FIRST DIVISION

March 31, 2008

No. 1-04-3369

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

) Circuit Court of

Plaintiff-Appellee, ) Cook County.

)

v. ) No. 02 CR 26186

)

CLINTON DIXON, ) The Honorable

) Michael P. Toomin,

Defendant-Appellant. ) Judge Presiding.

JUSTICE GARCIA delivered the opinion of the court.

The defendant, Clinton Dixon, contends that the trial court

erred by denying defense counsel's request to strike juror

Emmerson Ratliff for cause and by refusing to allow defense

counsel to question potential jurors about their attitudes

towards drug abuse and addiction. The defendant also contends

that the trial court erred in failing to appoint alternate

counsel to represent him in his pro se posttrial motion for a new

trial.

BACKGROUND

Following a jury trial, the defendant was convicted of home

invasion, residential burglary, armed robbery and first-degree
No. 1-04-3369

2

murder. The charges against the defendant arose from the home

invasion and stabbing death of James Knight. 

Prior to trial, the defendant filed a motion to suppress

alleging, inter alia, that his oral statement to the police and

subsequent videotaped confession were involuntary because he was

experiencing heroin withdrawal at the time he gave his

statements. The defendant also alleged that his statements were

the product of mental and physical abuse by the police. The

defendant also alleged that the police promised him drugs in

exchange for his videotaped confession. During his videotaped

confession, the defendant described himself as "dope sick." The

defendant further alleged that the police provided him with

heroin at the conclusion of his videotaped confession.

The trial court denied the defendant's motion to suppress,

finding that the videotape of the defendant's confession, taken

the day after his oral statement, 

"does not reflect any of the significant

signs of heroin withdrawal ***. Notably

absent is evidence of restlessness, yawning,

running of the eyes or nose, increased

sensitivity to pain, severe abdominal

cramping, nausea and vomiting. Other than

defendant's brief episode of contrition, he
No. 1-04-3369

3

appears calm, composed and quite normal in

appearance. *** Likewise, his detailed

description of the events leading to and

culminating in the fatal stabbing of James

Knight reflect a keen ability to observe,

recall and relate telling aspects and details

of the crime." 

The court found the defendant's claim that he was experiencing

drug withdrawal at the time he gave his statements "dubious" and

rejected it. The court concluded that the defendant's statements

were given freely and voluntarily and, thus, not subject to

suppression.

Before jury selection, Judge Michael Toomin addressed

defense counsel: "I don't think, Mr. Conniff, you've tried a jury

up here. We'll spend a few minutes in chambers after we [do] the

call." The defendant claims that during this conversation in

Judge Toomin's chambers, the judge informed counsel for both

sides that "back-striking" would not be permitted during voir

dire. 

Voir dire began with instructions from the court. Twelve

potential jurors were then called as a panel for questioning. 

After counsel for the State questioned the members of the panel,

one was removed for cause and another excused by peremptory
No. 1-04-3369

4

challenge. The State questioned two substitute members and

accepted and tendered the panel to the defense. 

Before he began his questioning of the potential jurors,

defense counsel requested that the court allow him to ask the

potential jurors about their "views toward drug usage or

addiction." Defense counsel explained, " 'Cause we feel that may

bear on some facts in this case. Although it's not a defense, we

will just respectfully ask to be allowed to inquire the jury of

that." The court asked for clarification as to the type of

question defense counsel would ask. Defense counsel clarified: 

"[W]hether any particular juror has any

belief about drug usage which, based upon

that belief, would make them believe that

they could not be fair in listening to the

evidence in judging this case based upon the

evidence in this case."

The court responded:

"Well, it seems to me that to ask that

question, you would have to preface it by

telling them what there is about this case

that they may hear that [could] impact upon

drug usage or whatever. I don't know what

would you propose. You just can't ask it in
No. 1-04-3369

5

a vacuum because they would have no idea what

you're talking about."

Defense counsel replied:

"Judge, it would be the mere fact that

defendant was using drugs or addicted to

drugs. That fact alone would that affect

your ability to be fair in judging all the

evidence in the case."

