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Docket No. 93217-Agenda 23-September 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. 
WILLIAM METCALFE, Appellee.

Opinion filed December 5, 2002.

JUSTICE THOMAS delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County,defendant, William Metcalfe, was convicted of attempted armedrobbery (720 ILCS 5/8-4, 18-2 (West 1998)) and attemptedaggravated robbery (720 ILCS 5/8-4, 18-5 (West 1998)). The trialcourt thereafter merged the attempted aggravated robberyconviction into the attempted armed robbery conviction andsentenced defendant to a term of 10 years' imprisonment.Defendant appealed his conviction, claiming, inter alia, that hewas denied his right to a fair trial when one of the members of hisjury indicated during voir dire that she could not be fair andimpartial.

The First District of the appellate court reversed defendant'sconviction and remanded for a new trial, holding that the trialjudge had a duty to sue sponte excuse the juror even though thedefendant did not challenge the juror for cause or exercise one ofhis peremptory challenges. 326 Ill. App. 3d 1008. We granted theState's petition for leave to appeal (177 Ill. 2d R. 315(a)), and nowreverse the appellate court's ruling.

The charges against defendant arose from an incident thatoccurred on January 8, 1998. At defendant's trial, the victim, JerryDudek, testified that defendant approached him while he wasusing an automated teller machine in the lobby of a Citibankbranch in downtown Chicago. Defendant twice asked Dudek formoney. Dudek refused to give defendant any money. Defendantthen brushed against Dudek, stuck his hand into his pocket, andtold Dudek that he had a gun and wanted Dudek's money. Dudekwas scared and asked defendant not to hurt him. Defendant camecloser to Dudek saying he wanted Dudek's money.

Dudek then yelled out for help, at which point defendant tooka step back. Defendant tried to reach for Dudek's wallet, whichwas on the ledge of the automated teller machine. Dudek grabbeddefendant's arm to prevent him from taking the wallet. Defendantthreatened to kill Dudek, so Dudek released his grip ondefendant's arm. Defendant ran toward the revolving door to tryto escape. Dudek, however, put his foot against the door so thatdefendant was trapped in the door. Several bank employees,including an armed security guard, then reached the scene. Dudekexplained that defendant had a gun and had tried to rob him. Oneof the bank employees ran out of the bank through another doorand held the revolving door from the outside to prevent defendantfrom escaping. Dudek then asked the employees to take his placeholding the door. Dudek said he was in shock and wanted to leave,so he gave his business card to one of the employees and asked herto have the police call him. Dudek went to the police stationapproximately an hour later and signed a complaint.

Officer Timothy Halloran of the Chicago police departmenttestified that he received a call around 3:40 p.m. on January 8,1998, concerning a robbery in progress. Halloran arrived on thescene and saw defendant trapped in the revolving doors. Severalpeople were yelling that defendant had a gun. The Citibanksecurity guard told Halloran that defendant had tried to rob Dudek.Halloran asked defendant if he had a gun and defendant said "no."Defendant's left hand was in his pocket, so Halloran askeddefendant to take his hand out of his pocket. Halloran then askedthe people holding the doors to let the doors go so defendant couldexit toward Halloran. Halloran handcuffed defendant andconducted a protective pat-down search. During the search,Halloran discovered a sharpened meat cleaver in defendant'spocket.

Halloran said that Dudek was holding the revolving doorwhen he arrived on the scene, but he did not talk to Dudek at thattime. A bank employee later handed Dudek's card to Halloran andtold Halloran that Dudek had been very shaken up and had to goto an important meeting.

Defendant testified that on January 8, 1998, he was homelessand did odd jobs, such as washing windows and cars, to makemoney. On January 8, he approached Dudek, told Dudek that hewas homeless and hungry, and asked him for change. When Dudekdid not respond, defendant again asked Dudek for money.Defendant said that Dudek then grabbed him by the arm and calledfor security. Defendant tried to walk away but was caught in therevolving door. Defendant testified that a security guard arrivedwith his gun drawn. Defendant tried to explain that he had donenothing wrong. The police then arrived and defendant told thepolice there had been a misunderstanding. Defendant explainedthat the meat cleaver found in his pocket was a novelty item usedto scrape ice off car windshields, to open cans and for eating andcooking.

