{ "id": 3610464, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. AARON JAMAR HOUSTON, Appellant", "name_abbreviation": "People v. Houston", "decision_date": "2007-08-02", "docket_number": "No. 102225", "first_page": "135", "last_page": "169", "citations": [ { "type": "official", "cite": "226 Ill. 2d 135" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "363 Ill. App. 3d 567", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5765684 ], "weight": 3, "pin_cites": [ { "page": "579", "parenthetical": "McDade, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/363/0567-01" ] }, { "cite": "121 Ill. 2d 401", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201150 ], "weight": 6, "year": 1988, "pin_cites": [ { "page": "448" }, { "page": "447" }, { "page": "448" }, { "page": "448" }, { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0401-01" ] }, { "cite": "346 Ill. App. 3d 809", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3832322 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "813" }, { "page": "813" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/346/0809-01" ] }, { "cite": "229 Ill. App. 3d 144", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5217538 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "157" }, { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/229/0144-01" ] }, { "cite": "52 Ill. 2d 442", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5392885 ], "year": 1972, "pin_cites": [ { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/52/0442-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "466 U.S. 648", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204502 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "658" } ], "opinion_index": 0, "case_paths": [ "/us/466/0648-01" ] }, { "cite": "209 Ill. 2d 194", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5461336 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "219-20" }, { "page": "220" }, { "page": "220" }, { "page": "219-20" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0194-01" ] }, { "cite": "205 Ill. 2d 480", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1302604 ], "weight": 4, "year": 2002, "pin_cites": [ { "page": "512-13" }, { "page": "512" }, { "page": "513" }, { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/205/0480-01" ] }, { "cite": "476 U.S. 79", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12787 ], "weight": 9, "year": 1986, "pin_cites": [ { "page": "97" }, { "page": "88" }, { "page": "1723" }, { "page": "96" }, { "page": "88" }, { "page": "1723" }, { "page": "97-98" }, { "page": "88" }, { "page": "1723" } ], "opinion_index": 0, "case_paths": [ "/us/476/0079-01" ] }, { "cite": "268 Ill. App. 3d 574", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381860 ], "year": 1994, "pin_cites": [ { "page": "580", "parenthetical": "pro se postconviction petitions are given more liberal reading than are formal pleadings prepared by counsel" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/0574-01" ] }, { "cite": "209 Ill. 2d 227", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5461490 ], "year": 2004, "pin_cites": [ { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0227-01" ] }, { "cite": "173 Ill. 2d 48", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 147596 ], "year": 1996, "pin_cites": [ { "page": "71" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/173/0048-01" ] }, { "cite": "44 F.3d 1160", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7415890 ], "weight": 6, "year": 1995, "pin_cites": [ { "page": "1164" }, { "page": "1164" }, { "page": "1168", "parenthetical": "remanding for the granting of conditional habeas relief after noting \"the seriousness\" of the defendant's Batson claim and the court's inability to review the claim absent a transcript of the voir dire proceedings" }, { "page": "1168" }, { "page": "1167-68, 1171" } ], "opinion_index": 0, "case_paths": [ "/f3d/44/1160-01" ] }, { "cite": "272 Wis. 2d 642", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 9183309 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "648" }, { "page": "896" } ], "opinion_index": 0, "case_paths": [ "/wis-2d/272/0642-01" ] }, { "cite": "195 Ill. 2d 117", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 725376 ], "weight": 4, "year": 2001, "pin_cites": [ { "page": "127" }, { "page": "137" }, { "page": "136-37" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/195/0117-01" ] }, { "cite": "511 U.S. 127", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1147675 ], "weight": 6, "year": 1994, "pin_cites": [ { "page": "146" }, { "page": "107" }, { "page": "1430" } ], "opinion_index": 0, "case_paths": [ "/us/511/0127-01" ] }, { "cite": "343 Ill. App. 3d 998", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3719778 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "1005" }, { "page": "1005" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/343/0998-01" ] }, { "cite": "166 Ill. 2d 204", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198894 ], "year": 1995, "pin_cites": [ { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0204-01" ] }, { "cite": "195 Ill. App. 3d 381", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2493861 ], "year": 1990, "pin_cites": [ { "page": "388" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/195/0381-01" ] }, { "cite": "207 Ill. 2d 68", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 974982 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/ill-2d/207/0068-01" ] }, { "cite": "102 Ill. 2d 181", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3156888 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-2d/102/0181-01" ] }, { "cite": "121 Ill. 2d 401", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201150 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "447" }, { "page": "448" }, { "page": "448" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/121/0401-01" ] }, { "cite": "346 Ill. App. 3d 809", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3832322 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "812-14" }, { "page": "812" }, { "page": "813-14" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/346/0809-01" ] }, { "cite": "229 Ill. App. 3d 144", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5217538 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "154-55" }, { "page": "156" }, { "page": "156-57" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/229/0144-01" ] }, { "cite": "52 Ill. 2d 442", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5392885 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "452" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/52/0442-01" ] }, { "cite": "476 U.S. 79", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12787 ], "weight": 9, "year": 1986, "pin_cites": [ { "page": "83-84" }, { "page": "78-79" }, { "page": "1715-16" } ], "opinion_index": 1, "case_paths": [ "/us/476/0079-01" ] }, { "cite": "343 Ill. App. 3d 998", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3719778 ], "weight": 6, "year": 2003, "pin_cites": [ { "page": "1005-06" }, { "page": "1001" }, { "page": "1005" }, { "page": "1006" }, { "page": "1007-08" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/343/0998-01" ] }, { "cite": "166 Ill. 2d 204", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198894 ], "year": 1995, "pin_cites": [ { "page": "210" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/166/0204-01" ] }, { "cite": "195 Ill. App. 3d 381", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2493861 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "388" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/195/0381-01" ] }, { "cite": "181 Ill. 2d 395", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821394 ], "year": 1998, "pin_cites": [ { "page": "404" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/181/0395-01" ] }, { "cite": "203 Ill. 2d 378", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 799394 ], "year": 2002, "pin_cites": [ { "page": "390" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/203/0378-01" ] }, { "cite": "201 Ill. 2d 324", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1477035 ], "year": 2002, "pin_cites": [ { "page": "332" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/201/0324-01" ] }, { "cite": "171 Ill. 2d 207", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 57342 ], "year": 1996, "pin_cites": [ { "page": "222" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/171/0207-01" ] }, { "cite": "217 Ill. 2d 43", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3875175 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "51-54" }, { "page": "51-53" }, { "page": "53-54" }, { "page": "54" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/217/0043-01" ] }, { "cite": "219 Ill. 2d 86", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3598232 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "96" }, { "page": "97" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/219/0086-01" ] }, { "cite": "224 Ill. 2d 80", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3606929 ], "year": 2006, "opinion_index": 1, "case_paths": [ "/ill-2d/224/0080-01" ] }, { "cite": "407 U.S. 25", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9136521 ], "weight": 3, "year": 1972, "opinion_index": 1, "case_paths": [ "/us/407/0025-01" ] }, { "cite": "242 Ill. App. 3d 774", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5119975 ], "year": 1993, "pin_cites": [ { "page": "777" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/242/0774-01" ] }, { "cite": "200 Ill. App. 3d 232", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2462689 ], "year": 