People v. Brown

ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Brown, 2013 IL App (2d) 111228

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

Caption MARISSA L. BROWN, Defendant-Appellant.

District & No. Second District

Docket No. 2-11-1228

Filed May 6, 2013

Held Defendant’s convictions for felony disorderly conduct based on her false

(Note: This syllabus report to public employees that she had been threatened by a person with

constitutes no part of a handgun were vacated and the cause was remanded for a new trial, since

the opinion of the court the trial court’s decision to allow the State to exercise a peremptory

but has been prepared challenge to excuse a juror in the middle of defendant’s trial was both

by the Reporter of constitutional and statutory error, as well as structural error warranting

Decisions for the automatic reversal.

convenience of the

reader.)

Decision Under Appeal from the Circuit Court of Winnebago County, No. 10-CF-543; the

Review Hon. Rosemary Collins, Judge, presiding.

Judgment Vacated and remanded.

Counsel on Samuel E. Adam, of Law Offices of Samuel E. Adam, of Chicago, for

Appeal appellant.

Joseph P. Bruscato, State’s Attorney, of Rockford (Lawrence M. Bauer

and Marshall M. Stevens, both of State’s Attorneys Appellate

Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE McLAREN delivered the judgment of the court, with opinion.

Presiding Justice Burke and Justice Hudson concurred in the judgment

and opinion.

OPINION

¶1 Defendant, Marissa L. Brown, appeals from her convictions on three counts of felony

disorderly conduct (720 ILCS 5/26-1(a)(4) (West 2010)) (making a false report to public

employees). She asserts that we should vacate her convictions and remand for a new trial

because the court, in the middle of the trial, allowed the State to exercise a peremptory

challenge to excuse a juror (Carl Posley). Following United States v. Harbin, 250 F.3d 532

(7th Cir. 2001), we conclude that allowing the State to so exercise the challenge was

structural error. We therefore vacate defendant’s convictions and remand for a new trial.

¶2 I. BACKGROUND

¶3 On February 17, 2010, a grand jury indicted defendant on four counts of disorderly

conduct. Each count charged defendant with, on January 5, 2010, telling a public employee

or peace officer that an aggravated assault had occurred when no reasonable basis existed for

defendant to believe that the offense had occurred. All counts related to defendant’s report

that a person had threatened her with a handgun in the restroom of Rockford’s Roosevelt

School; each count related to a different person’s hearing the report.

¶4 The pretrial filings showed that the parties were concerned about ties between the

incident resulting in these charges and the shooting death of Mark Barmore by two Rockford

police officers. The connection is not fully explained in the record, but the gist of it is clear

from the record: defendant, before the incident, was a witness to Barmore’s fatal shooting,

which occurred in a local church where defendant’s parents were the pastors.

¶5 The State sought to exclude any reference to the Barmore matter at trial. In a motion in

limine it asked:

“[That] this court specifically exclude and rule as inadmissible *** all evidence or

testimony mentioning, alluding to, or in any way concerning the shooting of Mark

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Barmore on August 24, 2009, Mark Barmore’s name, the name of any family member

not previously disclosed to the People in the defense’s trial witness list and the

defendant’s or any other person’s involvement in that or any other matter concerning

Mark Barmore [except with explicit permission of the court on motion made outside the

presence of the jury].”

It also sought to bar any evidence that defendant’s actions were the result of post-traumatic

stress syndrome or other mental illness. The court granted those motions.

¶6 The record–which covers the court dates at which one would expect the court to have

given counsel any jury selection instructions that it might have deemed necessary–shows no

instructions specific to peremptory challenges.

¶7 None of the witnesses (whose names the court read at voir dire) had any obvious

connection to the Barmore case. No one gave defendant’s parents’ names to the potential

jurors. None of the questions asked of the potential jurors related to the Barmore case.

¶8 The voir dire of juror Posley was unremarkable. Asked if he had any “close friends or

relatives” employed in law enforcement, he said that he had a cousin and a friend on the

Rockford police force. He said that these connections would not cause him to be biased.

¶9 The State apparently used two of its peremptory challenges in selecting the regular jurors,

defendant seven. At least two dismissals were potentially ambiguous as transcribed.