As noted, the jury found defendant guilty and defendantappealed his conviction. On appeal, the appellate court held thatOfficer Halloran had probable cause to arrest defendant and heldthat the State had proven defendant guilty beyond a reasonabledoubt. Nonetheless, the appellate court reversed defendant'sconviction and remanded for a new trial, finding that defendant didnot receive a fair trial by an impartial jury due to the presence ofa certain juror, Grevus, on the jury that convicted defendant.

In reaching its decision, the appellate court noted that, duringthe jury voir dire, the trial court asked the following questions ofprospective juror Grevus:

"COURT: And you have not been an accused,complainant or witness in a criminal case?

GREVUS: I have not been an accused. I have been avictim.

COURT: That case go to trial?

GREVUS: I was robbed at gun point from my father'sbusiness.

COURT: That's where you have been victim [sic] of acrime?

GREVUS: Yes.

COURT: You also have a family member or closefriend who was victim [sic] of a crime?

GREVUS: My mother and father.

COURT: The fact that you have been a victim and yourmother and father have been victims, would that affectyour ability to be fair and impartial in this case?

GREVUS: I hope not.

COURT: You believe you could listen to the evidenceand make a determination from the evidence on thewitness stand?

GREVUS: Yes.

COURT: You have been party to a lawsuit that's nolonger pending?

GREVUS: Right.

COURT: Would anything affect your ability to be fairand impartial?

GREVUS: I would hope not.

COURT: As I stated, you will listen to the evidence andmake your determination based on what you hear from thewitness stand?

GREVUS: Yes.

COURT: Did you understand the concept of proofbeyond a reasonable doubt and presumption ofinnocence?

GREVUS: Yes.

***

COURT: And if at the end of all the evidence, you feltthat the State had proven its case beyond a reasonabledoubt, would you have any problems signing a guiltyverdict?

GREVUS: No.

COURT: If on the other hand, you felt they had not,would you have any problems signing a not guiltyverdict?

GREVUS: No."

The State then questioned Grevus concerning the crime inwhich she was a victim. Grevus told the assistant State's Attorneythat she was a "witness and victim" in that case. She furtherexplained that she "positively identified [the perpetrator]" and that"[h]e got off because of a technicality."

Defense counsel also questioned Grevus as follows:

"DEFENSE COUNSEL: Miss Gervus [sic], in yourresponse to the State's questions just a moment ago, yousaid something about the person that you had identified orthe person getting off on a technicality. Does the result ofthat case in anyway bias you as you would sit on this jury?

GREVUS: I would-I mean I would have to answer yes.

DEFENSE COUNSEL: Which way is that?

GREVUS: I believe that the legal system, you know,when he was clearly guilty from all the evidence butbased on the way that the system is, it was based on thefact that he tried to discredit me as a witness based onhow many feet and inches I was away from him when Iidentified him or how far away I was from the gun. I feltthat they gave-I felt like I was the victim in the crime. I'msorry. He felt like he was the victim and I was thecriminal.

DEFENSE COUNSEL: Would that affect your abilityto be fair here?

GREVUS: Yes. You ever had something like that tohappen to you, it's hard not to feel that way."

Defense counsel, however, then excused two otherprospective jurors but did not excuse Grevus. One of thoseprospective jurors, Nolan, had never been an accused, complainantor witness in a criminal case, had not been a victim of a crime, didnot have a family member or close friend that had been a victim ofcrime, and had not been a party to a lawsuit. Nolan indicated thatshe could be fair and impartial and understood the concepts ofproof beyond a reasonable doubt and presumption of innocence.The other prospective juror excused by defense counsel, Nigan,had not been an accused, complainant or witness in a criminalcase, but had been beaten and mugged and her car had been stolen.In addition, one of Nigan's friends had been raped. Nigan said,however, that the fact that she and a close friend had been crimevictims would not affect her ability to be fair and impartial. Niganalso understood the concepts of proof beyond a reasonable doubtand presumption of innocence. Ultimately, defendant used five ofhis seven available peremptory challenges to excuse potentialjurors. See 134 Ill. 2d R. 434(d) (defendant in noncapital case hasseven peremptory challenges).

