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Docket No. 88007-Agenda 32-May 2000.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. TERRANCE STRAIN, Appellee.

Opinion filed November 16, 2000.

JUSTICE FREEMAN delivered the opinion of the court:

A jury convicted defendant, Terrance Strain, of two counts offirst degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 1992)) inconnection with the death of Geary Dow. Subsequently, the trialcourt sentenced defendant to concurrent prison terms of 45 yearsfor each count of first degree murder. The appellate court reverseddefendant's conviction and remanded for a new trial because itfound that the trial court committed error in refusing to ask thejury venire two questions submitted by defendant. 306 Ill. App. 3d328. We allowed the State's petition for leave to appeal (177 Ill.2d R. 315(a)), and now affirm.

BACKGROUND

On February 12, 1996, Dow was killed as he stood outside ahome on the 120th block of Perry Avenue in Chicago. Dow hadgone to the home, along with Terry Bosley, to perform someelectrical work. He was shot as he and Bosley waited next to a vanfor the daughter of the homeowner to give them a ride home.

A few days after the shooting, defendant learned that thepolice wanted to question him about a homicide. On February 20,1996, police officer Jerry paged defendant. Defendant respondedto the page and suggested a meeting at a gas station in Riverdale.Defendant had acted as a confidential informant for Officer Jerrysince 1995. When the police car arrived at the gas station,defendant flagged the car down and got in the car. Officer Jerrytook defendant to the police station, where he was placed underarrest.

The State claimed that defendant gave an oral statement whileunder arrest. Defendant denied making any statement. After ahearing on a motion to suppress, the trial court decided to allowthe State to introduce the alleged statement into evidence at trial.The statement contained numerous references to gangs.

The State then moved to allow proof of other crimes at trial.In its motion, the State alleged that members of the GangsterDisciples shot defendant in the leg because defendant was amember of the Black Disciples. In retaliation, defendant attemptedto shoot Darryl Burnett, a member of the Gangster Disciples, nearthe intersection of 120th Street and Perry Avenue. The Stateargued that defendant's action in killing Geary Dow was yetanother attempt to retaliate against the Gangster Disciples. Thetrial court granted the State's motion, ruling that the evidence ofother crimes was admissible to show defendant's state of mind,intent and motive, and relevant to identification.

The trial court recognized that evidence of gang affiliationwas to play a part in defendant's trial. Prior to the start of voirdire, the trial judge indicated to the attorneys that he would adviseprospective members of the jury there would be evidence of ganginvolvement at trial. The trial judge noted that he would ask theprospective jurors questions relating to:

"The allegation they or any close member of their familyor close friend had any involvement with a gang, could bemembership, affiliation, could be a victimization and sothe parties then would be fully aware of anything likethat."

The trial judge also indicated that, pursuant to Supreme CourtRule 431 (177 Ill. 2d R. 431), he would allow supplementalquestioning of the prospective jurors, upon the court's approval ofthe questions.

The trial judge conducted voir dire of the first panel of thevenire, consisting of 20 prospective jurors. The trial judge askedeach prospective juror whether the juror, any member of thejuror's family or a close friend of the juror had ever been involvedin a gang. The trial judge also asked each prospective jurorwhether the juror could be fair to both sides. Defense counsel thenrequested that the trial judge ask each prospective juror whetherthe juror would find defendant less believable if the juror learnedthat defendant belonged to a gang. This colloquy followed:

"THE COURT: Whom am I supposed to ask that [to]?

MR. STRALKA: Everybody, I know you mentionedyou would ask about gangs but the question is have youhad any contact with gangs.

THE COURT: Why wasn't this submitted prior to medoing the jury questioning?

MR. STRALKA: I thought you said when you askedabout gangs, you would get into it.

THE COURT: I gave specifically what question Iwould ask and typically the question I have asked.

MR. STRALKA: This is my request for a supplementalquestion.

THE COURT: That's not supplemental. This is new, anew, separately new question which would require theCourt [to] go back and ask each individual juror aquestion that could have been submitted previously onthat.

MR. STRALKA: If the Court would allow me to ask it,I'll ask it.

THE COURT: It's not supplemental.

MR. STRALKA: It's supplemental to the issue ofgangs.

THE COURT: To the issue but not the question. Iindicated the question to you previously, and you at thatpoint even though it was tardy and not in writing, I wouldhave allowed you to submit this at this time and I wouldhave asked this in tandem with the question if it wassubmitted but it's not submitted, it's not supplemental,it's different.

Next is if you learned the defendant is and was amember of a gang would it make it more likely than notthat he's guilty of a gang shooting.

You see that's the reason why you can't add these at the11th hour like this, because obviously-.

MR. STRALKA: I'm asking that either the Court or Ibe allowed to ask this as a question, follow up question onthe issue of gangs.

THE COURT: Nobody has indicated that they havebeen involved in a gang at all, none has answered that yet.And again this is the kind of question that the State isentitled to respond to and object to and to be heard on andbring authority on and not be ambushed by it at the 11thhour.