¶ 10 Angela Carter, the State’s first witness, testified that she was the principal of Roosevelt

Alternative High School. On January 5, 2010, she was working in her office when

defendant’s parents came into the office. She spoke to the parents for a while. Based on what

she heard, she called two other school employees to meet with her. With those two and the

parents present, Carter made a phone call to defendant. At first, defendant was mumbling and

unintelligible. After Carter told her to calm down, defendant said that she had gone into a

restroom at school and someone had approached her with a gun. He had waved the gun at

her and had told her to shut up. Carter testified further about defendant’s description of the

incident. In addressing Carter, the State referred to defendant’s parents as “the Browns.”

¶ 11 On cross-examination, defense counsel asked Carter if she knew defendant’s parents:

“Q. [DEFENSE COUNSEL]: And so you knew who [defendant’s] mother was–

A. [CARTER]: (Interjecting) Uh-huh.

Q. (Continuing)–when she arrived that day, is that fair?

A. Yes.

Q. And you knew her father, is that fair?

A. (Pauses) I–I met her father on that day.

Q. But you knew that they were pastors–

A. (Interjecting) Yes.

Q. (Continuing)–in the community?

A. Uh-huh.

Q. And you knew that Miss–Miss Brown–in fact, you see her here in court?

A. (Pauses) I don’t have my glasses on. I’m sorry.

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Q. Okay.

A. But I think that’s her there (indicating).”

The colloquy suggests that counsel had Carter identify defendant’s mother in the courtroom

audience. The State did not object.

¶ 12 Another student who had been in the restroom with defendant was the State’s next

witness. She had not seen anything unusual.

¶ 13 After a brief recess, the court told the parties that, when one juror–Posley–heard about

defendant’s parents, and that they were pastors, he realized that defendant’s parents’ church

was the one where Barmore died; Barmore was his cousin. The State suggested that it might

have a challenge for cause; the court agreed that that was possible and asked to speak to

Posley. Posley said that he had not had any contact with defendant or her parents, but knew

of their tie to the shooting. He did not think that his connection to Barmore would affect his

impartiality. The State and defendant questioned Posley. He reasserted to defendant that he

did not think the connection would affect his service. The State asserted that Posley appeared

to be upset. He agreed that the incident had been traumatic, but said that putting it aside

would not be hard for him.

¶ 14 The State then argued to the court that Posley should be off the jury. It asserted that

Posley would necessarily have information about the Barmore incident. Defendant argued

that Posley had said that he could and would be fair. The court responded to defendant as

follows:

“Well, you are right. I don’t know that I would have struck him for cause, um, but I

think that there is a chance that the State would have used a peremptory. I mean that’s

why we–that’s why the Court entered the motion or agreed with the parties that there

would be no referral to the Barmore case. *** This isn’t related to the Barmore case. This

is Marissa Brown’s case, and she has the right to have a jury decide this case based on

the facts and circumstances of this case, um, without any prejudice that may attach to

anything connected to the Barmore case.

Um–(pauses)–so, State, you are asking me to let you exercise a peremptory challenge

at this time?

[THE STATE]: Yes, Your Honor.

And–and I would indicate that, um, there was a relative to someone else that was

struck in addition. And we would absolutely have used a peremptory had this information

come forward, um,–(pauses)–and we are asking to do that at this point.

THE COURT: Yeah. The State had not used all their peremptories. They still had

some left. So it’s not as if they were in a situation where there would not be any

peremptories left.

This information was brought out really, uh, as a result of the defense, uh,

behavior–defense attorney’s behavior, uh who had these people identified in court, ***

made a–fairly large deal of the fact that they were pastors in a local church, and, uh–and,

in fact, had a witness identify them in court. So it is certainly an issue that I think should

have been brought to the Court’s attention ahead of time so that we could have

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named–put their names on the list to see if they had any contact with them. If they were

going to be prominent players in this trial, uh, which is exactly what the defense attorney

has–has done, um, by, uh–his comments during this, then we could have addressed this

issue ahead of time.

Over defense objection I’m gonna allow the State to use a peremptory. This juror will

be excused; and we’ll be moving, uh, our first alternate, then, into that position.”

Defendant argued that it was the State who had first mentioned defendant’s parents. The

court responded:

“They brought her parents up. They referred to her as her parents [sic]. They’re not

the ones who brought up who they were, what church that–you know, that they were

pastors of a church, that had the witness identify them in court or named them by first

name. I do not recall the State referring to them, uh, by any other than their last name.”

The court dismissed Posley, seated the alternate juror, and the trial resumed with the

testimony of more witnesses for the State. Defendant also presented evidence, including her

own testimony.

¶ 15 The jury found defendant guilty on three of the four counts of disorderly conduct.