The appellate court acknowledged that defendant had waivedreview of his objection to juror Grevus because he failed to objectto her presence on the jury at trial. Nonetheless, the appellate courtelected to consider defendant's claim under the plain errorexception to the waiver rule (134 Ill. 2d R. 615(a)), because theissue affected defendant's constitutional right to a fair trial. Theappellate court concluded that Grevus' response to defensecounsel's questions "clarified that her experience with the criminaljustice system had biased her and affected her ability to be fairtoward defendant" and necessitated a reversal of defendant'sconviction and remand for a new trial. 326 Ill. App. 3d at 1016.The appellate court held that "when a prospective juror indicatesbias or prejudice and has not been rehabilitated and counsel failsto exercise a peremptory challenge or challenge her for cause, thetrial judge has the sua sponte duty to excuse the prospectivejuror." 326 Ill. App. 3d at 1018.

The State now contends that the appellate court erred when itheld that a trial court has a duty to strike a potentially biased orprejudiced juror sua sponte. Noting that defendant waived anyobjection to juror Grevus when he failed to challenge her, the Stateargues that the appellate court improperly applied the plain errorexception in this case. The State maintains that the plain errorexception does not apply because the evidence was not closelybalanced and because the trial court could have cured the allegederror by sustaining a challenge to Grevus, had defense counselmade such a challenge. In any event, the State maintains that noerror occurred in this case because a trial court does not have aduty to strike a potentially biased juror sua sponte.

There is no question that defendant waived his objection tojuror Grevus when he failed to challenge her for cause or to useone of his peremptory challenges to excuse her. See People v.Macri, 185 Ill. 2d 1, 40 (1998) (defendant waives objection tojuror if he fails to challenge juror for cause or by peremptorychallenge). Nonetheless, we agree with the appellate court that theissue should be examined under the plain error exception to thewaiver rule because the issue affects defendant's constitutionalright to a fair trial. 134 Ill. 2d R. 615(a) (plain errors affectingsubstantial rights may be noticed even though not brought to trialcourt's attention).

Prior to the appellate court's decision in this case, nopublished decision in Illinois had held that a trial judge has a dutyto strike any potentially biased juror sua sponte and that the failureto do so constitutes plain error. In support of its decision, theappellate court pointed to language in two decisions of this court,People v. Williams, 164 Ill. 2d 1 (1994), and People v. Taylor, 101Ill. 2d 377 (1984). In Williams, we observed that the purpose ofvoir dire is to assure the selection of an impartial panel of jurorsfree from prejudice or bias. Williams, 164 Ill. 2d at 16. We furthernoted that the circuit court has the primary responsibility for bothinitiating and conducting the voir dire examination. Williams, 164Ill. 2d at 16. In Taylor, we stated that "[a]lthough the decision toaccept a potential juror as an impartial trier of fact is discretionarywith the trial judge, the trial judge is obliged to insure that, in fact,the defendant receives a trial before a fair and impartial jury."Taylor, 101 Ill. 2d at 386-87. Based upon the foregoing language,the appellate court concluded that a trial court "defeats the purposeof voir dire and fails to ensure that the defendant receives a trialbefore a fair and impartial jury when he seats a juror whoexpresses bias or prejudice and who has not been rehabilitated byfurther questioning." 326 Ill. App. 3d at 1017. Upon review,however, we find that the appellate court has construed ourlanguage in Williams and Taylor too broadly.

At issue in both Williams and Taylor was whether the trialcourt had abused its discretion in allowing or denying certainchallenges for cause. Thus, in Taylor, in stating that a trial judgeis obliged to insure that a defendant receives a trial before a fairand impartial jury, we explained that where a "defendant wasdeprived of this right *** because of the denial of challenges forcause of individual jurors, his conviction must be reversed and hemust receive a new trial." Taylor, 101 Ill. 2d at 387. In that case,we held that the trial court had erred in denying the defendant'schallenges for cause of certain jurors. Taylor, 101 Ill. 2d at 395-96.Similarly, in Williams, we held that the trial court did not abuse itsdiscretion when it granted the State's request to excuse aprospective juror for cause. Williams, 164 Ill. 2d at 16-17. Wenoted that the manner and scope of the voir dire examination lieswithin the discretion of the trial court. Williams, 164 Ill. 2d at 16.An abuse of the trial court's discretion will be found only if theconduct of the court thwarted the selection of an impartial jury.Williams, 164 Ill. 2d at 16. We concluded that the trial court'sactions in that case did not impede the selection of an impartialjury. Williams, 164 Ill. 2d at 16-17.

