{ "id": 1209166, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLARENCE GARDNER, Defendant-Appellant", "name_abbreviation": "People v. Gardner", "decision_date": "2002-05-15", "docket_number": "No. 1\u201401\u20141003", "first_page": "358", "last_page": "369", "citations": [ { "type": "official", "cite": "331 Ill. App. 3d 358" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "645 N.E.2d 414", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "defendant allowed to raise same Batson issue in his postconviction petition where law on the issue had changed since the court ruled on direct appeal" } ], "opinion_index": 0 }, { "cite": "268 Ill. App. 3d 857", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381910 ], "year": 1994, "pin_cites": [ { "page": "864", "parenthetical": "defendant allowed to raise same Batson issue in his postconviction petition where law on the issue had changed since the court ruled on direct appeal" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/0857-01" ] }, { "cite": "648 N.E.2d 992", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "271 Ill. App. 3d 346", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 249117 ], "year": 1995, "pin_cites": [ { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/271/0346-01" ] }, { "cite": "672 N.E.2d 914", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "284 Ill. App. 3d 908", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1260377 ], "year": 1996, "pin_cites": [ { "page": "912" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/284/0908-01" ] }, { "cite": "724 N.E.2d 525", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "312 Ill. App. 3d 719", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 411618 ], "year": 1999, "pin_cites": [ { "page": "727" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/312/0719-01" ] }, { "cite": "565 N.E.2d 900", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "141 Ill. 2d 40", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238211 ], "year": 1990, "pin_cites": [ { "page": "58" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/141/0040-01" ] }, { "cite": "610 N.E.2d 16", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "154 Ill. 2d 414", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820340 ], "year": 1992, "pin_cites": [ { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0414-01" ] }, { "cite": "568 N.E.2d 864", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "142 Ill. 2d 481", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236590 ], "year": 1991, "pin_cites": [ { "page": "489" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/142/0481-01" ] }, { "cite": "489 U.S. 288", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12032050 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "301" }, { "page": "349" }, { "page": "1070" } ], "opinion_index": 0, "case_paths": [ "/us/489/0288-01" ] }, { "cite": "686 N.E.2d 587", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "177 Ill. 2d 421", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 317119 ], "weight": 5, "year": 1997, "pin_cites": [ { "page": "430" }, { "page": "430-31" }, { "page": "431" }, { "page": "431" }, { "page": "433", "parenthetical": "decision merely applied existing precedent and statutory law to the facts of the case and did not announce a \"new rule\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/177/0421-01" ] }, { "cite": "662 N.E.2d 1304", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "169 Ill. 2d 355", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 909170 ], "year": 1996, "pin_cites": [ { "page": "371" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/169/0355-01" ] }, { "cite": "632 So. 2d 224", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7456674 ], "year": 1994, "pin_cites": [ { "page": "226" } ], "opinion_index": 0, "case_paths": [ "/so2d/632/0224-01" ] }, { "cite": "60 A. 897", "category": "reporters:state_regional", "reporter": "A.", "year": 1905, "pin_cites": [ { "page": "898" } ], "opinion_index": 0 }, { "cite": "100 Me. 208", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 643624 ], "year": 1905, "pin_cites": [ { "page": "211" } ], "opinion_index": 0, "case_paths": [ "/me/100/0208-01" ] }, { "cite": "759 N.E.2d 565", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "lack of culpable negligence standard difficult to overcome" } ], "opinion_index": 0 }, { "cite": "325 Ill. App. 3d 876", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570276 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "883", "parenthetical": "lack of culpable negligence