People v. Dixon

409 Ill.App.3d 915

948 N.E.2d 786

350 Ill.Dec. 506

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Clinton DIXON, Defendant–Appellant.

No. 1–09–1812.

Appellate Court of Illinois, First District, Sixth Division.

April 29, 2011.

Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, Rebecca I. Levy, Assistant Appellate Defender, Office of the State Appellate Defender, for Petitioner–Appellant.Anita Alvarez, State's Attorney (Alan J. Spellberg, Rimas F. Cernius, Nancy Colletti, Assistant State's Attorneys, of counsel), for Respondent–Appellee.

[350 Ill.Dec. 507 , 409 Ill.App.3d 916] OPINION

Presiding Justice GARCIA delivered the judgment of the court, with opinion.

Defendant Clinton Dixon appeals from the trial court's first-stage dismissal of his postconviction petition, which he contends states the gist of two constitutional claims to warrant second-stage consideration: (1) his right to a fair trial was violated by the participation of an alternate juror in jury deliberations that ended with verdicts of guilty for first degree murder, home invasion, residential burglary, and armed robbery; and (2) appellate counsel rendered ineffective assistance on direct appeal for failing to raise trial counsel's failure to exercise a peremptory challenge against a prospective juror with two arrests about 20 years prior to the date of trial, which the prospective juror failed to acknowledge during voir dire. On the record before us, the jury's guilty verdicts are not subject to attack under a constitutional fair trial claim when the record rebuts the allegation that the alternate juror participated in the jury's deliberations; nor can the defendant make a showing that he was prejudiced by appellate counsel's failure to raise on direct appeal the failure of trial counsel to exercise a peremptory challenge to excuse the eventual jury foreperson because the record is barren of any evidence of juror bias. Accordingly, the defendant's postconviction petition warranted dismissal as the asserted claims were patently without merit. As the petition was properly dismissed, the circuit court acted within its discretion to impose fees and costs. We affirm.

BACKGROUND

On direct appeal, we addressed the defendant's convictions for the June 13, 2002, first degree murder, home invasion, and armed robbery (the trial court merged the residential burglary conviction with the home invasion conviction) of James Knight. People v. Dixon, 382 Ill.App.3d 233, 320 Ill.Dec. 433, 887 N.E.2d 577 (2008). In that appeal, the defendant challenged the circuit court's refusal to strike for cause a juror that responded during the State's

[948 N.E.2d 788 , 350 Ill.Dec. 508]

voir dire and on the prospective juror questionnaire that he had never been arrested. During the sidebar to discuss the State's information that the prospective juror had in fact been arrested for battery in 1982 and 1985, the trial court denied defense counsel's request that the prospective juror be excused for cause. Dixon, 382 Ill.App.3d at 236, 320 Ill.Dec. 433, 887 N.E.2d 577. Defense counsel did not exercise a peremptory challenge to strike the prospective juror because he believed the trial court's rule against “back-striking” precluded him from doing so. Id. at 241, 320 Ill.Dec. 433, 887 N.E.2d 577. After the trial court denied the request to excuse for cause, the State accepted the panel as constituted. Id. at 236, 320 Ill.Dec. 433, 887 N.E.2d 577. The prospective juror that defense counsel sought to remove for cause became the foreperson of the jury. Id.

The defendant alleges in his postconviction petition that appellate counsel was ineffective for failing to raise, on direct appeal, defense counsel's failure to exercise a peremptory challenge against that prospective juror. As to his second claim on appeal, the defendant asserts in his main brief, “the record plainly shows that an alternate juror deliberated along with the 12 actual jurors.”

At the defendant's jury trial in September 2004, the evidence overwhelmingly pointed to the defendant's guilt. The jury heard the defendant's oral confession to the investigating detectives following his arrest and viewed the videotape of his confession taken the following day, each of which detailed how the defendant broke into Mr. Knight's home, stabbed Mr. Knight, and stole various items that he exchanged for money to buy drugs. “There were few differences between the defendant's videotaped statement and his oral statement. The only difference of note was that in his videotaped confession, the defendant, for the first time, mentioned that he was ‘dope sick’ during his statements to the police.” Dixon, 382 Ill.App.3d at 237, 320 Ill.Dec. 433, 887 N.E.2d 577. The jury also heard Detective Rotkovich testify that the defendant assisted the officers in recovering the knife the defendant admitted using to repeatedly stab Mr. Knight. The medical examiner testified that the recovered knife was consistent with Mr. Knight's stab wounds. The jury also heard from the defendant's companion, who testified he observed blood on the defendant's hand when the defendant emerged from Mr. Knight's home.

