People v. Belknap

2013 IL App (3d) 110833

Opinion filed November 19, 2013

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2013

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 9th Judicial Circuit,
) McDonough County, Illinois
Plaintiff-Appellee, )
) Appeal No. 3-11-0833
v. ) Circuit No. 07-CF-251
)
DANIEL BELKNAP, ) Honorable
) Gregory K. McClintock,
Defendant-Appellant. ) Judge, Presiding.

JUSTICE CARTER delivered the judgment of the court, with opinion.
Justice Lytton concurred in the judgment and opinion.
Presiding Justice Wright concurred in part and dissented in part, with opinion.

OPINION

¶1 After his convictions for first degree murder and a related offense were reversed by this

court and remanded for a new trial, defendant, Daniel Belknap, was found guilty again by a jury

of first degree murder and was sentenced to 24 years' imprisonment. Defendant appeals his

conviction, arguing that: (1) the evidence was insufficient to prove him guilty beyond a

reasonable doubt of first degree murder; (2) he was denied a fair trial because of the trial court's

failure to strictly comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) in

admonishing the potential jurors during voir dire; and (3) he was denied a fair trial because of
certain improper remarks made by the prosecutor in opening statement and in closing argument.

For the reasons that follow, we agree with defendant's second argument and, therefore, we

reverse defendant's conviction and remand this case for a new trial.

¶2 FACTS

¶3 On Sunday, September 10, 2006, at about 1 p.m., five-year-old Silven Yocum was found

seizing in her bed at defendant's home, where she and her mother, Erin Yocum, were staying.

Silven was rushed to McDonough District Hospital (MDH) in Macomb and then airlifted to St.

Francis Hospital (St. Francis) in Peoria. She never regained consciousness and died a week later

at St. Francis. An autopsy revealed that Silven had been murdered and that she had died from

blunt force trauma to the head. Based upon the time frame established, the only person who

could have committed the crime was defendant or Silven's mother.1

¶4 In December 2007, more than 15 months after the crime was committed, defendant was

charged with Silven's murder. He was later found guilty by a jury in McDonough County of first

degree murder and endangering the life of a child in connection with Silven's death and was

sentenced to concurrent terms of imprisonment of 30 years and 10 years. We reversed

defendant's convictions on appeal, finding that the evidence in the case was closely balanced and

that as a matter of first-prong plain error, defendant was denied a fair trial when the trial court

failed to comply with Supreme Court Rule 431(b) in admonishing potential jurors. People v.

Belknap, 396 Ill. App. 3d 183, 204-07 (2009) (Belknap I). Because we concluded that the

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A third person, Silven's uncle, was with Silven for a very brief period during that time

frame, but the State and defendant both agree that the uncle either could not have, or did not,

commit the crime.

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evidence presented at the trial was sufficient to prove defendant guilty beyond a reasonable

doubt, we remanded the case for a new trial, rather than reversing defendant's conviction

outright. Id.

¶5 On remand, because of pretrial publicity, the case was transferred to Warren County on

motion of defendant. The second jury trial began in August 2011 and lasted about a week.

During the beginning of the jury selection process, the trial court informed the entire pool of

prospective jurors as to the four principles contained in Rule 431(b)–that defendant was

presumed innocent of the charge against him; that the State had to prove defendant guilty beyond

a reasonable doubt; that defendant was not required to offer any evidence on his own behalf; and

that if defendant chose not to testify, the jury could not hold that against him (see Ill. S. Ct. R.

431(b) (eff. May 1, 2007)). The voir dire was conducted in panels of six prospective jurors and

the trial court went through six of those panels before the entire jury and the alternate jurors were

selected. With each panel, the trial court admonished the potential jurors as a group as to all four

of the Rule 431(b) principles and asked the panel members as a group whether they all agreed

with, accepted (or had any difficulty accepting), or had any quarrel with, those principles, varying

the language that it used from time to time. At no time, however, did the trial court inquire of

any of the panels whether the panel members understood the Rule 431(b) principles. After the

jury had been selected and sworn and just prior to opening statements, the trial court provided the

jury with some basic instructions. As part of those instructions, the trial court again informed the

jury of the four Rule 431(b) principles.

¶6 During its opening statement, the State made certain remarks which defendant claims on

appeal constituted an improper attempt by the prosecution to elicit the jury's sympathy for the

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victim. Those remarks were not objected to by the defense.

¶7 After opening statements had concluded, the State called Larry Leasman as its first

witness.2 Leasman testified that during the early morning hours of Saturday, September 9, 2006,

at about 2 a.m., he stopped by defendant's house in rural McDonough County outside of Macomb

on his way home from work after he saw defendant's light on. Defendant was working in the

garage. Leasman stayed about an hour and smoked methamphetamine (meth) with defendant.

After Leasman was there a short period of time, Erin Yocum came into the garage. Erin said that

she had been at the Wal-Mart store in Macomb. Leasman did not remember whether Erin had

smoked any meth with them and did not see Silven Yocum (Erin's daughter) at all while he was

there.

¶8 Erin Yocum testified for the State that she was Silven's mother and that she was 36 years

old at the time of trial. In February 2006, Erin started dating defendant while she and Silven

lived in Macomb. Later that summer, Erin and Silven spent almost every night at defendant's

house. During that time period, both Erin and defendant were using meth. When summer was

ending and school had started, during what turned out to be the last week of Silven's life, Erin

and Silven moved into defendant's house on a more permanent basis and Erin moved Silven's bed

and toys to defendant's house. At the time of Silven's death in September 2006, Silven was five

years old and was attending kindergarten at a local school.

¶9 On Friday, September 8, 2006, Erin and Silven were spending the night at defendant's

house. At about midnight, Erin left defendant's house to go to the Wal-Mart and HyVee stores in

2
The testimony has not always been arranged in this opinion in the order it was presented

at trial. Some changes have been made in an attempt to make the fact section easier to read.

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Macomb to get some magazines. Silven stayed at defendant's house with defendant and was

asleep in her bedroom. When Erin returned, defendant was in the garage with Larry Leasman.

Defendant and Leasman were smoking meth. Erin did not know Leasman and did not smoke

meth with defendant and Leasman in the garage that night. After a short while, Erin went to bed

and defendant stayed out in the garage.

¶ 10 Erin woke up at about 6 a.m. Defendant was still out in the garage and Silven was asleep

in her bed. Erin went out to the garage and Silven followed her out there a short while later. At

some point before 11 a.m., Erin and Silven painted a dog house that was behind the garage.

While Erin was painting, Silven sat on Erin's lap and was very clingy that entire day. Erin

believed that Silven was getting sick. Defendant asked Silven to come into the house with him

and to help him make breakfast. Silven cried and did not want to go with defendant. Defendant

took Silven into the house and he and Silven made breakfast, which they all ate. When Erin went

into the house after defendant and Silven had made breakfast together, she did not notice

anything wrong with Silven, other than Silven was feeling sluggish and tired. Silven was not

complaining about any head injuries or holding her head in the back area, and she was not

bleeding.

¶ 11 After breakfast, defendant took Silven for a ride on his four wheeler. Later in the day,

Silven was not happy and had no one to play with so Erin went to her brother Erik's house to pick

up Erik's son, Brett, so that Silven would have someone with whom to play. Brett was a year

older than Silven. Silven did not go with Erin to pick up Brett. Rather, because Silven was still

not feeling well, Erin had Silven lie down in bed and watch a movie. When Erin returned with

Brett about 45 minutes later, Silven was still lying in her bed but was not asleep. Nothing

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appeared to be wrong with Silven at that time, other than it seemed that Silven was not feeling

well. Silven was conscious, was not bleeding, and was not complaining of any head injuries, and

Erin did not notice anything unusual. Brett tried to get Silven to play on the trampoline at

defendant's house with him, but Silven did not feel like playing. Brett jumped on the trampoline,

and Silven sat in a chair that defendant brought to the backyard for her and watched Brett jump.

¶ 12 At some point between 6 p.m. and 7 p.m., Erin's brother, Erik, who was Brett's father,

came to defendant's house to pick up Brett and to take Brett to a birthday party at a pizza place in

Macomb. Silven went with Erik to drop off Brett. A short while later, after he had dropped off

Brett, Erik returned with Silven. Erik commented that Silven did not seem to have an appetite

that night, which was unusual for Silven. Silven was holding onto Erik. Defendant took Silven

and put her to bed, and Erik left.

¶ 13 Shortly thereafter, at about 7:30 p.m., Erik called and told Erin that the tire had fallen off

of his truck while he was on the way to pick up Brett from the party. Erin left to pick up Erik.

At that point, Silven was still awake. Defendant said that he would take Silven, and Erin handed

Silven to defendant. When Erin returned with Erik about 20 minutes later, Silven was in bed.

Erin never saw Silven awake again after that point. Defendant and Erik went to fix Erik's truck

and were able to get it back to defendant's residence. Erik used Erin's car to pick up Brett and

took Erin's car with him back to his house for the night. As some point later that night, defendant

left the house and went and got medicine and food for Erin and Silven.

¶ 14 The next morning, Sunday, September 9, 2006, Erin woke up at about 6:30 a.m. and

again at about 10 or 10:30 a.m. to go to the bathroom and to get a glass of water. At both times,

defendant was still in bed sleeping and there was no indication that he had been awake. When

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Erin walked by Silven's bedroom during those times, she heard what she believed was Silven

snoring unusually loud. Erin was not wearing her glasses at the time and did not go into Silven's

bedroom to check on her. Erin peeked into the room, heard Silven breathing loud, thought that

Silven was getting sick, and decided to let Silven sleep.

¶ 15 During the noon hour, Erik called and asked them if they wanted anything to eat from

McDonald's. Silven was still asleep in her bed at the time. Erin went to see what Silven wanted

to eat and discovered that Silven was seizing. Erin acknowledged while testifying, however, that

she could not remember for sure and that defendant may have been the person who actually

discovered that Silven was seizing. Silven did not have epilepsy or any condition like that, and

Erin had never seen Silven seize before. The noise that Silven was making was the snoring-like

noise that Erin had heard earlier. Erin tried to wake Silven up, but Silven did not wake up or

respond. Defendant was in and out of the room during that time, but Erin was not paying

attention to him.

¶ 16 Erin called 9-1-1 and an ambulance crew arrived at defendant's house shortly thereafter.

Erin acknowledged during her testimony, however, that she may have called her mother before

she called 9-1-1. The ambulance took Silven to McDonough District Hospital (MDH) in

Macomb. Erin and defendant followed. When Erin and defendant got to MDH, Silven was not

awake. While at MDH, Silven's primary care doctor, Dr. Khaled Dabash, told Erin some

shocking things about Silven's injuries, most of which were later determined not to be true. The

doctor told Erin that Silven was broken from head to toe, that Silven had a broken sternum and

punctured bowels, that Silven had been tied at the ankles, and that she had been sodomized.

