Opinion filed October 9, 2019 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2019

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 9th Judicial Circuit, ) Hancock County, Illinois. Plaintiff-Appellee, ) ) v. ) Appeal No. 3-17-0370 ) Circuit No. 14-CF-41 ROGER D. TONDINI II, ) ) Honorable Rodney G. Clark, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

PRESIDING JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justices Carter and McDade concurred in the judgment and opinion.

OPINION

¶1 The State charged defendant, Roger D. Tondini II, with three counts of aggravated

battery. 720 ILCS 5/12-3.05(a)(1), (c)(1), (f)(1) (West 2014). Before trial, defendant filed a

motion to qualify an expert witness, which the trial court denied. The case proceeded to voir

dire. Defendant’s attorney made a challenge for cause to remove juror James Little, asserting his

wife Sandy Little was an employee of the Hancock County State’s Attorney’s office prosecuting

defendant’s case; therefore, James was presumed biased. The trial court denied the challenge.

Defendant’s attorney subsequently used his last preemptory challenge to remove juror Harry

Douglas. At trial, the jury found defendant guilty of aggravated battery. Defendant filed a motion for judgment notwithstanding the verdict (judgment n.o.v.) and motion for a new trial, arguing

that the trial court abused its discretion in denying his challenge for cause and motion to qualify

an expert witness. The court denied the motion. Defendant appeals. We affirm.

¶2 I. FACTS

¶3 The State charged defendant with three counts of aggravated battery following a fight

during which he stabbed Amanda Delgado. He asserted the affirmative defense of self-defense

and sought by motion to qualify Marc MacYoung as an expert trial witness “to deal with issues

concerning use of force.” Defendant attached to the motion a copy of MacYoung’s resume

detailing his training and experience. MacYoung’s resume purported that he had worked on

multiple court cases as a knife and violence reconstruction expert. In particular, MacYoung listed

“Illinois v. R.D. Tondini 2014 (Knife, violence reconstruction)”. In addition, he claimed to have

authored several books and articles on the subjects of self-defense, martial arts, and violence,

performed in multiple instructional videos on street knife fighting and self-defense, made various

radio and television appearances, and taught multiple seminars on martial arts and “violence

dynamics.”

¶4 At the hearing on the motion, MacYoung testified that he teaches “violence dynamics” in

which people learn the parameters of self-defense such as how to recognize threats, recognize

patterns, use appropriate force, and deal with the aftermath. He also teaches police officers the

professional use of force and how to control subjects without causing injuries. He instructs the

military how to neutralize opponents. When he assesses court cases, “what I do is I’ll review the

case, I take all the evidence that is presented to me, and I try to assess what is most likely to have

occurred. *** And I compare those with established patterns of violence that I look at and go,

-2- okay, was this self-defense or not? And if—if it is not self-defense, I will generally turn the case

down.”

¶5 He stated that violence dynamics is not accredited by any university. Despite claiming he

instructed both civilians and professionals in the use of force, he averred that teaching people

how to handle violence cannot be taught in academia because it is difficult to simulate placing

someone in danger. He worked in security and at a correctional facility. He admitted that

violence dynamics is not a scientific field and he received his expertise in the matter through

personal experience, i.e., witnessing violent altercations as a young child, personal experience,

and reading multiple sources on related topics. He stated that “most people are really either

misinformed or just flat-out ignorant about how violence happens, especially professional

criminal violence.” He admitted that he could not “speak to the mindset of any individual

involved in this situation” or know what any person believed or felt at the time of the incident.

¶6 He did not have a college degree but had attended two community colleges. MacYoung

had never been a police officer and had never received training at a police academy. He has no

education in sociology, psychology, or biomechanics, and did not know whether his expertise

was generally accepted in those areas. He also confirmed that he was not a medical doctor or an

expert in deception. MacYoung and two other individuals created violence dynamics as a field of

study. He denied being an “expert” but explained that he and his cohorts were “knowledgeable”

on the topic and were continuing to do research in the area.

