 304, 316 (2000). It is this unreliability

1

Why the court even reaches the question of whether Metcalfe should be

overruled is never explained. The court holds that defendant has not satisfied

the deficiency prong of Strickland. As noted earlier, the failure to establish

either prong is fatal to an ineffectiveness claim. If counsel’s decision to seat

a juror the court believes was not even biased was objectively reasonable,

then it need not speak to the issue of prejudice at all and its discussion of

Cronic and Metcalfe is purely advisory. This court does not render advisory

opinions. See Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 266

(2010) (Karmeier, J., concurring in part and dissenting in part, joined by

Garman, J.). Justice Karmeier’s special concurrence illustrates my point.

-25-

that satisfies the prejudice prong of Strickland. As the Supreme Court

pointed out, the assessment of prejudice articulated in Strickland

“proceed[s] on the assumption that the decisionmaker is reasonably,

conscientiously, and impartially applying the standards that govern the

decision.” Strickland, 466 U.S. at 695. Obviously, a biased juror

cannot “impartially” apply the standards that govern the decision, and

that is the prejudice that defendant has suffered. In this case, although

defendant was constitutionally entitled to 12 impartial jurors, his

attorney’s conduct resulted in defendant receiving only 11 impartial

jurors. See Parker v. Gladden, 385 U.S. 363, 366 (1966) (per

curiam) (noting, defendant is “entitled to be tried by 12, not 9 or even

10, impartial and unprejudiced jurors”). The Supreme Court

specifically warned against the mechanical applications of the

standards announced in Strickland:

“A number of practical considerations are important for

the application of the standards we have outlined. Most

important, in adjudicating a claim of actual ineffectiveness of

counsel, a court should keep in mind that the principles we

have stated do not establish mechanical rules. Although those

principles should guide the process of decision, the ultimate

focus of inquiry must be on the fundamental fairness of the

proceeding whose result is being challenged. In every case, the

court should be concerned with whether, despite the strong

presumption of reliability, the result of the particular

proceeding is unreliable because of a breakdown in the

adversarial process that our system counts on to produce just

results.” Strickland, 466 U.S. at 696.

The right to a trial before an impartial jury is the core principle of

the American criminal justice system. The court’s decision today

leaves the unsettling impression that this most sacrosanct of rights is

not being fully honored.

JUSTICE BURKE joins in this dissent.

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