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THIRD DIVISION

September 28, 2001

No. 1-99-3846

This was an aggravated criminal sexual assault trial. Three of the prospective jurors saidthat sexual assaults has touched their lives, either as victims or as having relatives or closefriends who were victims. One of the prospective jurors sat on the case. Whether these jurorsshould have been excused for cause is a central issue in this appeal. We conclude there was noreversible error.

FACTS

While the issues on appeal relate only to jury selection and sentencing, the factual settingof this case sheds light on the trial court's decisions.

The victim S.A. was unable to testify at trial. She committed suicide two weeks after thedefendant sexually assaulted her.

On January 15, 1997, at about 12:30 p.m., S.A. and her boyfriend Ben Paul had lunch in adining hall at the University of Chicago. After lunch, S.A. went to a general chemistrydiscussion session. When S.A. left Ben, she did not have any abrasions or injuries on her face.

After the discussion session, S.A. was to meet Ben at about 6:00 or 6:30 and drive him towork. She did not take Ben to work that evening.

On January 15, 1997, at about 7:45 p.m., S.A. walked into the University of ChicagoBernard Mitchell Hospital emergency room on 901 East 58th Street. She approached Universityof Chicago police officer Earl Robertson and told him she had just been raped.

Officer Robertson testified S.A. "was rather shook up." She had "two bruises on eachside of her face" and looked as if she had been crying. After speaking to S.A., Officer Robertsonescorted her to the triage.

Once S.A. was in the triage, she gave a description of the attacker. She described him asa black male, between 5'6 and 5'10, between 145 and 155 pounds, with a tattoo on his chest of aname on a heart.

S.A. also described the attacker's car. She said it was a large two-door car, maroon incolor, with no license plates or inside door handles. She remembered seeing the word "Caprice"or "Classic" on the car.

In the triage, S.A.'s "vitals" were checked by nurse Mona Harris. Nurse Harris testifiedthat when she asked S.A. what happened, S.A. said she had been sexually assaulted. NurseHarris asked her what type of penetration had occurred. S.A. replied it was vaginal penetration.

Nurse Harris then continued her assessment of S.A.'s condition. Nurse Harris said S.A."appeared upset but contained and her vital signs were abnormal which is indicative of beingupset or stressed."

S.A. told nurse Harris she was "cold and wet." Nurse Harris saw that S.A. was shivering,she "had [fresh] abrasions on her face and neck," and "the bottom of her jeans were wet and hershoes and socks were soaked." Nurse Harris took S.A. to a treatment area, so she could warm upand rest.

While in the treatment area, S.A. was examined by emergency room nurse Mary LouiseSteinway and treated by medical doctor Kenneth Jung. Nurse Steinway testified S.A. appeared"very quiet, afraid, [and] scared." Nurse Steinway noticed S.A. had abrasions on her face.

During Nurse Steinway's examination of S.A., she asked S.A. to explain what caused herto come to the hospital. S.A. replied that she had been walking on a street when she wassuddenly abducted. A man dragged her against her will into his car. While being forced into thecar, she scraped her right foot against the door. The man drove S.A. around for a long while,through various streets. He finally stopped at an abandoned building and forced her inside. S.A.struggled with him. But the man was able to force her into a room, throw her down on amattress, and commence to rape her by penetrating her vaginally with his penis and ejaculating inher.

When S.A. was asked how she got the wounds on her face, she replied that during thestruggle, the man scratched her face and bruised it when he "slammed [her] up against the wall."

Dr. Jung collected semen from S.A.'s vagina. The semen was shown to match the DNAprofile of the defendant. Specifically, only one in 16 billion African-American men would beexpected to exhibit such a profile.

S.A. was discharged from the emergency room at about 11 p.m. She left the hospital withSusan Art.

Susan Art is the Assistant Dean of Students for the University of Chicago. Dean Arttestified she was the "sexual assault dean on call" on January 15, 1997. She came to S.A.'s aid atabout 8:00 p.m. that night, at the hospital.

When Dean Art first saw S.A., she noticed S.A. was shaking and having a hard timespeaking. Dean Art saw that "the skin seemed to be worn off" the left side of S.A.'s face, and shehad bruises on her neck. Dean Art stayed with S.A. while she was being examined and treated.

Dean Art and S.A. left the hospital with Chicago Police detective Darlene Kapers andUniversity of Chicago policewoman Debra Rockymore (formerly Debra Poe) shortly after 11p.m. All four women got into a squad car and went to the area S.A. was abducted, the 5600block of Woodlawn Avenue. From there, they took a "circuitous" route to the area where S.A.said she was sexually assaulted, the 4300 block of Berkeley.

