Docket No. 83279–Agenda 22–May 1999.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 

								JULIUS S. KUNTU, Appellant.

	Opiion nion filed October 321,21, 1999.

	JUSTICE RATHJE delivered the opinion of the court:

	Defendant, Julius Kuntu, was charged with 28 counts of first

degree murder (720 ILCS 5/9–1(a)(2), (a)(3) (West 1998)), 14

counts of aggravated arson (720 ILCS 5/20–1.1(a) (West 1998)),

and 1 count of arson (720 ILCS 5/20–1 (West 1998)).

Subsequently, the State nol-prossed 14 counts of first degree

murder, 11 counts of aggravated arson, and the arson count. A jury

convicted defendant of seven counts of first degree murder and one

count of aggravated arson. The same jury found that there were no

mitigating factors sufficient to preclude a sentence of death, and

the trial court sentenced defendant to death. Defendant’s execution

has been stayed pending direct review by this court. Ill. Const.

1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a).

	On appeal, defendant raises numerous allegations of error

arising during his trial and sentencing hearings. However, we need

only address defendant’s first contention of error: whether the

cause should be remanded for an evidentiary hearing to determine

the relationship between the jury foreman and Cook County State’s

Attorney Richard Devine.

	The basis for this argument arises from a letter written by

attorney Paul Kosin, the jury foreman, to State’s Attorney Devine.

Defendant asserts that this letter reveals the possibility of a

relationship between Kosin and State’s Attorney Devine that Kosin

failed to reveal during voir dire.

	The letter is written on Kosin’s law firm’s stationery, and the

salutation reads “Dear Dick.” Kosin begins by explaining that he

has just finished serving as a juror in defendant’s trial. He notes

that, because the assistant State’s Attorneys who presented the

case had trouble opening evidence cans, Kosin had considered

sending, in jest, paint can openers to State’s Attorney Devine to

give to the assistant State’s Attorneys. Kosin also explains that he

was upset to discover that the assistant State’s Attorneys had given information to the media that was not available to the jury. The

two-page letter then concludes, “Once again congratulations on

being where I can write this letter to someone I know and please

consider a lengthy tenure in office because, if I ever get into a jury

selection for a capital crime again, I’m going to tell the judge that

you’re my brother.”

	Although the letter was written the day after the jury voted to

sentence defendant to death, the State did not disclose the letter

until one month later, after the trial court had already considered

and denied defendant’s post-trial motions. After receiving the

letter, defendant asked the court to grant him a new trial based on

Kosin’s failure to reveal his relationship with State’s Attorney

Devine. The trial court denied defendant’s motion.

	Defendant asserts that this letter provides evidence of a

personal relationship between Kosin and State’s Attorney Devine.

Defendant further contends that, if such a relationship exists, Kosin

had a duty to disclose this relationship during voir dire, when he was questioned about his relationships with other attorneys.

Because the letter indicates the possibility of a relationship,

defendant concludes that this cause must be remanded for an

evidentiary hearing to determine if a relationship exists between

Kosin and State’s Attorney Devine.

	Defendant concedes that, in the trial court, he should have

requested an evidentiary hearing. He argues, however, that the

letter is sufficient evidence to require the trial court to conduct sua sponte an evidentiary hearing. The State does not argue that defendant has waived his right to request an evidentiary hearing.

Instead, it argues only that, under the facts presented, an

evidentiary hearing is not warranted. Because the State does not

argue that defendant has waived review of this issue and because

we may review errors affecting substantial rights (see 134 Ill. 2d R.

615(a)), we find this to be an appropriate circumstance in which to

relax the waiver rule and consider the issue on its merits. See

People v. Hamilton, 179 Ill. 2d 319, 323 (1997) (explaining that waiver is a limitation on the parties not on the court).