standard difficult to overcome" }, { "page": "884" }, { "page": "885" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/0876-01" ] }, { "cite": "694 N.E.2d 1082", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "296 Ill. App. 3d 349", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 222625 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "352" }, { "page": "352" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/296/0349-01" ] }, { "cite": "730 N.E.2d 26", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "191 Ill. 2d 194", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 229698 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/191/0194-01" ] }, { "cite": "736 N.E.2d 1092", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "192 Ill. 2d 348", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 453257 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "360" }, { "page": "360" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/192/0348-01" ] }, { "cite": "701 N.E.2d 1063", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "183 Ill. 2d 366", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209962 ], "year": 1998, "pin_cites": [ { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0366-01" ] }, { "cite": "713 N.E.2d 210", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "305 Ill. App. 3d 840", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1208048 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "846" }, { "page": "847" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/305/0840-01" ] }, { "cite": "199 F.3d 915", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1753154 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/f3d/199/0915-01" ] }, { "cite": "175 F.3d 580", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1720107 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/f3d/175/0580-01" ] }, { "cite": "671 N.E.2d 736", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "168 Ill. 2d 606", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "742 N.E.2d 315", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2000, "opinion_index": 0 }, { "cite": "194 Ill. 2d 467", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1096301 ], "weight": 11, "year": 2000, "pin_cites": [ { "page": "481" }, { "page": "470" }, { "page": "471" }, { "page": "479" }, { "page": "476", "parenthetical": "purpose of voir dire is to ascertain information regarding bias and prejudice" }, { "page": "477" }, { "page": "477" }, { "page": "481" }, { "page": "477" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/194/0467-01" ] }, { "cite": "668 N.E.2d 125", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "282 Ill. App. 3d 209", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 159530 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "211-13" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/282/0209-01" ] } ], "analysis": { "cardinality": 964, "char_count": 23248, "ocr_confidence": 0.76, "pagerank": { "raw": 7.391086730838515e-08, "percentile": 0.4424493474329971 }, "sha256": "709536c33ad97f2ca19efd68367026237c4a9d697b56244ece0f3e3e4ae8495d", "simhash": "1:82a9d516669cd5f8", "word_count": 3889 }, "last_updated": "2023-07-14T14:37:46.779771+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLARENCE GARDNER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nIn 1995, Clarence Gardner was convicted of first degree murder and sentenced to 35 years in prison. We affirmed his conviction and sentence on direct appeal in 1996. People v. Gardner, 282 Ill. App. 3d 209, 668 N.E.2d 125 (1996). In December 2000, Gardner filed a post-conviction petition, which the trial court denied as untimely. The trial court also found his petition frivolous and without merit. Gardner appeals the trial court\u2019s summary dismissal, contending: (1) the delay in filing the petition was not due to his culpable negligence; and (2) under People v. Strain, 194 Ill. 2d 467, 742 N.E.2d 315 (2000), he was denied his right to a fair trial by the trial court\u2019s refusal to ask questions concerning gang bias during voir dire. We reverse and remand for further proceedings.\nFACTS\nGardner was convicted under a theory of accountability for the shooting death of Joseph Waites, Jr. The murder was the result of gang rivalry and much of the evidence at trial focused on Gardner\u2019s affiliation with the Gangster Disciples street gang. The facts of the murder are set out in our opinion on direct appeal. See Gardner, 282 Ill. App. 3d at 211-13.