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                                  Supreme Court                              Date: 2018.08.21
                                                                             13:23:28 -05'00'




                         People v. Encalado, 2018 IL 122059




Caption in Supreme   THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
Court:               THEOPHIL ENCALADO, Appellee.



Docket No.           122059



Filed                March 22, 2018
Rehearing denied     May 29, 2018



Decision Under       Appeal from the Appellate Court for the First District; heard in that
Review               court on appeal from the Circuit Court of Cook County, the Hon.
                     Matthew E. Coghlan, Judge, presiding.



Judgment             Appellate court judgment reversed.


Counsel on           Lisa Madigan, Attorney General, of Springfield, and Kimberly M.
Appeal               Foxx, State’s Attorney, of Chicago (David L. Franklin, Solicitor
                     General, Michael M. Glick and Evan B. Elsner, Assistant Attorneys
                     General, and Alan J. Spellberg, Annette Collins, and Mary P.
                     Needham, Assistant State’s Attorneys, of counsel), for the People.

                     Michael J. Pelletier, State Appellate Defender, Patricia Mysza, Deputy
                     Defender, and Jennifer L. Bontrager, Assistant Appellate Defender, of
                     the Office of the State Appellate Defender, of Chicago, for appellee.
                              The John Marshall Law School Pro Bono Program & Clinic, of
                              Chicago (J. Damian Ortiz and Mengjie Zou, of counsel, and Chandne
                              Jawanda, Christina Wood, and Titanila Halajovo, law students),
                              amicus curiae.



     Justices                 JUSTICE BURKE delivered the judgment of the court, with opinion.
                              Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride,
                              Garman, and Theis concurred in the judgment and opinion.



                                               OPINION

¶1         The defendant in the case at bar, Theophil Encalado, asked the trial court during voir dire
       to question the venire about whether evidence that he had engaged the services of a prostitute
       would influence the prospective jurors’ judgment in any way. The circuit court of Cook
       County refused defendant’s request, and he was subsequently found guilty on three counts of
       aggravated criminal sexual assault.
¶2         On appeal, the appellate court, with one justice dissenting, reversed defendant’s
       convictions and remanded for a new trial, holding that the trial court “abused its discretion
       when it refused to ask venire members questions about potential bias against persons who
       participate in prostitution.” 2017 IL App (1st) 142548, ¶ 1.
¶3         For the reasons that follow, we reverse the judgment of the appellate court.

¶4                                               Background
¶5         Defendant was indicted on 15 charges of aggravated criminal sexual assault and 3 charges
       of criminal sexual assault. In the indictment, it was alleged that, on the morning of March 5,
       2006, defendant knowingly, and by the use of force or threat of force, committed acts of oral,
       vaginal, and anal sexual penetration upon Y.C.
¶6         Prior to defendant’s trial, the State filed a motion to admit other crimes evidence to show
       that defendant committed similar sexual assaults against J.H., C.C., and S.A. Following a
       hearing, the trial court granted the State’s request with respect to C.C. and S.A., allowing
       admittance of other crimes evidence to show intent, lack of consent, and propensity. The court
       denied the State’s request with respect to J.H. but ruled that the State could impeach defendant
       with his conviction for predatory criminal sexual assault against J.H. if he chose to testify.
¶7         After the trial court ruled to allow the admission of other crimes evidence, defense counsel
       advised the court that defendant intended to testify that Y.C., C.C., and S.A. all consented to
       having sex with defendant in exchange for the payment of cash and drugs but that, after they
       provided the agreed services, defendant took back the payments he made. Counsel stated that
       the jurors “are going to hear evidence that [defendant] did engage in soliciting and using
       prostitutes.” Accordingly, defense counsel asked the court to inquire of the venire whether
       “[t]he fact that you will hear evidence about—and just put it mildly—to not try to indoctrinate