1990, "pin_cites": [ { "page": "235" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/200/0232-01" ] }, { "cite": "174 Ill. 2d 204", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223613 ], "year": 1996, "pin_cites": [ { "page": "235" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/174/0204-01" ] }, { "cite": "359 Ill. App. 3d 639", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5596548 ], "year": 2005, "pin_cites": [ { "page": "642" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/359/0639-01" ] }, { "cite": "208 Ill. 2d 203", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2462898 ], "year": 2003, "opinion_index": 1, "case_paths": [ "/ill-2d/208/0203-01" ] }, { "cite": "243 Ill. App. 3d 838", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5108413 ], "year": 1993, "pin_cites": [ { "page": "843" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/243/0838-01" ] }, { "cite": "119 Ill. 2d 186", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3193765 ], "year": 1987, "pin_cites": [ { "page": "194", "parenthetical": "a rule, like a statute, must be construed to avoid an unjust result" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/119/0186-01" ] }, { "cite": "191 Ill. 2d 251", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 229700 ], "year": 2000, "pin_cites": [ { "page": "256" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/191/0251-01" ] }, { "cite": "129 Ill. 2d 303", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5567042 ], "year": 1989, "pin_cites": [ { "page": "318" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/129/0303-01" ] }, { "cite": "217 Ill. 2d 449", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3875551 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/ill-2d/217/0449-01" ] } ], "analysis": { "cardinality": 1748, "char_count": 63797, "ocr_confidence": 0.789, "pagerank": { "raw": 2.3862522042655064e-07, "percentile": 0.7973269870173898 }, "sha256": "4346b99248b74e7a36166776b1377842ce90fd56b2e9f956869990c1fa1ba43f", "simhash": "1:c955f4d73b40997a", "word_count": 10617 }, "last_updated": "2023-07-14T20:47:26.463284+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. AARON JAMAR HOUSTON, Appellant." ], "opinions": [ { "text": "JUSTICE FREEMAN\ndelivered the judgment of the court, with opinion.\nChief Justice Thomas and Justices Fitzgerald, Kilbride, Garman, and Burke concurred in the judgment and opinion.\nJustice Karmeier dissented, with opinion.\nOPINION\nAfter a jury trial in the circuit court of Peoria County, defendant Aaron Jamar Houston was convicted of the offense of armed robbery (720 ILCS 5/18 \u2014 2(a) (West 2000)). The circuit court imposed a sentence of 20 years\u2019 imprisonment. The appellate court affirmed his conviction and sentence in all respects. 363 Ill. App. 3d 567. We granted leave to appeal. 210 Ill. 2d R. 315. For the reasons set forth below, we remand the cause to the circuit court with directions.\nBACKGROUND\nThe charges against defendant arose from an armed robbery of a restaurant on July 11, 2002. The case was tried before a jury. Before trial began, the court inquired of the State and defense counsel as to their preferences regarding recording of the voir dire of the jury:\n\u201c[THE COURT:] Counsel, what do you want to do relative to having a court reporter take the actual voir dire; do you wish to have it recorded or not?\n[Defense Counsel:] I don\u2019t need it recorded.\n[State:] No, People waive.\nTHE COURT: Then the court reporter will be waived for the actual taking of the voir dire. [To the court reporter:] When I read the list of witnesses and put the 12 in the box, then you\u2019re free to go.\n[Defense Counsel:] Judge, subject to coming up\u2014\nTHE COURT: That\u2019s right, she\u2019ll be available.\u201d\nVoir dire commenced without being recorded by the court reporter. The court went back on the record after the 12 jurors had been picked to indicate that at that point there was only one prospective juror remaining as a possible alternate. The court stated that it was too late in the day to request additional prospective jurors, so either the parties could agree to go to trial with a single alternate juror if the final prospective juror was acceptable, or return the following day, pick two alternate jurors and proceed at that point. Defense counsel and the State each indicated that it would be acceptable to go to trial with a single alternate juror. After confirming that this was acceptable to both parties, the court stated: \u201cOkay. And I take it you continue your waiving of the court reporter for the voir dire for the alternate?\u201d Defense counsel and the State each assented, and the court reporter was again excused. The alternate was apparently deemed acceptable, and the case proceeded to trial.\nAt the close of evidence, the jury found defendant guilty of armed robbery. The trial court then set June 13, 2003, as the date for posttrial motions and sentencing. On April 24, 2003, defendant sent the court a handwritten pro se motion for a new trial, which the court received on April 28. In addition to pointing out alleged inconsistencies in the testimony that formed the basis of his conviction, defendant also complained regarding the composition of his jury. Specifically, defendant, who is African-American, wrote to the judge as follows:\n\u201cI know you tried to be fair as possible and you was but I felt a predjudice [sic] and discrimanating [sic] patter[n] going on with the jury. I\u2019m not predjudice [sic] but I strong feel some of the jury was. I mean let\u2019s look at it eleven white people and one black person ***.\u201d\nDefendant further alleged, in his pro se motion, that the lone African-American juror, a woman, stated during voir dire that she did not know defendant, but that defendant subsequently learned that this juror did in fact know him. Defendant alleged, in addition, that the prosecution wanted this person on the jury because her brother had recently been murdered. In defendant\u2019s view, she had strong feelings \u201cabout guns and people being shot.\u201d\nOn May 14, 2003, defense counsel filed a motion for a new trial. In this motion, defense counsel stated, in relevant part: \u201cThat of the twelve jurors in this cause, there was only one black and when the court asked said black lady *** if she knew anyone, either the attorneys or any of the proposed witnesses or the Defendant^] she stated she did not know the Defendant^] but in reality said Defendant has subsequently learned that said black lady did know him.\u201d\nOn June 13, 2003, the trial court held the previously scheduled hearing on the motion for a new trial. During this hearing, defense counsel emphasized, in particular, the allegation regarding the African-American juror \u201cwho denied, in effect, that she knew anyone, any of the parties, the Court, or anyone else.\u201d The State responded that defendant never made this objection during voir dire. The State added that \u201cthere were several peremptory challenges used, at least seven by the defense; I think six by the State.\u201d\nThe trial court denied the motion for a new trial. In explaining this decision, the trial court specifically addressed the claim regarding the African-American juror who allegedly denied knowing defendant. The trial court ruled that there was no factual basis for this claim.\nAfter denying the motion for a new trial, the court conducted a sentencing hearing. During this hearing, the State acknowledged that, according to the evidence presented at trial, defendant \u201cwas not the individual that was armed.\u201d The presentence investigation report indicated that defendant, who was born on November 15, 1984, left high school in 1999 when he was about 15 years of age. At the conclusion of the hearing, the trial court sentenced defendant to 20 years\u2019 imprisonment.\nDefendant appealed, and a divided appellate court affirmed his conviction and sentence. 363 Ill. App. 3d 567. The court found that the evidence was sufficient to uphold defendant\u2019s conviction, found no reversible error in the fact that the voir dire was not recorded, and denied defendant\u2019s claim of ineffective assistance of counsel.\nIn her dissent, Justice McDade pointed to Supreme Court Rule 608(a)(9), which requires that \u201ccourt reporting personnel *** take the record of the proceedings regarding the selection of the jury.\u201d 210 Ill. 2d R. 608(a)(9). Justice McDade noted that the failure to record voir dire in the case at bar ran directly counter to Rule 608(a)(9), which, in Justice McDade\u2019s view, was mandatory. She stated: \u201cThis is a rule of criminal procedure and, as is the case with all the supreme court\u2019s rules that fall into that category, it is mandatory; it is a rule of procedure, not a mere suggestion.\u201d (Emphasis in original.) 363 Ill. App. 3d at 579 (McDade, J., dissenting). According to Justice McDade, the cause should have been remanded for a new trial.\nANALYSIS\nBefore this court, defendant raises two distinct challenges to his conviction. The first concerns the voir dire proceedings. The second relates to trial counsel\u2019s failure to submit a jury instruction. With regard to the voir dire proceedings, defendant contends that (1) his trial counsel was ineffective for waiving the court reporter during voir dire, and (2) the trial court improperly allowed voir dire to proceed with no court reporter present, thereby depriving defendant of due process.\nWe turn first to defendant\u2019s assertions of error during voir dire. Both of his arguments in this regard concern the failure to record proceedings in violation of Rule 608 (210 Ill. 2d R. 608).