People v. Belknap

2014 IL 117094

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

(Docket No. 117094)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DANIEL R.
BELKNAP, Appellee.

Opinion filed December 18, 2014.

CHIEF JUSTICE GARMAN delivered the judgment of the court, with opinion.

Justices Thomas, Kilbride, Karmeier, and Theis concurred in the judgment and
opinion.

Justice Burke specially concurred, with opinion, joined by Justice Freeman.

OPINION

¶1 Following a jury trial in the circuit court of McDonough County, defendant, Daniel
R. Belknap, was convicted of first degree murder in the death of five-year-old Silven
Yocum. The trial court sentenced him to 24 years in prison. The appellate court, with
one justice dissenting, reversed defendant’s conviction and remanded for a new trial.
2013 IL App (3d) 110833. This court granted the State’s petition for leave to appeal. Ill.
S. Ct. R. 315 (eff. July 1, 2013).

¶2 BACKGROUND

¶3 This was defendant’s second jury trial on the murder charge. His first conviction
was reversed by the appellate court and remanded for a new trial due to the trial court’s
 failure to comply with Supreme Court Rule 431(b) (Ill. S. Ct. R. 431(b) (eff. May 1,
2007)) during jury selection when it did not ask the potential jurors whether they
understood and accepted the four principles contained in that rule. The appellate court
reviewed the error under the plain error doctrine and found the error reversible because
the evidence was closely balanced. People v. Belknap, 396 Ill. App. 3d 183 (2009).

¶4 Evidence at defendant’s second trial showed that on September 10, 2006, Silven
was transported to McDonough District Hospital (MDH) by ambulance after her
mother, Erin Yocum, called 911 and reported that Silven was having seizures. She was
later airlifted to St. Francis Hospital in Peoria, where she received treatment for
swelling in her brain and underwent surgery to remove a blood clot from her brain. The
treatments were unsuccessful and Silven remained in a coma until her death on
September 16, 2006. Forensic pathologists who testified at defendant’s trial opined that
Silven died from a closed-head injury due to multiple blunt force trauma, causing
bleeding on her brain, and bruising and abrasions to her head. The injuries resulted
from nonaccidental blows and could have been delivered by a human hand, fist, foot, or
an object. The injuries were most likely sustained between 12 and 24 hours prior to the
onset of Silven’s seizures. One of the pathologists, Dr. Mitchell, stated that Silven
sustained five distinct blows to the head. The trauma would not likely have been caused
by falling off a trampoline or by falling down one time. The other pathologist, Dr.
Blum, opined that Silven sustained three blows to her head. Loss of consciousness
would take several hours to occur because it takes time for the brain to swell and begin
to bleed. Symptoms would include loss of appetite, listlessness, sleepiness, seizure, and
an inability to wake.

¶5 Defendant and Erin were romantically involved. Erin and Silven spent a lot of time
at defendant’s house and Silven was due to start kindergarten in August 2006. At some
point shortly before Silven’s death, she and Erin moved into defendant’s house. Erin
and defendant were methamphetamine (meth) users. Larry Leasman testified that he
stopped by defendant’s house in the early morning hours of September 9, 2006, and
they smoked meth in the garage. While Leasman was there, Erin returned from a trip to
Wal-Mart. He did not recall whether Erin also smoked meth with them, but Erin
testified that she did not. She went into the house to go to bed. She awoke at about 6
a.m. and went to join defendant in the garage. Silven joined them sometime later.
During the day, Erin noticed that Silven seemed sluggish and tired and was very clingy.
She thought Silven might be getting sick. When defendant asked Silven to go into the
house with him and help him make breakfast, Silven cried and said she did not want to
go with defendant. After breakfast, defendant took Silven for a ride on his
-2-
 four-wheeler. Later that day, because Silven had no one to play with, Erin went to the
home of her brother, Erik, and brought his six-year-old son, Brett, back to defendant’s
house to play with Silven. When Erin returned with Brett, Silven was still not feeling
well. There was a trampoline in the yard. Silven would not jump on it with Brett, but
instead sat in a chair and watched him. Erin testified that Silven did not complain of
any headaches, she was not bleeding, and Erin did not notice anything unusual about
her physical appearance.

¶6 Later that evening, Erik arrived to pick up Brett for a birthday party. Silven went
with him to drop Brett off at the party. When Erik and Silven returned to defendant’s
house, Erik commented to Erin that Silven did not seem to have much of an appetite,
which was unusual for her. Erik then left. Sometime later, Erik called Erin and said one
of the tires on his truck fell off while he was on his way to pick up Brett from the party.
Defendant stayed home with Silven while Erin went to pick up Erik. She was gone
about 20 minutes and when she and Erik returned, Silven was in bed. The next
morning, September 10, 2006, Erin got up to use the bathroom and noticed that Silven
was snoring loudly. She did not go into the bedroom to check on Silven. Erin went into
Silven’s room around noon and discovered that Silven was seizing. She would not
wake up. Erin called 911.

¶7 At MDH, a doctor told Erin that Silven had been tied at the ankles, sodomized, and
that she had a punctured bowel and a broken sternum. None of this turned out to be
true. As Silven was being airlifted to St. Francis, defendant and Erin got in the car to
drive to the hospital. Partway there, defendant decided not to go. Erin got out of the car
and went on to the hospital with her parents, who had been following in their own car.
St. Francis personnel told Erin and her parents that defendant was not allowed to be
there.

¶8 Erin testified that she had previously been involved with another man, Andy Yates,
for several years. Yates and Silven had a very close relationship and when Erin started
dating defendant, Silven had difficulty being away from Yates and being with
defendant. However, according to Erin, defendant and Silven got along well.
Defendant was very good to Silven and appeared to love her. He was not angry with her
and never screamed at her or spanked her. Erin also testified that Silven did not like
being uprooted from her former home and that she could sense that Silven was not fond
of defendant.

-3-
¶9 Erin denied causing Silven’s injuries. She did not know how Silven was injured and
did not notice any injuries to her body. Erin testified that she had several interviews
with the police and that she felt they were unfairly targeting defendant and trying to get
her to implicate defendant in Silven’s death. Defendant was being held in the Tazewell
County jail on federal drug charges and Erin visited him many times while he was
there. This was before he was charged with Silven’s murder, which took place more
than a year after Silven died. Erin wrote many letters to him and they had numerous
phone conversations. She maintained her relationship with defendant because she
loved him and did not believe he had caused Silven’s death. When Erin complained to
defendant that the sheriff wanted to interview her yet again and that she did not want to
go, defendant advised her not to talk to the sheriff and to change her cell phone number.

