The Illinois Supreme Court handed down four unanimous opinions on Thursday, March 22. The court considered the manner, scope, and extent of voir dire in People v. Encalado, concluding that the trial court did not abuse its discretion in denying the defendant’s proposed voir dire question. Relying on statutory construction principles and legislative intent, the court upheld a first degree murder conviction in People v. Manning. In People ex rel. Berlin v. Bakalis, the court directed the circuit court to vacate the defendant's one-year term of mandatory supervised release and impose the mandatory four-year term required under the Unified Code of Corrections. Lastly, the court affirmed the lower courts' ruling that State Farm's insured could recover underinsured motorist coverage in Thounsavath v. State Farm Mutual Automobile Co.

People v. Manning

By Kerry J. Bryson, Office of the State Appellate Defender

Arthur Manning was charged with first degree murder arising out of the stabbing death of a “highly intoxicated and ultimately an unwelcome visitor at a residence occupied by defendant” and others. At trial, there was evidence of a fight between the decedent and several of the residents including Manning, who had been armed with a knife. The jury was instructed on self defense and second degree murder at Manning’s request.

During deliberations, the jury sent out a note asking whether the verdict would revert to first degree murder if the vote on mitigating factors was not unanimous. After some discussion, the court responded, “your verdict must be unanimous” and instructed the jurors to continue deliberating. The jury returned a verdict of guilty of first degree murder.

The judge polled the jury but refused Manning’s request to ask each juror whether they found the mitigating factor existed. The Appellate Court found error in the refusal to poll the jury, and reversed and remanded for a new trial.

A unanimous supreme court reversed the appellate court, however, and affirmed Manning’s first degree murder conviction. The supreme court relied on statutory construction principles and determined that the legislature intended a first degree murder verdict be entered where a defendant does not meet his burden of proving by a preponderance of the evidence that a mitigating factor was present. Defendant must meet this burden by proving the mitigating factor to “the jury” not just to “some jurors.”

In reaching this conclusion, the court noted that the second-degree murder statute had replaced the voluntary murder statute. While the state bore the burden of proving beyond a reasonable doubt the absence of mitigating factors under the voluntary murder statutory scheme, it is defendant’s burden to prove the existence of mitigation for purposes of second-degree murder. Because the jury must unanimously find first degree murder before proceeding on to consider whether a mitigating factor exists, Manning’s subsequent failure to meet his burden to convince all 12 jurors of the mitigating factor properly resulted in a first-degree murder verdict. The trial court’s response to the jury’s question was correct, as was the court’s polling of the jury.

People ex rel. Berlin v. Bakalis

By Kerry J. Bryson, Office of the State Appellate Defender

Frank Gilio pled guilty to violating an order of protection in exchange for the State’s agreement not to prosecute a second violation as well as two counts of aggravated battery to a police officer. There was no agreement as to the sentence. At the plea hearing, Gilio was informed that the possible prison term for the Class 4 violation of order of protection was 1-to-6 years of imprisonment with a one-year MSR term to follow. He was sentenced to 3 years of imprisonment and a year of MSR.

Shortly before Gilio’s release from IDOC, the State learned that the one-year MSR term was improper because a 4-year MSR term was mandated by statute for Gilio’s offense. At the State’s request, the trial court corrected the mittimus to reflect the proper MSR term. The trial court entered a corrected mittimus, but later vacated that correction in light of Castleberry’s aborgation of the void sentence rule. Accordingly, the state filed the instant mandamus action in the Illinois Supreme Court.

In the supreme court, Gilio agreed that correction of the MSR term was required but sought a complete resentencing, arguing that the trial judge might have imposed a lesser prison term had he known of the longer MSR requirement. The supreme court rejected Gilio’s assertion, noting that the trial court had not indicated a desire to reconsider the prison term when it originally learned of the longer MSR term and thus there was no support for the assertion that the trial court was likely to decrease the prison sentence. Mandamus was issued to order correction of the MSR term.