After listening to the State's opposition to defense counsel's

request, the trial court, in denying the request, stated:

"I have some misgivings of allowing a

question like that[,] that seems to single

out a particular [aspect] of the case. And

to ask for a preview[-]type of an opinion

without really knowing how it fit into the

entire context of the case. It does not

appear to be a question that relates to a

defense that's recognized and so I don't

think the defendant is prejudiced in that

manner that he's being denied the opportunity

to know how a juror may vote dependent upon

drug usage while it's not a defense. It's

just a judgment factor of a defendant. I
No. 1-04-3369

6

mean he may or other witnesses may be

addict[s] or use drugs or such, but that's

not what this [defendant is] on trial for and

I don't know what relevance[] [i]t really has

other than to ask for an opinion about how

the juror regards drug usage as such when

it[']s not really an issue in the case. I'm

gonna refuse to allow that."

During the defense's examination of the panel, counsel

exercised three peremptory challenges. Three substitute

potential jurors were then called and questioned by defense

counsel; two were excused by peremptory challenge. Two

replacement members of the panel were called forth and

questioned, Emmerson Ratliff being one of them. When questioned

by the defense, Ratliff testified that the only lawsuits he had

been a party to were his divorce proceeding and a traffic case. 

Defense counsel accepted the panel of jurors, including Ratliff,

and tendered the panel to the State.

The State questioned the substitute members of the panel. 

During the State's questioning of Ratliff, he answered in the

affirmative when asked whether he could be fair to both sides. 

The State then asked Ratliff, "Have you yourself ever been

arrested or charged with anything?" Ratliff answered, "No." 
No. 1-04-3369

7

After questioning the remaining potential jurors, the State asked

for a sidebar. During the sidebar, the State informed the court

and defense counsel that Ratliff's "rap sheet" indicated that he

had been arrested twice for battery, once in 1982 and again in

1985. Additionally, on his jury questionnaire, Ratliff did not

admit that he had previously been arrested or accused of a crime. 

Defense counsel requested that the court remove Ratliff for

cause; the court refused defense counsel's request without

explanation. The State accepted the panel as constituted when

tendered by defense counsel. No further examination of Ratliff

occurred. Ratliff became the jury foreperson. 

During the trial, the State introduced the defendant's oral

statement to the police and his subsequent videotaped confession

detailing the events of June 13, 2002. In his oral statement,

given on September 23, 2002, the defendant stated that on June

13, he needed money for drugs. The defendant and his friend

drove to James Knight's house. The defendant entered Mr.

Knight's house by breaking the window on the side door, which he

knew allowed easy access because he had repaired it. As the

defendant was gathering items from the home, he was confronted by

Mr. Knight. Mr. Knight tackled the defendant. When Mr. Knight

realized who the defendant was, he told him that he would not

keep the incident a secret from the defendant's wife and mother-
No. 1-04-3369

8

in-law, Jacqueline Byrd, Mr. Knight's live-in girlfriend. Mr.

Knight also told the defendant that he was going to call the

police. The defendant then went to the kitchen and got a butcher

knife. The defendant picked up a television and radio while

holding the knife and attempted to leave the house. The

defendant and Mr. Knight began to struggle. The defendant

stabbed Mr. Knight several times until he felt him go limp. The

defendant left Mr. Knight's house with numerous items, including,

jewelry, a television, a VCR, a DVD player, a radio, and two

stereos. The defendant pawned Mr. Knight's possessions and used

the money to buy drugs. The defendant threw the knife used to

stab Mr. Knight over a fence into a wooded area. Later, the

defendant assisted the police in recovering the knife. 

The defendant's videotaped confession was taken on the day

after he gave his oral statement to the police. There were few

differences between the defendant's videotaped statement and his

oral statement. The only difference of note was that in his

videotaped confession, the defendant, for the first time,

mentioned that he was "dope sick" during his statements to the

police. The videotape was played for the jury.

The jury found the defendant guilty of home invasion,

residential burglary, armed robbery, and the first-degree murder

of James Knight. 
No. 1-04-3369

9

On October 26, 2004, defense counsel filed a motion to

vacate the judgment and grant the defendant a new trial. In

support of the motion, defense counsel argued, inter alia, that

the trial court erred in denying the defendant's pretrial motion

to suppress his videotaped confession and oral statement. 

Defense counsel also argued that the trial court erred in

refusing to remove Ratliff for cause because the State did not

disclose Ratliff's prior arrests until after he had been accepted

by the defense as a juror. The court denied the posttrial

motion.