¶ 10 Erik Yocum testified that the night he was at defendant’s house, Silven did not want
to stay there and she begged and cried to be allowed to go home with Erik. When he got
to the house the next day after Erin had called 911, defendant was on the front porch
brushing his teeth. Erin was in Silven’s bedroom and appeared upset. Defendant
appeared concerned, but not upset.

¶ 11 Two of the paramedics who responded to Erin’s 911 call testified. Silven was
having convulsions when they arrived. Her upper extremities were shaking
uncontrollably, her eyes were open and fixed to the right, and there was nystagmus
(uncontrolled shaking of the eyeballs). She did not respond to any stimuli. She also had
dried blood around her nose and mouth. One of the paramedics, Aaron Wilson, testified
that he did not see defendant in the room while he was there, but he acknowledged that
defendant could have come in without Wilson seeing him. Wilson also testified that
when he was kneeling over Silven, he saw defendant pacing in the kitchen, saying,
“Oh, shit; oh damn; and goddamn.” Another paramedic, Heather Connor, stayed with
Silven at MDH until she was airlifted to St. Francis. Erin was upset and in a state of
shock. She stayed with Silven in the trauma bay, rubbing her hand and stroking her
head. Defendant was also there but he kept his back turned to Silven and did not
approach her.

¶ 12 Michael Skelton, a friend of defendant’s, testified that on the morning of Monday,
September 11, 2006, he was working at his job for the City of Macomb when he saw
defendant walking near the building in which the sheriff’s office is located. When he
stopped to talk, defendant said he needed to talk to “them about some shit.” Defendant
did not say who “them” was, but Skelton assumed he meant the sheriff’s office.
Defendant asked Skelton how to get into the building and Skelton drove defendant
-4-
 around to the front of the building and dropped him off. Skelton did not see whether
defendant went inside.

¶ 13 Defendant’s cousin, Matthew Hocker, testified that on the night of September 10,
2006, defendant came to his residence, crying and shaking. Defendant told Hocker
what happened to Silven and said he was concerned about not being allowed to go to
the hospital. Hocker testified that defendant wondered aloud if he should be worried
about the police contacting him. Defendant said something about a trampoline. Hocker
had seen defendant around Silven and never noticed any problems.

¶ 14 Jill Kepple was a friend of defendant. She testified that defendant came to her house
the evening of September 10, 2006. He was nervous and upset and was pacing. He
asked Kepple if she thought someone would call the police regarding what happened to
Silven. He told Kepple that he did not know what could have happened to Silven.

¶ 15 Two jailhouse informants testified for the State. Joseph Burgess shared a cell with
defendant at the Tazewell County jail between April 2007 and July 2007. Burgess was
facing multiple charges, including aggravated arson, residential burglary, arson, and
burglary. He and defendant became friends. At the time of defendant’s trial, Burgess
was serving an eight-year prison sentence for aggravated arson. Burgess testified that
he and defendant sometimes made jailhouse alcohol. Toward the end of their jail time
together, Burgess and defendant were drinking alcohol and talking about birthdays.
Defendant mentioned that it would be Silven’s birthday were she alive. When Burgess
asked defendant what happened, defendant became emotional and started pacing. He
told Burgess that Silven had walked in on him while he was smoking meth and said that
if he did not stop, she would tell on him. Defendant said he slapped Silven, went
berserk, and killed her. Defendant said he had been up for two weeks on meth and he
thought his condition might have caused his reaction. Some weeks later, when
defendant and Burgess were in the dayroom, defendant told the other inmates there that
Silven died as the result of hitting her head on a trampoline. As he said this, defendant
winked at Burgess. While Burgess was disturbed by what defendant had told him, he
did not immediately go to the authorities. Eventually, Burgess decided to report what
defendant had said, believing it was the right thing to do. Although Burgess talked to
his attorney before going to the authorities, he did not do so with the intention of
getting any benefit on a potential sentence. Burgess acknowledged, however, that
before he spoke to the authorities, he had received a plea offer of 22 years in prison and
that after he gave a statement, he received an eight-year sentence instead.

-5-
¶ 16 Another jailhouse informant, Jeffrey Ahlers, testified that he and defendant were in
the same unit of the jail from around August 15, 2007, to mid-October 2007. They
became acquainted through Alcoholics Anonymous (AA) meetings. During the
meetings, the inmates would discuss religion and how they had hurt their families with
their alcohol and substance abuse. Ahlers and defendant talked about “tweaking,”
which means being awake for an extended period of time while using meth. During
such periods, according to Ahlers, a person might become paranoid and do things they
would not ordinarily do. Defendant said he had “tweaked” many times while using
meth. After one AA meeting, defendant and Ahlers were talking about religion and
how someone who had killed another person would not go to heaven. Defendant broke
down and began sobbing. He told Ahlers that shortly before Silven was hospitalized, he
had been afraid that Silven had either said something or was going to say something
about defendant’s drug use to a Drug Abuse Resistance Education (D.A.R.E.) officer at
her school. The day Silven was injured, defendant had been tweaking and had not slept
in a long time. Silven said something that irked him and he lost control and hit Silven in
the head. Ahlers testified that defendant said he slapped, punched, hit, and pushed her a
few times. Defendant said he realized that he had hurt Silven badly and that his actions
had resulted in her death. Defendant said that Erin was in the corner of the room when
this happened and was “freaking out.”

¶ 17 Ahlers did not immediately inform the authorities about what defendant had told
him. He acknowledged that, in October 2007, the sheriff transported him from the
Tazewell County jail to the McDonough County jail, that the sheriff asked Ahlers if he
knew anything about defendant’s case and that Ahlers said he did not. Shortly before
Christmas, Ahlers started thinking about the fact that Silven would never have another
Christmas and about Silven’s family not knowing who was responsible for her injuries.
Ahlers went to the authorities and was interviewed by the sheriff on December 26,
2007. Ahlers denied asking for any consideration on his charges or possible sentences
in return for his statement about defendant’s case. Ahlers admitted that he made his
statement a few days after another inmate, Nathan Wallick, had come into Ahlers’ unit.
Wallick had been interviewed by the sheriff about defendant’s case. Ahlers denied
talking to Wallick or another inmate named Nathan Ralph about defendant. He testified
that he was not aware that the men said Ahlers had spoken with them about defendant’s
case. Ahlers acknowledged an extensive criminal history that included several crimes
involving dishonesty. He admitted being imprisoned five times for crimes of
dishonesty. His convictions included forgery, deceptive practices, and retail theft
committed in several different Illinois counties.