Defendant moved for a new trial, arguing, inter alia, that the court “erred in allowing the

State to dismiss[ ] Mr. Posley[ ] as a juror[ ] because he was the cousin of Mark Baremore

[sic].” She further argued that it was error for the court to allow the State to use a peremptory

challenge after the juror was sworn and trial had started.

¶ 16 The court sentenced defendant to 24 months’ probation. Defendant timely appealed.

¶ 17 II. ANALYSIS

¶ 18 On appeal, defendant argues that the court erred in allowing the State to exercise a

peremptory challenge midtrial, and that this was necessarily reversible error. The State

responds that the court’s error, if any, was harmless because the court had the discretion to

remove Posley for cause and there is no showing that defendant was convicted by a biased

jury. It also implies that defendant was the source of the problem because she pushed the

limits of the order in limine when she emphasized the identity of her parents.

¶ 19 “It has long been recognized that once a juror has been accepted and sworn, neither party

has the right to peremptorily challenge that juror.” People v. Peeples, 205 Ill. 2d 480, 520

(2002). In People v. Castro, 146 Ill. App. 3d 629 (1986), we acknowledged that principle but

went on to hold that, at least before the trial begins, the trial court has the discretion to allow

the parties to exercise peremptory challenges to sworn jurors. See Castro, 146 Ill. App. 3d

at 630-31 (the trial court did not abuse its discretion in allowing the State to peremptorily

challenge a sworn juror in light of new information). Here, in light of new information, the

trial court allowed the State to peremptorily challenge a sworn juror, but only after the trial

had begun. We find no Illinois decision that has addressed whether the trial court’s discretion

extends that far, assuming that such discretion exists at all.

¶ 20 As that dearth of authority shows, the use of a peremptory challenge after the jury has

begun to learn the facts of a case–and has begun, perhaps visibly, to form an opinion about

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those facts–is an extraordinary departure from settled practice. Indeed, in Harbin, the only

case we find on point, the court deemed it “unprecedented.” Harbin, 250 F.3d at 537.

Accordingly, for a relevant analysis, we look to that case. There, the court held that the

midtrial use of a peremptory challenge was structural error and thus automatically reversible;

no harmless-error analysis was required. Though of course we are not bound by that decision,

we deem it persuasive and follow it. See People v. Nash, 409 Ill. App. 3d 342, 352 (2011).

¶ 21 Six days into a trial on charges relating to the distribution of cocaine, “Juror M” sent the

court a note saying that he knew a prosecution witness or the mother of a prosecution

witness. Harbin, 250 F.3d at 538. On questioning, Juror M explained the relationship, which

was not close, and the interaction that had revealed the relationship. He said that the

connection, which arose through his participation in Narcotics Anonymous, would not affect

his impartiality. Harbin, 250 F.3d at 538. On further questioning, he said that his history of

narcotics use also would not affect his impartiality. Harbin, 250 F.3d at 538.

¶ 22 The trial court declined to discharge Juror M for cause. Harbin, 250 F.3d at 538.

However, over the defendants’ objection, “the court nevertheless allowed the government

to exercise one of its peremptory challenges ‘left over’ from jury selection, based on the

newly discovered information.” Harbin, 250 F.3d at 538.

¶ 23 The Harbin court started its analysis by explaining why the midtrial use of a peremptory

challenge was “statutory error” (Harbin, 250 F.3d at 539-40):

“Not surprisingly, the rule which delineates the federal right to peremptory challenges,

Fed. R. Crim. P. 24, does not explicitly address the use of peremptory challenges mid-

trial. But peremptory challenges by their very nature are a jury selection tool, and have

historically and uniformly been limited to the pre-trial jury selection process. *** In fact,

the ability to remove jurors with peremptory challenges mid-trial is a significant weapon.

At that time, the parties have had the opportunity to observe the demeanor of the jurors

and to employ that knowledge in their decision. It would fundamentally alter the

peremptory challenge to allow its use in this manner.” Harbin, 250 F.3d at 539.

The court further noted that Rule 24 allowed for no more than six alternate jurors, a number

that “would be woefully inadequate” if the parties “were allowed to ‘save’ their peremptory

challenges for use during the trial.” Harbin, 250 F.3d at 539.