¶ 17 Silven was later airlifted to St. Francis hospital in Peoria for more intensive care.

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Defendant and Erin started on their way to the hospital in Peoria in defendant's truck but on the

way, defendant decided not go. Defendant pulled over and let Erin out and she was picked up by

her parents, who were also on their way to St. Francis. Defendant did not say why he did not

want to go to St. Francis. Although Erin could not quite remember, she guessed that she had told

defendant what Dr. Dabash had said while they were on the way to St. Francis. After they

arrived at St. Francis, hospital personnel told Erin's family that defendant was not allowed to be

there, and Erin's parents took her cell phone away. Although Erin could not remember exactly,

she speculated that defendant wanted to come to the hospital, but that her parents and the police

did not want defendant there. Despite treatment procedures being administered for brain trauma

and to relieve the pressure in Silven's head, Silven remained in a coma and never regained

consciousness. Silven passed away at St. Francis on the following Saturday, September 16,

2006.

¶ 18 Erin started using meth when she was dating John Shriver, Silven's father, who was not

actively involved in Silven's life. From 2001 through February 2006, Erin dated Andy Yates and

continued to use meth throughout that period. Yates was like a father to Silven and had a very

close relationship with her. When Erin started dating defendant, Silven had a very difficult time

adjusting to being away from Yates and being with defendant. As the start of the school year was

approaching, Erin was so concerned about the problem that she talked to school personnel about

it and also noted on a teacher questionnaire that Silven was struggling with that issue. After Erin

started dating defendant, she tried to let Silven maintain a relationship with Yates and Yates's

mother but eventually had to terminate that relationship because Yates was questioning Silven

about who Erin was dating and Erin did not want Silven to see her and Yates arguing.

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¶ 19 Erin was interviewed by the police on several occasions after Silven's injury and death.

Erin told the police that defendant was new to Silven and that Silven was having difficulty

adjusting but that the two got along well. It became apparent to Erin very early on after Silven

was injured that the police were focusing on defendant. During her police interviews, the

detectives made significant attempts to try to make Erin tell them that defendant was the person

who had injured Silven. The detectives pleaded with Erin and told her to do it for Silven and

herself. At one point, the detectives had Erin come in on Valentine's Day and showed her a tape

of defendant's old girlfriend visiting defendant in jail in an attempt to get Erin to tell them that

defendant had caused Silven's injuries. In spite of all that, Erin never told the police that

defendant killed Silven. During her testimony, portions of Erin's statement to police were played

for the jury.

¶ 20 Erin testified further that she did not strike Silven with her hand or an object, did not kick

Silven, and did not do anything to Silven that would have caused Silven's head injuries. Erin

also stated that she did not witness anything happen to Silven and did not know what had caused

Silven's injuries. Erin had given Silven a bath within a couple of days prior to Sunday,

September 10, 2006, and did not notice any bruises or scrapes on Silven's body, other than

something on the inside of Silven's ankle and a blister on her heel from her new shoes. Erin

never heard anything in the middle of the night on Saturday night or Sunday morning–she did not

hear Silven crying or screaming or any commotion. Erin was never charged with causing

Silven's death. She was, however, charged with, and pled guilty to, misdemeanor child

endangerment for having Silven in a place where meth was being used. At some point, Erin was

also arrested and charged with a federal crime for her use of meth. On that charge, Erin was

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allowed to participate in a pretrial diversion program in which she had to complete drug

treatment.

¶ 21 Erin continued to be defendant's girlfriend for several months after Silven's death.

According to Erin, defendant was very good to Silven and tried very hard to please Silven so that

she would warm up to him. Defendant was kind to Silven, took her places, and appeared to love

Silven. During the last week of Silven's life, Erin started to get sick and was very sick by that

Saturday. Erin became so sick that while Silven was in the hospital, Erin had to go to the

emergency room to be treated for a sinus infection. During the entire day of Saturday, September

9, 2006, defendant tried to help out with Silven. Defendant made breakfast with Silven, called

some people to try to find someone for Silven to play with, took Silven for a four-wheeler ride,

got Silven a chair so that she could watch Brett play on the trampoline, and tried to find things to

help Silven occupy her time. Defendant was not mad or angry with Silven, never screamed at

Silven, and never spanked her. After defendant was charged in federal court with crimes relating

to meth, Erin made numerous trips in the spring and summer of 2007 to the Tazewell County jail,

where defendant was being held on those charges, to visit defendant. All of those visits were

recorded. Defendant had not been charged with Silven's murder at that point. While defendant

was in jail, Erin had hundreds of telephone conversations with defendant, wrote hundreds of

letters to defendant, and sent pictures and cards to defendant. In a recorded phone conversation,

Erin stated that she felt that the police were unfairly targeting defendant in the death of Silven.

Erin had grown very frustrated with the sheriff's office and felt that she was being pressured very

hard by the sheriff to say that defendant committed the crime or to say that she knew something

that she did not know.

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¶ 22 Erin stated that she maintained her relationship with defendant for several months after

Silven's death because she loved defendant and because she could not believe that defendant had

done anything to Silven since she had never seen any signs that defendant would do anything bad

to Silven. During those same months, Erin cooperated with the police as best she could. In a

phone conversation that Erin had with defendant in January 2007 when defendant was in jail in

which Erin was telling defendant that the sheriff wanted her to come back in for another

interview and that she did not want to go, defendant told Erin not to go talk to the sheriff. Erin

acknowledged in her testimony that Silven had been uprooted from her home in Macomb to go

out and live in a house with defendant and that Silven did not like it. Erin could sense at times

that Silven was not fond of defendant. According to Erin, she was in denial all those months

when she wrote hundreds of letters and made numerous phone calls to defendant while he was in

jail on the drug charges. Defendant was not charged with Silven's murder until a year later.

¶ 23 Erik Yocum, Erin's brother, provided testimony that was similar to Erin's as to the events

of September 9 and 10, 2006, regarding his son, Brett, going to defendant's house on September

9 to play with Silven; Silven riding with him to drop Brett off at a birthday party; Silven being

very clingy; his truck breaking down later in the evening; him and defendant going back to fix his

truck; and his calling and returning to the residence on Sunday, September 10. In further detail,

Erik stated that when he was leaving from defendant's residence to pick up Brett from the party

and to go back to his own house Saturday night, Silven did not want to stay at defendant's

residence and was begging and crying to go home with him. Erik handed Silven to defendant

and left the residence to pick up Brett. When Erik got to the defendant's residence on Sunday,

defendant was out on the porch brushing his teeth and motioned Erik to go into the house. Erin

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was kneeling next to Silven's bed. Shortly thereafter the paramedics arrived. According to Erik,

at that time, Erin appeared upset. Defendant showed concern but did not appear to be upset.

Although he did not remember initially, after being shown a transcript of his testimony before the

grand jury, Erik acknowledged that he testified at that time that he had only seen defendant and

Silven together once or twice, but what he had seen was fairly good and that defendant treated

Silven like his own child.

¶ 24 Aaron Wilson testified for the State that he was a paramedic through MDH and, as of the

trial date, had been a paramedic for over 15 years. Wilson was the first paramedic to arrive at

defendant's residence on Sunday, September 10, 2006, in response to the 9-1-1 call. When

Wilson arrived on the scene, there were several toys scattered throughout the driveway and

defendant was outside removing the toys from the porch. Wilson went into the house with his

medical bag to address the emergency, which he had been told was a five-year-old having a

seizure. Wilson entered through the kitchen area and went with Erin to the back bedroom where

Silven was located. Upon entering the bedroom, Wilson saw that Silven was lying on the bed

and was having convulsions and seizures. It did not appear to Wilson to be a standard seizure.

Silven's upper extremities were shaking uncontrollably and she would not respond to any stimuli.

Silven's eyes were open and fixed to the right, there was nystagmus (uncontrolled shaking of the

eyeballs) present, and she had dried blood around her nose and mouth. Wilson began asking

Erin, who was crying and very upset, the standard treatment questions. There were six people in

Silven's bedroom while Wilson was attending to Silven, including Erin, Wilson, and members of

the rescue squad. Wilson eventually scooped Silven up and handed her to members of the rescue

squad and told them to take Silven out to the ambulance. Upon arrival at MDH, Wilson turned

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Silven over to paramedic Heather Connor and to the doctors and nurses at MDH.

¶ 25 According to Wilson, the entire time he was at defendant's residence, defendant never

went into Silven's bedroom. Wilson acknowledged, however, that he had no idea whether

defendant was in Silven's room before he arrived and that defendant may have stepped into the

bedroom while Wilson had his back turned and was attending to Silven. At one point while

Wilson was kneeling down attending to Silven, he saw that defendant was pacing back and forth

in the kitchen and was saying, "oh, sh***; oh, d***; and God d***." In addition, Wilson stated

that at the hospital, there was a time when everyone was looking for defendant. Wilson went

outside and found defendant standing in the parking lot by his truck.

¶ 26 Heather Connor testified that she was a paramedic at MDH at the time of Silven's injury

and, as of the date of trial, had been a paramedic for 10 years. Connor assisted Wilson when he

brought Silven into the hospital that day. Connor met Wilson in the hospital garage with a

stretcher and placed Silven in a trauma bay. Connor stayed with Silven the entire time at MDH

until she was placed on the helicopter to be airlifted to St. Francis. The only time Connor left

Silven was when she went to call for the helicopter. When Silven arrived, she was limp, had no

spontaneous movement in any of her extremities, and did not respond to stimuli. Erin, Erin's

mother, and defendant were brought into the trauma bay to be with Silven. When Erin learned

from the doctor that it was an injury and that Silven's brain was bleeding, Erin was very

distraught and upset and was in a state of shock. Erin stayed by Silven's bedside the entire time

and rubbed Silven's hand and stroked her head. Defendant was also in the room but, according to

Connor, defendant kept his back to the stretcher and never went over and tried to touch Silven.

Conner acknowledged, however, that every person grieved differently and that there was not

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much that could be read into defendant's demeanor in that regard. Connor told Erin, Erin's

mother, and defendant that the helicopter would arrive in 25 minutes and that it would take 20

minutes for the helicopter to get to St. Francis once Silven was aboard. Erin waited for the

helicopter, and defendant left to pack a bag for Erin and to get Erin her medicine.