-6-
¶ 18 A portion of defendant’s testimony from his first trial was read to the jury.
Defendant testified that he smoked meth numerous times during the week prior to
Silven’s injury. He stayed up much of the time. The day before Silven was found
seizing in her bed, she had complained of some headaches. He and Erin attributed this
to Silven’s new glasses. She did not seem as active as usual and was clinging to Erin.
Defendant took her for a ride on his four-wheeler. Later, Erin put Silven in bed to rest,
as she was not feeling well. Erin left to pick up her nephew, Brett. While she was gone,
defendant finished what he was doing in the garage and went into the house to take a
shower. Silven was lying on her bed with her eyes closed. After Erin returned with
Brett, Silven jumped on the trampoline for a little while, but got off saying she wanted
to watch Brett jump. Neither defendant nor Erin smoked meth that day. Defendant’s
testimony was consistent with Erin’s with regard to the events surrounding the
breakdown of Erik’s truck. Later that evening, defendant went to Erin’s house to get
her diabetes medicine. He stopped to get them something to eat. When he returned,
Erin was sleeping on the couch and Silven was asleep in her bed. The next day, Erin
woke him about 1 p.m. and stated that Erik was going to pick up some food for lunch.
Defendant went into Silven’s room. Silven was wheezing and her eyes did not look
right. Defendant called for Erin. They tried unsuccessfully to wake Silven up. Erik
arrived with Brett and defendant went outside to meet them. He told Erik that
something was wrong and to go inside the house. Defendant stayed outside with Brett.
Once the paramedics arrived, defendant showed them to Silven’s room, but he stayed
outside with Brett because Brett was confused and there were several people in
Silven’s room. At MDH, defendant learned about the nature of Silven’s injuries. He did
not remember turning his back on Silven in the emergency room. He did not remember
much about being at MDH at all. On the way to St. Francis, Erin told defendant that the
police had told her at MDH that they knew defendant had injured Silven and they
questioned her about what happened. She also told him that one of the doctors had said
Silven had been tied at the ankles and sodomized, and that every bone in her body was
broken. Defendant became upset and decided not to go to St. Francis. Defendant pulled
the car over to the side of the road and let Erin out of the car to continue on to the
hospital with her parents.

¶ 19 After defendant got home, he received a call from Erin’s mother telling him not to
come to St. Francis. He went to the home of his friends, Scott Kepple and Jill
Goodpasture (now Kepple), and asked them if they would try to find out why he was
not wanted at the hospital. Defendant testified that he might have asked Kepple and
Goodpasture whether they thought someone was going to call the police. His reason for

-7-
 asking this was the phone conversation with Erin’s mother and his feeling that she was
implying that he had something to do with Silven’s injuries. Defendant admitted going
to Matt Hocker’s house. He testified that he may have made a statement while there
about whether he had to worry about the police knocking on his door. However, he did
not remember making that statement. After Silven died, defendant felt he was being
harassed by the police. He was constantly being pulled over in his car. One officer
offered to talk to him about his meth use. Eventually, he called the officer and told him
about his meth problem. After he did, defendant was charged with a federal drug
offense and jailed. He ultimately received a sentence of 44 months in federal prison.

¶ 20 Defendant testified about the jailhouse informants, Burgess and Ahlers. He
admitted becoming acquainted with Ahlers through AA, but he denied telling Ahlers
that he had struck Silven or had gone berserk and killed Silven. Defendant also denied
telling Ahlers that he believed Silven was going to talk to a D.A.R.E. officer about his
meth use. In fact, defendant never spoke to Ahlers about Silven or his family.
Defendant did not think Silven knew what drugs were and she never told him she was
going to talk to a D.A.R.E. officer. Defendant denied that he and Burgess ever made
jailhouse alcohol. Burgess was accumulating items to make the alcohol, but the cells
were searched on a daily basis and the items were confiscated. Both defendant and
Burgess were disciplined for that. He and Burgess did become friends and defendant
would occasionally talk to Burgess about Erin and Silven. He acknowledged telling
Burgess about Silven’s birthday when Erin sent him a picture of Silven sitting on his
front porch with a birthday cake. However, defendant denied telling Burgess that he
had struck Silven. Defendant also testified that he never joked about Silven’s death or
said she had fallen off a trampoline.

¶ 21 Defendant testified that his attorney in his federal case told him not to talk to
anyone at the jail about the federal case or any other possible charges because of the
presence of jailhouse informants who would give false testimony to obtain a break on
their charges or sentencing. Defendant stated that he followed this advice and did not
talk to anyone about his legal troubles.

¶ 22 Defendant denied that he caused Silven’s injuries. He, Erin, and Erik were the only
people who were around Silven during the time when she would have sustained her
injuries. Defendant stated that neither Erik nor Erin struck Silven during that time.
Defendant admitted he told Erin not to talk to the police anymore and that he advised
her to change her cell phone number. He did this because Erin was complaining that the
police were harassing her.
-8-
¶ 23 The defense presented an affidavit from Burgess’s attorney concerning leniency
Burgess received on his Tazewell County charges. He was tried on an aggravated arson
charge by stipulated bench trial. No agreement was made as to sentencing, but at the
request of Burgess’s attorney, the McDonough County State’s Attorney wrote a letter
to the judge concerning Burgess’s cooperation on defendant’s case. Burgess was
initially sentenced to 12 years in prison, but that sentence was reduced to 8 years on
reconsideration.

¶ 24 Mark Godar, a correctional officer at the Tazewell County jail, testified that cell
inspections were done every day. Once a week there is a “shakedown” which involves
searching each cell for any kind of contraband. In a search of Joseph Burgess’s cell in
August 2007, officers recovered several bottles of juice, bread wrapped in a sock, a
bottle that had contained a cleaning solution, sugar, and candy.

¶ 25 Another correctional officer, Richard Johnston, testified to a disciplinary hearing in
which Burgess stated that he intended to use the materials to make “hootch,” which is a
kind of alcohol. Johnston testified that to his knowledge, no one had successfully made
“hootch” in the jail.

¶ 26 Candice Simmons, Erin’s cousin, testified that about a year before Silven died, she
heard Erin say that if Silven ever told anyone about Erin’s drug use, she would
“f***ing kill her.” Simmons did not actually believe that Erin would kill Silven.

¶ 27 McDonough County Sheriff Rick VanBrooker testified that early on in his
investigation, he made up his mind that defendant had killed Silven. When he
interviewed Erin, however, he claimed to be searching for the truth. The “theme” of the
interviews was that defendant had killed Silven in a meth-induced rage. Despite using
several interrogation tactics, Erin never told VanBrooker that defendant injured Silven.
In October 2007, while transporting Ahlers to the McDonough County jail,
VanBrooker asked Ahlers whether he knew anything about Silven’s death. Ahlers said
he did not. However, this changed in December 2007 when Ahlers asked to speak to
someone about Silven’s death. VanBrooker interviewed Ahlers. He denied coaching
Ahlers to give a certain version of events. VanBrooker did not follow up on any
inconsistencies in Ahlers’ statement nor did he confront Erin with the information that
defendant had said she was in the room when he attacked Silven.