On Berkeley, there were three dilapidated houses. There also was a parked car thatattracted everyone's attention. The officers at the scene said the car was a maroon or burgundytwo-door Chevy with no license plates. The car was parked in front of 4321 Berkeley. Therewere men in the car.

Detective Kapers stopped the squad car behind the car on Berkeley, opened the door ofthe squad car, drew her gun, and ran around to the back of the other car. Detective Kapers lefther car door open, so Dean Art put her arm over the front seat and made S.A. lie down. Dean Artalso put her head down.

After about five minutes, Detective Kapers came back and moved the car forward, awayfrom the other car, then she got out again. This time she closed the car door behind her.

The officers removed the men from the car and asked them to lift their shirts. One of themen in the car, identified as the defendant, had a tattoo on his chest of a heart with a name on it. He was immediately placed under arrest.

The officers then searched the defendant's car. In it, they found S.A.'s school books andher school identification card from the University of Chicago.

After some time, Detective Kapers returned to the squad car and took Dean Art and S.A.to Area One, police headquarters. At Area One, S.A. was interviewed by police detectives and astate's attorney. Dean Art and S.A. remained at Area One for five hours, until about 5:30 a.m. Then Dean Art took S.A. home to her mother.

The defendant testified that although he did have sexual intercourse with S.A., theintercourse was consensual.

According to the defendant, he was staying part-time at 4321 South Berkeley. On theafternoon of January 15, 1997, he was at the Berkeley building. He met his cousin, his father,and his father's friends in front of the building. At some point, he said S.A. walked up alonefrom 44th Street and Berkeley.

Defendant did not know S.A., but he had the impression his friend Bernard Gaines knewher. Defendant noticed S.A. had scrapes on her cheek and marks on both sides of her face.

Just after meeting S.A., he and S.A. went into the Berkeley building together. She saidshe was cold.

Defendant said he did not drag S.A. into the building. S.A. followed him into thebuilding, up the stairs, and into his room on the third floor. S.A. was not happy and appeared"gloomy." So, they sat on the couch and just talked.

After talking for about an hour, defendant massaged S.A.'s feet. Afterwards, S.A. walkedover to a bed. Defendant followed her, sat on the bed, and continued talking to her. As theytalked on the bed, S.A. took off defendant's shirt and pants. She then took off her own clothes,but not all of her clothes. She left her bra and socks on.

Defendant and S.A. then had sexual intercourse without a condom. It lasted "aroundthirty seconds" and he ejaculated inside of her.

Defendant said he did not force himself on S.A. After having sexual intercourse, theystayed on the bed for a couple of hours.

Defendant said he borrowed his father's 1976 maroon Chevy Caprice to drop S.A. off at53rd and Ellis. Defendant gave S.A. his beeper number. She then opened the car door, herself,and left. That was the last time he saw or spoke to S.A.

Later, defendant went back to 4321 Berkeley. He was sitting in his father's ChevyCaprice when police drove up and ordered him to get out of the car. The police arrested him at11:45 p.m. on January 15, 1997.

On February 20, 1997, defendant was indicted for five counts of aggravated criminalsexual assault, three counts of aggravated kidnapping, and three counts of kidnapping.

JURY SELECTION

The trial judge conducted voir dire of the first panel of prospective jurors. The judgecalled their names. He then explained the charges brought against the defendant, reviewed theindictment, and explained trial procedure and the defendant's presumption of innocence.

The trial judge first asked the prospective jurors general questions relating to their abilityto sit as jurors. The trial judge then asked each prospective juror about answers he or she gaveon the jury service forms. Only the responses of prospective jurors Charlyn Leeper, GailEisenberg, and Sandra Brunson are relevant to this appeal.

CHARLYN LEEPER

"THE COURT: Ms. Leeper, you indicate you live in a south suburb. You work as a salescoordinator. And you indicate that you have one child under the age of three. You indicate that afamily member or close friend had been a victim of a crime. Can you tell us about that?

THE PROSPECTIVE JUROR: My mother and two of my sisters were raped.

THE COURT: How long ago?

THE PROSPECTIVE JUROR: My mother about three years ago. My sisters about 15years ago.

THE COURT: Was anybody arrested in those cases?

THE PROSPECTIVE JUROR: NO.

THE COURT: Would those cause you to be unfair in this case?

THE PROSPECTIVE JUROR: Probably.

THE COURT: You indicate that a member of your family had been a party to a lawsuit. What type of lawsuit?

THE PROSPECTIVE JUROR: I'm currently being sued for custody of my son.