\nPreliminarily, we note that article VI of our supreme court rules governs criminal cases, and within article VI, Rule 608 deals with the record on appeal. Subsection (a)(9) of Rule 608, which focuses on voir dire, provides that, in cases where a sentence of death is not imposed:\n\u201c[T]he court reporting personnel *** shall take the record of the proceedings regarding the selection of the jury, but the record need not be transcribed unless a party designates that such proceedings be included in the record on appeal.\u201d (Emphasis added.) 210 Ill. 2d R. 608(a)(9).\nRule 608 does not define the terms \u201crecord\u201d and \u201ctranscribe.\u201d Webster\u2019s Third New International Dictionary defines \u201crecord\u201d as \u201can account in writing or print *** intended to perpetuate a knowledge of acts or events\u201d and, more specifically, \u201can official contemporaneous memorandum stating the proceedings of a court of justice.\u201d Webster\u2019s Third New International Dictionary 1898 (2002). The term \u201ctranscribe\u201d is defined as \u201cto make a written copy of.\u201d Webster\u2019s Third New International Dictionary 2426 (2002). While Black\u2019s Law Dictionary appears to conflate the terms \u201crecord\u201d and \u201ctranscript\u201d (Black\u2019s Law Dictionary 1279 (7th ed. 1999) (defining \u201crecord\u201d as including a \u201ctranscript of the trial or hearing\u201d)), the sense of Rule 608(a)(9) clearly is that \u201crecord,\u201d as in \u201ctake the record of the proceedings regarding the selection of the jury,\u201d is to be differentiated from a transcription. The rule states: \u201cthe record [of the proceedings regarding the selection of the jury] need not be transcribed unless a party designates that such proceedings be included in the record on appeal.\u201d 210 Ill. 2d R. 608(a)(9). The plain meaning of the rule is that, in cases other than those where a sentence of death is imposed, a record of the proceedings regarding the selection of the jury is to be taken but that a transcription, or copy, need not be made unless requested by a party for inclusion in the record on appeal. Of necessity, if the voir dire record that Rule 608(a)(9) requires to be taken must be transcribed, if requested, for inclusion in the record on appeal, this initial record must be complete enough to be so transcribed and included. Our construction of Rule 608(a)(9) is in accord with the previous version of the rule, which stated, in pertinent part: \u201cthe court reporter shall take full stenographic notes of the proceedings regarding the selection of the jury, but the notes need not be transcribed unless a party designates that such proceedings be included in the record on appeal.\u201d (Emphases added.) 177 Ill. 2d R. 608(a)(9).\nThis court has never dealt expressly with Rule 608(a)(9). However, People v. Thompkins, 121 Ill. 2d 401 (1988), a case which was cited to us by the State, has been relied upon by our appellate court in determining whether the failure to ensure the recording of voir dire, in violation of Rule 608(a)(9), constituted ineffective assistance of counsel. People v. Ash, 346 Ill. App. 3d 809 (2004); People v. Morris, 229 Ill. App. 3d 144 (1992). In Thompkins, we rejected the defendant\u2019s claim that his counsel was per se ineffective for failure to insist upon the presence of a court reporter during voir dire. Citing People v. Steel, 52 Ill. 2d 442, 452 (1972), we concluded that \u201cthe mere failure to obtain the presence of a court reporter during voir dire does not constitute a per se presumption of ineffectiveness of counsel.\u201d Thompkins, 121 Ill. 2d at 448. In reaching this decision, we noted that the criteria for determining incompetency of counsel are \u201cstrict.\u201d Thompkins, 121 Ill. 2d at 447. We explained that, under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), a defendant arguing ineffective assistance must show not only that his counsel\u2019s performance was deficient but that the defendant suffered prejudice as a result. In support of his ineffective-assistance claim, the defendant in Thompkins pointed to United States v. Cronic, 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984), which discussed, among other things, \u201ccircumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.\u201d Cronic, 466 U.S. at 658, 80 L. Ed. 2d at 667, 104 S. Ct. at 2046. Thompkins concluded that the defendant\u2019s reliance on Cronic was \u201cin error.\u201d Thompkins, 121 Ill. 2d at 448. The court explained: \u201c[T]he failure to insist upon the presence of the court reporter during a portion of the voir dire proceedings is not such an extreme and limited circumstance, such as the total absence of counsel, where prejudice can be presumed.\u201d Thompkins, 121 Ill. 2d at 448.\nThis same principle \u2014 that prejudice may not be presumed from the mere failure to ensure the recording of voir dire \u2014 is reflected in People v. Ash, 346 Ill. App. 3d 809 (2004), and People v. Morris, 229 Ill. App. 3d 144 (1992). In Ash and Morris, also cited to us by the State, our appellate court followed Thompkins and concluded that the failure to ensure the reporting of voir dire, in violation of Rule 608(a)(9), was not, in and of itself, ineffective assistance. Ash, 346 Ill. App. 3d at 813; Morris, 229 Ill. App. 3d at 157. We agree with the holdings in Thompkins, Morris and Ash \u2014 and in Steel, also cited to us by the State \u2014 that a waiver of the court reporter for voir dire is not per se ineffective assistance of counsel, and we hereby reaffirm this principle.\nIn the case at bar, defendant, citing to Strickland, argues ineffective assistance based on his counsel\u2019s waiver of the court reporter during voir dire. Unlike the defendant in Thompkins, defendant here does not argue that prejudice should be presumed. Indeed, defendant in the instant case does not cite to Cronic, which held that prejudice could be presumed in some instances, such as the total absence of counsel.\nUnder the two-prong Strickland test for determining whether assistance of counsel has been ineffective, a defendant must show that (1) his counsel\u2019s performance was deficient in that it fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced the defendant in that, but for counsel\u2019s deficient performance, there is a reasonable probability that the result of the proceeding would have been different. People v. Evans, 209 Ill. 2d 194, 219-20 (2004); People v. Peeples, 205 Ill. 2d 480, 512-13 (2002). In demonstrating, under the first Strickland prong, that his counsel\u2019s performance was deficient, a defendant must overcome a strong presumption that, under the circumstances, counsel\u2019s conduct might be considered sound trial strategy. Peeples, 205 Ill. 2d at 512. With regard to the second prong of Strickland \u2014 the prejudice prong \u2014 a reasonable probability that the result would have been different is a probability sufficient to undermine confidence in the outcome. Evans, 209 Ill. 2d at 220; Peeples, 205 Ill. 2d at 513. In order to prevail on a claim of ineffective assistance, a defendant must satisfy both the performance and the prejudice prongs of Strickland. Evans, 209 Ill. 2d at 220.\nAs previously noted, defendant\u2019s trial counsel twice waived the presence of the court reporter during voir dire: first, when the court asked (before the start of trial) if counsel wanted a court reporter present and counsel answered that none was needed; and second, when the court asked the same question (later the same day) regarding voir dire of the alternate juror and counsel repeated his waiver of the court reporter.\nThe result of this waiver was that, contrary to the dictates of Rule 608(a)(9), no record was made of what occurred during jury selection. In the case at bar, this lack of a voir dire record is consequential. As previously indicated, defendant complained in his pro se motion for a new trial about the composition of his jury. In that motion, after noting that there were 11 white persons but only one African-American person on the jury, defendant stated: \u201cI felt a predjudice [sic] and discrimanating [sic] patter[n] going on with the jury.\u201d This language echoes language in Batson v. Kentucky, 476 U.S. 79, 97, 90 L. Ed. 2d 69, 88, 106 S. Ct. 1712, 1723 (1986), which held that it was a violation of the equal protection clause for the prosecution to use a peremptory challenge to exclude a prospective juror solely on the basis of race. Though defendant\u2019s pro se motion made no mention of Batson, his complaint about the racial composition of his jury was a Batson claim. It would be manifestly unfair to require precise legal reasoning, including citation to authority, in a pro se claim drafted, as was the instant claim, by an 18-year-old defendant who lacked even a high school diploma. See, e.g., People v. Smith, 268 Ill. App. 3d 574, 580 (1994) (pro se postconviction petitions are given more liberal reading than are formal pleadings prepared by counsel).\nThe difficulty here is that, having raised \u2014 or attempted to raise \u2014 a Batson claim, defendant had no voir dire record with which to support it. According to defendant, the lack of a voir dire record made it virtually impossible for him to pursue his Batson claim on appeal. In defendant\u2019s view, \u201cit would not be possible for appellate counsel, or the appellate court, to assess a Batson issue without a full recording of the entire voir dire proceedings.