¶ 28 McDonough County State’s Attorney, James Doyle, testified that he did not offer
Burgess a deal on his McDonough County charges. Burgess did not ask for anything in
return for giving his statement.
-9-
¶ 29 Deputy Sheriff John Carson testified that he was the crime scene investigator in
Silven’s case. He went to MDH and spoke with two doctors. They told him that Silven
had traumatic head injuries and other suspicious bruising indicative of abuse. There
was an injury on her back with a pattern to it as though it had been caused by a shoe.
Carson conducted two searches of defendant’s residence in September 2006 with his
consent. Carson took photographs of several pairs of shoes, but none of them seemed to
match the pattern on Silven’s back. No fingerprints were taken and no evidence was
sent to the crime lab for DNA testing. Carson did not examine defendant’s hands to see
if they were injured.

¶ 30 Tessa Pfafman and Gretchen Weiss testified for the defense. Silven and Pfafman’s
daughter were friends. Silven spent a night at Pfafman’s house in June 2006. The next
day, Silven did not want to leave, so Pfafman allowed her to stay an additional night.
Erin did not show up the following day to pick up Silven and she did not call. Silven
ended up staying two additional nights. Pfafman’s friend, Gretchen Weiss, picked
Silven up and took her to the pool with her own children.

¶ 31 Weiss testified that while they were at the pool, Silven started to cry. Weiss noticed
that Erin had arrived to pick Silven up. Weiss thought Silven’s reaction was strange,
given that she had not seen her mother for three days. Erin seemed agitated and upset
and she spoke harshly to Silven. After Weiss learned that Silven had died, she reported
the incident to police.

¶ 32 Jami Hocker testified that she was a friend of Erin’s. On Saturday, September 9,
2006, Erin called her to ask if Silven could play with Hocker’s children at Hocker’s
house. Hocker testified that Erin seemed agitated and upset when Hocker told her she
was unable to have Silven over to her house. Hocker also testified that Erin was a good
mother.

¶ 33 Chris Butcher, school resource officer at Silven’s school, testified that one of his
responsibilities was teaching the D.A.R.E. program to the fifth grade. He did not teach
the D.A.R.E. program to kindergarten students, but he did not recall whether he had
gone into the kindergarten classroom at the beginning of the school year in 2006.
Butcher testified that he wore his uniform while at the school and that he would attempt
to visit all the classrooms in the school.

¶ 34 Forensic pathologist, John Ralstan, testified for the defense. He reviewed Silven’s
autopsy report and other materials. He agreed that Silven died from multiple blunt
force trauma to her head that was inflicted within 12 to 24 hours prior to the onset of
- 10 -
 symptoms. The blows were severe and caused deep tissue damage to her brain. The
injuries were round or oval in shape and could have been caused by a medium-sized
cylindrical object. Either a man or a woman could have inflicted the injuries. Ralstan
found it doubtful that a hand or knuckles caused the injuries due to the separate nature
and size of the injuries.

¶ 35 The jury convicted defendant of first degree murder. The trial court sentenced him
to 24 years’ imprisonment. Defendant filed a posttrial motion in which his principal
argument was that the evidence was insufficient to convict him. He did not raise any
issue regarding the trial court’s Rule 431(b) admonitions nor did he raise any argument
concerning alleged improper comments by the prosecutor during opening statements
and closing arguments.

¶ 36 Defendant appealed. He argued that (1) the evidence was insufficient to convict
him; (2) the trial court erred in failing to ask potential jurors whether they understood
the principles set forth in Rule 431(b) and the evidence was closely balanced; and (3)
the prosecutor made improper comments during opening statements and closing
arguments. The appellate court rejected defendant’s argument that the evidence was
insufficient to convict him. The court found that the trial court committed error in
failing to ask prospective jurors whether they understood the Rule 431(b) principles.
The court conducted plain error review under the first prong of the plain error doctrine
and determined that the evidence was closely balanced. The court explained its
reasoning:

“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. [Citation.] 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.” 2013 IL App (3d) 110833, ¶ 91.

¶ 37 The appellate court rejected the State’s argument that there is a de minimis
exception to the closely balanced prong of the plain error doctrine, stating that a

- 11 -
 defendant is not required to show any additional prejudice beyond showing that the
evidence was closely balanced. Because it reversed defendant’s conviction and
remanded for a new trial, the appellate court did not address defendant’s argument
concerning the prosecutor’s alleged improper comments during opening statements
and closing arguments.

¶ 38 ANALYSIS

¶ 39 The State raises the following issues in this appeal: (1) whether the appellate court
failed to properly apply the closely balanced evidence prong of the plain error rule by
looking only at a portion of the State’s evidence in isolation, rather than reviewing all
the evidence in context; and (2) whether, even if the evidence is closely balanced,
reversal is not required unless the error alone likely tipped the scales of justice against
defendant. Defendant has cross-appealed, arguing that (1) the evidence was insufficient
to convict him of first degree murder; and (2) the prosecutor committed reversible error
by comments made during his opening statement and closing argument.

¶ 40 State’s Appeal

¶ 41 We first address whether the trial court committed error in failing to ask
prospective jurors whether they understood the principles set forth in Rule 431(b). This
is a question we review de novo. People v. Wilmington, 2013 IL 112938, ¶ 26. At the
time of defendant’s second trial, the rule provided:

“(b) 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 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.”
(Emphasis added.) Ill. S. Ct. R. 431(b) (eff. May 1, 2007).
- 12 -
¶ 42 The voir dire in this case was conducted in panels of six prospective jurors.
Following questioning of the first panel, the trial court stated:

“I’m going to ask some questions of you as a group and if you have an
answer other than what’s obvious, raise your hand.

The defendant in this case is presumed to be innocent. That principle is one
that is essential to our system of justice. Do you all agree with the principle that
a person charged with a criminal offense is presumed to be innocent? If there’s
anyone who doesn’t agree with that please [raise] your hand.

The record should reflect there are no hands raised.

The State has the burden of proof and they have to prove the defendant’s
guilt beyond a reasonable doubt and that burden stay[s] with the State
throughout the trial. Do you all accept the principle that the State has the burden
of proving a defendant’s guilt beyond a reasonable doubt? Again, if there’s
anyone who can’t accept that principle please raise your hand.

The defendant is not required to present any testimony, not required to
present any evidence. He is presumed to be innocent. You are not allowed to
draw any inference from the fact the defendant chooses to remain silent and not
to draw an inference if he chooses not to present any testimony or evidence. Is
there anyone who has any quarrel with that principle of law? Again, raise your
hand.

