People v. Crow

Filed 8/30/10 NO. 4-09-0369

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Schuyler County
GEORGE H. CROW III, ) No. 08CM74
Defendant-Appellant. )
) Honorable
) Mark A. Schuering,
) Judge Presiding.
_________________________________________________________________

JUSTICE McCULLOUGH delivered the opinion of the court:

A jury found defendant, George H. Crow III, guilty of

domestic battery (720 ILCS 5/12-3.2(a)(1) (West 2008)), and the

trial court sentenced him to 24 months' probation and 180 days in

jail. He appeals, arguing (1) his conviction should be reversed

because the court failed to determine whether jurors understood

or accepted the principles set forth in Supreme Court Rule 431(b)

(Official Reports Advance Sheet No. 8 (April 11, 2007), R.

431(b), eff. May 1, 2007) and (2) he is entitled to a $15 credit

toward his $200 domestic-violence fine. We modify the court's

sentencing order to reflect that defendant is entitled to a $15

credit for his presentence incarceration but otherwise affirm the

court's judgment and remand for issuance of an amended sentencing

judgment.

On September 3, 2008, the State charged defendant with

domestic battery (720 ILCS 5/12-3.2(a)(1) (West 2008)), alleging
he knowingly caused bodily injury to his wife, Jackie Crow, by

grabbing her by the face and scratching her cheek, pulling her

hair, and shoving her head against a wall. Defendant pleaded not

guilty and demanded a jury trial. Also, prior to trial, he

waived his right to counsel and elected to represent himself.

On February 18, 2009, defendant's jury trial began.

During voir dire, the trial court proposed similar questions to

all jurors, questioning one juror by himself and the remainder of

the jurors in groups. It used substantially the same language

during its questioning of all potential jurors, inquiring as

follows:

"Q. Do you understand that a person

charged with a crime is presumed to be inno-

cent of the charge against him; and, sec-

ondly, do you understand the presumption of

innocence stays with the defendant throughout

the trial, and is not overcome unless from

all the evidence in the case you believe the

State has proved his guilt beyond a reason-

able doubt. Do you understand both of those?

***

Q. The next set of questions, do you

understand the State must prove the defendant

guilty beyond a reasonable doubt, and do you

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 understand that the defendant does not have

to prove anything, in other words, he does

not have to prove his innocence?"

Defendant did not object to the court's questioning.

He also elected not to testify on his own behalf. During the

jury-instruction conference, the trial court informed defendant

that he could submit an instruction to inform jurors that they

must not consider the fact that he did not testify when arriving

at a verdict. See Illinois Pattern Jury Instructions, Criminal,

No. 2.04 (4th ed. 2000). He declined to submit such an instruc-

tion. The jury returned a verdict, finding defendant guilty of

the charged offense.

On March 20, 2009, defendant, with the aid of counsel,

filed motions for a judgment notwithstanding the verdict and a

new trial. He raised no issue with respect to the trial court's

questioning of jurors during voir dire. On May 7, 2009, the

court denied defendant's posttrial motions and sentenced him to

24 months' probation and 180 days in jail.

This appeal followed.

On appeal, defendant argues the trial court improperly

failed to comply with the requirements of Rule 431(b). Specifi-

cally, he argues that, during voir dire, the court failed to

admonish or question potential jurors about (1) their understand-

ing and acceptance of the principle that a defendant's failure to

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testify cannot be held against him or (2) their acceptance of the

remaining three Rule 431(b) principles. Defendant asks this

court to reverse his conviction and remand the case for a new

trial.

The supreme court rules are not mere suggestions;

instead, they have the force of law and should be followed.

People v. Glasper, 234 Ill. 2d 173, 189, 917 N.E.2d 401, 411

(2009). Questions involving the trial court's compliance with a

supreme court rule are subject to de novo review. People v.

Yusuf, 399 Ill. App. 3d 817, 820, 928 N.E.2d 143, 146 (2010).

