People v. Dunum

JUSTICE PINCHAM, specially concurring:

I agree with the defendant’s contention on this appeal that the trial court erred when it denied the defendant’s request that the trial court, during voir dire examination of the prospective jurors, inform the jurors that the defendant’s defense to the murder charge was self-defense, and when it refused to inquire of and determine from the jurors if their attitudes and opinions about self-defense would (1) cause them to reject self-defense as a defense, (2) prejudice or taint their judgment, or (3) impair their ability to serve fairly and impartially as jurors. Because, however, of the hereinafter discussed circumstances of this case, the errors were harmless. I therefore concur in the affirmance of the defendant’s conviction.

Illinois Supreme Court Rule 234 (107 Ill. 2d R. 234) provides:

“The court shall conduct the voir dire examination of prospective jurors by putting to them questions it thinks appropriate touching their qualifications to serve as jurors in the case at trial. The court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate, or may permit the parties to supplement the examination by such direct inquiry as the court deems proper. Questions shall not directly or indirectly concern matters of law or instructions. The court may acquaint prospective jurors with the general duties and responsibilities of jurors.”

Rule 234 is mandatory. It requires that the court shall put questions to the prospective jurors touching their qualifications to serve as jurors in the case on trial. The purpose of voir dire examination is to obtain 12 jurors who will be fair and impartial to both the State and the defendant, and who will in open court commit themselves and solemnly swear to do so. Voir dire examination is not designed to obtain a jury composed of any numerical combination of pro or anti State or defense jurors. It is the purpose of voir dire examination of prospective jurors to select 12 persons who will completely cast aside and be uninfluenced by any bias or prejudice that they may have and render a verdict based solely on the law and the evidence. Neither the State nor the defendant should be advantaged or disadvantaged, and both sides should be treated fairly and equally during and by voir dire examination.

To achieve these magnanimous and grandiloquent, but nevertheless easily attainable goals, and to comply with the voir dire examination rule, in the case on trial, it is obviously necessary to inform the prospective jurors of the offense, the nature and ingredients of the offense that the defendant is alleged to have committed, for which the defendant is on trial, and on which the jury will render its verdict. Prospective jurors may have different attitudes, ideas, concepts, biases and prejudices about different offenses that may adversely affect their ability to be fair. These varying attitudes can be discerned and determined by informing the jury of the offense for which the defendant is on trial and on which they will sit in judgment, and by appropriate inquiries of them and their honest responses thereto concerning their attitudes about such an offense.

The same is true of a defendant’s defense, in the instant case, self-defense. Some prospective jurors may have certain fixed notions, biases and even prejudices regarding self-defense that impair, and with some, which actually preclude, their ability to be fair and render a just verdict according to the law and the evidence. Such jurors and such attitudes can be detected by informing them that the defendant’s defense is self-defense, just as they should be informed of the offense the defendant is alleged to have committed. Then, appropriate and adequate inquiry should be made by the trial court or counsel of each of the prospective jurors regarding any attitude, concept, bias or prejudice that he or she may have about such a defense that would hamper his or her ability to be fair and just.

General inquiry to the entire venire of whether they will follow the law as given them by the court in the form of instructions to the jury is grossly inadequate, insufficient, and indeed inappropriate to fulfill the foregoing solemn responsibilities of voir dire examination and the ultimate selection of 12 informed fair, impartial and unbiased jurors. A simple question to the venire jointly, or individually for that matter, of if they will be fair, and their typical favorable animated responses, are inadequate and fail to fulfill the grave mandate of Rule 234. I do not intend to suggest that the voir dire inquiry subjects should be limited to the offense charged and the defense thereto. Quite the contrary. Rule 234 requires that a sincere and dedicated effort be made, by extensive inquiry of the prospective jurors, whether there is an indication that such is needed, and that their answers thereto be assessed, in properly selecting an unbiased and fair jury. Simple perfunctory interrogation will not suffice.

Jurors or a jury are not and should not be the clones of the trial judge, the prosecutor or the defense attorney. Jurors and a jury are and should be the clones and conscience of a fair, impartial and just community. Jurors and a jury are the bulwark between a tyrannical, abusive government and the endeared and valued rights that a free people demand and enjoy. It is inspiringly beneficial to occasionally historically reflect on this precious and ancient right to a trial by jury. That great charter of liberty, the Magna Carta, issued by King John on June 15, 1215, provides, inter alia:

“Know ye that we, unto the Honour of Almighty God, and for the salvation of the souls of our progenitors and successors Kings of England, to the advancement of holy Church, and amendment of our Realm, of our meer and free will, have given and granted to all Archbishops, Bishops, Abbots, Priors, Earls, Barons, and to all free-men of this our realm, these liberties following, to be kept in our kingdom of England for ever.