Subsequently, the defendant filed a pro se motion for a new

trial. The court asked the defendant to explain each of his

complaints, addressing why he felt he had received inadequate

representation, what counsel should have done, and how it

affected the outcome of his case. The defendant argued that his

trial counsel failed to adequately investigate hospital records

and a videotape that he claimed would show he was at La Rabida

Hospital visiting his hospitalized son at the time of Mr.

Knight's murder on June 13, 2002. The defendant argued that his

confession was false. The defendant also claimed that his trial

counsel was ineffective for failing to call Cornelia Byrd and

Marcio Johnson to testify. The defendant contended that these

witnesses would have contradicted Jacqueline Byrd's trial
No. 1-04-3369

10

testimony. The defendant also argued that although he wanted to

testify, his counsel improperly told him that he should not

testify because the "State's Attorney would eat [him] alive

because [he] had a conviction for home invasion." The defendant

further claimed that counsel threatened that if he testified,

counsel would withdraw from the case. Lastly, the defendant

claimed that there was a conflict of interest with defense

counsel and that his counsel never informed him of the trial

strategy, nor did counsel keep him updated on the case. 

The court gave defense counsel an opportunity to respond to

the defendant's allegations. Defense counsel stated:

"Judge, I'm in a bit of a difficult

position because of my representation of [the

defendant]. 

I can say I met with him sufficient

number of occasions to become aware of his

position in this case.

I can state at the very first interview,

he mentioned La Rabida Hospital. 

Subsequently I became aware of information

pursuant to other investigations that we were

doing at the time where I went back and had

additional discussions with [the defendant]
No. 1-04-3369

11

based upon information that I was developing

that I had been made aware of, and as a

result of those conversations, I did not

pursue the investigation at La Rabida."

The court responded:

"Well, I can appreciate the position you

say you are in being his lawyer, and perhaps

being asked to divulge what normally would be

considered confidential statements by [the

defendant].

However, also I would point out that

under Krankel and its progeny, when a motion

like this is presented, the teaching of those

cases is that Defense Counsel is relieved of

the burdens of confidentiality because

allegations necessarily are made that call

for answers.

* * *

I'm interested, however, in [the

defendant's] statement here, and as followed

up in the colloquy that you had with him

about La Rabida.

* * *
No. 1-04-3369

12

Let me put this, this always boils down

to a defense of alibi.

Was that a potential defense that was

examined, was analyzed?"

Defense counsel replied:

"Judge, it was never a potential defense

after my initial interview with [the

defendant], and it was never a viable

defense, because after the initial interview,

and after I confronted him with other

evidence in the case, the results of the

investigation, and discussed with him things

he had said to me in the initial interview,

certainly admissions were made, and

subsequent discussions with [the defendant]

which ultimately impacted on my advice I gave

him, obviously [regarding] testimony at trial

and whether he should testify."

Defense counsel admitted that he advised the defendant that he

felt it would not be wise to testify in this case, but explained

to the defendant that, ultimately, it was his decision whether he

should testify. Further, defense counsel stated that he never

threatened to withdraw from representation of the defendant if he
No. 1-04-3369

13

decided to testify. 

In denying the defendant's motion, the trial court explained

that it was required to "conduct a preliminary examination into

such allegations, to determine whether there is sufficient merit

to defer the proceedings." The court acknowledged that if it

found merit in the defendant's allegations, "it would necessitate

appointing other counsel for [the defendant]." After this

preliminary discussion, the court issued its ruling.

"After listening to the Defendant,

[defense counsel] to a certain degree, the

State's Attorney, I don't find any merit in

these allegations that would necessitate

going further with them.

I find that the representation afforded

to [the defendant] was consistent with the

requirements of the seminal cases that guide

us, Strickland versus Washington, that the

Defendant's -- that the representation of

these Defense Counsel was in keeping with the

standards that we expect from counsel ***

that the allegations themselves based upon

them being fleshed out more completely here

do not satisfy the second prong of the
No. 1-04-3369

14

Strickland case *** all in all, I do not

believe that this pro se motion has merit to

cause this Court to defer the proceedings,

appoint counsel for him, and start anew with

that aspect of the case."

The court found that defense counsel did not make any threats to

keep the defendant from testifying. The court recalled that it

had questioned the defendant during trial and that the defendant

had stated that he was comfortable with his defense counsel not

calling any witnesses on his behalf. The defendant also answered

"no" when the court asked him "if anybody had threatened [him] to

cause [him] not to testify." The court determined that the

defendant's claims did not justify appointment of alternate

counsel. 