¶ 27 Dr. Khaled Dabash's testimony from defendant's first trial was read to the jury, but was

not recorded. Dabash testified during that trial that he was Silven's pediatrician and that he was

present in the emergency room on September 10, 2006, when Silven was brought in by

ambulance. Upon arrival, Silven was unconscious and was still seizing but did not have a fever

or any signs of infection. Silven's body was in contracture, which indicated a central nervous

system insult. Dabash observed bruising and marks on Silven's body, which he believed were

indicative of abuse, so he ordered a CT scan of her head. The CT scan showed that blood was

covering the entire right side of Silven's brain. Dabash also suspected that Silven had a sternal

fracture. Dabash ordered a life flight to take Silven to St. Francis in Peoria. Dabash opined that

Silven's head injury was caused by blunt force trauma, which had occurred within 24 hours at the

least before she was brought into the hospital. Dabash explained that when a child received blunt

force trauma to the head, the brain would swell over time until the compression of blood on the

brain caused seizures. Dabash felt that Silven's injuries were recent because the swelling in her

brain had not yet reached the point of herniation. Herniation was beginning to occur at the

hospital, and Dabash gave Silven a drug to reduce the swelling of her brain.

¶ 28 Dr. Julian Lin's testimony from defendant's first trial was read to the jury but not

recorded. Lin testified at that trial that at the time of Silven's injury, he was a pediatric

neurosurgeon at St. Francis Children's Hospital in Peoria, Illinois. On September 10, 2006, after

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5 p.m., Lin examined Silven at St. Francis. Silven was in a coma, and Lin performed surgery to

remove a very large blood clot on the surface of the right hemisphere of Silven's brain. Although

Lin was able to successfully remove the clot, Silven remained in a coma. A CAT scan revealed

that her brain had swelled and that the efforts to control the swelling were unsuccessful. Over

the next week, Silven did not improve. She eventually had no brain activity and passed away on

September 16, 2006.

¶ 29 Dr. Bryan Mitchell's testimony from defendant's first trial was read to the jury but not

recorded. Mitchell testified during that trial that he was a forensic pathologist and that he

conducted an autopsy on Silven on September 18, 2006. During the autopsy, Mitchell observed

bruises on the right side of Silven's head, abrasions on the back of her head, a bruise on her right

shoulder, and bruises and abrasions on her right foot. An internal investigation revealed that

underneath the abrasions on Silven's head, there was a bruise inside Silven's scalp that extended

to her occipital bone. Mitchell also observed that blood had collected under a membrane on the

right side of Silven's brain and that the brain was very swollen. Mitchell opined that the injuries

were the result of blunt force trauma and would not likely be caused by falling off a trampoline

or by falling down once. According to Mitchell, there were five distinct areas of blunt force

trauma to Silven's head. The blows could have been delivered by a human hand, or possibly by a

foot. Some of the symptoms of brain injury were lethargy, loss of appetite, and loss of interest in

activities. Mitchell explained that a brain injury, such as the one experienced by Silven, would

not necessarily result in the immediate display of symptoms, such as unconsciousness. Mitchell

opined that Silven sustained the blunt force trauma 12 to 24 hours before she began having

seizures and that Silven died as a result of complications of closed-head injuries due to blunt

15
force trauma caused by blows delivered directly to her head or by blows to the head followed by

her striking another object.

¶ 30 Dr. Larry Blum testified for the State as an expert in forensic pathology. Blum was asked

by authorities in McDonough County to review the case. After reviewing the reports,

photographs, and the findings of Dr. Mitchell, Blum concluded that Silven died of a closed-head

injury due to multiple blunt force trauma. According to Blum, severe blunt force trauma to the

head may cause bleeding within the skull and swelling of the brain. In Blum's opinion, Silven

received three separate severe blows to her head, which were evidenced by three different

circular or oval-shaped contusions. The injuries were about an inch to an inch-and-a-half wide

and could have all been caused by the same impacting force or object. All three of the blows to

Silven's head contributed to her death and were nonaccidental in nature. The injuries could have

been caused by a hand, fist, or foot, by either of the two bottles that were located in Silven's

bedroom (discussed in later testimony), by a broom handle, or by any number of other household

items. Blum stated that some of the symptoms that a person who had suffered blunt force trauma

to the head could experience would include a loss of consciousness, loss of appetite, vomiting,

headache, listlessness, sleepiness, seizure, and an inability to wake up. Blum explained that the

loss of consciousness from such an injury could take several hours to occur because it would take

time for the brain to bleed and swell, and as the brain did so, the symptoms the person was

exhibiting would become progressively worse until the person began to seize and lose

consciousness. Blum opined that it was reasonable to believe that the blunt force trauma

occurred between 12 and 24 hours before the seizures and convulsions.

¶ 31 Silven's teacher, the teacher's aide, a program assistant, and the school nurse all testified

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that Silven was attending kindergarten in September 2006, that she appeared to be a normal five-

year-old girl, and that there was nothing about her that caused them any alarm as to her medical

or physical condition during the week leading up to her death.

¶ 32 Michael Skelton testified that he worked for the city of Macomb and knew defendant

from work. On Monday, September 11, 2006, during the morning hours, Skelton was working

when he saw defendant walking west near the fire department and sheriff complex building.

Skelton stopped his vehicle and asked defendant what was happening. Defendant responded that

he needed to talk to "them" about some "sh***." Skelton assumed that the "them" defendant was

referring to was the sheriff's department. Defendant asked Skelton how to get into that place.

Skelton drove defendant around to the front door. When Skelton drove off, defendant was still

standing outside of the building and Skelton had no idea whether defendant went inside.

¶ 33 Matthew Hocker testified that he was defendant's cousin, that he had known defendant all

of his life, and that he and defendant had grown up together. On Sunday night, September 10,

2006, defendant came to Hocker's residence. Defendant was crying, was visibly upset and

worried, and was shaking. Defendant told Hocker that Silven was hurt and had been life-flighted

to Peoria and expressed concern about not being allowed to go to the hospital. In Hocker's

presence, defendant wondered out loud if he should be worried about whether the police would

be waking him up the next day. Defendant never stated, however, that he had hurt Silven.

Hocker testified further that he had seen defendant around Silven in the past and that defendant

was "[j]ust fine" around her.

¶ 34 Jill Kepple (formerly Jill Goodpasture) testified that she was a friend of Erin and

defendant. During the evening of Sunday, September 10, 2006, defendant came to her house.

17
Defendant was nervous, pacing, upset, and restless. Defendant appeared to be concerned about

the situation in general and asked Kepple if she thought someone would call the police. Kepple

had no idea what defendant was talking about. Defendant told Kepple that he did not know what

could have happened to Silven. According to Kepple, although she never saw defendant and

Silven personally interacting, whenever she did see the two together, defendant did not mistreat

Silven or cause any harm to her.

¶ 35 Joseph Burgess testified for the State that he was currently an inmate in the Department

of Corrections (DOC) at the Hill Correctional Center and was serving an eight-year sentence at

85% for aggravated arson. For about four months from about April 2007 to about July 2007,

Burgess shared a two-person jail cell with defendant at the Tazewell County jail. Burgess was

being held at the Tazewell County jail at that time on multiple charges, including aggravated

arson, residential arson, arson, residential burglary, and burglary. In the summer of 2007, he and

defendant became friends and they occasionally made jailhouse alcohol together in their cell.

Burgess and defendant were eventually caught making jailhouse alcohol and were disciplined.

¶ 36 During the end of June or first part of July, Burgess and defendant were having a

conversation in their cell. Burgess mentioned that his birthday was July 28 and was talking about

the things that he used to do with his family. Defendant mentioned in response that it would be

Silven's birthday if she were still alive. Burgess asked defendant what happened. Defendant

became very emotional, started pacing the floor, and looked very distraught. Defendant told

Burgess that Silven walked in on him using meth and told him that if he did not stop, she was

going to tell on him. Defendant slapped Silven, went berserk, and killed Silven. Defendant

stated that he had been up for about two weeks on meth and that his condition might have

18
triggered his reaction. A few weeks later, defendant and Burgess were in the day room with a

couple of other inmates and were talking about family-related issues when defendant mentioned

the death of Silven. Defendant stated to the other inmates that Silven died after she hit her head

on the trampoline and then looked at Burgess and winked.

¶ 37 Burgess stated that he was disturbed by what defendant had told him and was

uncomfortable being in the same cell with defendant or being around defendant after that point

but acknowledged that he never told jail administrators that he was afraid of defendant or that he

wanted to be transferred. Burgess also acknowledged that even after defendant's confession to

him, it was still widely known in the jail that defendant and Burgess were very close friends and

that they were almost inseparable. According to Burgess, as time went by, the story about what

happened to Silven grew on him and he did not want it to eat away at him if he did not come

forward even though he knew the truth. Burgess stated that he had nephews and nieces at that

age and that he thought that telling someone was the right thing to do.

¶ 38 Burgess was interviewed in January 2008 and told police in a videotaped statement what

defendant had allegedly told him. At no point after that time did the police come back to Burgess

and try to clarify any of the information that turned out to be inaccurate or incorrect. Burgess

stated that he talked to his attorney before talking to the police and that he did so to get the

burden off of his chest and not because he was looking to gain a benefit as to his potential

sentence in Tazewell County. Prior to Burgess coming forward with the information, the

prosecutor had made a plea offer to Burgess of 22 years in DOC. After Burgess assisted the

authorities in this case, he pled guilty to aggravated arson for an eight-year sentence in DOC to

be served at 85%, and the other charges were dismissed.

19
¶ 39 Jeffrey Ahlers testified for the State that he was an inmate in the DOC at the Centralia

facility and was serving a sentence for forgery. Ahlers was in custody at the Tazewell County

jail from about August 15, 2007, to about October 15, 2007, while awaiting trial on some

charges. While at the jail, Ahlers was housed in the same unit as defendant and became

acquainted with defendant through Alcoholics Anonymous (AA) meetings, which were held in

the library at the jail once a week. Ahlers had prior problems with cocaine abuse and also had a

past history of using meth. At the AA meetings, the attendees would talk about religion and

about the hurt that they had caused their families while they were under the influence. Ahlers

told defendant that when using meth, he would stay up for 7 to 10 days in a row while driving a

truck to California and back, and that after a certain point of being up on meth like that, he would

become very paranoid and almost schizophrenic. Defendant told Ahlers that he had been on

many binges and had "tweaked" many times while on meth. Ahlers explained that "tweaked"

meant that a person using meth had been up for an extended period of time. Ahlers stated that

when a person tweaked, he or she might become very paranoid, start grinding his or her teeth, or

start doing things that he or she would not regularly do.

¶ 40 After one of the AA meetings, Ahlers and defendant had a conversation about religion

and the Ten Commandments while out in the unit. Ahlers and defendant were talking about

going to heaven and about how a person would not go to heaven if he killed someone. Defendant

broke down and told Ahlers that a D.A.R.E. officer had come to the school or was going to come

to the school and that Silven had said something to the D.A.R.E. officer or that he was afraid that

she would and that she came home and said something to him that irritated him because he was

tweaking and had been up for a very long time, so defendant hit Silven in the head and lost

20
control. Defendant realized that he had hurt Silven very badly and that he had killed her. Ahlers

stated that defendant told him that his girlfriend was present when the incident occurred and was

in the corner freaking out. According to Ahlers, he and defendant were in the day room of the

unit at the time and defendant was sobbing but not crying.