\u201d Defendant asserts that his counsel\u2019s waiver of the court reporter for voir dire satisfies both prongs of the Strickland test.\nFaced with the unusual factual background of this case, we attempt to determine whether trial counsel\u2019s performance constituted ineffective assistance. We look first to whether this conduct fell below an objective standard of reasonableness. As noted, this court\u2019s rules provide that \u201cthe court reporting personnel *** shall take the record of the proceedings regarding the selection of the jury.\u201d (Emphasis added.) 210 Ill. 2d R. 608(a)(9). Counsel\u2019s waiving of the court reporter in the case at bar ran directly counter to Rule 608(a)(9), which was promulgated precisely to avoid the type of situation we now face. Here, on appeal, defendant\u2019s appellate counsel expressly refers to the Batson claim initially raised by defendant at the trial level. Appellate counsel cannot pursue this claim on appeal, however, because of trial counsel\u2019s failure to comply with our Rule 608(a)(9).\nAn examination of the procedure used in assessing Batson claims illustrates the difficulties resulting from trial counsel\u2019s waiver of the court reporter. Batson established a three-step process for evaluating alleged discrimination in jury selection:\n\u201cFirst, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. [Citation.] Second, once such a showing has been made, the burden shifts to the State to provide a race-neutral explanation for excluding each of the venirepersons in question. [Citation.] Defense counsel may rebut the proffered explanations as pretextual. [Citation.] Finally, the trial court determines whether the defendant has met his burden of demonstrating purposeful discrimination.\u201d People v. Williams, 209 Ill. 2d 227, 244 (2004).\nAt the first stage, where the defendant is required to make a prima facie showing of discrimination, courts are to consider \u201call relevant circumstances\u201d in deciding whether such a case has been established. Batson, 476 U.S. at 96, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723. This court has held that the following are among the relevant factors to be considered in determining whether the defendant has demonstrated purposeful discrimination against African-Americans:\n\u201c(1) racial identity between the defendant and the excluded venirepersons; (2) a pattern of strikes against African-American venirepersons; (3) a disproportionate use of peremptory challenges against African-American venirepersons; (4) the level of African-American representation in the venire as compared to the jury; (5) the prosecutor\u2019s questions and statements during voir dire examination and while exercising peremptory challenges; (6) whether the excluded African-American venirepersons were a heterogeneous group sharing race as their only common characteristic; and (7) the race of the defendant, victim, and witnesses.\u201d People v. Williams, 173 Ill. 2d 48, 71 (1996).\nConsideration of several of these factors, particularly the second, third, fifth and sixth, would be difficult if not impossible without a record of the voir dire proceedings.\nIn such circumstances, a defendant \u2014 such as defendant here \u2014 faces serious obstacles in establishing a prima facie case of discrimination at the posttrial stage. It follows that, without a record of the proceedings during jury selection, the defendant would encounter the same, or greater, obstacles in pursuing a Batson claim on appeal. The appellate court would find it just as difficult as the trial court to review such a claim. For these reasons, counsel\u2019s waiver of the court reporter in the case at bar falls below an objective standard of reasonableness. We can conceive of no possible strategic advantage that might have been gained by waiving the court reporter for voir dire. Defendant has satisfied the performance prong of the Strickland test by showing that his counsel\u2019s performance was deficient.\nHaving concluded that counsel\u2019s performance was professionally deficient, we turn to the question of whether this conduct resulted in prejudice to defendant. Under Strickland, a defendant establishes prejudice by showing that there is a reasonable probability that, but for counsel\u2019s deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Peeples, 205 Ill. 2d at 513; Evans, 209 Ill. 2d at 219-20.\nIn the case at bar, we cannot say that, as a result of counsel\u2019s error, there is a reasonable probability that the result would have been different. We cannot say this because, without a voir dire record \u2014 the absence of which is directly attributable to counsel\u2019s deficient performance \u2014 we have no way of determining the extent to which defendant was prejudiced. Nevertheless, given the seriousness of defendant\u2019s claim of racial discrimination in jury selection, we are reluctant simply to deny defendant all relief based solely on our inability, because of the lack of a voir dire record, to determine the extent of the prejudice suffered by defendant. In our view, a middle course is preferable.\nIn Simmons v. Beyer, 44 F.3d 1160 (3d Cir. 1995), as a result of the delay between the defendant\u2019s conviction and his direct appeal in state court, portions of the trial record, \u201cincluding a lengthy in camera voir dire of prospective jurors,\u201d were missing. Simmons, 44 F.3d at 1164. Faced with this situation, the state appellate court \u201cremanded the case for the limited purpose of reconstructing the record, and the judges who had presided over the jury selection and the remainder of the trial and sentencing held reconstruction hearings.\u201d Simmons, 44 F.3d at 1164. Similarly, in In re Taylor, 272 Wis. 2d 642, 679 N.W.2d 893 (App. 2004), also a Batson case, the proceedings on voir dire were not recorded. On remand, the trial court in Taylor held a hearing \u201cat which the voir dire process was \u2018reconstructed\u2019 from testimony of the assistant district attorney and defense counsel, handwritten notes, and a jury panel roster.\u201d Taylor, 272 Wis. 2d at 648, 679 N.W.2d at 896.\nFinally, in People v. Hudson, 195 Ill. 2d 117 (2001), this court remanded a Batson gender-discrimination case to the circuit court for a hearing to determine if the defendant, who had failed to raise the gender-discrimination claim in his direct appeal, had shown the necessary prejudice to excuse his procedural default. The defendant in Hudson, who was initially sentenced to death, had raised a Batson race-discrimination claim at the trial level and on direct appeal, but this claim was rejected. While the defendant\u2019s petition for certiorari was pending before the United States Supreme Court, that court decided J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 128 L. Ed. 2d 89, 114 S. Ct. 1419 (1994), which extended Batson to prohibit gender discrimination in jury selection. The defendant in Hudson filed a postconviction petition in which he claimed, relying on J.E.B., that a female African-American venireperson who had been struck by the State had been excluded on the basis of gender. Because the defendant had failed to raise this gender-discrimination claim in his direct appeal, this court conducted a cause-and-prejudice analysis to determine if the defendant\u2019s forfeiture of the claim would be excused. We concluded that the defendant had shown cognizable cause for his failure to raise the claim earlier. However, we also concluded that \u201can evidentiary hearing [was] needed in order to determine if defendant ha[d] established the needed prejudice to excuse the procedural default.\u201d Hudson, 195 Ill. 2d at 127. We stated: \u201cwithout findings from such a hearing, it is impossible to determine whether defendant has established the requisite prejudice.\u201d Hudson, 195 Ill. 2d at 137. We therefore remanded the cause to the circuit court for a hearing to determine if the State would have struck the African-American female \u201ceven in the absence of any gender-related reasons.\u201d Hudson, 195 Ill. 2d at 136-37. We noted that, if the hearing demonstrated that the State would have struck the venireperson even in the absence of the gender-related reason, the defendant could not be said to have established prejudice and his claim should be denied. If, on the other hand, the State was unable to prove this proposition, the defendant would have met his burden of showing prejudice and relief should he granted.\nThe appropriate solution in the case at bar, similar to Simmons, Taylor and Hudson, is to remand this cause to the circuit court for a hearing to reconstruct the voir dire record. We adopt this course, rather than simply denying defendant relief, out of concern for the seriousness of defendant\u2019s race-discrimination claim. See Simmons, 44 F.3d at 1168 (remanding for the granting of conditional habeas relief after noting \u201cthe seriousness\u201d of the defendant\u2019s Batson claim and the court\u2019s inability to review the claim absent a transcript of the voir dire proceedings). As the Court in Batson explained, \u201c[t]he core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors\u2019 race.\u201d Batson, 476 U.S. at 97-98, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723. In this instance, given the risk that a denial of relief might amount to such approval, we choose to remand the cause simply to determine whether sufficient information about the voir dire may be gathered to ensure that racial discrimination in jury selection is not condoned by this court.