Notably, the state also asked the supreme court to announce a new rule that would allow “statutorily unauthorized sentences to be corrected at any time by motion in the circuit court” to “fill the void” from Castleberry’s abrogation of the void sentence rule. The court declined to bypass the normal rulemaking process defined in Illinois Supreme Court Rule 3 and rejected the state’s request. The court did, however, refer the State’s proposal to its rules committee. Thus, practitioner’s may expect to see this proposal make its way through the rulemaking process and may want to watch for, and participate in, the public hearings which will be part of that process.

People v. Encalado

By Kerry J. Bryson, Office of the State Appellate Defender

Theophil Encalado was charged with multiple counts of aggravated criminal sexual assault alleging that he committed various acts of sexual penetration by force or threat of force. Encalado’s defense was that the complainant was a prostitute who claimed sexual assault because he had engaged her services but then refused to pay her. He made the same claim with regard to a State witness who testified to previous, similar acts of sexual assault by Encalado (that witness’s testimony was admitted to prove intent, absence of consent, and propensity).

Prior to trial, Encalado asked the trial court to voir dire prospective jurors as to whether evidence that he had engaged the services of a prostitute would influence their judgment in any way. The trial court refused that request, and Encalado was convicted. The appellate court, in a 2-to1 decision, reversed and remanded for a new trial, finding the refusal of Encalado’s proposed voir dire question was an abuse of discretion.

The supreme court disagreed. The manner, scope, and extent of voir dire rest within the sound discretion of the trial judge. An abuse of discretion occurs when the trial judge thwarts the purpose of voir dire, which is to allow removal of potential jurors whose minds are “so closed by bias and prejudice that they cannot apply the law as instructed in accordance with their oath.” While prostitution can evoke strong feelings, there is no evidence that people tend to treat those who patronize prostitutes as less credible or that there is such a public bias against such persons that their testimony cannot be considered fairly. Thus, specific voir dire about prostitution was not required. Indeed, allowing defendant’s proposed voir dire question would have improperly permitted defendant to pre-argue his defense. The supreme court concluded that the trial court did not abuse its discretion in denying defendant’s proposed voir dire question on the subject of prostitution.

Thounsavath v. State Farm Mutual Automobile Insurance Co.

By Michael T. Reagan

Justice Thomas wrote for a unanimous court in affirming both the circuit and appellate courts, which had ruled that State Farm’s insured could recover underinsured motorist coverage under her own State Farm policies even though she was injured while a passenger in a vehicle being driven by a driver who was excluded from coverage under those  policies. While this opinion thoroughly examines the counter-arguments made by State Farm, for the purpose of this summary it is sufficient to describe the court’s holding.  

Plaintiff’s State Farm policies on her own vehicles contained a driver exclusion endorsement, which provided that State Farm was to have no liability under any coverage of the policy “while any motor vehicle is operated by” the excluded driver. Plaintiff sustained injury when she was a passenger in an automobile owned and operated by that excluded driver. She sought underinsured motorist coverage from State Farm, which was denied. The court noted the provision of the Insurance Code which provides that uninsured motorist coverage must extend to all those who are insured under the policy’s liability provisions. The court recognized that, in general, named driver exclusions are permitted, and that it was permissible for State Farm to exclude the driver as an individual for whom it would not provide insurance coverage. But the pivot point of the court’s reasoning is that it was not the excluded driver who was seeking coverage, but rather the plaintiff who was attempting to collect under her policies with State Farm. The court concluded that by operation of the Insurance Code and established case law “once plaintiff was designated an insured under her policy with State Farm, then, State Farm was prohibited from either directly or indirectly denying her underinsured motorist coverage.” State Farm’s position here was found to violate Sec. 143a-2(4) of the Insurance Code, and therefore was also in violation of public policy, rendering the operation of the driver exclusion endorsement unenforceable in this circumstance.