After the court denied the defendant's pro se motion, it

proceeded to sentencing. The court merged the residential

burglary conviction with the home invasion conviction and

sentenced the defendant to consecutive sentences of 25 years for

home invasion, 20 years for armed robbery, and 50 years for

first-degree murder. The defendant timely appeals.

ANALYSIS

I. Challenge for Cause
No. 1-04-3369

15

The defendant contends he was denied his right to a fair

trial when the trial court denied his request to excuse Emmerson

Ratliff for cause after he denied ever having been arrested when

questioned during voir dire. The defendant contends a pretrial

arrangement regarding jury selection prevented him from using a

peremptory challenge to dismiss Ratliff. Based on this, the

defendant suggests that the situation presented here is no

different from a situation where a defendant has exhausted his

peremptory challenges before seeking to challenge a prospective

juror for cause. The defendant contends that under these

circumstances, prejudice flowing from the refusal to remove

Ratliff for cause should be presumed, citing People v. Green, 282

Ill. App. 3d 510, 668 N.E.2d 158 (1996).

The State responds the trial court was within its discretion

when it refused the defendant's motion to remove Ratliff for

cause. Additionally, the State contends because the defendant

was not denied his right to exercise a peremptory challenge, he

waived the claim when he failed to use a peremptory challenge at

trial.

A. Standard of Review

The defendant urges us to review this issue by applying a de

novo standard of review. However, a trial court's determination
No. 1-04-3369

16

concerning whether to excuse a potential juror for cause is

properly reviewed using an abuse of discretion standard. People

v. Seuffer, 144 Ill. 2d 482, 502, 582 N.E.2d 71 (1991). We are

unpersuaded that departure from an abuse of discretion standard

is appropriate here. 

B. Application of Waiver

The defendant recognizes the failure to exhaust peremptory

challenges waives any claim that an objectionable venireperson

was allowed to sit on the jury. See People v. Lake, 298 Ill.

App. 3d 50, 56, 697 N.E.2d 1147 (1998). The defendant contends

waiver is not applicable here because of the manner in which jury

selection was conducted. The defendant claims his trial counsel

had already accepted and tendered the jury panel that included

Ratliff before the State informed defense counsel and the court

of Ratliff's prior arrests. See People v. Martin, 225 Ill. App.

3d 339, 344, 587 N.E.2d 1228 (1992) (new trial ordered where

State did not disclose misrepresentations made by juror and

alternate during voir dire). The defendant argues that because

the panel had been tendered, he was prevented from using one of

his remaining peremptory challenges by the trial court's rule

disallowing back-striking.

Although the conversation in Judge Toomin's chambers
No. 1-04-3369

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regarding the manner of jury selection is not part of the record,

the actual selection of the jury is and so are defense counsel's

comments regarding his claim of trial error based on the "no

back-striking" courtroom rule. In his rebuttal argument on the

defendant's motion for a new trial, defense counsel stated:

"I believe the rule had been set down no

back-striking, and the information had come

out during the State's selection once this

juror was tendered, so at that point, we

didn't have the benefit of peremptory. I

suppose we could have asked for it, but the

Court had already indicated no back-striking

allowed. That's why we made the motion for

cause." 

Judge Toomin replied:

"Well, isn't [the prosecution] correct

that the rule addressing jury selection and

challenges to jurors, at least as I have

understood it over the years, was if you do

not exhaust your peremptory challenges, you

cannot complain about what the Court did or

didn't do on a challenge for cause? You used
No. 1-04-3369

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five challenges. My notes reflect that you

had two remaining that weren't used. You

could have stricken the juror *** on your own

motion if you deemed they were some prejudice

to your client."

Defense counsel reiterated his belief that the trial court had

"already indicated previously that no back-striking was allowed." 

The court responded, "You didn't ask me if you could exercise a

peremptory." Defense counsel replied, "That's correct. We did

not, Judge."

The defendant argues the trial court's instruction that

prohibited back-striking, which trial counsel referenced in his

comments and which the trial judge did not deny issuing,

establishes that he was barred from exercising a peremptory

challenge to excuse Ratliff from serving as a juror. We

disagree.