	The right to a jury trial is a fundamental right that guarantees

a defendant a trial by a panel of impartial jurors. People v. Peeples, 155 Ill. 2d 422, 462 (1993). The failure to afford a defendant a fair trial “violates even the minimal standards of due process” and

requires a reversal. People v. Cole, 54 Ill. 2d 401, 411 (1973). Here, we do not know whether defendant was denied his right to

a fair tribunal because we do not know what relationship, if any,

exists between Kosin and State’s Attorney Devine. Both defendant

and the State agree that the question of whether a hearing is

necessary is determined by applying the test set forth in People v. Towns, 157 Ill. 2d 90 (1993). In Towns, this court held that, “[w]here a defendant does not learn of facts which might support

a finding of partiality by a juror until after a verdict, a post-trial

evidentiary hearing may be necessary.” Towns, 157 Ill. 2d at 102. In order to obtain such a hearing, the defendant must produce

“specific, detailed and nonconjectural evidence in support of his

position.” Towns, 157 Ill. 2d at 102.

	Here, defendant has produced a letter that, on its face, reveals

that Kosin not only knows State’s Attorney Devine, but also that

he knows him well enough to address him not as “State’s Attorney

Devine” or even “Mr. Devine,” but as “Dick.” An additional

indication of a personal relationship between the two is Kosin’s

statement that he considered sending, in jest, a gift to State’s

Attorney Devine. Moreover, the letter demonstrates that Kosin felt

comfortable enough to joke that, if he were again called for a

capital case, he would tell the judge that he was State’s Attorney

Devine’s brother. Finally, and most importantly, Kosin explicitly

states that he’s glad that he can write the letter to “someone I

know.” Although we acknowledge that these facts do not provide

conclusive evidence that Kosin and State’s Attorney Devine have

a relationship that prejudiced defendant’s right to a fair trial, we

believe that they are sufficiently specific, detailed, and

nonconjectural to require the trial court to hold an evidentiary

hearing to determine whether such a relationship exists.

	We therefore choose to retain jurisdiction over this matter and

to remand the cause for an evidentiary hearing at which the trial

court shall determine whether a relationship exists between Kosin

and State’s Attorney Devine, and, if such a relationship exists,

whether that relationship prejudiced defendant’s right to a fair trial.

After holding this factual inquiry, the trial court shall transmit to

the clerk of this court, within 120 days of this decision, a report of the court’s findings and a record of the proceedings on remand.

	In the exercise of this court’s supervisory authority, we retain

jurisdiction over this appeal and remand this action to the circuit

court of Cook County to conduct a hearing in accordance with the

foregoing directions.

Cause remanded with directions;

jurisdiction retained.

	CHIEF JUSTICE FREEMAN, specially concurring:

	I agree that the matter must be remanded to the circuit court

for an evidentiary hearing concerning the nature of the relationship,

if any, between the jury foreman and State’s Attorney Richard

Devine. I write separately because I believe that the court’s

discussion of waiver is unnecessarily confusing.

	Defendant concedes in his brief that his trial attorney did not

specifically ask the circuit court to conduct the evidentiary hearing

that he now seeks in this court. Defendant argues that

notwithstanding this failure, the circuit court should have ordered

the hearing sua sponte. He also asserts that if counsel’s failure to request an evidentiary hearing results in a procedural default of the

issue in this court, then his trial attorney rendered him ineffective

assistance of counsel with respect to this aspect of the proceedings.

In the alternative, he asks this court to review the matter under

Supreme Court Rule 615(a).

	In responding to this contention, the court states that:

		“[t]he State does not argue that defendant has waived his

right to request an evidentiary hearing. Instead, it argues

only that, under the facts presented, an evidentiary hearing

is not warranted. Because the State does not argue that

defendant has waived review of this issue and because we

may review errors affecting substantial rights (see 134 Ill.

2d R. 615(a)), we find this to be an appropriate

circumstance in which to relax the waiver rule and

consider the issue on its merits. See People v. Hamilton, 179 Ill. 2d 319, 323 (1997) (explaining that waiver is a limitation on the parties not on the court).” Slip op. at 2.