The record should reflect there are no hands raised at this time.

Part of that principle is the defendant’s not required to prove his innocence.
Is there anyone who doesn’t agree with that principle? Again, raise your hand.

The record should reflect that are no hands raised.”

¶ 43 The trial court followed the same procedure with each of the remaining five panels.
Although the language used varied slightly, the questioning of the first panel on the
Rule 431(b) principles is representative of the questioning of the other panels.

¶ 44 The trial court asked only whether the potential jurors disagreed with, had any
quarrel with, or accepted those principles. In concluding that the trial court failed to
comply with the rule, the appellate court relied upon this court’s recent decision in
People v. Wilmington, 2013 IL 112938. There, the trial court admonished the entire
- 13 -
 group of potential jurors of the Rule 431(b) principles and asked the group as a whole
whether any of them disagreed with any of the principles, but the court did not ask the
jurors whether they understood those principles. Prior to addressing the defendant’s
plain error argument, this court considered whether the trial court’s omission
constituted error. While we noted that it is arguable that the trial court’s asking for
disagreement, and getting none, is equivalent to the jurors’ acceptance of the Rule
431(b) principles, the court’s failure to ask the jurors whether they understood the
principles is error in and of itself. This court also noted that the trial court did not
inquire as to the jurors’ acceptance and understanding of the principle that the
defendant’s failure to testify could not be held against him. Id. ¶¶ 28, 32.

¶ 45 Wilmington cited a prior decision of this court, People v. Thompson, 238 Ill. 2d 598
(2010). That case also involved a failure by the trial court to comply with Rule 431(b).
There, the trial court informed the prospective jurors as a group of some of the Rule
431(b) principles. This court found several violations of the rule by the trial court,
including that the court failed to ask the prospective jurors whether they both
understood and accepted the Rule 431(b) principles. We noted that the language of
Rule 431(b) is clear and unambiguous; the rule states that the trial court “shall ask”
whether jurors understand and accept the four principles set forth in the rule. The
failure to do so constitutes error. Id. at 607.

¶ 46 The State concedes in its brief that the trial court here committed error in failing to
ask the prospective jurors whether they understood the Rule 431(b) principles. We
accept this concession. Based upon Thompson and Wilmington, we conclude that the
trial court committed error when it failed to ask prospective jurors whether they both
understood and accepted the principles set forth in Rule 431(b). Here, the trial court did
not explicitly ask the potential jurors whether they accepted the principles; rather the
court asked if they had any disagreement or quarrel with the principles. As we noted in
Wilmington, it may be arguable that asking jurors whether they disagreed with the Rule
431(b) principles is tantamount to asking them whether they accepted those principles.
However, the trial court’s failure to ask whether the jurors understood the principles
constitutes error alone. Wilmington, 2013 IL 112938, ¶ 32.

¶ 47 Defendant did not object to the trial court’s failure to comply with Rule 431(b), nor
did he include the issue in his posttrial motion. Thus, defendant forfeited the issue on
appeal. See People v. Enoch, 122 Ill. 2d 176, 186 (1988). This court has previously held
that Rule 431(b) errors are not structural errors and therefore not per se reversible
because failure to comply with the rule does not automatically result in a biased jury.
- 14 -
 Thompson, 238 Ill. 2d at 610-11. The appellate court found the evidence closely
balanced. Thus, we review whether the appellate court erred in its plain error analysis.

¶ 48 Forfeited errors are reviewable in two instances: (1) where a clear or obvious error
occurred and the evidence is so closely balanced that the error alone threatened to tip
the scales of justice against the defendant, regardless of the seriousness of the error and
(2) where a clear or obvious error occurred and that error is 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. Piatkowski, 225 Ill. 2d 551, 565
(2007); People v. Herron, 215 Ill. 2d 167, 186-87 (2005).

¶ 49 The State argues that the appellate court misapplied the closely balanced evidence
prong of the plain error test by looking only at a portion of the State’s trial evidence in
isolation and deeming it less than conclusive. The State argues that the appellate court
explicitly refused to perform a qualitative analysis of all of the evidence in context. The
State further argues that this court’s precedents have recognized that plain error review
under the closely balanced prong requires a commonsense, contextual analysis of the
totality of the evidence. Defendant agrees that a commonsense, contextual analysis is
required by this court’s precedents, but disagrees that the appellate court failed to
undertake such an analysis. The State further argues that the evidence is not closely
balanced in this case, but that even if it is, reversal is not appropriate unless the Rule
431(b) error likely had some impact on the jury’s verdict.

¶ 50 The parties are correct that a reviewing court must undertake a commonsense
analysis of all the evidence in context when reviewing a claim under the first prong of
the plain error doctrine.

¶ 51 People v. Adams, 2012 IL 111168, is an example of this court’s application of a
contextual analysis of the evidence under a claim of plain error. The defendant argued
that the prosecutor committed reversible error in comments made during closing
argument. Adams involved a traffic stop. Officer Boers arrested the defendant for
driving on a suspended license. Boers testified that during a search incident to the
arrest, he found a small plastic sandwich bag containing a white powdery substance in
the defendant’s left front pocket. A field test indicated the presence of cocaine. The
defendant testified that the plastic bag was lying on the ground and was not in his
pocket. He claimed he had never seen it before. He described it as a flat piece of paper
with something white on it. The first time he saw it was when Boers pointed to it with
his foot and asked the defendant about it. The defendant testified that after he was

- 15 -
 placed in the backseat of the police car, Boers asked him whether he knew any drug
dealers or had any information on guns or killing, and threatened him with prison if he
did not provide the requested information. In rebuttal, a second officer, Schumacher,
who was at the scene corroborated Boers’ testimony, stating that he saw Boers pull the
plastic bag from the defendant’s pocket and that Boers did not drop or retrieve anything
from the ground. Id. ¶¶ 7-12.

¶ 52 This court noted that in making a determination of whether the evidence is closely
balanced, a reviewing court must make a commonsense assessment of the evidence
within the context of the circumstances of the individual case. We concluded that the
prosecutor’s comments constituted error, but that the evidence was not closely
balanced. Whereas the appellate court had found the evidence closely balanced due to
the conflicting testimony of the defendant and the two police officers, this court
characterized the evidence as follows:

“In this case, defendant testified that he was already out of his car when the
police arrived but that he did not see any of the officers place anything on the
ground. In addition, in explaining why the cocaine could not have been
recovered from him, defendant stated that it could not ‘have been in anyone’s
pocket’ because it was lying on a flat piece of paper or plastic that ‘did not look
like a bag.’ Thus, the jury heard from defendant the following version of events:
A piece of paper or plastic with cocaine on it was sitting in a parking lot.
Although unsecured in any way, the cocaine powder had not been disturbed by
wind, weather or traffic. By coincidence, defendant parked his car next to the
cocaine. In a further coincidence, after defendant was approached by the police,
he was escorted to and searched in a spot only inches from the cocaine. Then,
when Boers discovered the cocaine on the ground, he conspired on the spot to
attribute the drugs to defendant in an apparent attempt to pressure defendant to
provide information about other crimes, though there was no indication that the
police had ever met defendant or would have reason to believe that he
possessed such information. We think it clear from the foregoing that
defendant’s explanation of events, though not logically impossible, was highly
improbable.” Id. ¶ 22.