While we are not provided with a clear definition of the

term "back-striking" as used by the parties, it appears that

back-striking refers to the exercise of a peremptory challenge

against a member of a panel already accepted by counsel that has

not been broken by opposing counsel. See Needy v. Sparks, 51

Ill. App. 3d 350, 361-62, 366 N.E.2d 327 (1977); but see Strawder
No. 1-04-3369

19

v. City of Chicago, 294 Ill. App. 3d 399, 402, 690 N.E.2d 640

(1998) ("back-striking" is the striking of "a venireperson from

an already accepted panel, where that panel has been broken by

opposing counsel and retendered"). It seems clear that in the

situation presented here, the removal of Ratliff would have

amounted to a back-strike. That notwithstanding, the real

question before us is whether the defendant was nevertheless

required to seek the exercise of a peremptory challenge against

Ratliff and, if denied that request, to lodge an objection to

preserve the claim of error. See People v. Enoch, 122 Ill. 2d

176, 186, 522 N.E.2d 1124 (1988). The defendant's contention

that such efforts by his trial counsel were not required amounts

to a claim that trial counsel was not required to object in the

face of the trial judge's rule against back-striking. See Enoch,

122 Ill. 2d at 186. That is not how our adversarial system

works. See In re W.C., 167 Ill. 2d 307, 323, 657 N.E.2d 908

(1995) ("It is a fundamental concept of our adversarial system

that counsel object at trial to errors"); Martin, 225 Ill. App.

3d at 342-43 (defense counsel moved for mistrial at end of voir

dire based on no access to rap sheets possessed by State). We

are aware of no authority that holds a claim of error is

preserved where trial counsel has failed to object to a procedure

that he contends prejudiced his client. 
No. 1-04-3369

20

The presumed prejudice rule of Green based on the claim here

that counsel did not knowingly accept Ratliff at the time he

tendered the panel because he was unaware of Ratliff's background

has no application. As we made clear in Green, the harmless

error rule did not apply because "the issue was raised during

voir dire." Green, 282 Ill. App. 3d at 514. That is not the

case here. The defendant did not raise the issue of removing

Ratliff by exercising a peremptory challenge.

We are not convinced that had counsel sought to use one of

his remaining peremptory challenges against Ratliff he would have

been refused. We note this is not a case of a defendant having

"second thoughts" regarding a prospective juror accepted by him. 

Nothing in the examination of Ratliff by either the defense or

the State suggested Ratliff did not answer truthfully the

questions posed. Rather, it was information that only the State

had in its possession that revealed the inconsistency between

Ratliff's answers during voir dire and the arrest record that

appeared to be his. The State properly disclosed that

information to defense counsel and the trial court during the

side-bar. Based on this new information, defense counsel

requested that Ratliff be excused for cause. However, upon that

request being denied, it is unclear why defense counsel did not
No. 1-04-3369

21

seek to exercise a peremptory challenge against Ratliff if, as

the judge noted, sitting Ratliff caused "some prejudice to

[counsel's] client." 

We are not convinced that such an attempt would have been

pointless, even in the face of the trial court's general rule

against back-striking. "When information is revealed during voir

dire that tends to contradict a sworn juror's answers, the trial

court should allow further inquiry, and failure to do so can

result in reversible error." Strawder, 294 Ill. App. 3d at 402. 

The trial judge's own statements, during the posttrial

proceedings, suggest he would have allowed defense counsel to

exercise a peremptory challenge had such a request been made or, 

at least, allowed counsel to conduct further inquiry to confirm

Ratliff the juror was the same Ratliff listed on the rap sheet. 

The arrests (not convictions) occurred some 20 years before the

voir dire; it is not beyond reason that the events may have

escaped Ratliff's memory and, thus, did not reflect on his

veracity.

The defendant, not having sought the exercise of a remaining

peremptory challenge, waived any claim of error based on the

trial court's decision not to excuse Ratliff for cause. See

People v. Redmond, 357 Ill. App. 3d 256, 259, 828 N.E.2d 1206
No. 1-04-3369

22

(2005).

II. Voir dire on Drug Abuse and Addiction

Next, the defendant contends that the trial court erred when

it denied defense counsel's request to question the prospective

jurors during voir dire regarding their attitudes concerning drug

addiction and abuse. The defendant claims that the court's

alleged error denied his defense counsel the ability to ascertain

juror bias and to intelligently exercise the defendant's

peremptory challenges. 