Significantly, neither Williams nor Taylor addressed whethera trial court's duty to insure that a defendant receives a trial beforea fair and impartial jury includes a duty to sua sponte strike apotential juror where that juror indicates some bias or prejudice.In fact, when faced with the converse situation, the Fifth Districtof the appellate court held that although the trial court's actions inthat case did not require reversal of the defendant's conviction, thetrial court should not have dismissed two potential jurors suasponte. People v. Beasley, 251 Ill. App. 3d 872, 884 (1993).Moreover, prior to the appellate court's decision in this case,another division of the First District of the appellate court declinedto impose such a duty upon the trial court. See People v. Bowman,325 Ill. App. 3d 411 (2001).

In People v. Bowman, 325 Ill. App. 3d 411, 417 (2001), thedefendant had been charged with aggravated criminal sexualassault, aggravated kidnapping and kidnapping. The defendant wasconvicted and, on appeal, claimed that the trial court had abusedits discretion when it failed to sua sponte excuse a prospectivejuror. Bowman, 325 Ill. App. 3d at 425. During voir dire, theprospective juror, Charlyn Leeper, told the trial judge that hermother and two of her sisters had been raped. Bowman, 325 Ill.App. 3d at 417. When the trial court asked Leeper if the rapeswould cause her to be unfair in the defendant's case, Leeperresponded, "Probably." Bowman, 325 Ill. App. 3d at 417. Defensecounsel did not move to excuse Leeper at that time; however,defense counsel asked if he would be allowed to back strikeLeeper if necessary. Bowman, 325 Ill. App. 3d at 419. The trialjudge told defense counsel he could not back strike Leeper, butsaid he would include Leeper in the second panel of the venire sothat defense counsel could ask her supplemental questions.Bowman, 325 Ill. App. 3d at 419-20. Following questioning of thesecond venire, defense counsel moved to dismiss Leeper for causeon the ground that she was involved in a pending lawsuit inanother county. Bowman, 325 Ill. App. 3d at 420. The trial judgedenied defense counsel's motion to strike Leeper for cause, statingthat the fact that Leeper was involved in a pending lawsuit inanother county did not automatically require her exclusion.Bowman, 325 Ill. App. 3d at 420. In the defendant's post-trialmotion, the defendant's only claim of error with regard to Leeperwas that the trial court erred in denying the defendant's motion toexclude Leeper for cause due to her involvement in a pendinglawsuit. Bowman, 325 Ill. App. 3d at 421.

On appeal, however, the defendant claimed that the trial courtabused its discretion when it failed to question Leeper furtherconcerning her ability to be fair and impartial in light of the rapesof her mother and her sisters and when it failed to sua spontedismiss her for cause. Bowman, 325 Ill. App. 3d at 425. Thedefendant claimed that he had been denied his right to a trial by animpartial jury. Bowman, 325 Ill. App. 3d at 422.

The appellate court rejected the defendant's claim that thetrial court should have sua sponte excused Leeper when she saidthe rapes of her mother and sisters would "probably" cause her tobe unfair in the defendant's case. Bowman, 325 Ill. App. 3d at 425.The court noted that any problems were created by defensecounsel, who did not challenge Leeper for cause based upon her"probably" answer, nor did he use an available peremptorychallenge to remove her from the jury. Bowman, 325 Ill. App. 3dat 425-26. The court stated:

"In short, for reasons that are unclear to us, defensecounsel decided to keep Leeper on the jury. The defendantcannot now complain about her presence in the jury box.It would be a bad idea to allow defendants to accept aquestionable juror, proceed to trial, then, when things turnout badly, claim entitlement to reversal because that jurorvoted to convict.

By not giving the court the opportunity to prevent orcorrect errors at trial, a lawyer would gain the advantageof obtaining a reversal through an intentional failure toact, in effect, a free trial." Bowman, 325 Ill. App. 3d at426.