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       them at all—you will hear evidence about prostitution. Would that fact alone prevent you from
       being fair to either side?” The court refused the request, finding that the question was improper
       because it would be “asking them to comment on particular types of evidence that they may
       hear.”
¶8          The matter proceeded to trial on 6 of the 18 counts of aggravated criminal sexual assault
       committed against Y.C. At trial, Y.C. testified that around 6 a.m. on March 5, 2006, as she was
       walking on Sawyer Street in Chicago to go to a bakery, she saw a car parked across the street
       with a man inside. The man, whom she did not recognize but later identified as defendant,
       called to her. Y.C. crossed the street on her way to the bakery, bringing her closer to the car.
       Defendant then called out to her again, saying “[Y]o, your cousin Jose, he was looking for
       you.” Because Y.C. had a cousin Jose who lived a few blocks away, she went over to the car
       and asked what Jose wanted. Defendant, said, “He needs you.” Y.C. then got into defendant’s
       car.
¶9          Once Y.C. was in defendant’s car, he began driving in the opposite direction. Y.C. asked
       where they were going, and defendant said, “[Y]ou know what this is.” Y.C. testified she did
       not know what he meant but thought perhaps she was going to be robbed. Defendant then
       proceeded to an alley where there were no other cars or people. At this point, Y.C. testified, she
       became very frightened. She told defendant that she was pregnant and begged defendant not to
       do anything to harm her or her unborn child. Defendant, however, cursed at her and told her to
       shut up.
¶ 10        Y.C. testified that she tried to open the car door but it was locked. Defendant became angry
       and began to strike her repeatedly in the face. Also, he opened the glove compartment, showed
       her a pistol, and threatened to kill her. Defendant then forced Y.C. to perform oral sex on him,
       after which he sexually penetrated her vaginally and anally. When defendant was finished, he
       ordered Y.C. out of the car. As Y.C. tried to “fix” herself because her pants and underwear fell
       off her feet, defendant threw her shoe and underwear out of the car. Also, defendant began
       pushing Y.C. out of the car and told her that if she did not leave his car immediately, he would
       kill her.
¶ 11        After defendant drove away, Y.C. ran into the street and tried to wave down cars. At this
       point, Deputy Fernando Rodriguez of the Cook County Sheriff’s Office happened along, saw
       Y.C., and stopped to help her. He took Y.C. to the police station and then to the hospital, where
       a sexual assault kit was collected. Subsequent analysis of the kit showed the presence of semen
       in the vaginal and anal swabs. Forensic testing matched defendant’s DNA to the vaginal
       sample but not to the anal sample.
¶ 12        Y.C. testified that she moved to South Carolina in 2007 and, in 2009, she went to a South
       Carolina police department to view a photo array. From this photo array, she was able to
       identify defendant as her assailant. In addition, in May 2009, she came to Chicago to view a
       physical lineup. Again, she identified defendant as her attacker.
¶ 13        Deputy Rodriguez testified, confirming that on March 5, 2006, as he was driving
       northbound on Kedzie Avenue near Moffat Street, he saw Y.C. in the middle of the street,
       frantically waving her arms and trying to persuade passing cars to stop. Deputy Rodriguez
       described Y.C. as very distressed. He said she had blood on her mouth, was crying hysterically,
       was shaking, and was unable to speak at times. He took Y.C. to the police station and then to
       the hospital.