The trial court denied defense counsel's request, finding

the proposed questioning irrelevant and not related to any

asserted affirmative defense. The court also found that the

defendant would not be prejudiced by its decision not to allow

such questioning of potential jurors.

The manner and scope of voir dire rest within the sound

discretion of the trial court. People v. Williams, 164 Ill. 2d

1, 16, 645 N.E.2d 844 (1994). However, the trial court should

exercise its discretion in a manner that is consistent with the

goals of voir dire. Voir dire is conducted to assure the

selection of an impartial jury, free from bias or prejudice, and

grant counsel an intelligent basis on which to exercise

peremptory challenges. People v. Clark, 278 Ill. App. 3d 996,
No. 1-04-3369

23

1003, 664 N.E.2d 146 (1996). Thus, the trial court abuses its

discretion only if the trial court prevents the selection of a

jury that harbors "no bias or prejudice which would prevent them

from returning a verdict according to the law and evidence." 

People v. Strain, 194 Ill. 2d 467, 476, 742 N.E.2d 315 (2000).

Initially, the State responds that the defendant has waived

review of this issue because he failed to raise it in his

posttrial motion. Because the defendant did not list this claim

of error in his posttrial motion, the issue is subject to waiver. 

See Enoch, 122 Ill. 2d at 186. The defendant replies that waiver

does not apply because his claim of error is based on his

constitutional right to a fair trial and should be examined under

the plain error exception to waiver. Thus, the real question

before us is whether the defendant's claim of error, founded on

the trial court's rejection of the proposed voir dire

questioning, implicates his right to a fair trial before an

impartial jury. If so, we should examine the claim for plain

error. See People v. Herron, 215 Ill. 2d 167, 782 N.E.2d 263

(2002). 

The defendant argues drug use and addiction pervaded this

case. As support, the defendant directs our attention to the

State's theory of the case that the defendant killed Mr. Knight
No. 1-04-3369

24

in order to obtain money for drugs, the testimony that the

defendant was a heroin addict, and the defendant's statement that

he was "dope sick" during his videotaped confession. The

defendant contends, because drugs were centrally involved in the

events of the case, the trial court's refusal to allow defense

counsel to question the prospective jurors as to their beliefs

regarding drug use and addiction prevented the selection of an

impartial jury.

The defendant cites, as his principal authority for his

claim that the curtailing of voir dire in this case implicated

his constitutional right to a fair trial, People v. Lanter, 230

Ill. App. 3d 72, 595 N.E.2d 210 (1992), and People v. Strain, 194

Ill. 2d 467, 742 N.E.2d 315 (2000). 

In Lanter, the Fourth District held defense counsel was

improperly precluded from discovering possible bias of a

potential juror based on her feelings about drugs and alcohol. 

Lanter, 230 Ill. App. 3d at 76. The decision in Lanter turned on

the defendant's claim that he was not guilty of the charged

offenses because of his extreme intoxicated state. Lanter, 230

Ill. App. 3d at 73. The Lanter court expressly based its holding

on the claimed intoxication defense. "Not every affirmative

defense is so controversial as to render voir dire questioning
No. 1-04-3369

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appropriate." Lanter, 230 Ill. App. 3d at 76. In contrast to

the Lanter case, drug abuse and addiction is not an affirmative

defense in this case. Accordingly, Lanter provides no support to

the defendant. 

In Strain, our supreme court held that when testimony

concerning gang membership and gang-related activity is an

integral part of the defendant's trial, the defendant must be

afforded an opportunity to question prospective jurors concerning

any gang bias. Strain, 194 Ill. 2d at 481. In holding that the

trial court abused its discretion in disallowing such questions,

the supreme court pointed to certain realities: "[S]treet gangs

are regarded with considerable disfavor by other segments of our

society. [Citation.] *** [P]articularly in metropolitan areas,

there may be strong prejudice against street gangs." Strain, 194

Ill. 2d at 477. In recognition of these realities, the court

noted, "[E]vidence indicating a defendant is a member of a gang

or is involved in gang-related activity is admissible only where

there is sufficient proof that membership or activity in the gang

is related to the crime charged." Strain, 194 Ill. 2d at 477. 

