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People v. Redmond4/18/2005
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Defendant argues that he was denied his right to a fair trial because the trial court failed to strike a juror for cause when that juror failed to disclose a prior criminal charge. The State responds that defendant waived this issue by failing to use a peremptory challenge on the objectionable juror. We agree.
During voir dire, the trial court asked the venire if any of them had ever been accused of a crime. Juror Mullally did not indicate that he had. Later in chambers, defendant's attorney asked to strike Mullally for cause because he failed to disclose that he had been accused of a crime. The court brought Mullally into chambers and asked him if there was a time when he was arrested and charged with driving while intoxicated. Mullally admitted that there was, and that he did not disclose it earlier because he did not think it applied. Mullally thought it did not apply because it was a misdemeanor. The court denied defendant's request to strike Mullally for cause, stating that the question was confusing and Mullally said he could be fair. Defendant did not use a peremptory challenge to excuse Mullally.
"The failure to challenge a juror for cause or by peremptory challenge waives any objection to that juror." People v. Collins, 106 Ill. 2d 237, 271 (1985). A court's failure to remove a prospective juror for cause is grounds for reversal only if the defense exercised all of its peremptory challenges and an objectionable juror was allowed to sit on the jury. People v. Lake, 298 Ill. App. 3d 50, 56 (1998).
Accordingly, defendant's argument that the trial court erred in denying defendant's motion to strike Mullally for cause is waived because defendant failed to exercise a peremptory challenge on Mullally and defendant had not yet exhausted his peremptory challenges.
As an alternative argument, defendant contends that he was denied effective assistance of counsel because his attorney failed to exercise a peremptory challenge to exclude Mullally from the jury.
In Strickland v. Washington, 466 U.S. 668, 80 L.Ed. 2d 674, 104 S.Ct. 2052 (1984), the Supreme Court delineated a two-part test to use when evaluating whether a defendant was denied the effective assistance of counsel in violation of the sixth amendment. Under Strickland, a defendant must demonstrate that counsel's performance was deficient and that such deficient performance substantially prejudiced defendant. Strickland, 466 U.S. at 687, 80 L.Ed. 2d at 693, 104 S.Ct. at 2064.
If a case may be disposed of on the ground of lack of sufficient prejudice, that course should be taken, and the court need not ever consider the quality of the attorney's performance. Strickland, 466 U.S. at 697, 80 L.Ed. 2d at 699, 104 S.Ct. at 2069. In evaluating sufficient prejudice, "the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 80 L.Ed. 2d at 698, 104 S.Ct. at 2052.
In the present case, defendant cannot show that he suffered any prejudice as a result of his attorney's alleged error. The evidence against defendant was substantial. Here, Officer Avery testified that he saw defendant inside a vehicle that belonged to another person. Additionally, Officer Avery noticed that the passenger window was not broken when he initially drove past, but upon recircling, Officer Avery saw that the window was broken and defendant was partially inside the Blazer. Budil also testified that the window was intact when he parked the car and he did not give defendant
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