¶ 41 Ahlers went to the authorities on December 24, 2007, and told them he had some

information about the case. Ahlers was interviewed by the sheriff on December 26, 2007, and, in

a recorded interview, told the sheriff what defendant had told him. The entire interview lasted

between 10 and 20 minutes. According to Ahlers, a few days before Christmas, he started to

think that it was not right, that there was a little girl that was never going to have another

Christmas and a family that did not know what had happened to her, and that somebody had to

stand up and let it be known what had happened. The sheriff was the person who had transferred

Ahlers from Tazewell County jail to McDonough County jail on October 11, 2007, so that

Ahlers's criminal charges in McDonough County could be addressed. Ahlers was in McDonough

County jail from October 11, 2007, until some time after January, February, or March 2008.

Prior to December 26, the sheriff had asked Ahlers if he knew anything about the matter because

the sheriff knew that Ahlers had been in Tazewell County jail with defendant, but Ahlers denied

that he knew anything about the case. According to Ahlers, he never asked for anything in return

for the information he provided and he ended up getting more time in McDonough County than

in any other county. Ahlers stated that at no time did anyone from the sheriff's office ever come

back to him and try to clarify any discrepancies or inaccuracies in his statement. Ahlers made his

statement to the sheriff a few days after another inmate, Nathan Wallick, had come into Ahlers's

unit. Wallick had been interviewed by the sheriff regarding this case. Ahlers denied, however,

21
that he ever asked Wallick or another inmate named Nathan Ralph any details about defendant's

case. Ahlers also stated that when he made his statement to the sheriff, he had no idea that

defendant had been indicted for Silven's murder just a week before. According to Ahlers, it was

Christmas and he was clearing his conscience.

¶ 42 Ahlers stated that he had been a religious man all his life, but acknowledged that he had

been in the DOC about five times, all for crimes of dishonesty. During cross-examination, the

defense played a detailed PowerPoint presentation of Ahlers's extensive criminal history. The

presentation showed that Ahlers had been convicted numerous times in several different Illinois

counties of various felony crimes of dishonesty, including forgery, retail theft, an offense

involving electronic funds, deceptive practices, and theft, and that he had been sentenced to the

DOC multiple times both before and after he gave his statement to police in the instant case.

¶ 43 The redacted testimony of defendant from the first trial was read to the jury but not

recorded. In his redacted testimony, defendant stated that he and Erin became boyfriend and

girlfriend in April 2006. As spring progressed into summer, Erin and Silven spent more and

more nights at defendant's house. Silven started school at the end of August 2006, and Erin and

defendant decided at that time that it would be better if Silven had her own bed at defendant's

house, so they moved Silven's bed, a television, a videotape player, and some toys to defendant's

house for Silven. Defendant also set up his trampoline in the yard so that Silven could play on it.

¶ 44 The weekend before Silven's injury was Labor Day weekend, and Silven spent the

weekend with Erin's mother. Defendant smoked meth numerous times that weekend and on

Monday with Erin and with other people. According to defendant, neither he nor Erin went to

sleep at all on Friday night or on Saturday night. On Monday night, he and Erin picked Silven up

22
from Erin's mother's house and brought her home. They again smoked meth on Tuesday when

Silven was in school. After school on Wednesday, Scott Kepple and his girlfriend, Jill

Goodpasture, came over to defendant's house and Kepple helped defendant set up Silven's bed.

According to defendant, he, Erin, Kepple, and Goodpasture all smoked meth. Neither defendant

nor Erin went to sleep on Wednesday night. On Thursday, defendant went for a four-wheeler

ride with a friend during the late afternoon or early evening and again smoked meth. Defendant

did not know if Erin smoked meth that day. Defendant thought that he and Erin smoked meth

again on Friday during the day.

¶ 45 On Friday night, defendant was working outside in the garage from about 8:30 p.m. to

about 11 p.m. Erin and Silven were in the house. Some time after 11 p.m., Erin left to go into

town. Defendant did not go into the house while Erin was gone. At about midnight, while

defendant was in the garage working and Erin was gone, Larry Leasman stopped by. Defendant

and Leasman smoked meth. According to defendant, meth made him feel alert and awake and

cleared his mind to where he could think and focus better and get a lot of work done. Shortly

after midnight, Erin returned home from Wal-Mart. Erin put a few things away in the

refrigerator in the garage and then went inside to go to bed. After some time, Leasman left.

Defendant was tired and not feeling well, so he lay down on the futon in the garage and went to

sleep.

¶ 46 At about 5 a.m. or a little after on Saturday morning, Erin came into the garage and woke

defendant up. They were going to smoke meth, but Silven came into the garage. Defendant

asked Silven to come into the house with him to make breakfast. Silven wanted to stay with

Erin, but Erin told her to go with defendant, so she did. About 10 minutes later, Erin came into

23
the house. Erin was not as tired when she came in and defendant suspected that Erin had smoked

meth while she was in the garage and he and Silven were in the house.

¶ 47 After breakfast, they started doing activities outside. Erin and Silven were painting a dog

house and defendant was working in the garage. From Friday evening through Saturday

morning, Silven had made a few complaints about having a headache, which they assumed was

from her new glasses. Other than that, Silven did not complain about any pain to any part of her

body or head. Silven did not seem as active as she usually was that morning and was clinging to

Erin. Defendant made some calls to some of his friends to try to find someone for Silven to play

with but was unsuccessful. Defendant took Silven for a four-wheeler ride. A little while later,

Erin had Silven lie down in the house in her bed in the air conditioning and watch a movie

because she was not feeling well, and Erin went to pick up Brett. Erin was gone for about 45

minutes to 1 hour. While Erin was gone, defendant finished up what he was working on in the

garage and went inside and took a shower. Silven was lying in her bed with her movie on but

with her eyes closed.

¶ 48 Erin came home with Brett while defendant was in the shower, and Brett and Silven went

outside to jump on the trampoline. After a short while, Silven got off the trampoline and said

that she just wanted to watch Brett jump. Defendant brought a chair over by the trampoline for

Silven to sit in. Defendant and Erin did not smoke any meth on Saturday, other than Erin

possibly smoking meth in the garage in the morning as defendant had mentioned. Some time

later in the day, Erik arrived at defendant's house to take Brett to a birthday party. Silven went

with Erik to drop off Brett. Erik returned with Silven and they all went into the house and sat in

the air conditioning. Silven was getting ready for bed at that time. After Silven got in bed,

24
defendant tucked her in.

¶ 49 Erik left in his truck to pick up Brett. After no time at all, Erik called and stated that the

tire had fallen off of his truck about a mile and a half from defendant's house. Erin left to pick up

Erik and was gone for about 5 or 10 minutes. While Erin was gone, defendant waited outside

and loaded up some tools into his truck so that he could help Erik fix his tire. When Erin and

Erik returned, defendant and Erik left to go work on Erik's vehicle. They were gone for about 15

minutes, during which time, as far as defendant knew, Erin stayed outside. When defendant and

Erik returned, Erin was standing outside. According to defendant, Erin looked as if she were

getting sick. Erik borrowed Erin's car to go pick up Brett, and defendant told Erin to go into the

house and lie down.

¶ 50 Erin was a diabetic and had not eaten anything for dinner, so defendant left to go into

town to get her and Silven some medicine and to get them all something to eat. Defendant left

his house around 8:30 p.m., shortly after Erik left to pick up Brett. While defendant was gone, he

made several phone calls to Erin because he could not find the particular type of medicine to get

from Erin's house. Erin did not answer the phone. Defendant just grabbed all of the medicines

that he could find at Erin's, a tote box of children's movies for Silven, and a tote box of clean

clothes for Silven. At about 9:30 p.m., while he was still out, defendant stopped at Taco Bell to

get some food for everyone. Defendant got back home at about 10 p.m. When defendant got

home, Erin was sleeping on the couch. Silven was sleeping too, and Erin told defendant not to

wake Silven up. After they ate, at about 10:30 p.m., defendant and Erin went to bed.

¶ 51 Defendant slept until about 1 p.m. Sunday afternoon when Erin woke him up and stated

that Erik was on the phone and wanted to know if they wanted anything to eat from town. Upon

25
being told the time, defendant was surprised that Silven was still sleeping and asked Erin about

it. Erin told defendant that Silven had not felt well the previous night and that she let Silven

sleep in. Erin stated that she had gotten up at 6 a.m. and at about 9:30 or 10 a.m., and Silven was

still sleeping. It did not seem right to defendant that Silven slept that long because it was not like

her to sleep that late, but defendant did not think much of it.

¶ 52 Defendant used the bathroom and then checked on Silven. Silven was only half covered

up and did not look right to him. As defendant walked closer, he could hear that Silven was

making a wheezing-type sound. Defendant could also tell that Silven's eyes did not look right,

and he yelled for Erin. Defendant and Erin both tried to wake up Silven, but she would not wake

up. When Erik pulled in with Brett, defendant ran outside to get Erik. Defendant told Erik that

there was a problem and that Erik needed to get inside. Brett did not know what was going on,

so defendant stayed outside with Brett. When the paramedics got there, defendant flagged them

down and showed them where to go in the house. Defendant did not go into Silven's room

during that time because Brett was really confused and there were several people in Silven's

room.

¶ 53 After the ambulance left for MDH with Silven, defendant drove Erin to the hospital.

Defendant did not remember much about being at the hospital and did not remember turning his

back on Silven in the emergency room. While at the hospital, defendant learned that Silven was

having a seizure, that she had sustained some serious head injuries, that she had been subjected to

blunt force trauma, and that she had a bleed in her brain. When he and Erin found out that Silven

was going to be airlifted to Peoria, defendant left the hospital to get some things for Erin so that

they could immediately go to the Peoria hospital. As defendant was heading back to MDH, Erin

26
called him and told him that Silven had already been airlifted out, that Erin was with her parents,

that he should stop and pick her up at a certain location, and that they would follow each other to

St. Francis.

¶ 54 Defendant stopped and picked Erin up as directed. On the way to St. Francis, defendant

and Erin were both upset and were wondering what could have happened to Silven. Erin told

defendant that the police were at MDH, that they had immediately pointed a finger at defendant,

and that they had told Erin that they knew defendant had done this and had questioned Erin hard

about what had happened. Erin told defendant further that Dr. Dabash had stated that Silven had

been hurt very badly, that she had been tied at the ankles and sodomized, and that every bone in

her body was broken. Most of that information turned out to be wrong. Defendant was upset

and disturbed by that information and he pulled off the road because he was not driving too well.

Erin's parents pulled in behind them, and Erin got out and rode to Peoria with her parents. Erin's

mom told defendant to go home and to ride to St. Francis with his mom and dad.