Based on the supreme court's reasoning regarding gang bias,

the defendant claims the same realities exist about drug

addiction and abuse and, therefore, voir dire probing for such
No. 1-04-3369

26

bias must be allowed. This expanded claim of potential juror

bias was anticipated by Justice Heiple in his dissent in Strain. 

"As a result of today's decision, other litigants will now demand

that jurors be questioned about an endless list of potential

biases and asked to explain their reactions." Strain, 194 Ill.

2d at 484 (Heiple, J., dissenting). 

We confronted a similar claim founded on the supreme court's

reasoning in Strain in People v. Morales, 329 Ill. App. 3d 97,

768 N.E.2d 84 (2002), rev'd on other grounds, 209 Ill. 2d 340

(2004). In Morales, the defendant was convicted of murdering an

individual sent on behalf of a Columbian drug dealer to collect

money for drugs the defendant had received. Morales, 329 Ill.

App. 3d at 102. The defendant claimed he was improperly refused

the opportunity to probe for any bias the venire might have

against drug dealers, citing Strain as authority. We held,

however, that "Strain is limited only to cases involving gang

membership and gang-related evidence." Morales, 329 Ill. App. 3d

at 113-14. We expressly declined to extend Strain to cases

involving possible bias against drug dealers. Morales, 329 Ill.

App. 3d at 113-14. 

In the face of our clear holding that the reasoning in 

Strain is limited to exposing possible gang bias, the defendant
No. 1-04-3369

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seeks to dismiss Morales as "not good precedent" because the

supreme court reversed the decision in Morales, albeit on grounds

wholly separate and apart from the voir dire issue. We reject

the defendant's assertion. Until told otherwise by our supreme

court, Morales remains good law on the issue before us. 

Consequently, in the context of a plain error claim, we are

not persuaded that "the mere fact defendant was using drugs or

addicted to drugs," as defense counsel explained to the trial

judge, is a sufficient ground to probe for possible bias

regarding drug addiction and abuse. We are not persuaded that

such a fact would result in effectively closing the minds of

jurors to the evidence such " 'that they cannot apply the law as

instructed in accordance with their oath.' " Strain, 194 Ill. 2d

at 476, quoting People v. Cloutier, 156 Ill. 2d 483, 495-96, 622

N.E.2d 774 (1993). 

Accordingly, the defendant has failed to establish the

claimed-of restriction on voir dire implicated his constitutional

right to a fair trial before an impartial jury. In line with our

holding in Morales, we reject the defendant's claim of plain

error regarding voir dire and find that the issue has been

waived.

III. Alternate Counsel

Lastly, the defendant contends, pursuant to People v.
No. 1-04-3369

28

Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984), his cause

should be remanded for appointment of alternate counsel to

represent him in his pro se posttrial motion for a new trial. 

The defendant contends that he met the requirement of showing

"possible neglect" of his case by his trial counsel and, thus,

Krankel required the appointment of new counsel. The defendant

contends the court erroneously imposed a greater burden than a

showing of "possible neglect" by requiring him to satisfy both

prongs of Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d

674, 104 S. Ct. 2052 (1984). Finally, he contends the trial

court erred in making credibility determinations during the

Krankel hearing.

In Krankel, the defendant presented a pro se posttrial

motion alleging ineffective assistance of counsel based on

counsel's failure to present an alibi defense that the defendant

asserted was supported by witnesses the defendant provided. The

supreme court agreed with the defendant and the State that

alternate counsel should have been appointed for the defendant in

light of his claim. The court remanded the matter for a new

hearing on the defendant's motion with newly appointed counsel. 

Krankel, 102 Ill. 2d at 187-89. 

In providing further guidance of the procedures to be

followed by a trial court under Krankel, the Illinois Supreme
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29

Court determined that appointment of new counsel is not

automatically required whenever a defendant presents a pro se

posttrial motion alleging ineffective assistance of counsel. See 

People v. Moore, 207 Ill. 2d 68, 77, 797 N.E.2d 631 (2003). 

Rather, the trial court must conduct a preliminary inquiry into

the factual basis of the defendant's claim, and if it finds the

claim lacks merit or relates only to matters of trial strategy,

the court may deny the defendant's pro se motion without

appointing new counsel. Moore, 207 Ill. 2d at 77-78. However,

if the defendant's allegations show "possible neglect" of the

case, new counsel should be appointed. Moore, 207 Ill. 2d at 78. 