\nWe emphasize the limited scope of our decision. We do not conclude that the failure to obtain the presence of a court reporter during voir dire creates, in itself, a per se presumption of ineffective assistance of counsel. People v. Thompkins, 121 Ill. 2d 401, 448 (1988). Nor do we conclude that the mere failure to record voir dire, without any claim of error in the jury selection process, requires a remand for reconstruction of the jury-selection proceedings. See, e.g., People v. Culbreath, 343 Ill. App. 3d 998, 1005 (2003). This is not to say, however, that our rules are unimportant. We point out that the difficulty presented in the case at bar could have been avoided had the trial judge simply followed the mandate of Rule 608(a)(9). This court has often noted that our rules are not mere suggestions. Rather, \u201c[t]hey have the force of law, and the presumption must be that they will be obeyed and enforced as written.\u201d Bright v. Dicke, 166 Ill. 2d 204, 210 (1995). The situation here confronting us illustrates the importance of our rules and the need for compliance with them.\nWe hold that where, as in the unusual case before us, a defendant attempts to raise in the trial court a Batson claim of discrimination in jury selection, and the claim may not be pursued because trial counsel waived the presence of the court reporter for voir dire, in violation of our Rule 608(a)(9), resulting in the absence of a voir dire record, the appropriate course, in the first instance, is to remand to the circuit court for an attempt to reconstruct the record of the proceedings regarding the selection of the jury.\nThe dissent criticizes this approach as \u201cill conceived\u201d and argues instead that we should simply affirm. Affirmance in this instance would do nothing to address the difficulty, clearly illustrated in the case at bar, that results from noncompliance with Rule 608(a)(9). The dissent itself recognizes the need for such compliance. The dissenting justice notes, as do we, that our rules, including Rule 608(a)(9), Eire not mere suggestions but rather have the force of law. The dissenting justice adds, again agreeing with us, that \u201cthe presumption must be that [our rules] are to be obeyed and enforced as written.\u201d 226 Ill. 2d at 164. However, the dissent\u2019s only answer to the difficulty presented by noncompliance with Rule 608(a)(9) is that we should \u201camend the rule\u2019s provisions to include appropriate consequences for failure to follow it.\u201d 226 Ill. 2d at 164. This might be an appropriate remedy for future cases, but our task here is to address the case that is actually before us. In this instance, as we have stated, the proper course is to remand to the circuit court for an attempt to reconstruct the voir dire record. This is far preferable to the affirmance approach urged by the dissent, which amounts to acquiescence in the face of noncompliance.\nBecause of our disposition of this case, we need not address, at this time, defendant\u2019s other claims that (1) the trial court improperly allowed voir dire to proceed with no court reporter present, thereby depriving defendant of due process, and (2) trial counsel failed to tender a jury instruction on identification, thereby rendering ineffective assistance.\nA number of cases cited by the State held that a trial court\u2019s failure to provide a court reporter during voir dire was not a violation of due process. People v. Ash, 346 Ill. App. 3d 809, 813 (2004); People v. Culbreath, 343 Ill. App. 3d 998, 1005 (2003); People v. Morris, 229 Ill. App. 3d 144, 156 (1992); People v. McClurg, 195 Ill. App. 3d 381, 388 (1990). Because we do not address defendant\u2019s due process claim, we need not consider these cases\u2019 conclusions regarding this issue.\nPursuant to this court\u2019s supervisory authority, we retain jurisdiction and remand this cause to the circuit court of Peoria County for a hearing to reconstruct the voir dire record. This reconstructed record shall be filed with the clerk of this court within 90 days of the date that this decision becomes final.\nCONCLUSION\nThe cause is remanded to the circuit court with directions to hold a hearing to reconstruct the record of the voir dire proceedings which took place at trial.\nCause remanded with directions.\nPrior to 1986, subsection (9) of paragraph (a) provided only that the \u201cjudgment and sentence\u201d in a criminal case were among the items to be included in the record on appeal. 87 Ill. 2d R. 608(a)(9). Paragraph (a) was amended in 1986. As amended, subsection (9) required, among other things, that court reporters in cases where a sentence of death was not imposed were \u201cto take notes of the jury-selection proceedings, but the transcription of such notes [was] required only when requested by a party.\u201d 210 Ill. 2d R. 608, Committee Comments, at cclxvii. Though subsection (a)(9) has undergone minor modifications since then, it has remained essentially unchanged.\nDefendant also alleged that the lone African-American juror, a woman, stated during voir dire that she did not know defendant, but defendant subsequently learned that she did in fact know him. This allegation of personal acquaintance is separate and distinct from defendant\u2019s claim of racial discrimination in jury selection. We agree with the trial court that there was no factual basis in the record for defendant\u2019s personal-acquaintance allegation, which plays no part in our decision in the case at bar.\nDefense counsel\u2019s motion for a new trial also made no mention of Batson. This is not surprising, given that, as a result of counsel\u2019s waiver of the court reporter for voir dire, there was no record of the proceedings regarding jury selection. Had counsel asserted a Batson claim in his motion for a new trial, he would ultimately have had to argue his own ineffective assistance in order to explain the complete lack of a voir dire record with which to support the claim. In view of this situation, it might have been advisable for the trial court to appoint different counsel to represent defendant in his posttrial motion. See People v. Moore, 207 Ill. 2d 68 (2003); People v. Krankel, 102 Ill. 2d 181 (1984). Defendant\u2019s trial took place over two days in mid-April 2003, and the hearing on defendant\u2019s motion for a new trial was held on June 13, 2003. Had different counsel been appointed to represent defendant in his posttrial motion, it likely would have been a fairly simple matter to reconstruct the record of voir dire at that time, only two months after trial.\nIn its brief to this court, the State does not dispute that defendant\u2019s complaint about the racial composition of his jury was a Batson claim.\nWhile Batson and much of its progeny deal with discrimination based on race, Batson has been extended to bar \u201cdiscrimination in jury selection on the basis of gender.\u201d J.E.B. v. Alabama ex re\u00ed. T.B., 511 U.S. 127, 146, 128 L. Ed. 2d 89, 107, 114 S. Ct. 1419, 1430 (1994).\nThe defendant\u2019s conviction and sentence were subsequently affirmed on direct appeal in state court, and his petition for habeas corpus relief was denied by the federal district court. The defendant appealed, and the court of appeals concluded that the defendant\u2019s Batson claim of discrimination in jury selection could not be reviewed effectively \u201cwithout a transcript of the voir dire to allow the reviewing court to examine whom the assistant prosecutor excluded and why.\u201d Simmons, 44 F.3d at 1168. The court emphasized \u201cthe seriousness\u201d of the Batson claim, and remanded for the granting of habeas relief unless the State agreed to retry the defendant before a properly selected jury. Simmons, 44 F.3d at 1167-68, 1171.\nIn attempting to show, at trial, that the reasons for excluding the venireperson were race-neutral, the State had articulated a potentially gender-related reason.", "type": "majority", "author": "JUSTICE FREEMAN" }, { "text": "JUSTICE KARMEIER,\ndissenting:\nIn this case we are called upon to construe Supreme Court Rule 608(a)(9) (210 Ill. 2d R. 608(a)(9)). When interpreting supreme court rules, our court is guided by the same principles applicable to the construction of statutes. In re Estate of Rennick, 181 Ill. 2d 395, 404 (1998); 134 Ill. 2d R. 2(a) & Committee Comments. With rules as with statutes, our goal is to ascertain and give effect to the drafters\u2019 intention. In re Storment, 203 Ill. 2d 378, 390 (2002). The most reliable indicator of intent is the language used, which must be given its plain and ordinary meaning. Robidoux v. Oliphant, 201 Ill. 2d 324, 332 (2002).\nThe language of the rule at issue here provides that, in cases not involving a death sentence, \u201ccourt reporting personnel *** shall take the record of the proceedings regarding the selection of the jury.\u201d (Emphasis added.) 210 Ill. 2d R. 608(a)(9). Generally, use of the term \u201cshall\u201d indicates an intention to impose a mandatory obligation. People v. Thomas, 171 Ill. 2d 207, 222 (1996). There is no reason to ascribe a different meaning to the term here. The circuit court was therefore under an obligatory duty to have the jury selection proceedings recorded.