We find the appellate court's analysis in Bowman to be welltaken. We decline to impose a duty upon a trial court to sua sponteexcuse a juror for cause in the absence of a defendant's challengefor cause or exercise of a peremptory challenge. To hold otherwisewould allow a defendant "two bites of the apple." A defendantcould allow a juror such as Grevus, whose experience with thecriminal justice system was not satisfactory, to sit on his jury andgamble that the juror's bias was directed against the State and thuswould work in his favor. Then, if convicted, the defendant couldclaim that the trial court erred in failing to strike the juror suasponte. In addition, if a trial court strikes a juror sua sponte andthe defendant is convicted, the defendant later could challenge hisconviction on the ground that the trial court erred in striking thejuror. As the Missouri Court of Appeals observed in holding thata trial court did not commit plain error in failing to sua spontestrike a questionable juror: " '[t]he rule requiringcontemporaneous objections to the qualifications of jurors is wellfounded. It serves to minimize the incentive to sandbag in the hopeof acquittal and, if unsuccessful, mount a post-conviction attack onthe jury selection process.' " State v. Wright, 30 S.W.3d 906, 914(Mo. Ct. App. 2000), quoting State v. Hadley, 815 S.W.2d 422,423 (Mo. 1991).

We note that the appellate court in this case attempted todistinguish Bowman on the ground that the juror in Bowman hadbeen rehabilitated when the juror did not respond negatively toquestions about fairness, impartiality and willingness to follow thelaw, while Grevus equivocated concerning whether she could befair and impartial. 326 Ill. App. 3d at 1018. We are not persuaded,however, by the appellate court's attempts to distinguish Bowman.Pursuant to the appellate court's reasoning in this case, a defendantcould always claim that a juror had not been sufficientlyrehabilitated, so that the trial court should have sua sponte excusedthat juror. In any event, we are not convinced that Grevus'responses are significantly distinguishable from the responses ofLeeper. Although Grevus stated that her experience with thecriminal justice system would affect her ability to be fair, Grevusalso stated, in response to the trial court's initial questioning, that:she could listen to the evidence and make a determination from theevidence on the witness stand; she understood the concept of proofbeyond a reasonable doubt and presumption of innocence; shewould have no problems signing a guilty verdict if the Stateproved its case beyond a reasonable doubt; and she would not haveany problems signing a not-guilty verdict if the State did not proveits case beyond a reasonable doubt.

In sum, we hold that although a trial court certainly has thediscretion to remove a juror sua sponte for cause (see People v.Lucas, 132 Ill. 2d 399, 425 (1989)), a trial court does not have aduty to do so. The trial court, therefore, did not commit plain errorin allowing Grevus to sit on defendant's jury. In so holding, wenote that we have reviewed those cases cited by defendant insupport of the contrary result and do not find those casespersuasive.

For example, in United States v. Torres, 128 F.3d 38, 43 (2dCir. 1997), although the court stated that the presiding trial judgehas authority and responsibility to dismiss prospective jurors forcause either sua sponte or upon counsel's motion, the issue in thatcase concerned whether the trial court had improperly granted theState's motions to excuse four prospective jurors for cause.

In Cox v. Turlington, 648 F. Supp. 1553, 1557 (E.D.N.C.1986), the court stated that it was the duty of the trial court, if notthe parties, to disqualify a judge from placement as a juror becausethat judge had presided over defendant's arraignment. Thegravamen of that decision, however, was that the judge wasautomatically disqualified from sitting as a juror at the defendant'strial by virtue of the fact that he had conducted a portion of theproceedings in the case. Cox, 648 F. Supp. at 1557.

Finally, in Lacy v. State, 629 So. 2d 688, 690 (Ala. Crim.App. 1993), the issue was whether the trial court had abused itsdiscretion in excusing a juror who had not been challenged by theState or defendant. In finding that the trial court did not abuse itsdiscretion, the court stated that "it is the duty of the court toascertain juror qualifications and to disqualify all jurors notpossessing the necessary qualities." Lacy, 629 So. 2d at 690.