In reviewing the posttrial proceedings on the defendant's pro se

motion, our operative concern is to determine "whether the trial

court conducted an adequate inquiry into the defendant's pro se

allegations of ineffective assistance of counsel." Moore, 207

Ill. 2d at 78.

 Here, the record demonstrates the trial court adequately

inquiried into the defendant's allegations of ineffective

assistance. The trial court reviewed and inquired into each of

the defendant's allegations. The trial court gave the defendant

the opportunity to argue, explain, and support each allegation. 

The trial court listened to the defendant's allegations and

discussed them with the defendant and his trial counsel. After
No. 1-04-3369

30

doing so, the trial court found the representation by the defense

counsel "was in keeping with the standards that we expect from

counsel." A trial court's evaluation of the defendant's claim of

ineffective assistance of counsel may properly be based on the

court's knowledge of defense counsel's performance at trial and

the insufficiency of the defendant's allegations on their face. 

See Moore, 207 Ill. 2d at 79. In denying the defendant's motion,

the trial court determined that the alleged errors did not show

possible neglect of his case by his trial counsel. We agree. 

We are unpersuaded by the defendant's argument that the

court erroneously required him to satisfy both prongs of

Strickland and erred in making credibility determinations during

the hearing on his motion in violation of Krankel. The

defendant's argument is based on the following statement by the

court:

"I find that the representation afforded

to [the defendant] was consistent with the

requirements of the seminal cases that guide

us, Strickland versus Washington, that the

Defendant's -- that the representation of

these Defense Counsel was in keeping with the

standards that we expect from counsel ***

that the allegations themselves based upon
No. 1-04-3369

31

them being fleshed out more completely here

do not satisfy the second prong of the

Strickland case *** all in all, I do not

believe that this pro se motion has merit to

cause this Court to defer the proceedings,

appoint counsel for him, and start anew with

that aspect of the case." 

We find that the trial court's statement, when read in

context, is merely a general statement of the Strickland standard

by which counsel's representation is judged. We do not agree

with the defendant's reading that the trial court required him to

support his request for alternate counsel with something greater

than a showing of possible neglect. After the trial court

listened to the defendant's allegations and his trial counsel's

reply, the court correctly summarized the standard set forth in

Krankel. The court explained that if it found that there was

"sufficient merit" to the defendant's allegations of ineffective

assistance of counsel, it would have to defer the proceedings and

appoint new counsel. The court then ruled, "I don't find any

merit in these allegations that would necessitate going further

with them." Thus, we find the trial court applied the proper

standard in determining whether the defendant demonstrated that

his trial counsel possibly neglected his case.
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32

Additionally, we are unpersuaded by the defendant's

contention that the trial court erred in making credibility

determinations during its inquiry under Krankel. We find that

the court properly limited its determination to whether the

defendant showed the requisite possible neglect by his trial

counsel based on the trial court's assessment of his performance

at trial. 

Accordingly, we reject the defendant's argument that this

case should be remanded to the trial court for appointment of new

counsel to conduct further proceedings in connection with the

defendant's claims of ineffective assistance of counsel. The

record supports the trial court's conclusion that appointment of

alternate counsel was not warranted.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the

circuit court of Cook County.

Affirmed.

CAHILL, P.J., and R. GORDON, J., concur.
No. 1-04-3369

33

REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

_________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

CLINTON DIXON,

Defendant-Appellant.

________________________________________________________________

No. 1-04-3369

 Appellate Court of Illinois

First District, First Division

Filed: March 31, 2008

_________________________________________________________________

JUSTICE GARCIA delivered the opinion of the court.

CAHILL, P.J., and R. GORDON, J., concur.

_________________________________________________________________

Appeal from the Circuit Court of Cook County

Honorable Michael P. Toomin, Judge Presiding

_________________________________________________________________

For DEFENDANT - Michael J. Pelletier, Deputy Defender

APPELLANT Ann B. Mclennan, Assistant Appellate Defender

Office of the State Appellate Defender

203 North LaSalle Street-24th Floor

Chicago, Illinois 60601

For PLAINTIFF - Richard A. Devine, State's Attorney

APPELLEE James E. Fitzgerald, Assistant State's

Attorney

Peter Fischer, Assistant State's Attorney

Christopher Petelle, Assistant State's Attorney

State's Attorney, County of Cook

Richard J. Daley Center, Room 309

Chicago, Illinois 60602