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¶ 14       The State then presented evidence that defendant had committed similar acts of sexual
       assault against C.C. C.C. testified that on the evening of September 1, 2002, she had gone to
       the Red Dog Club on North Avenue in Chicago with her sister. C.C. said she decided to leave
       the club to get some fresh air and sit in her sister’s car. As she walked toward the car, a man1
       drove up and asked if she needed a ride. Initially, she said no. However, when she could not
       find her sister’s car and because it was very cold outside, when defendant drove up again, she
       got into his car. C.C. testified that she did not recognize the man and that, after she entered the
       car, he put a bandana on his face, which kept her from getting a good look at him.
¶ 15       When the man put the bandana on, C.C. asked him what he was doing. The man punched
       her in the mouth, displayed a knife, and told her to shut up. Because C.C. began screaming, the
       man punched her again. C.C. tried to get out of the car, but the door was locked. Defendant
       then told her to take her clothes off and that “it was going to happen whether [she] liked it or
       not.” C.C. testified that she started crying but defendant ignored her cries, jumped on top of
       her, and sexually assaulted her, penetrating her vaginally. When he was done, he told her to put
       her clothes on as he drove back to the club. At the club, he told C.C. to get out of the car. But
       before she did, he tore her jewelry off.
¶ 16       C.C. testified that when she got back to the club she contacted the police, who were already
       at the club because they provided security at closing time. C.C. was taken to the hospital,
       where a sexual assault kit was collected. Evidence was presented to show that defendant’s
       DNA matched the swab taken at the hospital. The State then rested its case.
¶ 17       Defendant testified in his own defense. He admitted that he had sex with Y.C. and C.C. and
       also admitted he had a prior conviction for predatory criminal sexual assault. However,
       defendant claimed that, on March 5, 2006, he had gone to the area near Armitage Road and
       Kedzie Avenue because it was an area known for prostitution. He said he saw Y.C., pulled up
       next to her, and asked her for a date, “if she was working.” According to defendant, Y.C. said
       “Yes” and immediately got into his car. Defendant said he offered Y.C. money and marijuana
       in exchange for oral and vaginal sex and she agreed. He then parked in an alley, where they
       engaged in consensual oral and vaginal intercourse.
¶ 18       Defendant further testified that, because he was not able “to finish,” he decided to grab the
       money and marijuana back. He said this enraged Y.C., who began swinging at him and yelling
       at him, demanding the money back. Defendant said he then opened the door, grabbed Y.C.’s
       pants and underwear, threw them out of the car, and told Y.C. to get out. Defendant admitted
       threatening Y.C. that she “better not be here when I get back.” Defendant denied punching
       Y.C. and denied having a gun. On cross-examination, defendant admitted that he penetrated
       Y.C.’s anus “accidentally.” Defendant claimed he immediately stopped and apologized.
¶ 19       With regard to C.C., defendant testified that he picked her up on September 1, 2002,
       around North Avenue and Wood Street, another area known for prostitution. Defendant said he
       saw C.C. on the street and honked at her and she came over to his car. He then negotiated with
       her, offering her $60 and some cocaine in exchange for oral and vaginal sex. When she agreed,
       she got into his car, and he drove to a parking lot, where they engaged in sex. He testified
       further that, after having sex, he “did the same stupid act. I took—I went and took my money
       back from her.” Defendant claimed that when he took the money back, C.C. slapped him and

          1
           C.C. was never able to identify defendant as her assailant, but DNA linked defendant to the attack.

                                                     -4-
       pulled his hair. He then reached over and pushed her out of the car and drove away. Defendant
       denied forcing C.C. to have sex, punching her, having worn a bandana, having a knife, or
       taking C.C.’s jewelry. Defendant admitted he had been convicted of predatory criminal sexual
       assault but denied sexually assaulting either Y.C. or C.C. Defendant then rested.
¶ 20       The jury found defendant guilty on three counts of aggravated criminal sexual assault. In a
       motion for a new trial, defendant again raised the issue of the court’s refusal to question the
       venire about prostitution. The trial court denied the motion for a new trial. Defendant was
       sentenced to 20 years’ imprisonment on each of the three counts of aggravated criminal sexual
       assault, with each sentence to run consecutive to each other and consecutive to defendant’s
       sentence in the predatory criminal sexual assault case.
¶ 21       The appellate court, with one justice dissenting, reversed defendant’s convictions and
       remanded for a new trial. 2017 IL App (1st) 142548. The court held that the circuit court
       abused its discretion when it refused to question the venire members about any potential bias
       they might have in connection with prostitution.
¶ 22       We granted the State’s petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Mar. 15, 2016).
       We also allowed The John Marshall Law School’s Pro Bono Program & Clinic to file an
       amicus curiae brief in support of the State. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).

¶ 23                                              Analysis
¶ 24        A criminal defendant has a constitutional right to trial by an impartial jury. Morgan v.
       Illinois, 504 U.S. 719, 727 (1992); People v. Strain, 194 Ill. 2d 467, 475 (2000). To secure this
       right, inquiry is permitted during voir dire “ ‘to ascertain whether the juror has any bias,
       opinion, or prejudice that would affect or control the fair determination by him of the issues to
       be tried.’ ” People v. Lobb, 17 Ill. 2d 287, 300 (1959) (quoting Connors v. United States, 158
       U.S. 408, 413 (1895)). “The purpose of voir dire is to ascertain sufficient information about
       prospective jurors’ beliefs and opinions so as to allow removal of those members of the venire
       whose minds are so closed by bias and prejudice that they cannot apply the law as instructed in
       accordance with their oath.” People v. Cloutier, 156 Ill. 2d 483, 495-96 (1993). Jurors “must
       harbor no bias or prejudice which would prevent them from returning a verdict according to the
       law and evidence.” Strain, 194 Ill. 2d at 476.
¶ 25        The manner, extent, and scope of voir dire examination rests within the discretion of the
       trial court. Id.; People v. Terrell, 185 Ill. 2d 467, 484 (1998); People v. Rinehart, 2012 IL
       111719, ¶ 16. However, “the trial court must exercise its discretion in a manner consistent with
       the purpose of voir dire.” Strain, 194 Ill. 2d at 476. “An abuse of discretion occurs when the
       conduct of the trial court thwarts the purpose of voir dire examination—namely, the selection
       of a jury free from bias or prejudice.” Rinehart, 2012 IL 111719, ¶ 16. “To be constitutionally
       compelled, it is not enough that a voir dire question be helpful[;] rather, the trial court’s failure
       to ask the question must render the defendant’s proceedings fundamentally unfair.” Terrell,
       185 Ill. 2d at 485.
¶ 26        The appellate court below observed that various courts have noted that certain sexual
       behaviors, including prostitution, can evoke “strong responses.” 2017 IL App (1st) 142548,
       ¶ 31. The appellate court further observed that a number of jurisdictions use public shaming
       against patrons of prostitutes as a means to reduce prostitution because “legislatures and the
       customers of women who exchange sex for money know that many persons feel strong disgust