¶ 24 The Harbin court went on to reject the claim that the discovery of new information was

a basis for reviving the right to peremptory challenges:

“If *** new information impacted [a] juror’s impartiality, the juror could be removed for

cause. Absent that, however, the prosecutor does not have the discretion to remove a

juror mid-trial. *** We have no desire to unleash fishing expeditions during trial

designed to elicit ‘new information’ concerning seated jurors deemed undesirable, nor

do we wish to encourage parties to refrain from submitting questions on voir dire in

order to leave open avenues for challenges during trial. Peremptory challenges are a tool

of jury selection as is evidenced by the consistent practice and the provisions for alternate

jurors, and they have no place during the trial.” Harbin, 250 F.3d at 539.

¶ 25 In Illinois, two provisions delineate the right to peremptory challenges: Illinois Supreme

Court Rule 434 (eff. May 1, 1985) and section 115-4 of the Code of Criminal Procedure of

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1963 (725 ILCS 5/115-4 (West 2010)). As noted, those provisions do not convey a right to

use peremptory challenges on sworn jurors, before or during trial. See Peeples, 205 Ill. 2d

at 520. More significantly, however, like Rule 24, those provisions do not expressly

authorize any use of peremptory challenges during trial. See Ill. S. Ct. R. 434(d) (eff. May

1, 1985); 725 ILCS 5/115-4(e) (West 2010). As the Harbin court noted, this is perfectly

consistent with the common definition of peremptory challenges. Further, though Rule 434

does not specify a maximum number of available alternates (Ill. S. Ct. R. 434(e) (eff. May

1, 1985)), section 115-4 allows for no more than two, and so it could not practicably

authorize midtrial peremptory challenges. See 725 ILCS 5/115-4(g) (West 2010). Thus,

regardless of the new information that was revealed about Posley, the State’s use of a

peremptory challenge to strike him was error.

¶ 26 In Harbin, having found “statutory error,” the court went on to find a violation of the

defendants’ due-process rights. The court noted that the trial court had instructed the parties

that peremptory challenges “could not be used once a potential juror was passed, and that

subsequent challenges would be limited to challenges for cause.” Harbin, 250 F.3d at 540.

The defendants had relied on that instruction and used all of their peremptory challenges

before trial. Harbin, 250 F.3d at 538. Thus, during trial, the court not only changed the rules

of the game, but did so when only the prosecution could play:

“The prosecution was unilaterally granted control over the composition of the jury during

the trial stage. Moreover, the lack of notice effectively precluded the defendants from

intelligently exercising their peremptory challenge rights. That skewed the jury selection

process in favor of the prosecution, and adversely impacted the ability of the peremptory

challenge process to fulfill its function as a means of ensuring an impartial jury and a fair

trial. Accordingly, the defendants’ due process rights were violated by a jury selection

process that failed to minimally inform them of the procedures that ultimately were

followed, and by the decision to allow the government to unilaterally alter the

composition of the jury mid-trial.” Harbin, 250 F.3d at 541-42.

¶ 27 Here, unlike in Harbin, the trial court had not instructed the parties that peremptory

challenges could not be used during trial. However, we do not see this absence as crucial,

since, as noted, Rule 434 and section 115-4 already conveyed as much. Further, though no

explicit count was kept, it appears that defendant, like the defendants in Harbin, used all of

her peremptory challenges before trial.1 Thus, it appears that the trial court likewise changed

the rules when only the State could play. Cf. Castro, 146 Ill. App. 3d at 631 (because the trial

court gave both parties the opportunity to peremptorily challenge a sworn juror, the State did

not receive an “ ‘unfair advantage’ ”).

1

Rule 434 provides for 7 peremptory challenges in a felony case (Ill. S. Ct. R. 434(d) (eff.

May 1, 1985)), while section 115-4 provides for 10 (725 ILCS 5/115-4(e) (West 2010)). The

appellate court has consistently held that Rule 434 trumps section 115-4. See People v. Hendrix, 250

Ill. App. 3d 88, 104 (1993); People v. Harbold, 220 Ill. App. 3d 611, 619 (1991); People v.

Colclasure, 200 Ill. App. 3d 1038, 1042 (1990); People v. Whitlock, 174 Ill. App. 3d 749, 769

(1988); cf. People v. Daniels, 172 Ill. 2d 154, 160 n.1 (1996) (supreme court declined to resolve

whether Rule 434 preempts section 115-4).