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No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land. (2) We will sell to no man, we will not deny or defer to any man either Justice or Right.” (Emphasis added.) Am. Jur. 2d Desk Book, item 194, at 784, 789 (1979).

Long before the Magna Carta, the jury and the ballot were described by Aristotle in 325 B.C. See The Athenian — Law Courts — Jury Ballots — and Democracy, History’s First Jury Ballot, by Constantine N. Kangler, published by the National Greek Press Publishing Company, 1985.

The Unanimous Declaration of Independence of the Thirteen United States of America in Congress, July 4, 1776, provides in part here pertinent:

“The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

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He has combined with others to subject us to a jurisdiction ' foreign to our constitution, and unacknowledged by our laws; giving his Assent to their acts of pretended legislation:

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For depriving us in many cases, of the benefits of Trial by Jury.” Am. Jur. 2d Desk Book, item 186 at 750, 751 (1979).

This precious right to trial by jury is guaranteed in the Constitution of the United States and in the constitutions of every State of the Union. In this State, in the exercise of that right, the mandate of Rule 234 demands adherence. Compliance therewith can be accomplished and a fair, impartial and informed jury can be selected, without indoctrinating the jury to a particular disposition. The voir dire examination and the jury selection process should not be pursued callously and insensibly, as indeed they were in the case at bar.

Pursuant to Rule 234, the defense attorney tendered the following questions to and for the trial court to question the jurors on voir dire examination their attitudes regarding self-defense:

“VOIR DIRE QUESTIONS SUBMITTED BY THE DEFENSE

1. Do you believe that a person should have the right to kill another person whom he reasonably believes is about to inflict great bodily harm on him?

2. Do you believe you could find Pete Dunum not guilty if you had a reasonable doubt about whether he acted in self-defense?

3. Some people honestly and legitimately believe that no person should ever kill another person even if their own life is in danger. How do you feel about that?

4. Could you in good conscience, follow the law that requires you to acquit Pete Dunum if you have a reasonable doubt about whether or not he acted in self-defense?

5. If after hearing all of the evidence, you have a reasonable doubt about whether or not Pete Dunum acted in self-defense would you hesitate to sign a not guilty verdict? Why do you say that?”

Upon tendering the foregoing proposed voir dire questions, the defense attorney stated to and requested of the trial court:

“Judge, we have prepared a list of fairly brief suggested questions that we would like to ask about certain areas, *** we are nevertheless, making the request that you ask the questions on that particular list of the potential jurors.”

The trial court denied the defense attorney’s request in the following language:

“We will not ask any of these questions in the form in which they are proposed. This would amount to a grilling of each juror, and amount to an inquisition which would make the citizens who are summoned here to serve as jurors very uncomfortable. They wouldn’t expect to be cross examined in depth in [this] manner, so we will not ask these questions.” (Emphasis added.)

The mental gymnastics via which the trial court arrived at the conclusion that asking the proffered questions on voir dire examination of the prospective jurors would “amount to an inquisition” is not discernible from the record on appeal before us. Nevertheless, that conclusion was baseless, unless of course the trial court lacked the simple and rudimentary skills to tactfully and courteously inquire of the jurors without grilling them, seemingly basic qualities possessed by any, or even the most inexperienced, trial judge.

The trial judge stated that it refused to ask the defense attorney’s proposed voir dire examination questions “in the form in which they are proposed.” (Emphasis added.) Although it is clear that the questions were intended to inquire of the prospective jurors about their attitudes on self-defense, it is equally clear that the questions were confusing. To describe the questions as inartfully drawn would be a gratuitous understatement. For these reasons the trial judge was justified in refusing to put to the prospective jurors the questions “in the form in which they are proposed.” (Emphasis added.) The trial judge was not warranted, however, in refusing to ask the questions for the reasons it stated in so doing, i.e., “This would amount to a grilling of each juror, and amount to an inquisition ***.” (Emphasis added.)

The trial court’s expressed rejection of the questions “in the form on which they are proposed” was a clear indication and should have prompted the defense to redraft and resubmit the questions in proper form, but he did not do so. At the very least, the trial judge’s expressed rejection of the defense attorney’s proposed questions should have triggered an inquiry by the defense attorney to the trial judge about what was wrong with the proposed questions so that counsel could correct them. But it did not do so and he did not do so. Instead, the defense attorney simply abandoned pursuing the issue, and, in my judgment, he should not have done so.