¶7 The trial court denied the motion, determining that:

“[I]n the instant case Mr. MacYoung can point to no source by

which he obtained information regarding violence dynamics. His

highest level of completed education is a high school diploma. He

-3- had no post high school studies in the area of violence dynamics

and appears to have, from his testimony, developed the theory. At

one point he indicated that he had developed it by a solo study in

the 1970’s [sic]. He then later indicated that the theory of violence

dynamics was created in conjunction with two colleagues. *** In

creating the theory to which he proposed to testify, he considered

no scientific reports or studies. The theory’s [sic] never been

subject to peer review or accepted in a scientific community.

*** And the motion to qualify Mr. MacYoung as an expert

in the case is denied.”

¶8 Defendant filed a motion to reconsider, claiming that MacYoung’s opinion was not a

scientific methodology or principle and, therefore, the trial court improperly relied on its

conclusions that MacYoung’s expertise had not been subject to peer review or accepted in a

scientific community. At the hearing on the motion to reconsider, the following exchange

occurred:

“THE COURT: I noticed you mentioned Frye. And Frye

applies only to a scientific principle, process or technique, or test

applying the principle. And didn’t Mr. MacYoung indicate several

times while he was testifying that his testimony was not scientific?

MR. WOODWORTH [(DEFENDANT’S ATTORNEY)]:

Correct. Yes, he did.

THE COURT: So Frye doesn’t really apply.

-4- MR. WOODWORTH: That’s our position. The Frye

standard does not apply, that’s correct.

THE COURT: And I didn’t—I don’t remember citing Frye

because there was no indication that there was any scientific

evidence that was going to be offered.”

¶9 Ultimately, the trial court denied the motion to reconsider. Specifically, it held:

“There’s nothing in the—either Mr. MacYoung’s opinion or the

Motion to Reconsider that indicates how his testimony would help

the trier of fact.

He was asked several times if he was going to offer an

opinion as a self-defense expert, and he indicated every time that

he was not offering an opinion as a self-defense expert. *** And

he had taught a—or run a business for years as a self-defense

instructor, but he indicated several times that he would not be

offering an opinion on self-defense; that he would be offering an

opinion on—at one point he called it violence dynamics and at the

other time he referred to it, I think, as violence reconstruction.

And in his CV he’s listed Mr. Tondini’s case as part of his

prior experience and indicates that he *** offered an opinion on

knife and violence reconstruction. So I take it at his word that his

opinion was going to be on knife and/or violence reconstruction

and that those are theories that he developed. *** [T]he theory of

violence dynamics, which he offered to testify about, is not

-5- recognized anywhere. He was qualified as an expert in knife

wounds, I believe it was, in the state of California sometime

previously. *** He indicated on several occasions that he would

not be offering opinion on either the martial arts or self-defense.

And it’s indicated that he had extensive training and

firsthand experience in gang-related violence. And as I recall, his

testimony was that he grew up in a rough part of Los Angeles; that

his last actual fight was when he was 19 years of age. ***

There’s no indication that he is an expert in gang-related

violence, and he didn’t indicate that he would be testifying to that

effect either. So based on those recollections and analysis, the

Motion to Reconsider is denied.”

¶ 10 Thereafter, the case proceeded to voir dire. Juror James Little stated that he knew

Hancock County State’s Attorney Jason Pohren, the prosecutor in defendant’s case. When asked

how he knew Pohren, James responded that his wife worked for the State’s Attorney’s office.

The court inquired if James’s wife was Sandy Little; James responded yes. The court asked

James the following questions to which he responded “no”: (1) whether Sandy’s employment

would prevent him from being fair and impartial at trial; (2) whether Sandy had discussed the

case with him; and (3) whether either party would receive an advantage from his presence on the

jury. The court also queried whether James could listen to the evidence presented and decide the

case based on the law that was given; he responded “yes.” Defense counsel asked James if he

would feel uncomfortable explaining his reasoning if he found defendant not guilty; he

-6- responded “no.” James stated that he goes into the State’s Attorney’s office twice a month. He

also stated that he had not heard any description of the events in the case.

¶ 11 Thereafter, the court informed the parties on their remaining peremptory challenges—the

State had two and defendant had one—and asked if they wished to exercise any challenges:

“MR. WOODWORTH [(DEFENDANT’S ATTORNEY)]:

Judge, I would make a motion for cause in regards to Mr. Little. I

believe there’s a clear appearance of impropriety in that situation.