The preceding cases do not compel a different result in thiscase. In fact, we observe that the majority of jurisdictionsaddressing this issue have declined to impose a duty on the trialcourt to excuse a potential juror sua sponte. See Cage v.McCaughtry, No. 01-3245 (7th Cir. September 6, 2002) (prisonercould not obtain habeas corpus relief on ground that trial judgehad obligation to dismiss juror for cause in the absence ofobjection to juror by either lawyer, as such a rule is not plausibleinterpretation of sixth amendment); State v. Bravo, 131 Ariz. 168,639 P.2d 358 (App. 1981) (trial court not required to act suasponte, even though it may do so, to strike prospective jurorswhere defendant failed to challenge jurors for cause); People v.Bolin, 18 Cal. 4th 297, 315, 956 P.2d 374, 387, 75 Cal. Rptr. 412,425 (1998) ("this court has never imposed on the trial court anindependent, affirmative obligation to excuse a prospective jurornotwithstanding counsel's failure to exercise a peremptorychallenge for that purpose"); Whatley v. State, 270 Ga. 296, 297,509 S.E.2d 45, 49 (1998) (where defendant did not move to strikeprospective jurors for cause, trial court did not err by failing toexcuse jurors sua sponte); People v. Wise, 18 Mich. App. 21, 170N.W.2d 487 (1969) (trial court did not err in failing to excuse jurorsua sponte where defendant did not use peremptory challenge toexcuse juror); State v. Wright, 30 S.W.3d 906 (Mo. App. 2000)(trial court did not commit plain error in failing to sua sponteremove three venire members for cause); Stewart v. State, 757P.2d 388 (Okla. Crim. App. 1988) (no error where trial courtfailed to sua sponte excuse juror where defendant failed to objectto juror during voir dire); Delrio v. State, 866 S.W.2d 304 (Tex.Ct. App. 1993) (in absence of challenge by defendant, trial courtdid not err in allowing admittedly biased venireman to serve ondefendant's jury); State v. Williams, 237 Wis. 2d 591, 614 N.W.2d11 (App. 2000) (party that fails to request further questioning anddoes not object to seating of juror cannot later allege error in trialcourt's failure to remove juror sua sponte).

Ultimately, a trial court abuses its discretion in the conduct ofvoir dire only if a review of the record reveals that the trial court'sconduct thwarted the selection of an impartial jury. Williams, 164Ill. 2d at 16-17. As the State argues in its brief, the trial court inthis case did not thwart the selection of an impartial jury. The trialcourt did not restrict the scope of defense counsel's questioning ofGrevus, did not prevent defense counsel from challenging Grevusfor cause, did not deny a challenge for cause, and did not preventdefense counsel from using an available peremptory challenge toexcuse Grevus. Consequently, the trial court did not abuse itsdiscretion in this case. The appellate court, therefore, erred inreversing defendant's conviction and remanding for a new trial onthe basis that the trial court should have excused Grevus suasponte.

Defendant next argues that even if the trial court did not havea duty to excuse Grevus sua sponte, defendant was denied theeffective assistance of counsel when his trial attorney failed tochallenge Grevus. Defendant therefore contends that the appellatecourt's decision reversing defendant's conviction can be affirmedon the ground that defendant was denied his sixth amendmentright to the effective assistance of counsel. Defendant notes that heraised this issue in the appellate court, but the appellate court didnot reach the issue due to the disposition of the case.

In Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674,104 S. Ct. 2052 (1984), the Supreme Court announced a two-parttest for judging ineffectiveness of counsel claims. Under that test,a defendant must show that his counsel's performance "fell belowan objective standard of reasonableness" and must also show that"there is a reasonable probability that, but for counsel'sunprofessional errors, the result of the proceeding would havebeen different." Strickland, 466 U.S. at 688, 694, 80 L. Ed. 2d at693, 698, 104 S. Ct. at 2064, 2068.

The Supreme Court also has recognized, however, that thereare certain "circumstances that are so likely to prejudice theaccused that the cost of litigating their effect in a particular case isunjustified." United States v. Cronic, 466 U.S. 648, 658, 80 L. Ed.2d 657, 667, 104 S. Ct. 2039, 2046 (1984). Such circumstancesinclude where there was the "complete denial of counsel," where"counsel entirely fails to subject the prosecution's case tomeaningful adversarial testing," and where counsel is called uponto render assistance under circumstances where competent counselvery likely could not do so. Cronic, 466 U.S. at 659-62, 80 L. Ed.2d at 668-70, 104 S. Ct. at 2047-49. Presumably claiming thatdefense counsel failed to subject the prosecution's case tomeaningful adversarial testing, defendant argues that allowing anactually biased juror to serve on the jury and determine his fate isso inherently prejudicial that prejudice must be presumed in thiscase under Cronic.