¶ 55 Defendant went back to his house but could not get a hold of his mom and dad, so he

went to the house of Scott Kepple and Jill Goodpasture because he had gotten a call from Erin's

mom telling him that they did not want him to come to St Francis. Defendant wanted to know if

Kepple and Goodpasture would try to find out why he was not wanted at the hospital. Defendant

stayed there for probably a half an hour. Defendant testified that he could have made a statement

while there about whether Kepple and Goodpasture thought that someone was going to call the

police. Defendant made that statement because of the phone call from Erin's mom and because

he felt that Erin's mom was insinuating that he was somehow accountable for Silven's injury.

Defendant also went to Matt Hocker's house and may have made a similar statement there about

27
whether he had to worry about the police knocking on his door, although he did not remember

saying anything like that.

¶ 56 After Silven's injury and death, it seemed to defendant that every time he left the house,

he was getting pulled over by the police for something. The police would run a drug dog around

his vehicle and tell him that the dog alerted and then would search his vehicle, but would not find

anything. One of the police officers gave defendant a business card and told defendant that if he

ever wanted to get out of the meth circle and stop doing drugs, to give the officer a call.

Eventually in December 2006, defendant called the officer and told him that he wanted to come

in and talk. Defendant told the officer everything about his involvement with meth. About a

month later, defendant was charged with a federal drug offense. He was taken into custody and

placed in Tazewell County jail, which housed some federal prisoners. Defendant subsequently

pled guilty to the offense and received a sentence of 44 months in federal prison.

¶ 57 While he was in Tazewell County jail, defendant met Jeff Ahlers. Defendant and Ahlers

were in the same unit at the jail and they both attended AA meetings in the jail. Defendant

probably attended three or four AA meetings that Ahlers was at as well. Defendant and Ahlers

were never cellmates and they never became friends. Defendant never talked to Ahlers about his

family and never had any conversations with Ahlers about Silven. According to defendant, he

never told Ahlers that he hit Silven, that Silven had told a D.A.R.E. officer about his and Erin's

drug use, or that he lost it and went into a rage while Erin was in the corner watching. According

to defendant if an inmate was ever out in the unit crying or sobbing, it would draw attention from

the officers. Defendant described a situation where an inmate was crying because he was locked

up and the officers removed the inmate and put him in special housing because they thought he

28
might be suicidal. Defendant denied that he ever talked to Ahlers while in the unit, other than

just in passing, or that he ever sobbed during a conversation with Ahlers.

¶ 58 Defendant admitted that he was cellmates with Burgess at the Tazewell County jail and

that they became friends. Defendant denied, however, that he and Burgess ever made jailhouse

alcohol in their cell and stated that there were daily cell searches. Defendant stated further that

Burgess had learned from another inmate how to make jailhouse alcohol and was accumulating

and storing items to do so in their cell. Burgess was eventually caught with the items and

disciplined. Defendant was disciplined as well, even though Burgess admitted that defendant did

not have anything to do with it, because defendant knew what Burgess was doing. Defendant

acknowledged that he did, at times, have conversations with Burgess about Erin and Silven.

Defendant stated that those conversations would usually occur when defendant got letters from

Erin with pictures in them and Burgess would ask to see the pictures. Defendant also

acknowledged that he told Burgess when Silven's birthday was after he got a picture in the mail

from Erin of Silven sitting on defendant's porch with a birthday cake. At no time, however, did

defendant tell Burgess that Silven was going to tell on him or that he slapped Silven and that

things got carried away. There was also no conversation where defendant was telling some other

inmate about the trampoline and winked at Burgess.

¶ 59 Defendant stated that his attorney in his federal case had told him that under absolutely no

circumstances was he to discuss any details of his federal case or any other cases pending with

anyone in the jail, not cellmates or correctional officers, no one. The attorney told defendant that

jails were full of snitches and people looking to better their position in their cases by giving false

testimony and told defendant not to mention anything. According to defendant, he followed his

29
attorney's advice. Defendant stated that he loved Erin and Silven and that he did not do anything

to cause any of Silven's injuries. Defendant stated further that Silven never said anything to

indicate that she knew that defendant and Erin were using drugs. Defendant did not think that

Silven even knew what drugs were. Defendant also stated that Silven never made any reference

to him regarding a D.A.R.E. officer and that she never threatened to tell on defendant to anyone.

¶ 60 During his testimony, defendant had referenced Silven's injuries as an "accident." On

cross-examination, the prosecutor showed defendant pictures of Silven in the hospital and of her

injuries and asked defendant if that looked like an accident. Defendant stated that he did not

know what happened to Silven. Defendant denied that he caused Silven's injuries but

acknowledged that neither Erik nor Erin caused Silven's injuries. Defendant admitted that he

told Erin not to talk to the police anymore and to change her cell phone number but stated that he

did so because Erin was complaining that the police were harassing her and that it was upsetting

her. Defendant denied that he ever told Burgess about Silven's death or that Silven had died.

According to defendant, Burgess knew about Silven's birthday because defendant told him and

knew about the trampoline because he saw it in one of the pictures defendant had received from

Erin. Defendant did not dispute the findings of the forensic pathologists–that Silven died from

blunt force trauma and that she had been struck multiple times–but denied that he was the person

who struck Silven. Defendant also stated, however, that Erin did not strike Silven and

acknowledged that he and Erin were the only ones who were around Silven for the whole

weekend, except for the short time when she went with Erik to drop off Brett.

¶ 61 After the State rested, the defense first presented the affidavit of Burgess's attorney in the

Tazewell County case. The affidavit was read to the jury without objection from the State. In

30
the affidavit, Burgess's attorney stated that in June 2008, Burgess agreed in the Tazewell County

case to be tried on the aggravated arson charge by way of a stipulated bench trial and the

remaining charges were dismissed. No agreement was made as to sentencing and no limitations

were imposed on the sentencing options available to the court. After Burgess was found guilty,

his attorney contacted the State's Attorney of McDonough County, James Hoyle, and requested

that Hoyle write a letter regarding Burgess's cooperation in the prosecution of defendant in the

instant case. Hoyle did so and that letter was presented to the court in the Tazewell County case

for consideration in sentencing. Following a sentencing hearing, the trial court initially

sentenced Burgess to 12 years in the DOC. However, upon reconsideration, the trial court

reduced Burgess's sentence to eight years in the DOC.

¶ 62 Candice Simmons testified for the defense that she was Erin's cousin and that on one

occasion in September 2005, she was at Roger Stout's house and she heard Erin, who was also

present, state to Stout that if her child ever told on her she would "f***ing kill her." Simmons

conceded, however, that she did not think Erin would kill Silven.

¶ 63 Mark Godar testified for the defense that he was a correctional officer at the Tazewell

County jail. According to Godar, cells at the jail were inspected on a daily basis and searched

thoroughly for contraband once a week. On August 1, 2007, after searching Burgess's cell,

officers found nine containers of juice, some bread items in a torn sock, a cleaning bottle, sugar,

and candy.

¶ 64 Richard Johnston testified for the defense that he worked for the Tazewell County

sheriff's department at the Tazewell County jail. Johnston was the sergeant at the jail who

conducted Burgess's disciplinary hearing after certain items of contraband were found in

31
Burgess's cell. Burgess told Johnston at the hearing that he was going to use the items to try to

make jailhouse alcohol. Burgess stated that he was the one who collected the items but admitted

to Johnston that defendant also knew about the plan. As far as Johnston knew, no one had ever

successfully made jailhouse alcohol at the new jail facility.

¶ 65 Chris Butcher testified for the defense that he was a sergeant with the Macomb police

department and that in September 2006, he was the school resource officer. As part of his

responsibilities, Butcher taught the fifth grade D.A.R.E. program at Macomb schools. Butcher

did not recall whether he had gone into the kindergarten classroom in the first several weeks after

school started in August or September 2006 but did remember that he did not teach the D.A.R.E.

program to the kindergarten. Butcher acknowledged, however, that when he went to the school,

he wore his uniform and that at the start of the school year, he would try to visit all of the

classrooms.

¶ 66 Jami Hocker (formerly Jami Dysert) testified for the defense that she was a friend of Erin

and that she knew Erin, defendant, and Silven. On Saturday, September 9, 2006, Erin called her

to see if Silven could come to Hocker's house and play with Hocker's children. Erin seemed

agitated and frustrated that Hocker was not able to have Silven over to play that day. During her

testimony, however, Hocker also stated that Erin was a good mother.

¶ 67 Rick VanBrooker testified that he became the McDonough County sheriff in December

2006, while the investigation into Silven's death was still pending. At that point, it seemed to

VanBrooker that the investigation had stalled. VanBrooker met with Steve Holt, the lead

detective in the investigation. Holt was being assisted by Detective John Carson. Early on in his

involvement in the case, VanBrooker made up his mind "fairly quickly" that defendant had killed

32
Silven. At one point, VanBrooker sent a letter to a pathologist in Rockford, Dr. Blum, asking

him to take another look at the autopsy and to render an opinion as to the timeline, the type of

object used to strike Silven, and any pattern of injuries that existed.

¶ 68 The first time VanBrooker met with Erin was on January 16, 2007. During the interview

with Erin, VanBrooker pressed Erin, using various interrogation tactics, including offering to

show Erin the autopsy photographs of Silven, to try to get Erin to admit that defendant killed

Silven and to find out how much Erin knew about the killing. VanBrooker denied, however, that

he ever abused, berated, or threatened Erin during the interview. VanBrooker stated that he was

searching for the truth and that he wanted to know if Erin had knowledge of what had happened

to Silven. According to VanBrooker, the "theme" of the interview was that defendant had gone

into a meth-induced rage and had killed Silven. Despite the interrogation tactics used, Erin never

stated that defendant had anything to do with Silven's injuries.

¶ 69 On October 11, 2007, VanBrooker personally transported Ahlers from Tazewell County

jail to McDonough County jail. VanBrooker asked Ahlers at that time if he knew anything about

Silven's death, and Ahlers responded that he did not. On December 24, 2007, Ahlers contacted

one of the jailers and stated that he wanted to talk to somebody about Silven's murder.

VanBrooker interviewed Ahlers two days later, on December 26, 2007. Before videotaping

Ahlers's statement, VanBrooker conducted a "raw interview" of Ahlers. VanBrooker denied,

however, that he walked Ahlers through his story or that he suggested a version of events to

Ahlers to use as his statement. VanBrooker stated that he did a "raw interview" first because in

his experience, people acted and talked differently than they normally would after the camera

was turned on. Despite later learning of inconsistencies in Ahlers's statement, VanBrooker did

33
not go back and reinterview Ahlers or confront Ahlers with those inconsistencies. In addition,

although Ahlers's statement implied that Erin was in the room when the beating occurred,

VanBrooker did not confront Erin with that information.