Mr. Little’s in the State’s Attorney’s Office two times a month; his

wife works in the State’s Attorney’s Office. He seemed real

hesitant when the Court first questioned him. I realize that he

answered the questions of the Court okay, but I just think there’s

an appearance of impropriety there. I’m making a motion for cause

on him.

THE COURT: Argument?

MR. POHREN [(STATE’S ATTORNEY)]: Your Honor, in

this case he indicated that he’d be able to set aside anything. He

hasn’t heard any facts. He’s just like any other witness in the case.

THE COURT: I’m going to deny for cause.”

Ultimately, defendant used his final peremptory challenge to remove Harry Douglas, a former

State Police employee, from the jury. He did not thereafter raise the issue of striking Little for

cause or ask for additional peremptory challenges.

¶ 12 The case proceeded to trial. The jury found defendant guilty on two of the three counts of

aggravated battery. Defendant filed a motion for judgment n.o.v. and a motion for a new trial,

-7- arguing, inter alia, that (1) the trial court’s refusal to strike James for cause was an abuse of

discretion because James and Sandy’s relationship creates presumed biased and (2) the trial

court’s denial of defendant’s motion to qualify expert witness was an abuse of discretion because

defendant was not allowed to present his theory of defense at trial. The trial court denied the

motion and sentenced defendant to probation.

¶ 13 II. ANALYSIS

¶ 14 A. For-Cause Challenge to Juror

¶ 15 Defendant argues that the trial court violated his sixth amendment right to a fair trial

when it did not strike James Little from the jury. Citing People v. Cole,

(1973), he

claims that a juror is presumed to be biased when a juror and a party to the litigation are related.

Defendant argues that the court here should have presumed James biased because (1) James’s

wife Sandy Little was employed as the victim witness coordinator for the same State’s

Attorney’s office that was prosecuting defendant in the present case, (2) James knew the

prosecutor assigned to defendant’s case, (3) James visited the State’s Attorney’s office at least

twice a month, (3) the trial judge knew Sandy, (4) Sandy remained in the courtroom during the

trial, (5) Sandy handed papers to the prosecutor during the trial, and (6) Sandy sat about 15 feet

away from James during the trial. Defendant alleges that James and Sandy’s marital relationship

and Sandy’s involvement at the trial suggests that James’s opinion would carry greater weight

during deliberations. Additionally, because of James’s relationship with Sandy, he would feel

pressure to find defendant guilty.

¶ 16 The State argues defendant waived this issue on appeal because he did not state that he

was being forced to accept an objectionable juror. Also, the State asserts that James was not

presumed biased because Sandy was not a party to the trial nor did she “assist” the prosecution

-8- during trial. The State further alleges defendant cannot point to any evidence of bias. All of his

allegations regarding the trial judge’s and jurors’ knowledge are speculative.

¶ 17 The right to an impartial jury is so fundamental to due process that any infringement of

that right requires reversal by a reviewing court. People v. Boston,

(1995). The purpose of voir dire is to eliminate prospective jurors who are not impartial.

Our

supreme court in Cole stated that “there are certain relationships which may exist between a juror

and a party to the litigation which are so direct that a juror possessing the same will be presumed

to be biased and therefore disqualified.” Cole,

. However, “[b]eyond these

situations which raise a presumption of partiality,” impartiality is not a technical concept but,

rather, it is a state of mind.

More specifically, a person is not competent to sit as a juror if

his/her state of mind is such that with him/her as a member of the jury, a party will not receive a

fair and impartial trial.