THE COURT: What are your hobbies and interests?

THE PROSPECTIVE JUROR: We roller skate all the time.

THE COURT: Do you read anything in particular?

THE PROSPECTIVE JUROR: Magazines.

THE COURT: Do you belong to any organizations?

THE PROSPECTIVE JUROR: Church, that's about it.

THE COURT: Thank you very kindly."

GAIL EISENBERG

"THE COURT: Ms. Eisenberg, you indicate you live in the city of Chicago. You are alibrarian for a major university and your spouse is a book seller. You have been a victim of acrime?

THE PROSPECTIVE JUROR: I know I raised my hand earlier. I had been a victim of acrime similar to that the accused is accused of.

THE COURT: How long ago?

THE PROSPECTIVE JUROR: 17 years.

THE COURT: Was anybody arrested?

THE PROSPECTIVE JUROR: Yes.

THE COURT: Did you attend a trial?

THE PROSPECTIVE JUROR: No.

THE COURT: Would that cause you to be unfair to either side in this case?

THE PROSPECTIVE JUROR: I'm not sure, possibly.

THE COURT: Would you do your best to put that experience out of your mind and giveeach side a fair trial as best you can?

THE PROSPECTIVE JUROR: Yeah.

THE COURT: A family member or close friend has been a victim of a crime. Can youtell me about that?

THE PROSPECTIVE JUROR: I have several close friends who have been victims ofsexual assault and robbery, burglary.

THE COURT: Would that cause you to be unfair in this case?

THE PROSPECTIVE JUROR: No."

SANDRA BRUNSON

"THE COURT: You live in the south suburbs. You indicate you're a speech pathologist. You work for a major school district. Your spouse is a police officer. Is he involved in thesuburbs or Chicago police department?

THE PROSPECTIVE JUROR: A suburban department.

THE COURT: You have four children. Two of your children or actually three of yourchildren are adults. Any one of them work in law or law enforcement?

THE PROSPECTIVE JUROR: No.

THE COURT: You indicate that a family member or a close friend had been a victim of acrime. Could you explain?

THE PROSPECTIVE JUROR: Three of my female relatives have been sexuallyassaulted. None were brought to court. They did not choose to go through the process. Theywere afraid.

THE COURT: Would that cause you to be unfair to either side in this case?

THE PROSPECTIVE JUROR: I would hope not.

THE COURT: Could you do the best of your ability to give each side a fair trial and listento the evidence and determine the facts on the evidence and the laws as I give it to you?

THE PROSPECTIVE JUROR: Yes, I would."

In chambers, the trial judge asked the state's attorney and defense counsel if they wantedto ask any questions of the potential jurors. Defense counsel replied,

"I have a question. Judge, because this is a trial which will involve considerable policetestimony, I can't remember if you asked generally first, but we always like to include thequestion whether a police officer's testimony would be regarded the same as any othercitizens and that whether his office would mean any more or less in terms of weight theywould give their testimony."

The trial judge said, "I posed that question. Not in the same manner you did. But I willnot ask it again. Do you have any other questions you want the jury to be asked?" Defensecounsel responded, "No further questions."

After accepting four venirepersons, the trial judge tendered the next four potential jurymembers to defense counsel. The next four members included Charlyn Leeper, Gail Eisenberg,and, after the defense used a peremptory challenge, Sandra Brunson.

At first, Defense counsel did not move to dismiss Charlyn Leeper.

Defense counsel moved to dismiss Gail Eisenberg for cause. He said, "Regardless of thefact that she told you in her second answer that she could be fair, I don't think we can reallyaccept that answer as being a valid one." The state responded that although she was a victim ofsexual assault, "it happened 17 years ago. She said that she would be fair." The trial judgedenied the defense motion. Defense counsel used a peremptory challenge.

Defense counsel moved to dismiss Sandra Brunson for cause. He said her response, "Iwould hope not," is "equivocal enough in a case like this where our client is charged with sexualassault. I think she could not be fair." The trial judge denied the defense motion because "shesaid she could be fair when I asked specifically and pointed that issue to her."

The defense then used its sixth peremptory challenge on Brunson. One peremptorychallenge remained.

The trial judge then asked, "Both sides accept the jurors [Charlyn] Leeper and [George]Lanbaris, is that correct?" Both sides said, "That's correct."

However, defense counsel asked, "Will we be allowed to back strike her[, Leeper,] if necessary?" The trial judge responded, "No, you can't."

The trial judge then suggested that Lanbaris and Leeper come back after lunch and beincluded in the second panel of the venire. This way, defense counsel would have a secondopportunity to ask supplemental questions. Defense counsel agreed.