In People v. Zehr, 103 Ill. 2d 472, 477, 469 N.E.2d

1062, 1064 (1984), the supreme court held that "essential to the

qualification of jurors in a criminal case is that they know that

a defendant is presumed innocent, that he is not required to

offer any evidence in his own behalf, that he must be proved

guilty beyond a reasonable doubt, and that his failure to testify

in his own behalf cannot be held against him." Rule 431(b)

ensures compliance with Zehr. Yusuf, 399 Ill. App. 3d at 820,

928 N.E.2d at 147. It requires that the trial court ask specific

questions of potential jurors during voir dire examination,

providing as follows:

"The court shall ask each potential

juror, individually or in a group, whether

that juror understands and accepts the fol-

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 lowing 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 defen-

dant 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." Official Re-

ports Advance Sheet No. 8 (April 11, 2007),

R. 431(b), eff. May 1, 2007.

Here, defendant failed to preserve this issue for

review by neglecting to raise it with the trial court. See

People v. Lovejoy, 235 Ill. 2d 97, 148, 919 N.E.2d 843, 871

(2009) ("To preserve an issue for appellate review, a defendant

must both object at trial and present the issue in a written

posttrial motion"). Nevertheless, the plain-error doctrine may

be applied to excuse his forfeiture. Yusuf, 399 Ill. App. 3d at

820, 928 N.E.2d at 146.

"The plain-error doctrine allows a reviewing

court to remedy a 'clear or obvious error' in

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 two circumstances, regardless of the defen-

dant's forfeiture: (1) where the evidence in

the case is so closely balanced that the

jury's guilty verdict may have resulted from

the error and not the evidence; or (2) where

the error is so serious that the defendant

was denied a substantial right, and thus a

fair trial." People v. McLaurin, 235 Ill. 2d

478, 489, 922 N.E.2d 344, 351 (2009).

The first step in a plain-error analysis is to determine whether

any error occurred at all. Yusuf, 399 Ill. App. 3d at 820, 928

N.E.2d at 146.

Rule 431(b) plainly requires a trial court to question

potential jurors as to their understanding and acceptance of the

four stated principles. In this instance, the trial court asked

each prospective juror about his or her understanding of only the

first three principles. It neglected to question jurors as to

their acceptance of those first three principles and entirely

failed to reference the fourth principle in its questioning. The

court's actions constituted error.

Since error occurred, we must next determine whether

the evidence was closely balanced or whether the error was so

serious that it denied defendant a substantial right and a fair

trial. Here, defendant does not argue, nor does the record

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reflect, that the evidence was closely balanced.

Evidence presented at defendant's trial showed Jackie

and defendant lived together with their two daughters. The State

introduced statements signed by Jackie and the couple's 14-year-

old daughter, Tabitha. According to Jackie's statement, she and

defendant got into an argument and defendant grabbed her by the

face, scratched her face, and slammed her head into the front

door of the home. She reported defendant grabbed her by the

back, sides, butt, and legs. He also grabbed her and repeatedly

slammed her into the wall. Tabitha's statement showed defendant

pulled Jackie's hair, grabbed her face, and scratched her. A

photograph of Jackie was introduced into evidence showing an

injury to her face.

Schuyler County Sheriff Don Schieferdecker took Jackie-

's statement. When he met with her, she was "crying," "very red

in the face," and "very emotionally upset." Jackie reported that

she had been in a domestic fight with defendant. Schieferdecker

prepared Jackie's statement, and Jackie looked it over and signed

it. Schuyler County deputy sheriff Leo Icenogle met with Tabitha

on the date of the alleged offense. Tabitha reported that her

parents got into an argument and her father struck her mother

several times. Icenogle questioned Tabitha and prepared a

statement based upon his questions and her answers. Tabitha and

Jackie both signed the statement.

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 At trial, Jackie and Tabitha recanted their statements

to police. Jackie acknowledged she and defendant argued but

denied that there had been any physical contact. She asserted

she tried to block defendant from leaving the home and his

cigarette hit her on the cheek and left a mark. Jackie testified

defendant threatened to go to the police so she hurried to the

police station. She wanted to be the first to file a complaint

because she was worried about losing her state job. Although

Jackie admitted that she gave a statement to police and signed

it, she denied providing any of the information contained in the

statement submitted at trial. She testified she did not read the

document that she signed because she was upset. Jackie also

testified that she wanted the case dropped and wished to continue

her relationship with defendant.