\nThe more difficult question posed by this appeal is what, if any, consequences should flow from the fact that the dictates of Rule 608(a)(9) were not followed. This is a separate and distinct inquiry. As our court endeavored to explain in People v. Robinson, 217 Ill. 2d 43, 51-54 (2005), it is one thing to hold that a governmental entity is under an obligatory duty which it is required to perform, as opposed to a permissive power which it may exercise or not as it chooses. It is something else entirely to hold that the entity\u2019s failure to comply with its obligation should invalidate the action to which that obligation relates. The former inquiry concerns what has been described as the mandatory-permissive dichotomy. The latter, and the one which concerns us now, is the so-called mandatory-directory dichotomy. People v. Robinson, 217 Ill. 2d at 51-53; O\u2019Brien v. White, 219 Ill. 2d 86, 96 (2006). Whether a statutory command is mandatory or directory presents a question of law, which we review de novo. O\u2019Brien v. White, 219 Ill. 2d at 97. The same is true where, as here, the command is rule-based.\nWhile use of the word \u201cshall\u201d normally denotes that something is mandatory when dealing with the mandatory-permissive dichotomy, the term is not determinative when, as in this case, the mandatory-directory dichotomy is at issue. People v. Robinson, 217 Ill. 2d at 53-54. The court must look instead to other factors. In assessing whether a requirement should be read as mandatory rather than directory, a court should consider whether the authors of the requirement specified what should happen if the requirement is not met. When a provision expressly prescribes a consequence for failure to obey its terms, that is strong evidence that the requirements of the provision were intended to be mandatory. People v. Robinson, 217 Ill. 2d at 54.\nNo such prescription was made here. Neither Rule 608(a)(9) nor any other subpart of Rule 608 specifies what, if anything, should happen when the voir dire is not recorded in a noncapital case. That does not necessarily preclude the conclusion that the rule\u2019s provisions are mandatory and not merely directory. In People v. Campbell, 224 Ill. 2d 80 (2006), for example, this court found that the trial court\u2019s failure to comply with the provisions of Supreme Court Rule 401(a) (134 Ill. 2d R. 401(a)), dealing with waiver of counsel, rendered the defendant\u2019s conviction fatally infirm. There, as here, the rule contained no language specifying what would happen if the requirements of the rule were not followed. The committee comments to the rule, however, indicate that it had been amended to conform to the United States Supreme Court\u2019s decision in Argersinger v. Hamlin, 407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006 (1972). As stated in the committee comments, that case held that under the United States Constitution, no imprisonment may be imposed unless the defendant was represented by counsel or has made a knowing and intelligent waiver of his right to counsel. By referencing this authority, the drafters of the rule implicitly recognized that there would be a consequence for noncompliance, a very serious one. In light of that constitutionally based consequence, setting out the repercussions of noncompliance separately was unnecessary.\nNo similar circumstances are present in this case. The courts of Illinois have consistently rejected the claim that the failure to record voir dire violates constitutional protections. See, e.g., People v. McClurg, 195 Ill. App. 3d 381 (1990). In contrast to People v. Campbell, the absence in Rule 608(a)(9) of an express consequence for failure to comply with its provisions therefore cannot be attributed to the fact that a constitutionally based remedy is available.\nI do not see and the majority opinion has not identified any other factors that would support a conclusion that failure to comply with the recording requirement of Rule 608(a)(9), in and of itself, renders the subsequent trial invalid. Under the mandatory-directory dichotomy our court has articulated, the rule\u2019s recording requirement is therefore directory. As such, it may be waived by the parties. See, e.g., In re Estate of Zander, 242 Ill. App. 3d 774, 777 (1993).\nThat the recording requirement may be waived is further supported by comparison to other situations in which waiver is permissible. The courts of Illinois have recognized that criminal defendants may waive such rights as the right to a speedy trial (People v. Laws, 200 Ill. App. 3d 232, 235 (1990)); to counsel (People v. Haynes, 174 Ill. 2d 204, 235 (1996)); to a jury of 12 (People v. Barrier, 359 Ill. App. 3d 639, 642 (2005)); to confront witnesses against them (People v. Campbell, 208 Ill. 2d 203 (2003)); and to be free from double jeopardy (People v. Dieterman, 243 Ill. App. 3d 838, 843 (1993)). All of these rights are more significant than the right to have jury-selection proceedings recorded. If they can be waived, the right to have jury-selection proceedings recorded must likewise be subject to waiver. Any construction of Supreme Court Rule 608(a)(9) that would yield a contrary result would, in effect, confer greater protection on the right to have jury selection recorded than it would on the right to be tried by a jury. Such a result is absurd. We must therefore reject it. See In re Loss, 119 Ill. 2d 186, 194 (1987) (a rule, like a statute, must be construed to avoid an unjust result).\nThere is no dispute that a waiver of the recording requirement was made in this case by both the defendant and the State. Having waived strict compliance with Supreme Court Rule 608(a)(9), defendant cannot now assert that the failure to have the jury-selection procedure recorded pursuant to Rule 608(a)(9) was reversible error. To hold otherwise would require us to ignore the well-established principle that a party may not complain of error where doing so is inconsistent with the position he took in the earlier court proceeding or where the alleged error is one to which he consented. McMath v. Katholi, 191 Ill. 2d 251, 256 (2000).\nThe failure of trial counsel to insist on the presence of court reporting personnel during voir dire is not a novel circumstance. It has been considered by the courts in Illinois on at least six previous occasions. None of those decisions support the majority\u2019s resolution of the case before us today.\nPeople v. Steel, 52 Ill. 2d 442, 452 (1972), was decided by our court over 30 years ago. In an argument that echoes the one made on appeal in this case, the defendant in Steel contended that his trial counsel was incompetent for failing to insist upon the presence of a court reporter during voir dire because, among other things, that failure precluded defendant from establishing that the jury may have been prejudiced against him. We rejected that argument, noting that there, as here, a court reporter was always available and could have been summoned at any time.\nA similar situation was present in People v. Thompkins, 121 Ill. 2d 401 (1988). The defendant there also maintained that the performance of his court-appointed counsel was ineffective based, in part, on the lawyer\u2019s failure to insist upon the presence of a court reporter during voir dire. According to the defendant, the failure to record jury selection was prejudicial because it \u201cpreclud[ed] his appellate counsel from raising any potential issues regarding improper excusal of prospective jurors.\u201d People v. Thompkins, 121 Ill. 2d at 447. Citing our previous decision in People v. Steel, 52 Ill. 2d 442 (1972), we rejected that contention, holding that the mere failure to obtain the presence of a court reporter during voir dire does not constitute a per se presumption of ineffectiveness of counsel. We further ruled that counsel\u2019s failure to insist upon the presence of the court reporter during a portion of the voir dire proceedings was not such an extreme and limited circumstance, such as the total absence of counsel, that prejudice could be presumed. People v. Thompkins, 121 Ill. 2d at 448.\nThe issue next arose in People v. McClurg, 195 Ill. App. 3d 381 (1990), in which the defendant appealed her conviction for driving under the influence of alcohol. Prior to the commencement of the trial, the court had advised the defendant that there were not enough court reporters to make one available during jury selection, but that a reporter would be available later so that a record could be made. In assailing her conviction, the defendant included among her numerous arguments that the failure of the trial court to provide a court reporter during voir dire deprived her of the ability to preserve her objections for review and denied her right to due process. The appellate court rejected that contention, noting that the rules of our court clearly provide alternative methods for preserving the record where no verbatim transcript is available. In the appellate court\u2019s view, defendant could have availed herself of those rules and submitted a bystander\u2019s report or agreed statement of facts. Because she failed to do either, the court concluded that she had waived any argument concerning the sufficiency of the record and the propriety of the trial court\u2019s rulings during voir dire. People v. McClurg, 195 Ill. App. 3d at 388.\nMcClurg was followed by People v. Morris, 229 Ill. App. 3d 144 (1992), authored by former Chief Justice McMorrow shortly before she was elected to our court. In that case, which involved a felony prosecution, the court made some preliminary remarks to the initial group of prospective jurors. It then asked defense counsel and the prosecutor to step forward to the bench and stated the following:\n\u201c \u2018The court reporter informed me she has an appointment with her doctor. Would you please excuse her for the impaneling of the jurors? Before doing that would all of the perspective [sic] jurors raise their right hands please.\n(WHEREUPON THE JURORS WERE SWORN IN.)\nTHE COURT: Ms. Reporter, you are excused.