¶ 53 In People v. White, 2011 IL 109689, in evaluating whether the evidence was
closely balanced, this court noted the potential for bias or lack thereof by the witnesses,
and the element that fear of the defendant played in the testimony of some of the
witnesses. We noted that the State’s identification witnesses were completely
- 16 -
 independent of each other and that it would have been an unlikely coincidence that they
all misidentified defendant. On the other hand, many of defendant’s witnesses were his
friends or family. After performing a qualitative, as opposed to a strictly quantitative,
commonsense assessment of the evidence, this court found the evidence not closely
balanced. Id. ¶¶ 135-39.

¶ 54 The parties here disagree as to whether the appellate court properly determined that
the evidence was closely balanced. The appellate court extensively reviewed the
evidence adduced at defendant’s second trial. Ultimately, the court determined that the
testimony of the two jailhouse informants must be viewed with caution, that no
physical evidence directly linked defendant to Silven’s injuries, that there were no
eyewitnesses who saw defendant commit the crime, and that defendant’s words and
actions in the days following the child’s hospitalization were not unequivocally
indicative of a guilty conscience, but could be subject to an innocent explanation as
well.

¶ 55 We note that, while it is true that the testimony of jailhouse informants must be
viewed with caution, the credibility of a government informant, as with any other
witness, is a question for the jury. People v. Manning, 182 Ill. 2d 193, 210 (1998).
Thus, the testimony of jailhouse informants is not to be viewed as inherently
unbelievable.

¶ 56 We disagree with the appellate court and find that the evidence in this case was not
closely balanced. While there were no eyewitnesses to the crime, other evidence
pointed to defendant as the perpetrator and excluded any reasonable possibility that
anyone else inflicted Silven’s injuries. The evidence showed that only three people
were around Silven during the relevant period prior to her seizures: defendant, Erin,
and Erik. Defendant conceded in his testimony from the first trial that neither Erin nor
Erik had caused Silven’s injuries. Defendant was alone with Silven for short periods of
time in the 24 hours prior to her hospitalization. He was smoking meth during this
period and stayed up for days at a time. Circumstantial evidence of defendant’s words
and actions following the discovery of Silven’s injuries was presented. One of the
paramedics testified that as he was treating Silven, he observed defendant pacing back
and forth in the kitchen and saying “Oh, shit; oh damn; and goddamn.” Defendant
seemed to avoid Silven at the house and in the emergency room at MDH. He decided
not to go with Erin to St. Francis, instead returning home. On the night Silven was
taken to the hospital, defendant went to the residence of his cousin, Matthew Hocker,
and was crying and shaking. He expressed concerns about not being allowed to go to
- 17 -
 the hospital and wondered aloud if he should be worried about the police contacting
him. He expressed the same concerns to Jill Kepple that same evening. Defendant
appeared to be nervous and upset. On the morning after Silven was taken to St. Francis,
a friend, Michael Skelton, saw defendant walking near the building housing the
sheriff’s office. Defendant told Skelton that he needed to talk to “them about some
shit.” Skelton took defendant to the front of the building after he asked how to get
inside. Given defendant’s concerns expressed to Kepple and Hocker the prior evening
about the police contacting him, the most reasonable inference is that “them” referred
to the sheriff’s office.

¶ 57 Added to the circumstantial evidence is the testimony of Burgess and Ahlers,
recounted above. Their testimony must be viewed with caution given that such
informants often expect to and do receive consideration on their own charges and
sentencing in return for their testimony, thus providing an incentive to testify falsely.
We acknowledge that Ahlers, in particular, had been convicted several times of crimes
of dishonesty. Ahlers’ criminal history, as well as that of Burgess, is only one factor to
be weighed in determining their credibility.

¶ 58 Burgess testified that when he asked defendant what happened to Silven, defendant
said Silven had walked in on him while he was using meth and said she would tell on
him if he did not stop. According to Burgess, defendant said he had not slept for about
two weeks while on meth and that he went into a rage and killed Silven. In his own
testimony from the first trial, defendant admitted to smoking meth numerous times
during the week prior to Silven’s death and staying awake for much of that time.
Burgess also testified that when defendant spoke to others at the jail about what
happened to Silven, he told them Silven had hit her head on a trampoline and then
defendant winked at Burgess. The testimony of Burgess and Ahlers was consistent in
that they both testified that defendant told them he had been using meth that weekend,
that he had not slept, and that he killed Silven after she either said something that
irritated him, or told him that she would tell the D.A.R.E. officer at her school that
defendant was on drugs. Burgess and Ahlers were not in the Tazewell County jail at the
same time. There is no evidence that they communicated about defendant. This lends
further credence to their testimony. While defense counsel tried to suggest that Ahlers
had spoken about defendant’s case with two other inmates, Ahlers denied this.

¶ 59 Defendant testified that due to his meth use, he had not slept during the weekend
prior to Silven’s hospitalization. This is consistent with Ahlers’ testimony that
defendant told him he had been tweaking the weekend Silven was injured. Ahlers
- 18 -
 testified that a person who was tweaking might become paranoid and behave in an
uncharacteristic manner.

¶ 60 There were only three people who could have inflicted Silven’s injuries. There is
no suggestion that Erik was the perpetrator. Defendant attempted to portray Erin as a
bad mother, but this evidence was contradicted by the testimony of defendant’s own
witnesses. While there was testimony that Erin left Silven in the care of Pfafman for
longer than she should have and that she became irritated with Silven when she picked
her up, one of defendant’s witnesses, Jami Hocker, testified that Erin was a good
mother. Further, while Candice Simmons testified that Erin said that if Silven ever told
anyone about Erin’s drug use, she would kill her, Simmons said that she did not believe
Erin was serious.

¶ 61 Although defendant denied that Silven told him she had told or would tell the
D.A.R.E. officer about his drug use and he presented testimony from the D.A.R.E.
officer that he did not teach the D.A.R.E. program to Silven’s class, the officer also
testified that he wore his uniform at the school and he tried to visit all the classrooms in
the school. The jury could have inferred from this that Silven was aware of the presence
of the D.A.R.E. officer at her school.

