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 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. 

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

attack. 
 

 

 

 

 

 

 

¶ 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 

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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 

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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. 

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¶ 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 

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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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