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¶ 28 We hasten to add that, even if defendant, like the State, did not use all of her peremptory

challenges before trial, the trial court did not suggest that she, like the State, was at liberty

to use one during trial. Instead, though the court did note that the State had not used all of

its peremptory challenges, it allowed the State to use one only in response to the “defense

attorney’s behavior.” The State defends the action on precisely that basis, asserting that

defendant, by referring to her parents, arguably violated the order in limine. However, the

court’s response to that arguable violation was to allow the State, as in Harbin, “to

unilaterally alter the composition of the jury mid-trial.” Harbin, 250 F.3d at 542. Allowing

the State to invade an impartial jury is not a proper sanction for a violation of an evidentiary

order. On the contrary, as in Harbin, it works a violation of due process.

¶ 29 Finally, having found both statutory and constitutional error, the Harbin court concluded

that the error was automatically reversible: it produced a “structural defect[ ] affecting the

framework in which the trial proceeds” (Harbin, 250 F.3d at 542), such that a harmless-error

analysis was inappropriate. This was because, again, the error compromised the impartiality

of the jury:

“[V]iewing the error strictly in light of precedent addressing peremptory challenges,

automatic reversal is required. *** Here, *** the error calls into question the impartiality

of the jury because it cripples the device [(peremptory challenges)] designed to ensure

an impartial jury by giving each party an opportunity to weed out the extremes of

partiality. Therefore, the presumption [that the jury is impartial] is inapplicable. ***

Any other holding would effectively eliminate the ability of defendants to appeal any

restrictions on peremptory challenges, thus frustrating the peremptory challenge device

as a means of ensuring an impartial jury. Some examples may illustrate the problem.

Consider the scenario in which the district court rules that the defendants must use their

peremptory challenges pre-trial, but that the government could use them at any point in

time before the jury retired to deliberate. Or, the situation in which the court determines

that only the government, and not the defendant, will be allowed the use of peremptory

challenges. [Citation.] Both examples may seem farfetched, but so did the use of a

peremptory challenge mid-trial before this case. In each instance, the framework in which

the trial proceeds is fundamentally altered, with an effect that is difficult to establish. Are

we to say that reversal is inappropriate in those instances because the jury that actually

sat was impartial, based on the fiction that the challenges for cause eliminated all biased

jurors and that peremptory challenges are a statutory creation not constitutionally-

required? *** [A] system that grants the right to only one party threatens that goal of an

impartial jury by skewing the jury towards the favored party. *** We cannot tolerate a

system in which control over the jury rests in the exclusive domain of one party during

a particular stage of the proceedings. That is a structural error that requires automatic

reversal.” Harbin, 250 F.3d at 548-49.

¶ 30 Here, the same is true. The State, after having been able to observe Posley’s reactions to

the opening statements and to the testimony of two important witnesses, was allowed the

choice whether to keep him on the jury. As in Harbin, that kind of intervention is

incompatible with proper functioning of safeguards to the jury’s impartiality. It amounts to

structural error, requiring automatic reversal. See also People v. Robinson, 299 Ill. App. 3d

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426, 437 (1998) (“the denial or impairment of defendant’s peremptory right is reversible

error and a showing of prejudice to defendant is not necessary”).

¶ 31 The State responds that any error was harmless because the trial court had the discretion

to remove Posley for cause and nothing indicates that “a biased juror actually sat.” Castro,

146 Ill. App. 3d at 631. However, the court suggested that it was leaning against removal for

cause, and with good reason. Indeed, the record is consistent with Posley’s having been a

qualified juror in spite of his connection to Barmore. The connection between this case and

the Barmore matter was merely a curious sidelight. Thus, Posley’s recognition of defendant’s

association with the matter would not have necessarily instilled a bias in his mind. Moreover,

nothing in Posley’s statements suggested that his ties to Barmore would have influenced his

evaluation of the witnesses. Posley had a family connection to Barmore, but also a family

connection to a Rockford police officer and a friendship with another member of that police

force. And, in the end, Posley said that he believed that he could keep the cases separate. All

of this is consistent with Posley’s having been able to serve. Under these facts, we will not

recast the State’s peremptory challenge as equivalent to a removal for cause.

¶ 32 Further, though we might deem harmless a pretrial peremptory-challenge error,

presuming that the jury was impartial (see Castro, 146 Ill. App. 3d at 631), we will not

extend that presumption to this context. As in Harbin, this error “cripple[d] the device

designed to ensure an impartial jury.” Harbin, 250 F.3d at 548. We will not shut our eyes and

blindly presume, nevertheless, that the jury was impartial.

¶ 33 III. CONCLUSION

¶ 34 For the reasons stated, we vacate defendant’s convictions and remand the matter for a

new trial.

¶ 35 Vacated and remanded.

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