¶ 62 Viewing the evidence in a commonsense manner in the context of the totality of the
circumstances, we conclude that the evidence in this case was not closely balanced.
Thus, the appellate court erred in reversing defendant’s conviction and remanding for a
new trial. Because we find that the evidence was not closely balanced, we need not
address the State’s argument that a further showing that the error itself likely had some
impact on the jury’s verdict must be made in first-prong plain error cases.

¶ 63 Cross-Appeal

¶ 64 Defendant argues that the prosecutor committed reversible error by improperly
attempting to evoke sympathy for Silven in his opening statement and closing
argument. Defendant complains of the following in the prosecutor’s opening
statement:

“Friday, September 8th, 2006, was the last healthy and the last happy day in
the life of five year old Silven Yocum. Kindergarten student. Her whole future
lay ahead of her; promised to be a bright and productive one. This is how she
looked when she was ready to go to school on her first day of kindergarten,
- 19 -
 August 21st, 2006; little back pack, her favorite little red dress. Her smile as
she’s [waving] to her mom. That’s the way I want you to remember Silven.”

¶ 65 Defendant also complains of the following remarks made by the prosecutor in his
closing argument:

“Silven Yocum was wise beyond her years. In her brief time on this earth
she was eager to begin her journey into her quest for learning. Loved school,
just starting out. She was only known by the teachers at Lincoln school for two
weeks. They only knew her for two weeks, yet they remember her as a special
little girl, even remember her ability in art and that her favorite color was
purple.

Silven Yocum, she deserved a lot more tomorrows than yesterdays. It’s
your time to be the voice of Silven just like Burgess said he couldn’t be but
would come forward. She’s speaking out from these autopsy photos. She’s
talking to you. She doesn’t have a voice any more but you can be the voice for
her.

Do this justice for Silven Yocum and for yourselves because you’ve been
chosen to decide this very important issue of why Silven today is not in the fifth
grade.”

¶ 66 Defendant acknowledges that he did not object to these remarks nor did he include
the issue of the alleged improper comments in his posttrial motion. To preserve an
alleged error for review, a defendant must both make an objection at trial and include
the issue in a posttrial motion. Enoch, 122 Ill. 2d at 186. Therefore, defendant has
forfeited this issue for review. Defendant asks this court to review his argument under
the first prong of the plain error doctrine, asserting that the evidence at his trial was
closely balanced. We have previously concluded that the evidence in this case was not
in fact closely balanced. Accordingly, there is no need for us to determine whether the
prosecutor’s comments constituted error.

¶ 67 Defendant next argues that the State failed to prove him guilty of Silven’s murder
beyond a reasonable doubt. When reviewing a challenge to the sufficiency of the
evidence, this court considers whether, viewing the evidence in the light most
favorable to the State, “ ‘any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’ ” (Emphasis omitted.) People v.
Collins, 106 Ill. 2d 237, 261 (1985) (quoting Jackson v. Virginia, 443 U.S. 307, 319

- 20 -
 (1979)); see also People v. Smith, 185 Ill. 2d 532, 541 (1999). A conviction will be
reversed only where the evidence is so unreasonable, improbable, or unsatisfactory that
it justifies a reasonable doubt of the defendant’s guilt. Id. at 542.

¶ 68 The appellate court determined that the evidence was sufficient to convict
defendant beyond a reasonable doubt. We agree. There is no dispute that Silven
suffered blunt force trauma that caused brain damage resulting in her death. Only
defendant, Erin, and Erik were around her during the time when she sustained her
injuries. There is no dispute that Erik did not cause the injuries. Although defendant
presented some evidence purporting to show the possibility that Erin may have
inflicted the injuries, when defendant testified and was asked whether Erik or Erin
struck Silven, he answered that they did not. Defendant, on the other hand, testified that
he was a meth user, that he used meth the weekend of Silven’s injuries and that using
meth helped him stay awake. Ahlers testified that defendant told him he was
“tweaking” that weekend and that when Silven said something that irritated him, he
lost control, struck her, and killed her. Burgess testified that defendant broke down and
said that when Silven told him she would tell on him for his drug use, he went into a
meth-induced rage and struck her. As the appellate court noted, although Ahlers and
Burgess were jailhouse informants, they were not in the Tazewell County jail at the
same time. Although their testimony must be viewed with caution, they testified
similarly concerning what defendant told them about losing control while on meth and
killing Silven. It was for the jury to determine whether they were credible witnesses. In
addition, the State presented circumstantial evidence tending to show that defendant
behaved in a manner indicative of guilt. He decided not to go to St. Francis, he asked
two people if they thought the police might come to question him, and he was found
walking near the sheriff’s office and saying that he had to talk to “them.” Defendant
also advised Erin to avoid questioning by the sheriff and to change her cell phone
number. Viewed in the light most favorable to the prosecution, we conclude the
evidence was sufficient to convict defendant.

¶ 69 CONCLUSION

¶ 70 We hold that the trial court committed error in failing to comply with Rule 431(b)
by not asking the prospective jurors whether they understood the four principles set
forth in the rule. We also hold that the evidence in this case was not closely balanced
and, thus, plain error review is unwarranted. We further hold that the evidence was

- 21 -
 sufficient to convict defendant. Accordingly, we reverse the judgment of the appellate
court.

¶ 71 Appellate court judgment reversed.

¶ 72 JUSTICE BURKE, specially concurring:

¶ 73 I agree with the majority that the judgment of the appellate court must be reversed.
However, my reasons for reaching that result differ from the majority’s. I therefore
specially concur.

¶ 74 I

¶ 75 Following a jury trial, the defendant, Daniel R. Belknap, was convicted of the first
degree murder of the five-year-old victim and sentenced to 24 years’ imprisonment. On
appeal, defendant argued, in part, that his conviction should be reversed because the
circuit court failed to comply with Supreme Court Rule 431(b) (Ill. S. Ct. R. 431(b)
(eff. May 1, 2007)). This rule requires the circuit court to ask each prospective juror if
he “understands and accepts” that the defendant is presumed innocent, that the State
has the burden of proof and must prove the defendant guilty beyond a reasonable doubt,
and that the defendant’s right not to testify may not be held against him. The circuit
court in this case asked the prospective jurors if they agreed with and accepted the Rule
431(b) principles, but the court did not separately ask whether they understood them.
This was error under People v. Wilmington, 2013 IL 112938, ¶ 32 (“the trial court’s
failure to ask jurors if they understood the four Rule 431(b) principles is error in and of
itself” (emphasis in original)).