                                                     -5-
       and antipathy toward the patrons of prostitutes.” Id. ¶¶ 32-33. Based on these observations, the
       appellate court concluded that “jurors may hold similar biases against customers of women
       who exchange sex for money.” Id. ¶ 32. From this, the appellate court reasoned that, because
       the jury in this case was going to hear evidence that defendant patronized prostitutes, his
       proffered question should have been put to the jurors so he could ascertain whether they were
       free from bias. Relying largely on this court’s decision in Strain, the appellate court then
       concluded that, because the question was not asked, defendant’s voir dire proceeding was
       fundamentally unfair and his convictions had to be reversed. We disagree.
¶ 27       The relevant question in this case is not whether patrons of prostitutes can be made to feel
       ashamed if their behavior is publicized or whether prostitution evokes “strong responses” in
       the minds of the public. Rather, the question is whether prospective jurors harbor such bias
       against those people who patronize prostitutes that the jurors will not believe the testimony of
       such a person or be able to give that person a fair hearing. It is the jurors’ ability to fairly
       consider the evidence before them that is the critical issue. See, e.g., Cloutier, 156 Ill. 2d at
       495-96 (the purpose of voir dire is to ascertain and remove those jurors whose “minds are so
       closed by bias and prejudice that they cannot apply the law as instructed in accordance with
       their oath”).
¶ 28       This point was made clear in Strain. In Strain, the defendant was charged with first degree
       murder. The State’s theory of the case, which was advanced before trial, was that the murder
       victim was an innocent bystander who was killed during an attempted retaliation for a previous
       gang shooting. Strain, 194 Ill. 2d at 469-73. Because gang testimony was certain to be
       prevalent throughout the trial, the defendant asked the trial court to question the potential
       jurors during voir dire as to whether they would find the defendant less believable if they
       learned he was a member of a gang. Id. at 471-72. The trial court refused to ask the defendant’s
       questions, and after a trial that was “permeated” with gang information (id. at 473), the
       defendant was convicted. On appeal, the appellate court reversed the defendant’s conviction
       because the trial court had refused the proffered questions and, as result, the defendant was
       denied a fundamentally fair voir dire proceeding.
¶ 29       In affirming the judgment of the appellate court, this court in Strain made clear that
       gang-related testimony was pervasive throughout the trial, being offered not only by detectives
       and police officers assigned to gang units but also by gang members themselves. Id. at 477-78.
       The court also emphasized that the outcome of the trial turned on the credibility of the
       defendant, various police officers, and members of gangs. Id. at 473. Finally, and of particular
       relevance here, the court in Strain pointed to a substantial body of Illinois law that holds that
       street gangs are regarded with considerable disfavor by other segments of our society and that,
       unless there is sufficient proof that membership or activity in a gang relates to the crime
       charged, evidence that a defendant is a gang member is generally excluded because of its
       prejudicial effect. Id. at 477. We then explained that “[t]he same concerns regarding the
       prejudicial effect of gang evidence dictate our holding that, when testimony regarding gang
       membership and gang-related activity is to be an integral part of the defendant’s trial, the
       defendant must be afforded an opportunity to question the prospective jurors, either directly or
       through questions submitted to the trial court, concerning gang bias.” Id.
¶ 30       The voir dire questions in Strain were not required because gang members feel ashamed of
       being in a gang, or simply because gang membership provokes strong feelings in the public.