As before stated, the command of Rule 234 is that “[t]he court shall conduct the voir dire examination of prospective jurors by putting to them questions it thinks appropriate touching their qualifications to serve as jurors in the ease [at bar].” (Emphasis added.) (107 Ill. 2d R. 234.) Thus, the trial court was under an affirmative duty, on its own, to make appropriate inquiry of each of the prospective jurors if he or she had or entertained any bias or improper attitudes concerning a charge of murder or a defense thereto of self-defense that would impair his or her ability to fairly and justly serve as jurors. The trial court did not comply with the command of Rule 234, and the trial court clearly erred in not doing so.

Simultaneously with the submission of the foregoing questions by the defense attorney for the trial court’s voir dire examination of the jurors regarding the defense of self-defense, the defense attorney also presented to the trial court additional proposed voir dire questions of the jurors regarding the defendant’s testimony and the defendant’s right not to testify. The questions were as follows:

“II Defendant’s Testimony

1. If Mr. Dunum chooses not to take the stand, how do you think that might affect your judgment?

2. Would you expect Pete Dunum to take the stand? What would you think if he doesn’t?

3. If Pete Dunum chooses not to take the stand in his own defense, would that fact tend to make you think he was guilty?

4. If Pete Dunum does take the stand and testifies, do you think you could judge his testimony by the same standards you would use in judging any other person’s testimony?

5. If Mr. Dunum chooses to take the stand, would the fact that he is the defendant here tend to make you automatically reject his testimony?”

Upon submission of these immediate foregoing questions, and to persuade the trial court to ask them of the jurors, the defense attorney stated to the trial court, “I can’t positively tell you whether he will take the stand. In any event, I think that is important information for us to know, if somebody would accept his testimony or reject his testimony just because he is the defendant, even if we choose not to put him on the stand. *** I think it is important for us to know if in fact they would draw some inference from his failure to take the stand.” The trial judge responded, “We will cover that point.”

The trial court did not disclose the distinction it discerned between the defense attorney’s proposed voir dire questions on self-defense, which it thought if asked would have been a “grilling” and an “inquisition,” and the defense attorney’s proposed voir dire questions on the defendant’s testimony and right not to testify, which, when asked, did not also constitute a “grilling” or an “inquisition.”

The majority in the case at bar treats the proposed voir dire questions on self-defense and on the defendant’s testimony and right not to testify as though these two subject areas were the same, i.e., as though the trial court’s voir dire inquiry to the jurors on one, i.e., the defendant’s testimony and right not to testify, excused and justified the trial court’s refusal to inquire of the jurors on the other, i.e., self-defense. In rejecting the defendant’s contention on this appeal that the trial court erred in not inquiring of the jurors on their voir dire examination and in not determining that these attitudes regarding self-defense would not impair their ability to properly serve as jurors in the case, the majority states, “[a]s each of the questions offered by defendant’s counsel related, essentially, to the proper application of law concerning self-defense, we conclude the trial court was correct to decline to put those questions to prospective jurors. The record shows that the trial court otherwise conducted proper voir dire, including an inquiry of each prospective juror whether a decision by defendant to not testify would prejudice their deliberations.” 182 Ill. App. 3d at 101.

I do not agree with this assessment. The trial court did not ask a single juror during the entire voir dire examination a single question on self-defense. Nor did the trial court inform the jury during voir dire that the defendant was charged with murder. After the trial court’s voir dire inquiry, the defense attorney did not renew his request that the trial court inquire of the jurors their attitudes on self-defense. He should have done so. The case went to the jury, which deliberated to a verdict without the trial court or counsel knowing whether any one of them possessed an attitude or bias against murder or self-defense which would preclude their ability to serve fairly and impartially. In my judgment, this was error. However, based on the charge of murder for which the defendant was on trial, the State’s evidence, the defendant’s evidence of self-defense, the trial court’s instructions to the jury on murder, self-defense and voluntary manslaughter and the jury’s verdict of guilty of voluntary manslaughter, it is quite apparent that the error was clearly harmless.

The two-count indictment alleged that on February 1, 1985, the defendant Peter Dunum committed the offense of murder (1) “in that he, without lawful justification intentionally and knowingly stabbed and killed Willie Nolan with a knife” and (2) “in that he, without lawful justification stabbed and killed Willie Nolan with a knife knowing that such stabbing with a knife created a strong probability of death or great bodily harm to Willie Nolan.”