¶ 76 Defendant did not raise the Rule 431(b) error in the circuit court. However, the
appellate court concluded it could reach the merits of defendant’s contention under the
first prong of the plain error rule because the evidence presented at trial was closely
balanced. On this basis, the appellate court reversed defendant’s conviction and
remanded the matter for a new trial. 2013 IL App (3d) 110833.

- 22 -
¶ 77 II

¶ 78 The plain error doctrine allows errors not raised in the circuit court to be considered
on appeal when either: “(1) a clear or obvious error occurred and the evidence is 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 that error is 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. Piatkowski, 225 Ill. 2d 551, 565 (2007). In this case, the appellate
court applied the first prong of the plain error doctrine. The State contends that it did so
incorrectly.

¶ 79 According to the State, the appellate court simply concluded that the evidence in
this case was closely balanced, concluded that there was error and then, mechanically,
concluded there was plain error. The State maintains that the appellate court should
have examined the totality of the evidence in a “qualitative” way to determine whether
the “evidence was so closely balanced that the error alone severely threatened to tip the
scales of justice against him.” People v. Herron, 215 Ill. 2d 167, 186-87 (2005). The
State asserts that recent decisions from this court, such as People v. Adams, 2012 IL
111168, and People v. White, 2011 IL 109689, have emphasized this “commonsense
assessment” of the evidence in determining whether there is plain error and, under this
type of analysis, defendant’s conviction should be affirmed.

¶ 80 Defendant, in response, does not dispute the State’s characterization of the first
prong of the plain error test, agreeing that a reviewing court should, when determining
whether the evidence is closely balanced, make a commonsense assessment of the
evidence “within the context of the circumstances of the individual case.” Defendant,
however, disputes the State’s application of the test in this case. Defendant maintains
that the appellate court carefully reviewed the evidence, properly concluded that it was
closely balanced and, therefore, properly determined that the Rule 431(b) error was
plain error.

¶ 81 The majority rejects defendant’s argument. The majority examines the evidence
introduced at trial and, in agreement with the State, concludes that it was not closely
balanced. Accordingly, the majority holds that defendant failed to establish that the
Rule 431(b) error met the first prong of plain error analysis and, therefore, reverses the
judgment of the appellate court.

- 23 -
¶ 82 I disagree with both the majority’s and the appellate court’s plain error discussion
because they both assume, without explanation, that the voir dire error at issue in this
case is suitable for the first prong of plain error analysis. This assumption is incorrect.

¶ 83 A criminal defendant has a constitutional right to trial by an impartial jury. People
v. Strain, 194 Ill. 2d 467, 475 (2000). Jurors “must harbor no bias or prejudice which
would prevent them from returning a verdict according to the law and evidence.” Id. at
476. To secure this right, inquiry is permitted during voir dire “ ‘to ascertain whether
the juror has any bias, opinion, or prejudice that would affect or control the fair
determination by him of the issues to be tried.’ ” People v. Lobb, 17 Ill. 2d 287, 300
(1959) (quoting Connors v. United States, 158 U.S. 408, 413 (1895)).

¶ 84 When a defendant alleges that his conviction should be reversed because a question
went unasked during voir dire, the reviewing court must determine whether the
unasked question concerns an area of bias that would prevent the jury from returning a
verdict according to the facts and law, and whether the bias was incapable of being
eliminated by admonitions or instructions given at trial. If these criteria are met, then
the defendant has established that he was deprived of his constitutional right to an
unbiased jury. See, e.g., People v. Stack, 112 Ill. 2d 301, 312-13 (1986) (failure to
allow a question regarding the insanity defense deprived the defendant of the right to an
impartial jury); People v. Oliver, 265 Ill. App. 3d 543, 551 (1994) (same).

¶ 85 Trial before a biased jury is structural error. People v. Thompson, 238 Ill. 2d 598,
610 (2010). Structural errors, because they undermine the integrity of the judicial
process itself, require automatic reversal of a defendant’s conviction, with no
consideration given to the nature or amount of evidence introduced at trial. Id. at 608.
Thus, if a defendant can establish that a question which went unasked during voir dire
was necessary to ensure a fair jury, then the verdict must be reversed, regardless of
whether the evidence at trial was overwhelming, closely balanced or somewhere in
between. The weight of the evidence is simply irrelevant. See id.; see also People v.
Glasper, 234 Ill. 2d 173, 227 (2009) (Burke, J., dissenting, joined by Freeman, J.).

¶ 86 Similarly, the weight of the evidence is also irrelevant if the reviewing court
concludes that the unasked question was not necessary to ensure a fair jury. In that
situation, the defendant would have received exactly what voir dire is meant to
provide—a fair, impartial jury. Accordingly, there could be no basis for reversal, even
if the evidence was closely balanced. Again, the weight of the evidence is irrelevant.

- 24 -
¶ 87 In short, when a defendant contends that his conviction should be reversed because
a question went unasked at voir dire, the weight of the evidence introduced at trial is of
no moment. Either the defendant received a fair and impartial jury or he did not. The
trial evidence has no bearing on that question.

¶ 88 Given the above, it is apparent that the first prong of plain error analysis is unsuited
for the error at issue here. By definition, the first prong of plain error is concerned with
whether the evidence introduced at trial is closely balanced and, if so, whether reversal
is warranted in light of that fact. But the weight of evidence has nothing to do with the
quality of voir dire or whether a defendant received an impartial jury. Necessarily then,
the first prong of plain error analysis is inappropriate for determining whether the
failure to ask a question at voir dire amounts to plain error.

¶ 89 III

¶ 90 If plain error occurred in this case, it could only occur under prong two of the plain
error analysis, i.e., the fundamental fairness prong. However, this court rejected the
argument that the failure to ask a Rule 431(b) question amounts to plain error under
prong two in People v. Thompson, 238 Ill. 2d 598 (2010). In that case, this court
concluded that the Rule 431(b) questions, although required as a matter of supreme
court rule, were not necessary to ensure an unbiased jury. Id. If the complete absence of
a Rule 431(b) question does not result in a biased jury and, hence, plain error under
prong two, then the circuit court’s error in this case also cannot amount to plain error.

¶ 91 I dissented in Thompson. Id. at 616-19 (Burke, J., dissenting, joined by Freeman,
J.). I expressed the view in Thompson that the court’s decision was a de facto
overruling, without acknowledgement or justification, of People v. Zehr, which had
held that the questions set forth in Rule 431(b) were “vital to the selection of a fair and
impartial jury.” People v. Zehr, 103 Ill. 2d 472, 477 (1984). I acknowledge, however,
that Thompson is the law. Accordingly, because the error at issue in this case does not
amount to plain error under prong two, I agree with the majority that the judgment of
the appellate court in this case must be reversed.

¶ 92 JUSTICE FREEMAN joins in this special concurrence.

- 25 -