\nDuring a pretrial conference, defendant sought to have the trial court ask the following questions during voir dire:\n\u201c1. Have you ever known anyone who was in a gang? (If answer is yes, ask follow up questions.)\na. Do you think that someone who is in a gang is necessarily a criminal?\nb. Do you understand that it is not a crime just to join a gang?\nc. Do you understand that one member of a gang is not legally responsible for the actions of other gang members just because they are in the same gang?\nd. Would you be able to put aside any feelings you may have about gangs, and give the defendant a fair trial based on the evidence?\u201d (Emphasis added.)\nAt the hearing, the trial court discussed the questions with defense counsel:\n\u201cTHE COURT: *** Now, do you want me to ask a question of the jury \u2014 well, I\u2019ll ask if you have a question of the jury which you want asked, I will ask it. I could ask a question something on the order of you \u2014 do you have any connection with gangs or with \u2014 if there were any evidence of gang membership would that influence your outcome or your verdict one way or the other.\n[DEFENSE COUNSEL]: We would like you to ask something. And in fact, given that we didn\u2019t know until today that we were going to be before you and didn\u2019t know how you did voir dire, we had prepared certain questions we were going to tender to the court which include questions of that character. They include other questions, as well.\nTHE COURT: All right. On the proposed questions, I will ask this question. \u2018Have you or any member of your immediate family ever had any direct involvement with a street gang.\u2019 I\u2019m not going to ask questions A, B, C, and D. All right. I\u2019ll follow up on that question. And if they answer yes, I\u2019ll see what it is.\u201d\nDuring voir dire, the trial court first asked, \u201cHave you or any member of your immediate family had any direct involvement with a street gang?\u201d No prospective juror said he or she had any direct involvement with a gang. Next, the court asked, \u201cHave you or any member of your family had any indirect involvement with a street gang?\u201d One juror answered \u201cyes.\u201d\nThe following exchange took place between the trial court and the juror who answered he had had indirect involvement with a street gang:\n\u201cQ. You said you had some indirect involvement with street gangs or [sic] member of your immediate family?\nA. I grew up in *** Pilsen street area, also Little Village area. *** I have five brothers. Indirectly we were involved with one gang or another indirectly during our youth.\nQ. Is there anything about that that would prevent you from giving both sides a fair trial?\nA. No, sir.\u201d\nThis juror eventually was excused for cause on the State\u2019s motion. The motion was based on the juror\u2019s answer to a different question. The court did not ask any other questions concerning gang bias.\nPROCEDURAL FACTS\nAfter he was convicted and sentenced, defendant raised several issues on direct appeal. One of the issues raised was the same one he raises here: the trial court erred in failing to ask more questions surrounding gang bias during voir dire. On direct appeal we affirmed the trial court and found no error. We found, without extended discussion, the trial court\u2019s questions were sufficient to address the possibility of juror bias.\nDefendant filed a petition for leave to appeal to the supreme court. The supreme court denied defendant\u2019s petition on October 2, 1996. People v. Gardner, 168 Ill. 2d 606, 671 N.E.2d 736 (1996).\nDefendant next filed a petition for writ of habeas corpus in the Northern District Court of Illinois. Defendant again raised the voir dire issue. The District Court denied defendant\u2019s petition. A Seventh Circuit panel reversed the lower court\u2019s decision, finding, in part, that the trial court erred in limiting voir dire. Gardner v. Barnett, 175 F.3d 580 (7th Cir. 1999). On petition for rehearing en banc, the Seventh Circuit vacated its opinion and affirmed the lower court\u2019s denial of defendant\u2019s habeas corpus petition. Gardner v. Barnett, 199 F.3d 915 (7th Cir. 1999).\nDefendant filed a petition for postconviction relief in December 2001, six weeks after the Illinois Supreme Court decided People v. Strain, 194 Ill. 2d 467, 742 N.E.2d 315 (2000) \u2014 where gang-related testimony is \u201cpervasive,\u201d the failure to ask questions surrounding gang bias during voir dire amounts to reversible error.