¶ 18 The burden of showing that a juror is partial rests on the party challenging the juror; more

than a mere suspicion of bias must be demonstrated. Id. at 360-61. A court’s failure to remove a

juror for cause is grounds for reversal only if the defense exercised all of its peremptory

challenges and an objectionable juror was allowed to sit on the jury. People v. Lake,

(1998). A defendant shows that an “objectionable juror” was forced upon him after he

exhausted his peremptory challenges when there was “some attempt to persuade the trial judge

that a juror the defendant was required to accept could not be fair and impartial.” People v. Reid,

(1995). The determination whether to allow a challenge for cause lies

within the sound discretion of the circuit court; it will not be disturbed absent an abuse of

discretion. People v. Taylor,

(1995). A trial court abuses its discretion when

-9- its ruling is arbitrary, fanciful, or unreasonable, or where no reasonable person would take the

view adopted by the trial court. People v. Hernandez,

(2001).

¶ 19 Looking first at whether there was a presumption of bias, we cannot conclude that Sandy

was a party to the action. The parties do not cite any authority, nor do we find any that qualifies a

nonprosecutorial employee of the State’s Attorney’s office as a party in a criminal case.

Moreover, other Illinois courts have defined a party as “one who has a right to control the

proceedings, to pursue a defense, to call and cross-examine witnesses, and to appeal from the

decision.” General Auto Service Station, LLC v. Garrett,

. Based

on this definition, Sandy is not a party. She does not have the right to control the proceedings,

pursue a defense, call and cross-examine witnesses, or appeal the jury’s verdict. We find that

Sandy’s role in the State’s Attorney’s office does not qualify her as a party to this case and,

therefore, hold that there is no presumed bias.

¶ 20 Though she was not a party, Sandy was a participant in the proceedings and an active

presence in the courtroom during trial. Therefore, we look beyond the presumption to consider

whether defendant should prevail on this claim for a different reason. Defendant cannot argue

that we are required to reverse because he failed to indicate to the trial court that he was forced to

accept an objectionable juror and thus preserve the issue. Similar to this case, in People v.

Washington,

(1982), the First District determined that the defendant

did not indicate that he was being forced to accept an objectionable juror after the trial court

overruled the challenge for cause. The appellate court stated that “[n]otifying the trial court of

this fact would have served the salutary purpose of giving the court a final opportunity to cure

the alleged error by exercising its inherent power to grant the defense an extra peremptory

- 10 - challenge.”

Therefore, the Washington court found that the defendant had waived the issue.

¶ 21 Here, defense counsel challenged James seeking to remove him for cause, which the trial

court denied. Defense counsel then used defendant’s last peremptory challenge to remove Harry

Douglas, not James. After defense counsel removed Douglas, he made no further argument with

respect to James. He made neither a request that the court reconsider the denial of the challenge

for cause nor a request for an additional preemptory challenge, reiterating his belief that James

could not be impartial, and asserting he was being forced to take an objectionable juror.

Moreover, defendant had not exercised all of his preemptory challenges at the time the trial court

denied his challenge for cause. Therefore, we find defendant waived this issue.

¶ 22 B. Expert Witness

¶ 23 Defendant next claims that the trial court abused its discretion when it denied his motion

to qualify Mark MacYoung as an expert. He argues that the trial court improperly considered

MacYoung’s opinion as scientific under the Frye test. Frye v. United States,

(D.C.

Cir. 1923). Defendant contends that, instead, the trial court should have based its determination

on whether MacYoung had knowledge and experience beyond the average citizen and whether

MacYoung’s opinion would assist the jury in evaluating the evidence in accordance with People

v. Atherton,

(2010). Relying on Atherton, defendant asserts that

MacYoung’s knowledge exceeds that of the average citizen because (1) he trains police officers,

(2) he has previously testified about self-defense at trial, (3) he teaches civilians and

professionals self-defense, and (4) he has published literature on self-defense. Moreover,

defendant maintains that MacYoung’s testimony would assist the jury in evaluating the evidence

because MacYoung would give greater context to the number of individuals involved in the

- 11 - altercation, alcohol’s role in the altercation, the size and reach of the individuals involved, and

the weapons used in the altercation. Without the court’s certification, defendant did not have an

opportunity to present a defense. Defendant analogizes MacYoung to a narcotics expert because

narcotics police officers have been qualified as experts although their opinion is not scientific.

¶ 24 The State claims that the trial court acknowledged that the Frye test did not apply to this

case in its consideration of defendant’s motion to reconsider and, therefore, defendant’s

argument that the trial court applied the wrong test is without merit. Also, the State argues that

MacYoung’s testimony would amount to profile testimony regarding general observations about

violence without being able to speak to the specific circumstances surrounding defendant’s case.