The trial judge excused prospective jurors not chosen from the first panel of the venireand told the chosen prospective jurors to come back the next day for the trial. The judge toldLeeper and Lanbaris to take a lunch break and come back, so they could be included in thesecond panel of the venire.

After the lunch break, the trial judge conducted voir dire of the second panel of thevenire. The judge called their names and explained the charges brought against the defendant,reviewed the indictment, and explained trial procedure and the defendant's presumption ofinnocence.

Again, the trial judge asked the prospective jurors general questions relating to theirability to sit as jurors, such as, "Do any one of you know anyone who has been arrested orcharged for a crime, that includes yourselves?"

He again called on each juror by name, and asked the entire second venire the same seriesof questions he asked the first venire. After each question asked by the trial judge, no hands wereraised.

After the trial judge asked each prospective juror about the answers he or she gave on thejury service forms, he tendered to defense counsel four prospective jurors, including CharlynLeeper.

Defense counsel then moved to dismiss Leeper, saying, "When Ms. Charlyn Leeper toldus she was involved in a pending lawsuit, the fact that it was of another county [(McClainCounty)], I think is not as significant as the fact it is a pending lawsuit, wherever it is. Otherjurors have been excused on similar grounds, Judge. We ask that she also be excused." Therewas no mention of the questions and answers concerning the sexual attacks on Leeper's motherand sisters.

The trial judge responded, "The law in the state of Illinois specifically states it has to be acounty the trial is being heard in. So if she doesn't have a pending case in Cook County, it's notan automatic exclusion. Motion for cause is denied."

Defense counsel did not use his final peremptory challenge on Leeper. Instead, defensecounsel used his final peremptory challenge on prospective juror Larry Prosek, who was a formerpolice officer and had a daughter in the FBI. Defense counsel accepted Leeper as a juror, and thesecond and final panels of prospective jurors were accepted by both parties.

POST-TRIAL AND SENTENCING

After hearing all the evidence, the jury found the defendant guilty of aggravated criminalsexual assault and aggravated kidnapping.

Defendant's trial attorney filed a post-trial motion asking for a reversal of convictionsand/or a new trial. The only mention of Leeper in the post-trial motion was that during voir direthe trial court erred in denying defendant's motion to excuse for cause "Charlyn Leeper, due toher involvement in a pending lawsuit." Again, there was no mention of the questions andanswers concerning the sexual assaults of Leeper's mother and sisters. The court denieddefendant's motion.

At the sentencing hearing, the state presented two witnesses in aggravation, Dean Art andMaxine Levy, S.A.'s high school counselor. Dean Art read a narrative written by S.A. before hersuicide that detailed the kidnapping and sexual assault. Dean Art then read her own statement inaggravation.

Maxine Levy read her statement in aggravation and also read a portion of Ben Paul'sstatement in aggravation. The state then read into the record statements in aggravation fromS.A.'s mother, brother, grandmother, grandfather, uncle, two aunts, and her boyfriend Ben Paul --a total of 10 statements.

The trial judge sentenced the defendant to 30 years for aggravated sexual assault and 30years for aggravated kidnapping. The judge ordered the sentences to run consecutively. See 730ILCS 5/5-8-4(a) (West 1998)

At defense counsel's request, the trial court indicated on the mittimus that defendant wasto receive sentencing credit for time served from January 16, 1997 to October 5, 1995 (992 dayscredit).

This appeal followed.

DECISION

JURY SELECTION

Defendant contends he was denied his right to a fair and impartial jury under the sixthand fourteenth amendments to the United States Constitution (U.S. Const. Amends. VI, XIV). Specifically, defendant contends: (1) the trial court erred in refusing to grant defense requests thatcertain jurors be excused for cause, and, in one instance, in not asking more questions; and (2)the court erred in refusing to ask a certain question proposed by the defense.

According to defendant, these errors require that he receive a new trial. We disagree.

Denial of Defense Challenges for Cause

Defendant contends the trial court erred by refusing his requests to have venirepersonsGail Eisenberg, Sandra Brunson, and Charlyn Leeper excused for cause. Defendant says he wasforced to use two peremptory challenges to remove Eisenberg and Brunson. Leeper served onthe jury that convicted him.

Defendant contends that "because the trial court in this case did not remove Leeper fromthe jury or excuse Eisenberg and Brunson for cause, the court did not fulfill its duty to ensure that[defendant] Bowman had a fair trial before an impartial jury."

Both the federal (U.S. Const. Amends. VI, XIV) and state constitutions (Ill. Const. 1970,art. I,