\nDefendant recognized his petition was untimely, but said:\n\u201c[Defendant] has not been culpably negligent in pursuing his rights. Rather, [defendant] timely presented his contention on direct appeal. [Defendant] brings this petition now because last month, in another matter, the Illinois Supreme Court clarified that [defendant] has been correct all along in his contention that his Illinois constitutional rights were violated by the trial court\u2019s refusal to permit voir dire concerning street gang bias. [Citing People v. Strain in a footnote.] It is on the basis of that clarification that [defendant] seeks this post-conviction relief. [Defendant] could not have sought this post-conviction relief any earlier because the Supreme Court\u2019s clarification had not issued; he brings this petition approximately six weeks after the clarification.\u201d\nThe trial court summarily dismissed defendant\u2019s petition, finding it untimely. The court found defendant could not \u201cescape the fact that he was culpably negligent in filing the *** petition beyond the prescribed time period\u201d because the Strain court did not indicate its holding applied retroactively. It also found the Strain issue barred by res judicata because it was decided on direct appeal.\nDECISION\nTIMELINESS OF PETITION\nDefendant contends the trial court erred in finding his petition untimely. Because he raised the voir dire issue on direct appeal, defendant claims he would have been barred from raising the issue in a postconviction petition before Strain was decided by the supreme court.\nThe Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 1 et seq. (West 1998)) provides a three-stage process for adjudication of postconviction petitions. People v. Frieberg, 305 Ill. App. 3d 840, 846, 713 N.E.2d 210 (1999). During the first stage the trial court determines, without any input from the State or further pleadings from the defendant, whether the petition is frivolous or patently without merit. Frieberg, 305 Ill. App. 3d at 847. At this first stage, the trial court must accept as true all facts pleaded in the petition, unless the trial record positively rebuts these pleadings. People v. Coleman, 183 Ill. 2d 366, 385, 701 N.E.2d 1063 (1998).\nWe review the summary dismissal of a postconviction petition de novo. People v. Simms, 192 Ill. 2d 348, 360, 736 N.E.2d 1092 (2000).\nSection 122 \u2014 1(c) of the Act sets out a time limitation for post-conviction relief. This section states, in pertinent part:\n\u201c(c) No proceedings under this Article shall be commenced more than 6 months after the denial of a petition for leave to appeal or the date for filing such a petition if none is filed or more than 45 days after the defendant files his or her brief in the appeal of the sentence before the Illinois Supreme Court *** or 3 years from the date of conviction, whichever is sooner, unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence.\u201d 725 ILCS 5/122 \u2014 1(c) (West 1998).\nHere, defendant was sentenced on March 24, 1995. His petition for leave to appeal was denied by the supreme court on October 2, 1996. The deadline for filing a timely postconviction petition under the Act would have been six months later, April 2, 1996. Defendant\u2019s petition was tardy by more than five years.\nHowever, defendant raises an interesting question: given the change in the law represented by the Strain decision, can his tardiness be excused?\nIn the only supreme court case in which this issue was raised, People v. Jones, 191 Ill. 2d 194, 730 N.E.2d 26 (2000), the defendant\u2019s second, untimely postconviction petition alleged he was denied due process by the trial court\u2019s failure to conduct a fitness hearing after it became aware the defendant was taking psychotropic medication. The trial court summarily dismissed the defendant\u2019s petition as untimely.\nOn appeal, the defendant argued his late filing should be excused because the claims raised in the second petition were predicated on the supreme court\u2019s decision in a case filed just two months before defendant filed his late petition. The supreme court found it was not necessary to address this issue because the petition was procedurally barred by the rules governing successive petitions. Jones, 191 Ill. 2d at 199.