We find no merit to defendant's claim that prejudice must bepresumed in this case. The Supreme Court recently explained that"[w]hen we spoke in Cronic of the possibility of presumingprejudice based on an attorney's failure to test the prosecutor'scase, we indicated that the attorney's failure must be complete."Bell v. Cone, 535 U.S. ___, ___, 152 L. Ed. 2d 914, 928, 122 S.Ct. 1843, 1851 (2002). Thus, the Court in Bell rejected adefendant's claim his case was one in which prejudice must bepresumed. The Court stated that "respondent's argument is not thathis counsel failed to oppose the prosecution throughout thesentencing proceeding as a whole, but that his counsel failed to doso at specific points. For purposes of distinguishing between therule of Strickland and that of Cronic, this difference is not ofdegree but of kind." Bell, 535 U.S. at ___, 152 L. Ed. 2d at 928,122 S. Ct. at 1851.

In this case, as in Bell, defendant does not contend that hiscounsel failed to oppose the prosecution throughout the voir direproceeding as a whole, but that his counsel failed to do so withregard to juror Grevus. In fact, defense counsel did exercise fiveperemptory challenges. Consequently, any alleged failure to testthe prosecution's case here was not complete, as required underCronic. We therefore review defendant's claim of ineffectiveassistance of counsel under the Strickland standard.

As noted, to prevail on a claim of ineffective assistance ofcounsel under Strickland, a defendant must show both that hiscounsel's performance was so seriously deficient as to fall belowan objective standard of reasonableness and that the deficientperformance so prejudiced defendant as to deny him a fair trial.Strickland, 466 U.S. at 687-88, 80 L. Ed. 2d at 693, 104 S. Ct. at2064. With regard to the first prong, judicial scrutiny of acounsel's performance is highly deferential so that a defendantclaiming ineffective assistance of counsel must overcome a strongpresumption that the challenged actions of counsel were theproduct of sound trial strategy. Strickland, 466 U.S. at 689, 80 L.Ed. 2d at 694-95, 104 S. Ct. at 2065.

In Bowman, the appellate court held that the decision toexercise an available peremptory challenge is a strategic one, andfurther held that the defendant had failed to show that hiscounsel's decisions "questionable as they might be, were nottactical and a matter of jury selection strategy." Bowman, 325 Ill.App. 3d at 428. We agree that defense counsel's conduct duringjury voir dire involves matters of trial strategy that generally arenot subject to scrutiny under Strickland. See People v. Palmer, 162Ill. 2d 465, 476 (1994) ("counsel's strategic choices are virtuallyunchallengeable"). As in Bowman, we cannot say that counsel'sactions in this case were not tactical or matters of jury-selectionstrategy. Defense counsel did challenge five potential jurors. Forexample, defense counsel did excuse potential jurors Nolan andNigan, both of whom were members of the jury panel thatincluded Grevus. It certainly is possible that defense counselconsidered that the bias toward the system expressed by Grevusdue to the handling of her case might be directed against the Staterather than the defendant. In any event, given defense counsel'schallenge to two other members of the jury panel that includedGrevus, we find that defense counsel's decision to accept Grevuswas a matter of trial strategy.

Finally, even if we were to assume that defense counsel'sactions were not objectively reasonable, defendant's claim ofineffective assistance of counsel may be disposed of on the groundthat the defendant suffered no prejudice from the alleged error. SeePeople v. Johnson, 128 Ill. 2d 253, 271 (1989) (ineffectiveassistance of counsel claims can be disposed of on ground thatdefendant suffered no prejudice without deciding first prong ofStrickland). In order to show prejudice, a defendant must showthat there is a reasonable probability that, but for counsel'sunprofessional errors, the result of the proceeding would havebeen different. Here, the appellate court found, and we agree, thatthe evidence was more than sufficient to prove defendant guiltybeyond a reasonable doubt. Moreover, there is absolutely noevidence that Grevus' bias against the system was directed atdefendant and not the State. Consequently, we cannot say that theresult of the proceedings would have been different if Grevus hadnot served as a juror at defendant's trial.

For the foregoing reasons, we reverse the judgment of theappellate court and affirm the judgment of the circuit court.

Appellate court judgment reversed;

circuit court judgment affirmed.