¶ 70 McDonough County State's Attorney James Hoyle testified that the charge against

defendant in this case was amended and made more specific after information was provided by

Burgess and Ahlers as to how Silven was killed. At some point during the investigation, police

searched defendant's residence, where the injuries occurred. A search warrant was not needed

because defendant consented to the search. In around July 2008, Hoyle wrote a letter on

Burgess's behalf to the trial judge in Tazewell County, where Burgess had charges pending. The

purpose of the letter was to inform the court in sentencing that Burgess had cooperated in the

prosecution of defendant. Hoyle was later informed by Burgess's attorney that the letter he sent

on Burgess's behalf was quite beneficial and was later told by the sentencing judge in Burgess's

case that the letter was very significant. According to Hoyle, he did not offer Burgess a deal on

any charges in McDonough County. Burgess gave his statement to the police without any input

from Hoyle, and Burgess asked for nothing in return.

¶ 71 John Carson testified that he was a deputy sheriff with the McDonough County sheriff's

department. Carson was the crime scene investigator in the instant case. During the afternoon of

September 10, 2006, Carson was dispatched to MDH. Upon arrival, he spoke to Dr. Nabash and

another medical professional. They informed Carson that Silven had traumatic head injuries and

other suspicious bruising, that the injuries were nonaccidental, and that Silven had been abused.

In addition to the injuries mentioned, Silven had an injury with a pattern to it on her back, which

appeared to have possibly been caused by a shoe, as if Silven had been kicked in the back. The

34
pattern was also found on the back of Silven's shirt. The Department of Children and Family

Services (DCFS) was contacted and it implemented a protective safety plan for Silven at the

hospital.

¶ 72 On September 12, 2006, Carson went to defendant's residence, where Silven had been

found, to search for and collect any possible evidence. Defendant consented to the search. A

second search was conducted on September 14, 2006, again with defendant's consent. On both

occasions, Carson took photographs of various aspects of the scene where Silven was found and

of defendant's residence. Carson also collected Silven's bedding, a bottle of massage oil (lotion

bottle) located in the closet in Silven's bedroom, and Silven's clothes from the hospital, among

other things. A bottle of possibly cranberry juice (juice bottle) was located on Silven's bedroom

floor but was not collected. Carson stated that the bottle did not appear to have evidentiary value

but acknowledged later in his testimony that from the photographs, it did not appear that anyone

had looked at or had picked up the bottle or had inspected it for the presence of DNA or other

possible evidence. The bottle of lotion was later disposed of by police because it did not appear

to have any evidentiary value and was leaking. Photographs were also taken of several pairs of

shoes that were found in the house, and Silven's shirt with the scuff mark on it was sent to the

crime lab. The crime lab found that the scuff mark had a pattern to it and wanted to see shoe

exemplars so that it could make a comparison. No shoes were sent to the crime lab, however,

because Carson did not take any of the shoes into evidence. In Carson's opinion, none of the

shoes at the scene appeared to match the pattern on Silven's back. According to Carson, no

fingerprints were taken at the scene and nothing was sent to the crime lab for DNA testing. In

addition, although the injuries to the back of Silven's head were severe and there were many of

35
them, Carson did not photograph or examine defendant's hands or knuckles to determine if they

were bruised or swollen.

¶ 73 Ronald Vose testified that he was a licensed private investigator and had previously been

a Springfield police officer for 27 years. Vose was retained by the defense to assist them in

preparing the case for trial. As part of his work on the case, about six months prior to trial, Vose

took several photographs at defendant's residence and took video footage of the inside and

outside of the residence. A copy of the photographs and the video footage was put on disc and

was admitted into evidence without objection as an exhibit at trial. In March 2011, Vose took

video footage under normal highway conditions of the route that was taken by Erin to pick up

Erik after Erik's truck had broken down. That footage had been shown earlier in the trial. The

video footage was admitted into evidence without objection as an exhibit, as was a diagram that

Vose had made of the inside of defendant's residence. In addition to taking photographs and

video and making a diagram, Vose attempted to replicate the pattern of blows that were delivered

to Silven's head. Vose obtained a bottle that was similar to the juice bottle that was located in

Silven's bedroom and experimented by striking the bottle against a foam board and some drywall

and by driving some nails into a board with the bottle to get an idea as to the type of marks the

bottle would make and the amount of force that could be generated with the bottle. The foam

board and the drywall that Vose had struck with the bottle were admitted into evidence as an

exhibit without objection. Vose acknowledged during his testimony, however, that he was not in

any way suggesting that he had any evidence to show that a bottle of that type was used to inflict

Silven's head wounds and that he was not an expert in the density of a five-year-old girl's skull.

¶ 74 Tessa Pfafman testified for the defense that during the summer of 2006, her daughter was

36
a friend of Silven. On one occasion in June 2006, Silven spent the night at Pfafman's house.

When Erin came to pick up Silven the next day, Silven did not want to leave, so Pfafman said

that Silven could stay over and spend the night again. Pfafman did not hear from Erin the

following day, and Silven stayed at Pfafman's residence for two days after that (although Pfafman

estimated that Silven was there a total of three days). Pfafman thought the whole thing was a

little unusual, and she was surprised that she did not hear from Erin. Pfafman did not have Erin's

phone number and had no way to contact Erin. Pfafman's partner found Erin at Heritage Days

and asked Erin to pick up Silven. Pfafman was a college professor and had to teach that

afternoon, so her friend, Gretchen Weiss, picked up Silven and Pfafman's daughter and took

them to the local pool.

¶ 75 Gretchen Weiss testified that she was a friend of Pfafman and that they both had

daughters who were around the same age. On one occasion in June 2006, Weiss was supposed to

take Pfafman's daughter to the local pool in Macomb with her own daughters. When Weiss went

to Pfafman's house that day to pick up Pfafman's daughter, Silven was there. Weiss did not know

Silven or Erin, but because of the situation, took Silven to the pool with them. According to

Weiss, the children all played together and had a great time at the pool. After a couple of hours,

they decided to get a snack at the pool snack bar, which was close to the entrance. They were

sitting at a table in that area when Silven started to cry. Weiss did not know initially why Silven

was crying but then saw that Erin was standing at the entrance, presumably to take Silven home.

Weiss was struck by the fact that Silven started crying when she saw Erin, even though she had

not seen Erin for about three days. To Weiss, it did not seem to be a typical interaction between

a parent and a child as Silven did not say that she missed Erin, and Erin did not say that she was

37
sorry for being gone so long. Erin seemed to be very agitated and upset and told Silven to hurry

up because she had to go to work. Silven was crying and saying that she did not want to leave,

although Weiss acknowledged that it could have just been because she was having fun at the

pool. At one point, while Silven was attempting to gather up her things, she grabbed the wrong

things, and Erin told her to get the right stuff or that she was never going to see her friends again.

Weiss did not have a good feeling about the entire situation but felt that she had no legal right to

keep Silven with her at the pool. After Weiss learned that Silven had been killed, she reported

the encounter to the police.

¶ 76 Forensic pathologist Dr. John Ralstan testified as an expert witness for the defense.

Ralstan had reviewed the original autopsy report of Dr. Mitchell, the transcript of Mitchell's

testimony, the transcript of Dr. Blum's testimony, autopsy photographs, and Silven's CT scan

results. From his review, Ralstan agreed with Dr. Mitchell and Dr. Blum that Silven died from

nonaccidental blunt force trauma to the head and that the injuries were inflicted within 12 to 24

hours of Silven's hospitalization. Ralstan stated that the autopsy photographs showed multiple

bruises on the right and left sides of the back of Silven's head. The blows to Silven's head were

severe and caused deep tissue damage to Silven's brain. According to Ralstan, there were three

distinct injuries on the back of Silven's head and possibly a fourth injury on the back of her neck.

The injuries were round to oval in shape and about an inch to an inch and a half in diameter.

Ralstan's best estimate was that the injuries were inflicted with a blunt object with possibly a

round face. All of the injuries were close in size and could have been inflicted by the same type

of object. It did not appear to Ralstan that the object that was used to inflict the injuries had any

sharp edges. According to Ralstan although it was possible for a hand or knuckle to cause a

38
round-shaped injury, such as the ones suffered by Silven, it was not likely, based upon the

separate nature and the size of the impacts in this case. Ralstan commented that a person's

knuckles would generally leave two or three smaller circular wounds in a row, not the separate

large round impacts that were visible on the back of Silven's head. Ralstan opined that any

household object of sizeable heft had enough mass to cause Silven's injuries, such as a coffee

cup, a drink bottle, a dowel rod, the end of a broom, or a bottle like the juice bottle used by Vose

in his experiments or the lotion bottle, both of which had round edges and had caps that were of

the appropriate diameter. Ralstan could not state with certainty, however, that the injuries were

caused by a bottle, only that the injuries were caused by a medium-sized cylindrical object.

According to Ralstan, either a man or a woman could have inflicted the type of injuries that

Silven suffered. Ralstan opined that if the bottle used by the defense was able to make

impressions in a section of drywall, it could leave a similar impression on a child's head.

Although Ralstan noticed the abrasion on Silven's back, he did not focus on that because it was

not a cause of Silven's death. Ralstan prepared a report of his conclusions, which was admitted

into evidence as an exhibit at trial without objection.

¶ 77 After the defense rested and prior to closing arguments, the trial court gave the jury

partial instructions on the law that would apply in this case. As part of those instructions, the

jury was again informed as to first three Rule 431(b) principles. The jury was not informed of

the fourth principle regarding defendant's right not to testify because defendant's redacted

testimony from the prior trial had been presented to the jury during the evidence phase of the

trial. In its closing argument, the State again made certain remarks which defendant claims on

appeal constituted an improper attempt by the prosecution to elicit the jury's sympathy for the

39
victim. Those remarks were not objected to at trial by the defense. After closing arguments had

concluded, the trial court gave the jury the remaining jury instructions. Following deliberations,

the jury found defendant guilty of first degree murder. The defendant was subsequently

sentenced to 24 years' imprisonment. Defendant filed a posttrial motion for judgment of acquittal

or, alternatively, for new trial. In the motion, defendant asserted primarily that he had not been

proven guilty beyond a reasonable doubt. Defendant did not raise any issue in his motion

regarding the Rule 431(b) admonishments or about the remarks of the prosecutor of which

defendant complains in this appeal. Defendant's posttrial motion was apparently denied,

although there is no indication of the trial court's ruling on the motion in the record. Defendant

was subsequently sentenced to 24 years' imprisonment for first degree murder. This appeal

followed.