\nIn People v. Hernandez, 296 Ill. App. 3d 349, 694 N.E.2d 1082 (1998), the defendant filed a postconviction petition more than four years after he was sentenced. The State filed a motion to strike the petition, arguing it was untimely. The trial court conducted a hearing and ruled the defendant\u2019s failure to file a timely petition was not due to his culpable negligence because of the \u201cevolving nature\u201d of the law on the issue he raised (whether a tax conditioned on commission of a crime violates the ban on double jeopardy). The appellate court affirmed:\n\u201cAs petitioner points out, our supreme court did not issue an opinion addressing this issue until February 1996 ***. *** From these facts, we cannot say that the trial court manifestly erred in finding that petitioner had shown that the delay in filing the petition was not due to his culpable negligence.\u201d Hernandez, 296 Ill. App. 3d at 352.\nIn Hernandez, the trial court\u2019s ruling was reviewed using a \u201cmanifest error\u201d standard because the petition had reached the second stage of postconviction proceedings and a hearing was held. Here, we review the trial court\u2019s summary dismissal of the petition de novo. Simms, 192 Ill. 2d at 360.\nShowing a lack of \u201cculpable negligence\u201d has been notoriously difficult for defendants. See People v. Scullark, 325 Ill. App. 3d 876, 883, 759 N.E.2d 565 (2001) (lack of culpable negligence standard difficult to overcome). In Scullark, the defendant claimed his tardy filing was not due to his culpable negligence because he was placed in segregation in prison and had no access to legal materials during the period leading up to the filing deadline. This court defined \u201cculpable negligence\u201d for the first time in Scullark:\n\u201c[T]he Act does not merely refer to \u2018negligence\u2019 but to \u2018culpable negligence\u2019 and the word \u2018culpable\u2019 must be held to mean something. [Citations.] The dictionary defines \u2018culpable\u2019 as \u2018[responsible for wrong or error; blameworthy.\u2019 [Citations.]\nThus, we conclude that by defining the standard as a lack of \u2018culpable negligence,\u2019 the legislature intended to hold petitioners to a lower degree of care than mere negligence. In other words, to be \u2018culpably negligent,\u2019 a petitioner would need to be more than merely negligent.\u201d Scullark, 325 Ill. App. 3d at 884.\nThe Scullark court concluded that \u201cculpable negligence\u201d was \u201c \u2018more than the failure to use ordinary care\u2019 \u201d or \u201c \u2018negligence of a gross and flagrant character.\u2019 \u201d Scullark, 325 Ill. App. 3d at 885, quoting Holway v. Ames, 100 Me. 208, 211, 60 A. 897, 898 (1905), and Ross v. Baker, 632 So. 2d 224, 226 (Fla. App. 1994).\nWhen applied to the facts of this case, the Scullark definition makes it difficult to find defendant\u2019s failure to file a timely petition was due to his \u201cculpable negligence.\u201d As defendant points out, he pursued the gang bias voir dire issue on direct appeal, in a petition for leave to appeal the decision on direct appeal and before the federal court in a habeas corpus proceeding. His argument was rejected in each of these venues. Given that defendant raised the issue on direct appeal, defendant could not have argued it again in a postconviction petition before the supreme court issued its decision in Strain because it would have been barred by res judicata. See People v. Whitehead, 169 Ill. 2d 355, 371, 662 N.E.2d 1304 (1996). We do not see how defendant\u2019s failure to raise the issue yet again, in a postconviction petition that would have been doomed to fail pre-Strain, constitutes \u201cnegligence of a gross and flagrant character.\u201d We find the trial court erred in rejecting the petition as untimely.\nIn so deciding, we do not intend to extend our lack-of-culpable-negligence finding beyond the facts of this case and the important right that is at stake \u2014 the right of a defendant to \u201cselection of an impartial panel of jurors, free from bias and prejudice.\u201d Strain, 194 Ill. 2d at 481.\nRETROACTIVITY OF STRAIN\nDefendant also contends the trial court erred in finding his petition was frivolous and without merit. The trial court\u2019s ruling was premised on its finding that Strain could not be retroactively applied. The State agrees, contending Strain announced a new rule that cannot be retroactively applied in a postconviction proceeding. We disagree.\nDecisions that announce \u201cnew rules\u201d are not generally applied retroactively to cases pending on collateral review. People v. Moore, 177 Ill. 2d 421, 430, 686 N.E.2d 587 (1997). \u201c[A] case announces a \u2018new rule\u2019 when it breaks new ground or imposes a new obligation on the state or federal government.\u201d Moore, 177 Ill. 2d at 430-31 (adopting the reasoning set out in Teague v. Lane, 489 U.S. 288, 301, 103 L. Ed. 2d 334, 349, 109 S. Ct. 1060, 1070 (1989)). If the result is not dictated by precedent existing at the time the defendant\u2019s conviction becomes final, the case announces a \u201cnew rule.