This treatment is problematic, in my view, because it conflates

several distinct bases for reaching the merits. Specifically, it cannot

be discerned from this analysis whether the court has chosen to (i)

reach the merits because the State has not raised waiver, (ii) excuse

the procedural default under our Rule 615(a), (iii) hold the matter

not waived pursuant to our decision in Hamilton, or (iv) reach the merits under some combination of these aforementioned three

considerations.

	The court notes that the State does not argue that defendant

has waived this issue. Nevertheless, the court does not expressly

hold that, by not making this argument, the State has opened the

door for review of the claim on the merits. The court also notes

that Rule 615(a) permits review of errors affecting substantial

rights, but it does not offer any analysis as to how this error affects

a substantial right such that the procedural default is excused.

Notwithstanding the references to both the State’s failure to argue

and to Rule 615(a), the court concludes its waiver analysis with the

citation to Hamilton. Hamilton states the general proposition that a court of review may overlook a procedural default on two

distinct bases. The first basis is that the waiver doctrine serves as

a limitation on the parties and not the court; the second basis is that

the court can choose to address arguments not raised in order to

maintain a sound and uniform body of law. See Hamilton, 179 Ill. 2d at 323. Hamilton does not speak in terms of Rule 615(a) and therefore cannot serve as support for the court’s earlier reference

to Rule 615(a). Nor does Hamilton support the inference that the court should consider the issue because the State has failed to

argue waiver, unless the court is using the case as justification for

considering the claim waived despite the State’s failure to so argue.

	I find the court’s waiver discussion confusing because the

basis upon which the court has “relax[ed] the waiver rule” cannot

be identified. Slip op. at 2. If the court is reaching the issue based

on the State’s failure to press the procedural default, then the court

should expressly say so. Likewise, if the court is reaching the

procedurally defaulted claim under Rule 615(a), the court should

explicitly so state. I have previously cautioned against the

nonchalant invocation of our plain error rule. Neither the term “Rule 615(a)” nor the term “plain error” has “talisman-like effect”

to transform claims which have been otherwise procedurally

defaulted into claims which are automatically subject to substantive

review. See People v. Terrell, 185 Ill. 2d 467, 524 (1998) (Freeman, C.J., specially concurring, joined by McMorrow, J.).

Rule 615(a) states that

			“[a]ny error, defect, irregularity, or variance which does

not affect substantial rights shall be disregarded. Plain

errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of

the trial court.” 134 Ill. 2d R. 615(a).

This court has consistently interpreted Rule 615(a) to allow a court

of review to consider substantively an error that has not been

properly preserved when (i) the evidence is closely balanced or (ii)

the purported error is of such magnitude so as to deny defendant

a fair and impartial trial. People v. Vargas, 174 Ill. 2d 355, 363 (1996). As to errors affecting substantial rights, this court has

observed that “before plain error can be considered as a means of

circumventing the general waiver rule, it must be plainly apparent

from the record that an error affecting substantial rights was

committed.” People v. Precup, 73 Ill. 2d 7, 17 (1978). Short of a conclusion that an asserted error is a plain one, the plain error

doctrine offers no basis to excuse a procedural default. People v. Keene, 169 Ill. 2d 1, 17 (1995). The court today states that it “may review errors affecting substantial rights” (slip op. at 2), but how

the error at issue here is one which affects substantial rights such

that the procedural default can be excused is not set out within the

context of the court’s waiver discussion. Instead, the court cites to

a case, Hamilton, that has nothing to do with our plain error rule. If the court wants to utilize Hamilton to reach the substantive merits of the claim, then it should do so without injecting the plain

error rule into its analysis. The considerations which underscore

the holding in Hamilton are very different from those which attend to Rule 615(a), and the court should be careful so as not to suggest

that the concepts are interchangeable, when, in fact, they are not.