Tabitha, after first denying that she had any recollec-

tion of the incident at issue, testified she remembered her

parents screaming at each other. She denied witnessing any

physical contact between the two or that she provided any of the

information contained in her signed statement. Tabitha acknowl-

edged that her signature appeared on the statement.

We find the evidence against defendant was overwhelm-

ing. It showed Jackie immediately reported the incident to

police and both she and Tabitha provided statements that showed

defendant grabbed Jackie, scratched her, pulled her hair, and

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shoved her against a wall. At the time she provided her state-

ment, Jackie was upset and crying. A photograph showed an injury

to her face. Testimony from Jackie and Tabitha that they did not

provide the information contained in their signed statements or

did not remember the events surrounding the alleged offense was

not credible. The evidence was not closely balanced.

We next consider whether the trial court's error was so

serious that it denied defendant a substantial right and a fair

trial. In Glasper, 234 Ill. 2d at 189, 917 N.E.2d at 411, the

trial court violated Rule 431(b) by refusing the defendant's

request to question prospective jurors as to the fourth princi-

ple, regarding the defendant's decision not to testify. Under

the version of Rule 431(b) applicable at the time, questioning

under the rule was not mandatory unless it was requested by the

defendant. Glasper, 234 Ill. 2d at 189, 917 N.E.2d at 411. The

supreme court identified the issue before it as "whether the

trial court's error, based on a violation of [s]upreme [c]ourt

[r]ule, denied the defendant his constitutional right to a fair

and impartial jury such that the error was presumptively prejudi-

cial and required automatic reversal." Glasper, 234 Ill. 2d at

194, 917 N.E.2d at 414. Ultimately, the court concluded that the

trial court's Rule 431(b)(4) violation was amenable to harmless-

error review and did not require automatic reversal. Glasper,

234 Ill. 2d at 200, 917 N.E.2d at 418.

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 In reaching its decision, the supreme court noted the

error did "not involve a fundamental right, or even a constitu-

tional protection." Glasper, 234 Ill. 2d at 193, 917 N.E.2d at

413. Instead, the error concerned a right made available by

rule, and "[t]he violation of a Supreme Court Rule does not

mandate reversal in every case." Glasper, 234 Ill. 2d at 193,

917 N.E.2d at 414. The court stated that, while Rule 431(b)(4)

was "designed to help ensure that defendants are tried before a

fair jury," it could not "say that Rule 431(b)(4) questioning is

indispensable to a fair trial." Glasper, 234 Ill. 2d at 196, 917

N.E.2d at 416. It reasoned as follows:

"This point is inherent in the rule itself,

which originally required the questioning

only if the defendant requested it. It would

be inconsistent to conclude that the failure

to question the venire in compliance with

Rule 431(b)(4) ensures that biased jurors

will be impaneled when a defendant can choose

to forgo such questioning, apparently without

such concerns." Glasper, 234 Ill. 2d at

196-97, 917 N.E.2d at 416.

The supreme court went on to state that "automatic

reversal is only required where an error is deemed 'structural,'

i.e., a systemic error which serves to 'erode the integrity of

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the judicial process and undermine the fairness of the defen-

dant's trial.'" Glasper, 234 Ill. 2d at 197-98, 917 N.E.2d at

416, quoting People v. Herron, 215 Ill. 2d 167, 186, 830 N.E.2d

467, 479 (2005). The court noted that the alleged error in the

case before it was not included within the limited class of

errors recognized by the United States Supreme Court as "struc-

tural." Glasper, 234 Ill. 2d at 198, 917 N.E.2d at 416. It

concluded that the trial court's error did not rise to the level

of "structural" error. Glasper, 234 Ill. 2d at 199, 917 N.E.2d

at 417.

The supreme court emphasized that its holding was

limited to the version of the rule in effect at the time of the

defendant's trial and would not necessarily apply to subsequent

versions of the rule. Glasper, 234 Ill. 2d at 200, 917 N.E.2d at

418. It also made clear that it was "not holding that a Rule

431(b)(4) violation could never result in reversible error."