\u201d Moore, 177 Ill. 2d at 431. However, where a case simply applies a well-established constitutional principle to govern a case that is closely analogous to those previously considered, it does not announce a \u201cnew rule\u201d and it may apply to cases pending on collateral review. Moore, 177 Ill. 2d at 431.\nIn Strain, the defendant appealed a first degree murder conviction, contending the trial court erred in refusing to ask the jury venire two questions he submitted concerning gang bias. At Strain\u2019s trial, the court asked each prospective juror \u201cwhether the juror, any member of the juror\u2019s family or a close friend of the juror had ever been involved in a gang.\u201d Strain, 194 Ill. 2d at 470. The trial court would not allow defense counsel to ask whether the prospective jurors would find defendant less believable if they learned that defendant belonged to a gang or whether the prospective jurors would find defendant\u2019s membership in a gang made it more likely than not that defendant was guilty of a gang shooting. Strain, 194 Ill. 2d at 471.\nThe supreme court reversed the defendant\u2019s conviction and remanded for a new trial, finding the trial court erred in refusing to ask the supplemental questions:\n\u201cThroughout its opening statement and closing argument, the State reminded the jurors of the importance of gang testimony at trial. The jury heard testimony from numerous police officers assigned to gang units, police detectives and gang members, all contending that a gang war was in effect between the Gangster Disciples and the Black Disciples; that Perry Avenue was the dividing line between the two gangs; and that defendant, intent on obtaining revenge against the Gangster Disciples, made forays into Perry Avenue in his capacity as a police informant, who gave information leading to the arrest of members of the Gangster Disciples, and as the shooter with the limp and the automatic weapon, who, eventually, shot Dow. Given this list of witnesses, the importance of gang testimony at trial, and the prejudice which may attach to such testimony, the trial court should have questioned the prospective jurors to determine whether they harbored any gang bias or prejudice.\u201d Strain, 194 Ill. 2d at 479.\nThe supreme court premised its decision on Supreme Court Rule 431 (177 Ill. 2d R. 431), which outlines the procedure the trial court is to follow during voir dire, and on case law discussing the purpose of voir dire. Strain, 194 Ill. 2d at 476 (purpose of voir dire is to ascertain information regarding bias and prejudice). The supreme court noted it had \u201crecognized that street gangs are regarded with considerable disfavor by other segments of our society\u201d in prior opinions. Strain, 194 Ill. 2d at 477, citing People v. Gonzalez, 142 Ill. 2d 481, 489, 568 N.E.2d 864 (1991). It referred to supreme court cases and opinions issued by this court acknowledging \u201cthere may be strong prejudice against street gangs.\u201d Strain, 194 Ill. 2d at 477, citing People v. Patterson, 154 Ill. 2d 414, 458, 610 N.E.2d 16 (1992); People v. Smith, 141 Ill. 2d 40, 58, 565 N.E.2d 900 (1990); People v. Pogue, 312 Ill. App. 3d 719, 727, 724 N.E.2d 525 (1999); People v. Jimenez, 284 Ill. App. 3d 908, 912, 672 N.E.2d 914 (1996); People v. Martin, 271 Ill. App. 3d 346, 355, 648 N.E.2d 992 (1995).\nThe court\u2019s conclusion that Strain was \u201cdenied an informed and intelligent basis on which to assert challenges for cause or to exercise peremptory challenges\u201d was based on \u201cconstitutional safeguards\u201d granted the accused by article I, sections 8 and 13, of the Illinois Constitution (Ill. Const. 1970, art. I, \u00a7\u00a7 8, 13). Strain, 194 Ill. 2d at 481.\nGiven the court\u2019s reliance on precedential case law and its reference to long-standing principles surrounding voir dire, we find the Strain court did not intend to announce a \u201cnew rule.\u201d See Moore, 177 Ill. 2d at 433 (decision merely applied existing precedent and statutory law to the facts of the case and did not announce a \u201cnew rule\u201d). Strain can be applied retroactively.\nRES JUDICATA\nThe State contends res judicata acts as a bar to defendant\u2019s postconviction petition, even if Strain can be applied. We do not agree. An issue rejected on direct appeal may be raised again, without being barred by res judicata, where the law on that issue has changed. People v. Partee, 268 Ill. App. 3d 857, 864, 645 N.E.2d 414 (1994) (defendant allowed to raise same Batson issue in his postconviction petition where law on the issue had changed since the court ruled on direct appeal). Strain reflects the \u201cevolving nature of the law.