\u2019 \u201d People v. Morris, 229 Ill. App. 3d at 154-55.\nThe court reporter was then excused while voir dire was conducted. That was the only portion of the proceedings for which she was absent. Court reporting was thereafter resumed for opening statements by the State and defense counsel, as well as for the remainder of defendant\u2019s trial. Defendant was subsequently found guilty and sentenced to a term of imprisonment.\nOn appeal, defendant claimed that the trial court committed reversible error when it permitted jury selection to take place without transcription by a court reporter. Following the approach taken in McClurg, the appellate court rejected this argument, holding that defendant could have obtained a bystander\u2019s report or an agreed statement of facts as permitted under the rules of our court and that his failure to do so precluded him from asserting that the court\u2019s ruling was reversible error. People v. Morris, 229 Ill. App. 3d at 156.\nIn a related argument, the defendant further contended that his attorney was ineffective for having agreed to excuse the taking of voir dire by a court reporter. The appellate court rejected this argument as well. Citing our decision in People v. Thompkins, 121 Ill. 2d 401, 448 (1988), it held that defense counsel\u2019s failure to obtain the presence of a court reporter for voir dire does not create a per se presumption of ineffective assistance of counsel. To prevail on a claim that the attorney was ineffective, the defendant was required to point to some error in selection of the jury. The court further held that it was incumbent upon the defendant, as appellant, to obtain a bystander\u2019s report, or stipulated statement of facts, in lieu of a verbatim transcript of the voir dire. The court concluded that in the case before it, defendant had failed to satisfy these burdens. He was unable to specify any particular error that occurred during jury selection and failed to procure a bystander\u2019s report or stipulated statement of facts regarding jury selection. As a result, the court rejected defendant\u2019s claim that he was entitled to a new trial. People v. Morris, 229 Ill. App. 3d at 156-57.\nPeople v. Culbreath, 343 Ill. App. 3d 998, 1005-06 (2003), is in accord. In that case, the defendant was tried on two counts of aggravated battery. On the first day of the trial, the presiding judge asked counsel for defendant and the State if either party wanted a court reporter to be present to record the voir dire. The State responded in the negative. Counsel for defendant indicated that he would be willing to waive the presence of a reporter, subject to the understanding the reporter would be nearby in case a record of something needed to be made. The court then excused the court reporter and proceeded with jury selection. A court reporter was present for the remaining proceedings in the case.\nDefendant was ultimately convicted, sentenced to a term of imprisonment and ordered to pay restitution to his victim. People v. Culbreath, 343 Ill. App. 3d at 1001. On appeal, defendant raised various grounds for assailing the judgment. Among these were: (1) that by conducting voir dire of prospective jurors without a court reporter present to transcribe the proceedings, as required by Supreme Court Rule 608(a)(9) (177 Ill. 2d R. 608(a)(9)), the trial court had violated his right to due process; (2) the failure to have a court reporter present to transcribe voir dire resulted in the denial of his right to effective assistance of appellate counsel; and (3) his trial counsel did not have the authority to waive the court reporter\u2019s presence at voir dire because that decision belonged to defendant alone. People v. Culbreath, 343 Ill. App. 3d at 1005.\nThe appellate court rejected all these arguments. Following McClurg and Morris, it reiterated the principle that the failure to provide a court reporter during voir dire does not deprive a defendant of due process. It further held that because the rules of this court provide alternate means for preserving the record and because the defendant failed to avail himself of those options, defendant was precluded from arguing that the court\u2019s failure to provide a court reporter during voir dire constituted reversible error. People v. Culbreath, 343 Ill. App. 3d at 1006.\nFinally, the appellate court concluded, based on precedent from this court, that the decision to conduct voir dire without a court reporter present was not among those which must be made personally by the defendant. That decision, in the appellate court\u2019s view, could be made by defense counsel. In so ruling, the appellate court rejected the notion that defense counsel\u2019s waiver of the court reporter\u2019s presence for voir dire creates an inherent conflict of interest by creating a situation in which counsel could prevent the defendant from raising claims against him. The reason the waiver does not create a conflict is that it does not, in fact, preclude a defendant from challenging his attorney\u2019s conduct during voir dire. As previously indicated, a defendant may substantiate claims of ineffective representation pertaining to voir dire by means of a bystander\u2019s report or an agreed statement of facts. Neither of those options was attempted by the defendant in that case. People v. Culbreath, 343 Ill. App. 3d at 1007-08.\nThe sixth and most recent case, People v. Ash, 346 Ill. App. 3d 809, 812-14 (2004), was decided the year after People v. Culbreath, 343 Ill. App. 3d 998 (2003), and involved a similar situation in which the trial court asked counsel for the parties if they wished voir dire to be recorded by a court reporter. Both declined. Defendant was ultimately convicted of a drug-possession offense. As grounds for his appeal, the defendant argued that the trial court committed reversible error by failing to have jury-selection proceedings reported as required by Supreme Court Rule 608(a)(9) and that his trial counsel rendered ineffective assistance by agreeing to waive the recording of voir dire. People v. Ash, 346 Ill. App. 3d at 812.\nAs in all the cases which preceded it, the appellate court in Ash found these arguments to be without merit. The court opined that the requirements contained in Rule 608(a)(9) could validly be waived by counsel on the defendant\u2019s behalf and that the trial court was entitled to rely on defense counsel\u2019s decision to decline having voir dire recorded. The court further held that defendant had failed to demonstrate that his attorney\u2019s decision to forgo recording of voir dire deprived him of a fair trial. Defendant\u2019s claim was based solely on counsel\u2019s decision to allow voir dire to proceed without a court reporter, and in the court\u2019s view, \u201c[ejxcusing the court reporter from taking notes of voir dire is not, in and of itself, ineffective assistance [citations] or a violation of due process [citations].\u201d People v. Ash, 346 Ill. App. 3d at 813-14.\nIn light of this unbroken line of precedent, which the appellate court in this case applied properly, the majority\u2019s characterization of the case as unique or unusual is unfounded. The problem presented by this case, failure to record voir dire as Rule 608(a)(9) requires, is, in fact, all too common. Its frequent recurrence is perplexing. Given the clear language of the rule, it is difficult to understand why a trial court would suggest that conducting jury selection without the presence of a court reporter might be appropriate or permissible. As we held in Bright v. Dicke, 166 Ill. 2d 204, 210 (1995), and as the majority reminds us, our rules are not suggestions. They have the force of law, and the presumption must be that they are to be obeyed and enforced as written. Rule 608(a)(9) is no different. If trial courts are unwilling to comply, it is incumbent on us to amend the rule\u2019s provisions to include appropriate consequences for failure to follow it. Fashioning ad hoc remedies as the majority does here is unsound, especially where, as in this case, doing so requires the court to ignore an unbroken line of cases dating back over 30 years.\nIn an effort to justify its approach, the majority attempts to distinguish this case from past precedent on the grounds that it involves a situation in which the failure to record voir dire is tied to a specific claim of prejudice by the defendant, namely, that it hampered his ability to establish that he was denied equal protection under the principles established by the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). According to the majority, remand for further proceedings is necessary in order to dispel any notion that our court condones racial discrimination in jury selection in contravention of Bat-son. 226 Ill. 2d at 152.\nI share my colleagues\u2019 concern with honoring the precepts of Batson. Contrary to the majority, however, I do not believe that this case can properly be characterized as presenting a Batson claim. As a preliminary matter and as the majority acknowledges, no mention of Bat-son was made in either the posttrial motion filed by defense counsel or the pro se posttrial motion submitted by defendant himself. The suggestion that Batson considerations might be relevant was injected into the case for the first time by defendant\u2019s counsel on appeal. Even then, it was not the focus of defendant\u2019s petition for leave to appeal, his brief or his reply brief. In fact, when defendant\u2019s reply brief mentions Batson, it is not to buttress any claim of racial discrimination in this case, but merely to illustrate why defendant believes, as a matter of policy, that strict enforcement of the court reporting requirement in Rule 608(a)(9) is so important. When defendant speaks of possible Raison-related problems in this context, he refers to \u201ca hypothetical defendant,\u201d not himself.