MR. STRALKA: The issue here is how does it affectthe juror? They could answer to this Court that they havehad no knowledge, no contact with gangs as all, but onejuror has indicated. But the question would be do youhave an opinion of gangs, would that opinion of gangs ifyou learned the defendant is in a gang would that affectyour ability to be fair. That's what these questions go toand probe. A fairness question.

THE COURT: Then why didn't you submit themearlier? Now as a matter of trial strategy you're springingthem on the Court and on your adversary.

MR. STRALKA: The rules suggest that supplementalquestions be submitted after the Court asks questions.

THE COURT: These are not supplemental, these arebrand new questions that the Court is entitled to noticeand to make a fair intelligent ruling on as the oppositionis entitled to very notice and make a credible and wellresearched objection on it. This is, both these will not beallowed."

The trial judge recalled the first venire panel and asked oneprospective juror supplemental questions regarding thecircumstances surrounding the murder of a relative. The trial judgealso asked the prospective juror, as well as three other members ofthe panel, supplemental questions regarding the districts to whichtheir police officer relatives and acquaintances were assigned. Thetrial judge then continued voir dire with the examination of asecond venire panel. As with the members of the first venire panel,the trial court asked each prospective juror whether thevenireperson, any member of the venireperson's family or a closefriend of the venireperson had ever been involved in a gang. Thetrial judge also asked each prospective juror whether he or shecould be fair to both sides. Although defense counsel renewed hisrequest to have the prospective jurors questioned regarding gangbias, the trial judge refused to do so.

Defendant's trial proceeded with the presentation of theState's opening statement. In its statement, the State explained tothe jury that defendant held a grudge against the GangsterDisciples because defendant believed that members of theGangster Disciples had shot him in the leg on January 29, 1996.The State then recounted defendant's attempts to extract revengefrom the Gangster Disciples, culminating in the murder of Dow.The State concluded that Dow was an innocent victim, killedbecause he "walk[ed] straight into a collision course [withdefendant's] wrath. He walked into a bullet fired by [defendant, a]member of the Black Disciple street gang [, at] people who thisdefendant thought were G.Ds., Gangster Disciples, rival gangmembers."

At trial, the State introduced defendant's alleged oralstatement into evidence, and presented the testimony of severalpolice officers and members of the Gangster Disciples, to supportits theory that defendant shot and killed Dow in an attempt, goneawry, to extract revenge from the Gangster Disciples. The opinionof the appellate court contains a thorough exposition of thisevidence, including a summary of defendant's alleged oralstatement, and his testimony denying that he made the statement.See 306 Ill. App. 3d 328. We need not repeat the facts here.However, for purposes of this appeal, we note two matters ofcrucial importance: (1) gang information permeated the testimonyof almost every witness at trial; and (2) the outcome of the trialturned upon the credibility of defendant, various police officers,and members of the Gangster Disciples.

DISCUSSION

As indicated above, the appellate court found that the trialcourt committed error in refusing the questions submitted bydefendant, probing for gang bias. Initially, the State maintains thatdefendant waived objection to the voir dire because defendantsubmitted the questions in an untimely manner. The State notesthat defendant had an opportunity to submit questions to the trialcourt prior to voir dire but failed to do so. We reject the State'scontention. Instead, we agree with defendant that the questions hesubmitted on the subject of gang bias were supplementalquestions, which he could not have known the need for or, indeed,could not have formulated until the trial court posed the initialquestion on gang involvement.

The trial judge indicated to the attorneys at bar that he wouldquestion the prospective jurors on the subject of gangs, and gaveexamples of areas, such as affiliation and victimization, that wouldbe covered in questioning. The trial judge noted that "the partiesthen would be fully aware of anything like that." However, thetrial judge posed only one question to the prospective jurors,inquiring regarding each prospective juror's involvement in agang.

Once the trial judge concluded his examination of the firstvenire panel, he conferred with the attorneys regardingsupplemental questions. Defense counsel then submitted thequestions on gang bias. Defense counsel argued forcefully that thetrial judge's question regarding gang involvement would notreveal biases against gang members. A juror might well answer aquestion regarding gang involvement in the negative, whileharboring an opinion of gang members that would affect his abilityto weigh the evidence fairly and impartially. Realistically, theconference was defense counsel's first opportunity to submit thequestions at issue. Even more importantly, it was not until the trialjudge posed the question regarding gang involvement that defensecounsel became aware of the scope of the court's examination andperceived the deficiencies in the questioning. In general a partydoes not waive an issue if raised at the first opportunity. SeePeople v. Janes, 168 Ill. 2d 382, 387 (1995); People v. Karas, 81Ill. App. 3d 990, 996 (1980); People v. Knutson, 17 Ill. App. 2d251, 259 (1958).

We note that the trial judge recalled the first venire panel andasked members of the panel supplemental questions relating toother matters. It would have taken little additional time for the trialjudge to ask the prospective jurors the supplemental questions ongang bias.

Next, the State maintains that defendant was not entitled toquestion the venire regarding gang bias and, thus, the trial courtdid not abuse its discretion in refusing the questions submitted bydefendant. Again, we disagree.

Section 13 of article I of the Illinois Constitution (Ill. Const.1970, art. I,