                                                   -6-
       Instead, the questions were required because the public views the testimony of gang members
       with skepticism and may, therefore, fail to consider the testimony of a gang member without
       prejudice. And, importantly, this fact was established by a substantial body of case law.
¶ 31       There is no similar body of law here. None of the articles or decisions cited by the appellate
       court below discuss how members of the general public treat the testimony of those who
       patronize prostitutes. And none of the authorities establish that the public harbors bias against
       the patrons of prostitutes to the extent that such a person’s testimony cannot be considered
       fairly. See 2017 IL App (1st) 142548, ¶¶ 59-63 (Mason, J., concurring in part and dissenting in
       part).
¶ 32       Our decision in Strain is distinguishable from the present case in another important respect.
       In Strain, there was no dispute that the majority of the witnesses who testified were gang
       members. The defendant himself, although he denied being a gang member at the time of the
       offense, admitted to being a gang member for many years. People v. Strain, 306 Ill. App. 3d
       328, 332 (1999). In other words, in Strain, the gang affiliation of the witnesses was a matter
       that was both inescapably a part of the trial and a matter that was not in dispute by either party.
       See also, e.g., People v. Peeples, 155 Ill. 2d 422, 459-60 (1993) (noting that voir dire questions
       regarding attitudes on race are required only where it is clear that racial issues are
       “ ‘inextricably bound up with the conduct of the trial’ ” (quoting Ristaino v. Ross, 424 U.S.
       589, 597 (1976))).
¶ 33       In this case, in contrast, it was disputed whether Y.C. and C.C. were, in fact, prostitutes.
       Thus, defendant’s proffered question did not involve a matter that was indisputably true and
       inextricably a part of trial. Rather, the question amounted to a preliminary argument regarding
       a disputed question of fact. This type of questioning during voir dire is generally not permitted.
       See, e.g., Rinehart, 2012 IL 111719, ¶ 17 (specific questions tailored to the facts of the case
       and intended to serve as “ ‘preliminary final argument’ ” are generally impermissible (quoting
       People v. Mapp, 283 Ill. App. 3d 979, 989-90 (1996))); People v. Bowel, 111 Ill. 2d 58, 64-65
       (1986) (questions designed to educate the jurors on the defendant’s theory of defense and
       ensure the selected jurors are receptive to that defense are generally prohibited).
¶ 34       Further, defendant’s proffered question must be considered in the context of the charges
       made against him. Defendant was charged with, inter alia, intentionally committing acts of
       sexual penetration upon the victim’s vagina, anus, and mouth while armed with a firearm. The
       members of the venire were informed of these charges and were asked by the trial court during
       voir dire whether there was anything about the nature of the charges that would prevent them
       giving both sides a fair and impartial trial. Some members of the venire were excused when
       they informed the court that, because of personal experiences with sexual assault, they could
       not fairly consider the evidence and remain impartial. The remaining members of the jury were
       accepted by both sides and deemed capable of considering the evidence fairly and without
       prejudice. Thereafter, at trial, the jury heard extensive, explicit testimony regarding the sexual
       conduct committed by defendant, much of which was given by defendant himself. Even if it
       were true that Y.C. and C.C. were prostitutes, it is difficult to conceive how a juror who could
       fairly judge the explicit sexual conduct would be rendered incapable of fairly judging
       defendant based on the fact he patronized prostitutes.
¶ 35       The trial court in the case at bar conducted a thorough voir dire, asking all members of the
       venire, among other things, whether they could follow the law and obey the instructions given


                                                    -7-
       by the court and whether they would use sympathy, bias, or prejudice in reaching a decision.
       Further, there is no body of law that holds that the testimony of patrons of prostitutes is treated
       with skepticism by the public. In addition, allowing defendant’s proffered question would have
       permitted defendant to preargue a disputed issue of fact. Given these circumstances, we cannot
       say that refusing defendant’s proffered question regarding prostitution rendered the voir dire
       proceeding fundamentally unfair. Accordingly, we hold that the trial court did not abuse its
       discretion in denying defendant’s question.

¶ 36                                         Conclusion
¶ 37      For the foregoing reasons, the judgment of the appellate court is reversed.

¶ 38      Appellate court judgment reversed.




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