¶ 78 ANALYSIS

¶ 79 On appeal, defendant argues first that the evidence was insufficient to prove him guilty

beyond a reasonable doubt of first degree murder. Defendant asserts that the evidence was

lacking in that: (1) there were no eyewitnesses to the crime; (2) there was no physical evidence

directly linking defendant to the crime; (3) the strongest evidence against defendant was the

testimony of two jailhouse informants regarding inculpatory statements allegedly made by

defendant, testimony that defendant asserts was not worthy of belief; (4) the victim's mother had

an equal opportunity and motive to commit the crime and was also addicted to drugs; (5)

defendant had a good relationship with the victim and had no reason to harm the victim; and (6)

defendant's reactions to the victim's injuries and the other circumstances presented did not

constitute indications of defendant's guilt of the crime. Based upon this alleged lack of credible

40
evidence, defendant asks that we reverse his conviction outright.

¶ 80 The State argues that the evidence presented at trial was sufficient to prove defendant

guilty and that defendant's conviction should be affirmed. The State asserts that the alleged

deficiencies in the evidence were argued to the jury at trial, that the jury found defendant guilty,

and that defendant is asking this court to reweigh the evidence on appeal and to substitute its

judgment for that of the jury as to the credibility of the witnesses and the weight to be given to

the evidence, something this court clearly cannot do.

¶ 81 Pursuant to the Collins standard (People v. Collins, 106 Ill. 2d 237, 261 (1985)), a

reviewing court faced with a challenge to the sufficiency of the evidence must view the evidence

in a light most favorable to the prosecution and determine whether any rational trier of fact could

have found the elements of the crime proven beyond a reasonable doubt. People v. Jackson, 232

Ill. 2d 246, 280 (2009). The reviewing court will not retry the defendant. People v. Jimerson,

127 Ill. 2d 12, 43 (1989). Determinations of witness credibility, the weight to be given

testimony, and the reasonable inferences to be drawn from the evidence are responsibilities of the

trier of fact, not the reviewing court. See Jimerson, 127 Ill. 2d at 43. Thus, the Collins standard

of review gives " 'full play to the responsibility of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.' " Jackson, 232 Ill. 2d at 281 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

This same standard of review is applied by the reviewing court regardless of whether the

evidence is direct or circumstantial, or whether defendant received a bench or a jury trial, and

circumstantial evidence meeting this standard is sufficient to sustain a criminal conviction.

Jackson, 232 Ill. 2d at 281; People v. Kotlarz, 193 Ill. 2d 272, 298 (2000). In applying the

41
Collins standard of review, a reviewing court will not reverse a conviction unless the evidence is

so improbable or unsatisfactory that it leaves a reasonable doubt of the defendant’s guilt.

Jackson, 232 Ill. 2d at 281; People v. Flowers, 306 Ill. App. 3d 259, 266 (1999).

¶ 82 Having reviewed the evidence in the present case and applying the Collins standard, we

find that the evidence was sufficient to prove defendant guilty beyond a reasonable doubt of first

degree murder. The only issue at the trial in this case was whether the defendant was the person

who had beaten the victim and had caused her death. There was no dispute that the five-year-old

victim had been murdered and that defendant or Erin were the only two people who could have

committed the crime. To establish that defendant was the killer, the State presented the

testimony of two jailhouse informants, Burgess and Ahlers, both of whom had spent time in the

Tazewell County jail with defendant after the murder was committed. Both witnesses testified

that defendant confessed to them that while he was in a meth-induced rage and fearful that the

victim was going to tell on him for using drugs, he lost control and killed the victim. Although

the two witnesses had never been together in the Tazewell County jail, their statements as to how

defendant killed the victim were strikingly similar. It was for the jury, which was fully aware of

the possible problems with the informants' testimony, to determine if that testimony was worthy

of belief. See Jimerson, 127 Ill. 2d at 43; People v. Fields, 135 Ill. 2d 18, 47-49 (1990).

¶ 83 In addition to the testimony of Burgess and Ahlers, the State presented numerous pieces

of circumstantial evidence to establish that defendant was the killer. In the light most favorable

to the State (see Jackson, 232 Ill. 2d at 280), that evidence showed that defendant had the

opportunity to kill the victim, that he had been abusing meth all week leading up to the victim's

death, that he had not been sleeping or had been sleeping erratically, and that at varying times he

42
had acted in a manner or made statements that were indicative of guilt–when the paramedics

were present at the house, when he was at MDH, when he initially decided not to go to St.

Francis, when he was walking to the sheriff's station to be interviewed after the injury occurred,

when he was with his friends and his cousin after the injury occurred, and when he spoke to Erin

on the phone while he was in jail. It was for the jury to determine whether the circumstantial

evidence was indicative of defendant's guilt and the amount of weight to give to that evidence.

See Jimerson, 127 Ill. 2d at 43; Jackson, 232 Ill. 2d at 281. Under the Collins standard, all of

that evidence, along with the statements of Burgess and Ahlers, left no reasonable doubt as to

defendant's guilt and was sufficient to prove defendant guilty. See Jackson, 232 Ill. 2d at 281;

Flowers, 306 Ill. App. 3d at 266. Therefore, we reject defendant's argument on this issue.

¶ 84 As his second argument on appeal, defendant argues that he was denied a fair trial when

the trial court failed to strictly comply with Supreme Court Rule 431(b) while admonishing

potential jurors during voir dire. Specifically, defendant asserts that at no time did the trial court

inquire of the potential jurors whether they understood the four Rule 431(b) principles.

Defendant acknowledges that this issue has not been properly preserved for appellate review

since he did not object to the alleged error during voir dire and did not raise the issue in his

posttrial motion (see People v. Enoch, 122 Ill. 2d 176, 186 (1988); People v. Allen, 222 Ill. 2d

340, 350 (2006) (an error is not preserved for appellate review unless the defendant objects at

trial and includes the error in a written posttrial motion)) but asserts, nevertheless, that we should

reach the merits of this issue as a matter of first-prong plain error because, according to

defendant, the evidence in this case was closely balanced. Based upon the application of the

plain-error doctrine, defendant asks that we reverse his conviction and that we remand this case

43
for a new trial.

¶ 85 The State argues that the plain-error rule does not apply in this case and that defendant's

forfeiture of this issue, therefore, must be honored. In support of that argument, the State asserts

first that no error occurred during voir dire because the trial court's questioning of the potential

jurors as to whether they agreed or accepted the four Rule 431(b) principles implied that the

jurors also understood the principles and was sufficient to satisfy the requirements of Rule

431(b). Second, the State asserts that even if this court finds that the trial court erred by failing to

specifically ask the potential jurors whether they understood the four Rule 431(b) principles, the

plain-error rule would still not apply because the evidence in this case was not closely balanced

in that defendant convicted himself by excluding both Erin and Erik as the perpetrator. Finally,

as a third alternative, the State asserts that even if an error occurred and the evidence was closely

balanced, the application of the plain-error doctrine would not be warranted in this case because

it cannot be shown that the particular error in question, alone, tipped the scales of justice against

defendant.

¶ 86 Defendant responds to the State's argument by asserting in reply that: (1) the recent

Illinois Supreme Court case of People v. Wilmington, 2013 IL 112938, which was also cited in

defendant's initial brief on appeal, requires that potential jurors be asked both whether they

understand and whether they accept the four Rule 431(b) principles; (2) this court previously

found in the last appeal based upon similar evidence that the evidence in this case was closely

balanced; and (3) under the first prong of the plain-error doctrine, defendant was only required to

show that plain error occurred and that the evidence was closely balanced and was not required to

show anything else.

44
¶ 87 The plain-error doctrine is a very limited and narrow exception to the forfeiture or

procedural default rule that allows a reviewing court to consider unpreserved error if either one

of the following two circumstances is present: (1) a clear or obvious error occurred and the

evidence in the case was so closely balanced that the error alone threatened to tip the scales of

justice against the defendant, regardless of the seriousness of the error; or (2) a clear or obvious

error occurred and the error was so serious that it affected the fairness of the defendant's trial and

challenged the integrity of the judicial process, regardless of the closeness of the evidence.

People v. Walker, 232 Ill. 2d 113, 124 (2009); People v. Piatkowski, 225 Ill. 2d 551, 565 (2007);

People v. Herron, 215 Ill. 2d 167, 177-87 (2005); Ill. S. Ct. R. 615(a). Under either prong of the

plain-error doctrine, the burden of persuasion is on the defendant. Walker, 232 Ill. 2d at 124. If

the defendant fails to satisfy that burden, the procedural default of the issue must be honored. Id.

The first step in any plain-error analysis is to determine whether an error occurred. Id. at 124-25.

To do so, a reviewing court must conduct a substantive review of the issue. Id. at 125.

¶ 88 The supreme court rules are obligations that the court and the parties are required to

follow and are not merely suggestions to be followed by the court and parties if it is convenient

to do so. Belknap I, 396 Ill App. 3d at 205. The determination of whether a supreme court rule

has been violated and the consequences that should apply if it has been are questions that are

reviewed de novo by the appellate court. See Wilmington, 2013 IL 112938, ¶ 26.

¶ 89 The version of Supreme Court Rule 431(b) that was in effect when defendant was tried

provided:

"The court shall ask each potential juror, individually or in a group, whether that

juror understands and accepts the following principles: (1) that the defendant is

45
 presumed innocent of the charge(s) against him or her; (2) that before a defendant

can be convicted the State must prove the defendant guilty beyond a reasonable

doubt; (3) that the defendant is not required to offer any evidence on his or her

own behalf; and (4) that the defendant's failure to testify cannot be held against

him or her; however, no inquiry of a prospective juror shall be made into the

defendant's failure to testify when the defendant objects.

The court's method of inquiry shall provide each juror an opportunity to

respond to specific questions concerning the principles set out in this section." Ill.

S. Ct. R. 431(b) (eff. May 1, 2007).

Under Rule 431(b), a specific question and response process is mandated. Wilmington, 2013 IL

112938, ¶ 32; People v. Thompson, 238 Ill. 2d 598, 607 (2010). The trial court is required to ask

each potential juror whether he or she understands and accepts each of the principles set forth in

Rule 431(b). Id. "The questioning may be performed either individually or in a group, but the

rule requires an opportunity for a response from each prospective juror on their understanding

and acceptance of those principles." Id. "[T]he trial court's failure to ask jurors if they

[understand] the four Rule 431(b) principles is error in and of itself." (Emphasis omitted.)

Wilmington, 2013 IL 112938, ¶ 32.