\u201d Hernandez, 296 Ill. App. 3d at 352.\nAPPLICABILITY OF STRAIN\nThis brings us to an analysis of the issues raised in defendant\u2019s postconviction petition. Defendant claims the trial court committed reversible error by refusing to ask jurors the supplemental gang bias questions he submitted to the court. Defendant focuses specifically on the trial court\u2019s failure to ask question \u201cd\u201d: \u201cWould you be able to put aside any feelings you may have about gangs, and give the defendant a fair trial based on the evidence?\u201d\nAn examination of the record suggests defendant\u2019s question \u201cd\u201d was to be asked only after a prospective juror answered \u201cyes\u201d to the first question defendant submitted:\n\u201c1. Have you ever known anyone who was in a gang? (If answer is yes, ask follow up questions.)\nd. Would you be able to put aside any feelings you may have about gangs, and give the defendant a fair trial based on the evidence?\u201d (Emphasis added.)\nThe trial court ultimately asked a broader question than the one submitted by defendant. Rather than simply ask whether the prospective jurors had ever known anyone in a gang, the trial court asked whether the jurors or any members of their immediate families ever had any direct or indirect involvement with a street gang.\nIt is not clear from the record that the trial court erred in the same way as the Strain trial court. The State insists the defendant ultimately got what he asked for, although the defendant contends the entire record shows he did ask the trial judge to pose the gang bias questions.\nThe Strain decision tells trial courts that \u201cwhen testimony regarding gang membership and gang-related activity is to be an integral part of the defendant\u2019s trial, the defendant must be afforded an opportunity to question the prospective jurors, either directly or through questions submitted of the trial court, concerning gang bias.\u201d Strain, 194 Ill. 2d at 477. Clearly, gang activity was an integral part of Gardner\u2019s trial.\nAs Strain teaches, in order to assert challenges for cause or to exercise peremptory challenges, the defendant was entitled to learn whether jurors possessed any bias against gangs. But Strain was a case where the defense lawyer asked that the gang bias question be posed to prospective jurors. We are not convinced the defense lawyer in this case asked the trial judge to pose that specific question without a precondition that was not met. Nor is it clear defense counsel asked permission to put that question to the potential jurors.\nOn the other hand, it is clear the trial judge knew this was a gang rivalry case and he was alerted to the defendant\u2019s concern about gang bias among prospective jurors. Whether the trial judge had some obligation to address the issue in the absence of a specific request is a matter we leave for another day. At any rate, this is not a frivolous issue. It should have survived a first-stage inquiry\nWe conclude justice would be best served by vacating the trial court\u2019s dismissal order and remanding this cause for a second-stage hearing, where counsel will be appointed to represent the defendant. The issue will be whether People v. Strain provides any relief for the defendant. We do not mean to indicate any preference in the matter.\nCONCLUSION\nFor the reasons stated, we reverse the trial court\u2019s order dismissing the defendant\u2019s postconviction petition and remand the cause to the trial court for further proceedings consistent with this opinion.\nReversed and remanded.\nCERDA and SOUTH, JJ., concur.", "type": "majority", "author": "JUSTICE WOLFSON" } ], "attorneys": [ "Jeff S. Pitzer, Clark C. Johnson, and Christina T. Tomaras, all of Jenner & Block, L.L.C., of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Michelle Grimaldi Stein, and Annette Collins, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLARENCE GARDNER, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1\u201401\u20141003\nOpinion filed May 15, 2002.\nJeff S. Pitzer, Clark C. Johnson, and Christina T. Tomaras, all of Jenner & Block, L.L.C., of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Michelle Grimaldi Stein, and Annette Collins, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0358-01", "first_page_order": 376, "last_page_order": 387 }