Before the jury retired to begin its deliberations, the judge addressed the two alternate jurors:

“I'm gonna ask at this time that our alternates, Mr. Delbridge and Mr. Saucedo, if you'll step out of the jury box in the back. If you have any items of property in the jury room, you're free to go back and get them. So just step out of the back there, come right around the front, the well of the court. Right this way. You have anything in the jury room, bring it out and have a seat here.”

The record reflects that after the alternates stepped out of the jury box, the trial judge continued preparations for jury deliberations: “While they're doing that, I'll ask the clerk to swear the deputies who had been attending to the jury deliberations.” Though the record suggests that the alternate jurors were directed to “have a seat” apart from the jury, the record does not reflect where the alternates were seated and whether the alternates remained seated in the court room after the jury was escorted to the jury room to begin deliberations. At 2:05 p.m., the jury indicated it reached a verdict. After the verdict forms were tendered by the foreperson to the court, defense counsel asked

[350 Ill.Dec. 509 , 948 N.E.2d 789]

that the jury be polled, which the trial court directed the clerk to do. After the clerk polled the foreperson as the twelfth juror, the transcript reveals the following exchange between the clerk and alternate juror Julio Saucedo.

“THE CLERK: Julio, last name S-a-u-c-e-d-o, was this your verdict and—

MR. SAUCEDO: Yes.”

After Mr. Saucedo's response, the trial judge directed the record to “reflect the jury has been polled” and entered judgment on the verdict. No one objected to Mr. Saucedo being polled.

Defense counsel's motion for a new trial raised the trial court's refusal to strike the eventual foreperson for cause. Defense counsel faulted the State for failing to disclose the prospective juror's “prior arrests until after he had been accepted by the defense as a juror.” Dixon, 382 Ill.App.3d at 237, 320 Ill.Dec. 433, 887 N.E.2d 577. The new trial motion did not raise as an issue the possible participation in jury deliberations by the alternate juror that was polled. The trial court denied defense counsel's posttrial motion and the defendant's pro se motion raising claims of ineffective assistance of trial counsel unrelated to the issues now before us.

On March 23, 2009, the defendant filed the instant postconviction petition. He argued his trial counsel was ineffective for a plethora of reasons, among them, the failure to exercise a peremptory challenge against the eventual jury foreperson. He also contended his appellate counsel was ineffective for a handful of reasons, including the failure to argue his right to a fair trial was violated by the alleged participation of an alternate juror in the jury's deliberations. In dismissing the postconviction petition, the trial court ruled that veracity and capacity for objectivity were not called into question by the foreperson's failure to recall his arrests 20 years or so prior to being questioned as a prospective juror. Because no showing of bias was made, the participation of that juror in the guilty verdicts did not prejudice the defendant. The court rejected the defendant's fair trial claim because no showing was made that the alternate juror actually deliberated. The court dismissed the petition in its entirety and assessed the defendant court costs and fees pursuant to section 22–105 of the Code of Civil Procedure. 735 ILCS 5/22–105 (West 2008). This timely appeal followed.

ANALYSIS

The defendant advances three arguments: (1) he stated the “gist” of a claim that his appellate counsel was ineffective for failing to argue the participation of an alternate juror in jury deliberations deprived him of the right to a fair trial; (2) trial counsel was ineffective for failing to exercise one of two remaining peremptory challenges to excuse the eventual foreperson from the jury, which means counsel on direct appeal was ineffective for neglecting to advance this argument; and (3) the statutory provision that authorizes the assessment of court costs and filing fees when a postconviction petition is dismissed as frivolous violates his constitutional rights to due process and equal protection.

“The [Post–Conviction Hearing] Act provides a method by which persons under criminal sentence in this state can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution or the Illinois Constitution or both.” People v. Hodges, 234 Ill.2d 1, 9, 332 Ill.Dec. 318, 912 N.E.2d 1204 (2009). Our review of the circuit court's dismissal of the defendant's petition is de novo. Id. A petition is subject to...