¶ 90 In the instant case, based upon the supreme court's recent decision in Wilmington, we

must conclude that error occurred during the voir dire in defendant's trial. See id. There is no

dispute in this case that the trial court at no time asked any of the potential jurors whether they

understood the four Rule 431(b) principles. Other than failing to so inquire, the trial court was

very thorough in its Rule 431(b) admonishments and covered all four principles with each panel

46
of prospective jurors during voir dire and at other times throughout the trial. Under those

circumstances, prior to the Wilmington court's decision, we would have found that no error

occurred, as had at least one other district of the appellate court. See People v. Blankenship, 406

Ill. App. 3d 578, 581-83 (2010) (juror's response that he or she accepts or agrees with Rule

431(b) principles implies that juror understands principles and is sufficient to comply with the

requirements of Rule 431(b)). In our opinion, however, the Wilmington court's decision compels

a different result, and we must now conclude that the failure to specifically ask jurors whether

they both understand and accept the Rule 431(b) principles constitutes error. See Wilmington,

2013 IL 112938, ¶ 32; Thompson, 238 Ill. 2d at 607; People v. Curry, 2013 IL App (4th) 120724,

¶¶ 64-65 (the trial court's failure to give the potential jurors an opportunity to respond to the

court's question as to whether the jurors understood the four Rule 431(b) principles constituted

error even though the court later asked potential jurors whether they agreed or disagreed with the

four principles and gave the potential jurors an opportunity to respond to that question). Thus,

we find that the trial court's failure to specifically inquire whether potential jurors understood the

four Rule 431(b) principles during voir dire in the present case constituted error for purposes of

the plain-error doctrine. See id.

¶ 91 Having concluded that error occurred, we must determine whether the evidence was

closely balanced, as defendant suggests, so as to warrant the application of the plain-error

doctrine and to relieve defendant of the forfeiture of this issue. The determination of whether the

evidence is closely balanced is a different determination than whether the evidence was sufficient

to prove defendant guilty beyond a reasonable doubt, and finding that the evidence was sufficient

to prove defendant guilty does not preclude a determination that the evidence was closely

47
balanced. See Belknap I, 396 Ill App. 3d at 206. Based upon our thorough review of the

evidence presented at trial in the instant case, we find that the evidence was, in fact, closely

balanced. As defendant points out, there were no eyewitnesses who saw defendant commit the

crime and no physical evidence to directly link defendant to the crime. The strongest evidence

that the State presented was the testimony of the two jailhouse informants regarding defendant's

alleged confession to them. As we pointed out in the last trial in this case, although such

testimony may ultimately be found to be credible by the trier of fact and may form the basis of a

guilty verdict, it must be treated with caution. Id. In addition, the remaining circumstantial

evidence presented could have either been viewed as indicative of defendant's guilt or explained

innocently away depending on the view of that evidence taken by the jury. Under those

circumstances, we find that the evidence was closely balanced.

¶ 92 Because we have determined that plain error occurred and that the evidence was closely

balanced, we reverse defendant's conviction for first degree murder and remand this case for a

new trial. Contrary to the State's alternative assertion on appeal, as of yet, there is no de minimus

exception to the first prong of the plain-error rule, and defendant in this case is not required to

show any additional prejudice.3 See id. at 207. Rather, under the first prong of the plain-error

3
Arguably, there is some indication in the more recent decisions of our supreme court

that it may be starting to view the first prong of plain-error as more than just a determination of

whether an error occurred and whether the evidence was closely balanced. See People v. White,

2011 IL 109689, ¶¶ 133-34, 139-44, 148; People v. Adams, 2012 IL 111168, ¶¶ 22-23. These

rulings may indicate that a more contextual approach is warranted under the first prong of plain

error and that it should be determined based upon the totality of the circumstances whether the

48
doctrine, unpreserved error is considered when the evidence is closely balanced, regardless of the

seriousness of the error. Id. We understand the hardship that requiring yet another trial in this

case will undoubtedly cause to those who are involved in or affected by this case. However, we

believe that such a result is required under the law.

¶ 93 Having determined that defendant's conviction must be reversed and the case remanded

for a new trial, we need not consider defendant's third argument on appeal–that he was denied a

fair trial because of certain improper remarks made by the State in opening statement and in

closing argument. We trust that both sides will carefully scrutinize their planned opening

statements and closing arguments prior to the next trial.

¶ 94 CONCLUSION

¶ 95 For the foregoing reasons, we reverse defendant's conviction for first degree murder and

remand this case for a new trial.

¶ 96 Reversed and remanded.

¶ 97 PRESIDING JUSTICE WRIGHT, concurring in part and dissenting in part.

¶ 98 I agree with the majority that the State’s evidence was sufficient to convict defendant of

first degree murder. However, I respectfully disagree that the trial court’s inexplicable failure to

strictly comply with Supreme Court Rule 431(b) for a second time constituted plain error once

again.

particular error in question actually or likely tipped the scales of justice against the defendant.

However, without more of a definitive statement from the supreme court in that regard, we will

adhere to its prior established precedent on this issue as set forth in People v. Herron. See

People v. Vesey, 2011 IL App (3d) 090570, ¶¶ 18-20.

49
¶ 99 I write separately because I respectfully disagree with the majority's conclusion that the

evidence presented during this second jury trial was closely balanced on the issue of identity. I

acknowledge the majority's holding is entirely consistent with the outcome of the first appeal in

this case, which required our review of very similar evidence presented to the first jury.

However, I respectfully submit a different conclusion is required with respect to whether the

evidence against the defendant was truly closely balanced with respect to the identity of the

perpetrator due to additional guidance provided by our supreme court since the date of mandate

in the first appeal in People v. Belknap, 396 Ill. App. 3d 183 (2009), issued by our court on

November 18, 2009.

¶ 100 For example, in People v. White, 2011 IL 109689, Justice Karmeier observed that when a

defendant seeks review of an otherwise forfeited error by relying on the closely balanced prong

of plain error, a reviewing court’s preliminary step should be to first evaluate “the totality of the

evidence” in the case, as a practical matter. White, 2011 IL 109689, ¶139. In White, the court

conducted a qualitative “commonsense assessment” of the totality of evidence presented, rather

than a quantitative approach, and ultimately concluded the evidence in that case was not closely

balanced. White, 2011 IL 109689, ¶139.

¶ 101 Later, in People v. Adams, 2012 IL 111168, ¶22, Justice Burke relied on White and

reiterated, once again, that when “determining whether the closely balanced prong has been met,

we must make a ‘commonsense assessment’ of the evidence (People v. White, 2011 IL 109689

¶139. within the context of the circumstances of the individual case.”

¶ 102 Here, the record shows the State introduced undisputed medical evidence, gathered

during the child’s autopsy, revealing she suffered multiple blunt force blows to her head, with a

50
round object. The medical expert concluded the child’s seizures resulted from recent swelling of

her brain due to these three blows, and therefore, the child’s injuries occurred within 12 to 24

hours before she arrived at the emergency room.

¶ 103 Erin's uncontested testimony established only Erin, Erik, and defendant spent time with

the little girl within the 12 to 24 hours immediately preceding her seizures. Erin's testimony

indicated that beginning on September 9, 2006, her daughter did not have any energy and was

unusually clingy. The next day, September 10, 2006, the child began suffering a cascade of

seizures in her bed as discovered at 1:30 that afternoon. Silven ultimately slipped into a coma

and died, days later, on September 16, 2006.

¶ 104 As the State points out, the defense theory excluded both Erin and Erik as the perpetrators

and suggested reasonable doubt existed because the child may have caused her own fatal injuries

by falling off a trampoline. However, no witness supported the far-fetched theory that the child

was responsible for her own significant injuries resulting from a single speculative fall from a

trampoline.

¶ 105 First, defendant did not see the child fall from a trampoline. Second, Erin testified that

although Silven was near a trampoline on September 9, 2006, Silven did not show an interest in

or attempt to jump on the apparatus that day because she was not feeling well. Third, the

medical expert opined, due to the number and locations of the child's injuries, that multiple blunt

force traumas resulted in Silven's death. In other words, the physical evidence did not support a

single-fall defense. Finally, I observe that the evidence could not be closely balanced unless

there was some evidence supporting the theory that the child caused her own injuries by playing

and then falling from a trampoline 12 to 24 hours before her seizures began.

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¶ 106 Therefore, I respectfully suggest based on the recently clarified totality of the evidence

approach to be employed by this court, the case at bar should not be viewed as closely balanced

with respect to the identity of the child's murderer, in light of defendant's own statements

excluding Eric and Erin as suspects.

¶ 107 I emphasize that every trial is unique. However, in a majority of trials, such as the one in

the case at bar, the evidence is neither overwhelming nor closely balanced and falls somewhere

in between these two extremes. I disagree with the implied premise that any trial without

overwhelming evidence of guilt must be automatically categorized as a closely balanced case

upon review. In fact, under White and Adams, our supreme court urges us to look at the totality

of the evidence on both sides when measuring whether a particular case falls somewhere in

between the two ends of the spectrum between overwhelming proof and closely balanced

evidence. Here, there is no plausible evidence that the child caused her own injuries, thereby

excluding the defendant as the perpetrator beyond a reasonable doubt.

¶ 108 Next, I turn to the controversial testimony of the jailhouse informants. I agree their

testimony should be reviewed with a healthy dose of skepticism. Yet, it is entirely possible the

jurors rejected this testimony as incredible. Assuming the jury did not believe defendant spoke to

either informant about the incident, the fact remains defendant testified that neither Erin nor Erik

caused the injuries that caused the child to suffer, and then die. Perhaps, just perhaps, the jury

circumstantially inferred defendant could only be certain of Erin’s and Erik's innocence due to

his personal, but unspoken, knowledge of his role in the child's death. Without viewing the

jailhouse informants’ testimony worthy of consideration and based on the recently clarified

totality of the evidence approach to be employed by this court, I conclude the case at bar should

52
not be viewed as closely balanced with respect to the identity of the child's murderer due to

defendant's own testimony.

¶ 109 While it is discouraging that the trial court repeated the Rule 431(b) error following

reversal and remand by this court, it is equally troubling for me to recognize the prosecutor and

defense counsel both stood silent and allowed the court to commit the same error again. In

addition, it should not be overlooked that the duplicated Rule 431(b) insufficiency has now been

forfeited by the defense for a second time.

¶ 110 Thus, defense counsel’s failure to preserve the issue by objecting to the court’s

questioning during voir dire may represent an effective defense strategy insuring automatic

reversal in any truly closely balanced case, unlike the case at bar, but where the court fails to

strictly comply with Rule 431(b). Based on the unique circumstances present in this record, I

respectfully contend the repeated Rule 431(b) error in this appeal should not become an

automatic “get out of jail free” card to be played each time a properly instructed jury convicts this

defendant, in the absence of structural error.

¶ 111 Finally, as suggested by the supreme court, I next consider the unique combination of

various contextual “circumstances” present in this record now before our court. First, the Rule

431(b) deficiency during the second trial was completely cured, in my view, by the formal

instructions provided by the court set out in pattern criminal jury instructions regarding the

constitutional principles omitted from the voir dire discussions. Thus, in spite of the preliminary

error during voir dire, I consider it significant that this defendant does not contend the second

jury was less than neutral, predisposed to reject the Zehr principles, or failed to follow and then

apply the rules of law according to the court’s instructions at the close of the evidence. In other

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words, defendant does not allege structural error resulted in this case. Consequently, I would

affirm defendant’s conviction.

¶ 112 For these reasons, I would affirm the conviction in this case.

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