                                       2018 IL 122059



                                         IN THE

                                SUPREME COURT

                                             OF

                          THE STATE OF ILLINOIS




                                    (Docket No. 122059)

               THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
                       THEOPHIL ENCALADO, Appellee.



                               Opinion filed March 22, 2018.



        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 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.”




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¶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.




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¶ 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.

¶ 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 man 1 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.


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




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¶ 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 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




                                                -5­
       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. Sep. 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




                                                -6­
       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 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




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       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.




                                                -8­
¶ 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. 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




                                                -9­
       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 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.




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¶ 36                                   Conclusion

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


¶ 38   Appellate court judgment reversed.




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