	In my view, the fact that the State has not argued that waiver

precludes this court’s review of the issues suggests that we need

not consider the procedural bar that might otherwise exist in this case. See People v. O’Neal, 104 Ill. 2d 399, 407 (1984) (noting that principles of waiver apply to the State as well as to defendants

in criminal cases); People v. Holloway, 86 Ill. 2d 78, 91 (1981) (same). If the State does not take the position that a waiver has

even occurred in this case, then the court would not be obliged to

“relax the waiver rule.” In other words, the court would be justified

reaching the merits of the claim directly.

	Nevertheless, if the court wishes to resolve this issue as it was

framed by defendant in his brief, i.e., that the claim has been procedurally defaulted, then the court should do so in a

straightforward analysis. Defendant concedes, and the record

establishes, that defense counsel did not ask the court to hold the

evidentiary hearing defendant now requests this court to order on

direct review. The issue has, therefore, been procedurally

defaulted. This court, however, can reach the matter if the error

constitutes plain error under Rule 615(a). Keene, 169 Ill. 2d at 10; People v. Enoch, 122 Ill. 2d 176, 190 (1988). As I stated previously, without a conclusion that an asserted error is a plain

one, the plain error doctrine offers no basis to excuse a procedural

default. Keene, 169 Ill. 2d at 17.

	A defendant’s right to a fair and impartial jury is the

“constitutional cornerstone of our judicial system.” People v. Gaston, 125 Ill. App. 3d 7, 11 (1984). As the appellate court in Gaston stated, “[t]his right should be guarded zealously; neither a trial judge’s inadvertent omissions nor a juror’s failure to divulge

possibly pertinent information nor a trial attorney’s laxness can be

allowed to impair this fundamental right.” Gaston, 125 Ill. App. 3d at 11. In addition, although the United States Supreme Court has

recognized that due process does not require a new trial every time

a juror is in “a potentially compromising situation,” due process 

does require both a jury capable and willing to decide the case on

only the basis of the evidence before it, and a “trial judge ever

watchful to prevent prejudicial occurrences and to determine the

effect of such occurrences when they happen. Such determinations

may properly be made at a [post-conviction] hearing.” Smith v. Phillips, 455 U.S. 209, 217, 71 L. Ed. 2d 78, 86, 102 S. Ct. 940, 946 (1982). In this case, the trial judge believed that the letter, in

and of itself, did not establish that any relationship existed between the juror and State’s Attorney Devine and that a new trial was not

necessary. The letter is a part of the record on review. The letter

does not show conclusively that the two men do not have a friendship. Given both our state decisional law on this subject and

that of the United States Supreme Court, in addition to the

ambiguous tone of the letter in question, the trial judge should have

ordered some type of adjudicative proceeding with respect to this

issue, notwithstanding defense counsel’s failure to specifically

request one. The right to an impartial trial guarantees defendants

the preservation of the opportunity to prove actual bias. See Smith, 455 U.S. at 216, 71 L. Ed. 2d at 86, 102 S. Ct. at 945, quoting

Dennis v. United States, 339 U.S. 162, 171-72, 94 L. Ed. 734, 742, 70 S. Ct. 519, 523 (1950). The forum in which the trial judge

made his finding–a hearing on the reconsideration of motions for

a new trial and for judgment n.o.v.–did not provide defendant with an opportunity for any meaningful inquiry into the relationship in

question in order to show bias. Without some evaluation of the

juror, whether by affidavit or testimony, the trial judge was unable

to conclusively determine whether that juror was in fact so biased

that a new trial would be necessary. The lack of this opportunity

adversely impacts upon defendant’s right to a fair and impartial

jury. For these reasons, the second prong of our plain error rule

would justify the court’s excusal of the procedural default in this

case.

	I believe that the court should clearly express the basis upon

which it is addressing defendant’s contention of error. To do

otherwise serves only to muddy this area of our jurisprudence. In

all other respects, I join in the judgment of the court'’s decision today.

	JUSTICEM McMORROW joins in this special concurrence.