\nWholly aside from these considerations, I do not believe that appellate counsel\u2019s Batson analysis is meritorious. That there might be an actual Batson problem in this particular case is predicated on a document styled \u201caffidavit\u201d which was appended to defendant\u2019s pro se posttrial motion and motion to suppress confession. In that affidavit, defendant stated:\n\u201cJudge Maher I know you tried to be fair as possible and you was but I felt a predjudice [sic] and discrimanating [sic] patter[n] going on with the jury. I\u2019m not predjudice [sic] but I strong feel some of the jury was. I mean let\u2019s look at it eleven white people and one black person ***.\u201d\nThe affidavit then continued with the charge that the one black person on the jury was likely to have been biased against defendant because her brother had recently been murdered and she still carried \u201cemotion\u2019s [sic] about guns and people being shot.\u201d In addition, the affidavit asserted that the lone black juror knew defendant and had lied when the court asked here whether she knew anyone involved in the case.\nAlong with this affidavit, defendant\u2019s appellate counsel also cited an allegation in trial counsel\u2019s posttrial motion regarding the composition of the jury. That allegation, which paraphrased defendant\u2019s affidavit, stated simply that\n\u201cof the twelve jurors in this cause, there was only one black and when the court asked said black lady if she knew anyone, either the attorneys or any of the proposed witnesses or the Defendant she stated she did not know the Defendant but in reality said Defendant has subsequently learned that the said black lady did know him.\u201d\nContrary to the majority\u2019s view, these assertions do not echo language in Batson. The Batson decision did not pertain to the bias that may result from personal acquaintance. It did not even address the bias that may result when the members of the jury happen to be of a different race from the defendant. Rather, it was concerned specifically with purposeful discrimination by the State in the selection of the jury through the use of peremptory challenges. Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986).\nNothing in any of the materials filed by defendant or on his behalf in the trial court charges that such purposeful discrimination by the State occurred here. A pattern of discrimination by the jury, which is what defendant alleged, is analytically and constitutionally distinct from a pattern of discriminatory strikes against black venire members by the prosecution, which is what the defendant in Batson alleged. Batson v. Kentucky, 476 U.S. at 83-84, 90 L. Ed. 2d at 78-79, 106 S. Ct. at 1715-16. While it may be true that the jury ended up with 11 white jurors and only one African-American, there is no indication that this composition was the result of anything other than the demographics of Peoria County.\nTo support its view that this case is properly viewed as presenting Batson concerns, the majority asserts that \u201cthe State does not dispute that defendant\u2019s complaint about the racial composition of his jury was a Batson claim.\u201d 226 Ill. 2d at 146 n.4. The majority\u2019s implication is that the State, in its brief, somehow conceded that arguments advanced by defendant and his attorney in the trial court were predicated on Batson. The State made no such concession. So far as I can tell, the question of Batson is not even mentioned in the State\u2019s brief. It did not need to be mentioned because it was not essential to the State\u2019s arguments in support of the trial court\u2019s judgment.\nIn addressing the question of why Batson was not specifically raised in the trial court, my colleagues fail to consider an obvious explanation, namely, that counsel recognized that no grounds for a Batson challenge existed. Instead, the majority intimates that defendant\u2019s trial counsel refrained from invoking Batson out of concern that doing so would have required him to argue his own ineffectiveness. I regard such a suggestion as wholly unjustified. Rather than assuming that an attorney\u2019s representation was tainted by self-interest or otherwise flawed, we must assume, absent evidence to the contrary, that counsel satisfied his professional obligations. Indeed, there is a strong presumption under Illinois law that the performance of a defendant\u2019s attorney fell within the range of reasonably adequate representation. People v. Owens, 129 Ill. 2d 303, 318 (1989). My personal experience has been that such a presumption is justified, particularly when defense counsel is as experienced as defendant\u2019s trial counsel was in this case.\nWhen counsel in this case acquiesced in dispensing with a court reporter for voir dire, they did so with the understanding that the reporter would be available in the event that a problem arose requiring that a record be made. Had the State\u2019s exercise of its peremptory challenges raised a Batson issue, there is no reason to believe that defendant\u2019s lawyer would not have exercised this option and summoned the reporter to record the proceedings. Based on the record before us, it appears that he was diligent in all other aspects of his representation. That he did not deem it necessary to call in the reporter to make a record of what occurred during voir dire is therefore not evidence of lack of effective representation. It is evidence of lack of error.\nFinally, I am puzzled by the remedy fashioned by my colleagues. That is so for three reasons. First, remanding for a hearing to reconstruct what took place during voir dire is not a resolution defendant himself has requested. Indeed, in his reply brief defendant contends that anything less than a full recording of the voir dire, which was not made and does not exist, will be inadequate. Second, to the extent that a record of what took place could be reconstructed, the time to attempt such reconstruction was immediately after the trial concluded. As noted in McClurg, Morris, and Culbreath, our rules provide for alternate means for preserving the record, and if a defendant fails to avail himself of those alternatives he cannot complain on appeal that the failure to provide a court reporter during voir dire constitutes reversible error. Third, even if some principle of justice could excuse defendant\u2019s failure to act earlier, the passage of time has probably doomed any realistic hope of reconstructing the record of voir dire now. As a result, the remand ordered by the majority is, in the end, likely to be a meaningless act. The case is almost certain to return to us in essentially the same posture as it is now. What then? Nothing in the majority\u2019s present analysis explains what the next step should be.\nFor the foregoing reasons, I believe that the majority\u2019s analysis is unsound and that the remedy it fashions is ill conceived. In my view, the appellate court resolved this case correctly under the law. Although the majority did not reach defendant\u2019s remaining issue pertaining to counsel\u2019s failure to tender an instruction on identification, I believe that the appellate court resolved that issue correctly as well. The appellate court\u2019s judgment should therefore be affirmed. Accordingly, I respectfully dissent.\nAlthough the analysis in Campbell purported to rely on the language of Rule 401(a) rather than the underlying constitutional principles governing the right to counsel, the constitutionally based consequences of noncompliance are essential to the result it reached. If the existence of such consequences were absent from the analysis and the case rested solely on the text of the rule, it could not be squared with the analytical framework we set forth in People v. Robinson for understanding the mandatory-directory dichotomy, nor could it be reconciled with decisions such as People v. Henderson, 217 Ill. 2d 449 (2005), where we held that failure to comply with the admonitions required by Supreme Court Rule 605(a), which also employed the word \u201cshall,\u201d did not automatically require reversal and remand in every instance.", "type": "dissent", "author": "JUSTICE KARMEIER," } ], "attorneys": [ "Robert Agostinelli, of Ottawa, and Thomas A. Lilien, Deputy Defenders, and Sherry R. Silvern, Assistant Defender, both of Elgin, all of the Office of the State Appellate Defender, for appellant.", "Lisa Madigan, Attorney General, of Springfield, and Kevin Lyons, State\u2019s Attorney, of Peoria (Gary Feinerman, Solicitor General, and Michael M. Glick and Jay Paul Hoffmann, Assistant Attorneys General, of Chicago, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 102225.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. AARON JAMAR HOUSTON, Appellant.\nOpinion filed August 2, 2007.\nRobert Agostinelli, of Ottawa, and Thomas A. Lilien, Deputy Defenders, and Sherry R. Silvern, Assistant Defender, both of Elgin, all of the Office of the State Appellate Defender, for appellant.\nLisa Madigan, Attorney General, of Springfield, and Kevin Lyons, State\u2019s Attorney, of Peoria (Gary Feinerman, Solicitor General, and Michael M. Glick and Jay Paul Hoffmann, Assistant Attorneys General, of Chicago, of counsel), for the People." }, "file_name": "0135-01", "first_page_order": 147, "last_page_order": 181 }