The State’s trial evidence established that the defendant and the victim, Willie Nolan, the defendant’s stepson, quarreled while in the former’s apartment. The victim departed for his own apartment in the basement, followed by the defendant with a butcher knife in his hand that he had just pulled out of a kitchen drawer. The defendant and the victim continued their quarrel in the victim’s apartment, where, according to the defendant’s wife, mother of the victim and a State’s witness, the defendant fatally stabbed the unarmed, nonthreatening victim. Conversely, it was the defendant’s contention that, out of fear for his own safety and to protect himself from bodily harm from the victim, he stabbed the victim when the victim began to remove his concealed right hand from his pocket while simultaneously stating that he would blow the defendant away. Thus, there was presented to the jury the ultimate issue of the credibility of the victim’s mother and defendant’s wife against the credibility of the defendant.

Without objection from the defendant, and at the request of the State, the trial court instructed the jury that “the defendant is charged with the offense of murder which includes the offense of voluntary manslaughter.” The trial court also instructed the jury on the definition and issues of murder, which need not be repeated here inasmuch as the jury did not find the defendant guilty of murder, but found him guilty of voluntary manslaughter.

The trial court gave the State’s tendered instruction on self-defense, as follows: “A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force. However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.” At the defendant’s request, the trial court instructed the jury that “for a person to lawfully act in self-defense, it is not necessary that the danger be real, it is enough if the defendant had reasonable grounds to believe himself in danger of losing his life or suffering great bodily harm if the danger is only apparent.”

The trial court instructed the jury on voluntary manslaughter and the issues on voluntary manslaughter, as follows:

“A person commits the offense of voluntary manslaughter when he kills an individual if, in performing the acts which cause the death,

he intends to kill or do great harm to that individual; or he knows that such acts will cause death to that individual; or

he knows that such acts create a strong probability of

death or great bodily harm to that individual; and at the time of the killing he believes that circumstances exist which would justify the deadly force he uses, but his belief that such circumstances exist is unreasonable.

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To sustain the charge of voluntary manslaughter, the State must prove the following propositions:

First That the defendant performed the acts which caused the death of Willie Nolan; and

Second That when the defendant did so, he intended to kill or do great bodily harm to Willie Nolan; or he knew that his acts would cause death or great bodily harm to Willie Nolan; or

he knew that his acts created a strong probability of death or great bodily harm to Willie Nolan; and

Third That when the defendant did so he believed that circumstances existed which would have justified killing Willie Nolan; and

Fourth That the defendant’s belief that such circumstances existed was reasonable.

Fifth That the defendant was not justified in using the force which he used.

If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.

If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”

As previously stated, the jury found the defendant guilty of voluntary manslaughter. It is obvious that the jury accepted the defendant’s testimony that he stabbed the victim in self-defense, clearly demonstrating thereby that none of them had any bias or adverse attitudes toward the defense of self-defense which impaired their ability to be fair and impartial or to base their verdict on the law and the evidence. Inasmuch as the defendant directly admitted that in self-defense he performed the acts which caused the death of Willie Nolan, and inferentially admitted that when he did so he intended to kill or do great bodily harm to him, it is apparent from the jury’s voluntary manslaughter guilty verdict that the jury concluded and found beyond a reasonable doubt that: (1) the defendant “believed that circumstances existed which would have justified killing Willie Nolan”; (2) “that the defendant’s belief that such circumstances existed was unreasonable”; and (3) “the defendant was not justified in using the force which he used.” These foregoing conclusions and finding of the jury become unequivocally fortified and nondebateable by the jury’s obvious rejection of the testimony of the State’s witness and mother of the deceased, from which the jury easily could and would have concluded the stabbing was murder had they chosen, to believe her. The jury accepted the defendant’s testimony of self-defense, that he believed the circumstances were such that justified his killing of the deceased, but the jury rejected that his belief was reasonable and that the amount of force he used was justified. The conclusion is inescapable that the trial court’s error in failing to properly question the jurors on the voir dire examination on their possible bias or adverse attitudes regarding self-defense in the case on trial was harmless error. (People v. Moore (1983), 95 Ill. 2d 404, 409-12 ; People v. Jones (1979), 81 Ill. 2d 1, 7-10 .) Accordingly, I concur in the judgment of the court affirming the defendant’s conviction and 14 years’ imprisonment sentence for voluntary manslaughter.