¶ 25 We agree with the State to the extent that defendant’s argument regarding the Frye test is

without merit. Furthermore, we may affirm for any reason apparent on the record, regardless of

the lower court’s reasoning. Razavi v. School of the Art Institute of Chicago,

, ¶ 41. We must still determine whether the court abused its discretion in denying

defendant’s motion to qualify MacYoung as an expert. See In re Commitment of Field,

(2004) (holding that an expert’s opinion, if not scientific, is still subject to the

general test of admissibility).

¶ 26 It is well settled that the decision whether to admit expert testimony is within the sound

discretion of the trial court. Snelson v. Kamm,

(2003). A person will be allowed

to testify as an expert if his experience and qualifications afford him knowledge that is not

common to laypersons. People v. Miller,

(1996), abrogated on other

grounds, In re Commitment of Simons,

(2004). A person seeking to offer

a nonscientific opinion can be permitted to testify as an expert as long as that person’s

knowledge, skill, experience, training, or education affords him or her information that is not

- 12 - common to the average layperson and will assist the jury in evaluating the evidence and reaching

a conclusion. People v. Lovejoy,

(2009). An expert’s testimony will assist the

jury when his or her testimony offers knowledge and experience that a juror generally lacks.

People v. Mertz,

(2005). “Formal academic training or specific degrees are not

required to qualify a person as an expert; practical experience in a field may serve just as well to

qualify him.” Lee v. Chicago Transit Authority,

(1992).

¶ 27 Despite the considerations discussed above, the court should exclude profile testimony

that describes common practices, habits, or characteristics that are not in any way connected to

the defendant or his circumstances. People v. Brown,

(1992). In Brown,

an officer testified to establish the street value of drugs recovered from defendant.

He also

testified regarding “common practices, habits, or characteristics of drug [dealers].”

The

reviewing court classified these statements as profile testimony not in any way connected to the

specific circumstances surrounding the defendant’s arrest.

The court remanded for a new trial

based on the admission of the profile testimony.

Similarly here, MacYoung did not purport to

know anything about what happened the night in question. MacYoung was going to explain to

the jury how violence works by addressing the synergistic effect of the number of individuals

involved in the altercation, the role of alcohol, the size and reach of the individuals involved, the

weapons used, and the impact of these factors on the nature and legitimacy of defendant’s

thought process. It escapes this court how MacYoung could offer an opinion on these factors

when he was not present for the altercation. Accordingly MacYoung could not testify that

defendant stabbed the victim in self-defense.

¶ 28 Whether a defendant was entitled to use deadly force is circumstance-specific. People v.

Holman,

. “The decisive question is whether the defendant’s

- 13 - belief that it was necessary to use deadly force was reasonable under the circumstances.”

Defendant does not rebut the State’s argument that MacYoung’s testimony would amount to

profile evidence. Instead, he attempts to analogize it to an officer testifying about narcotics. He

ignores that an officer, when testifying in regard to narcotics, has met at least the minimum

training standards to enable him to speak about identifying drugs, determining the street value of

drugs, and explaining the differences between drug users and drug dealers. None of these

subjects amount to profile testimony “describing common practices, habits, or characteristics that

are not in any way connected to the defendant or his circumstances.” People v. Robinson,

(2009). MacYoung admitted that he did not have first-hand knowledge of the

altercation that led to defendant’s charges. He denied being able to offer an opinion on martial

arts or self-defense but was unable to describe violence dynamics without the use of these

concepts. He could not speak to defendant’s mindset, beliefs, or feelings at the time of the

incident. Defendant sought to admit MacYoung to instruct the jury on violence generally but not

the attendant circumstances surrounding defendant’s acts. As such, the trial court did not abuse

its discretion in denying defendant’s motion to qualify MacYoung as an expert witness.

¶ 29 III. CONCLUSION

¶ 30 For the foregoing reasons, we affirm the judgment of the circuit court of Hancock

County.

¶ 31 Affirmed.

- 14 -