Glasper, 234 Ill. 2d at 200, 917 N.E.2d at 418. The court stated

that if facts demonstrated that a Rule 431(b)(4) violation

resulted in the defendant being tried before a biased jury, it

"would not hesitate to reverse [the] defendant's conviction, as a

trial before a biased jury would constitute structural error."

Glasper, 234 Ill. 2d at 200-01, 917 N.E.2d at 418.

In People v. Amerman, 396 Ill. App. 3d 586, 594, 919

N.E.2d 1068, 1075 (2009), the Third District found that, although

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Glasper was a harmless-error case, its structural-error discus-

sion and rationale equally applied to the second prong of the

plain-error analysis. This court has found that "the rationale

in Glasper applies to the present version of Rule 431(b)."

People v. Wrencher, 399 Ill. App. 3d 1136, 1148, 929 N.E.2d 1124,

1134 (2009). Recently, the Second District has also held "that

the Glasper reasoning applies to the current version of Rule

431(b) with equal force and that a similar analysis under the

plain-error doctrine as under harmless-error analyses is required

before reversing a defendant's conviction." People v. Patrick,

No. 2-08-0745, slip op. at 26 (July 27, 2010), ___ Ill. App. 3d

___, ___, ___ N.E.2d ___, ___.

Here, defendant relies heavily upon this court's

decision in People v. Blanton, 396 Ill. App. 3d 230, 925 N.E.2d

703 (2009). In that case, the trial court fulfilled its duties

with respect to the first three Zehr and Rule 431(b) principles

but neglected to either advise jurors of the fourth principle

(that the defendant's failure to testify could not be held

against him) or to question their understanding and acceptance of

that fourth principle. Blanton, 396 Ill. App. 3d at 235, 925

N.E.2d at 706-07. This court found error clearly occurred and,

applying a plain-error analysis, determined that the court's

error was "'so substantial that it affected the fundamental

fairness of the proceeding.'" Blanton, 396 Ill. App. 3d at 235-

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36, 925 N.E.2d at 707-08, quoting People v. Hall, 194 Ill. 2d

305, 335, 743 N.E.2d 521, 539 (2000). We reversed the trial

court's judgment and remanded for a new trial. Blanton, 396 Ill.

App. 3d at 236, 925 N.E.2d at 708.

We now find Blanton was wrongly decided. First,

Blanton attempted to distinguish Glasper on the basis that it

involved a former version of Rule 431(b) that did not mandate

questioning pursuant to the rule unless expressly requested by

the defendant. Blanton, 396 Ill. App. 3d at 238, 925 N.E.2d at

710. However, in Glasper, the defendant's counsel requested Rule

431(b)(4) questioning. Glasper, 234 Ill. 2d at 189, 917 N.E.2d

at 411. As a result, the trial court had a mandatory obligation

to question the jury as set forth in the rule that is similar to

the mandatory duty now contained in the amended version of the

rule. See People v. Magallanes, 397 Ill. App. 3d 72, 92, 921

N.E.2d 388, 405 (2009) ("there is no quantitative or qualitative

difference between the trial court failing to admonish jurors

when requested to do so, as in Glasper, and when the trial court

fails to admonish jurors under the amended rule, as in the

present case"); see also People v. Alexander, 396 Ill. App. 3d

563, 576, 919 N.E.2d 1016, 1027 (2009) (finding the difference

between the former and amended versions of Rule 431(b) did not

preclude application of Glasper's rationale). The supreme

court's analysis in Glasper is equally applicable to the facts

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presented here.

Blanton next distinguished Glasper on the basis that,

unlike in Blanton, the jury in Glasper "had been admonished and

instructed against forming an adverse inference against [the]

defendant based on his decision not to testify." Blanton, 396

Ill. App. 3d at 239-40, 925 N.E.2d at 711. Blanton accurately

references one factor relied upon by the supreme court. However,

in Glasper, the court also pointed to the absence of facts that

demonstrated the defendant was tried before a biased jury.

Glasper, 234 Ill. 2d at 200-01, 917 N.E.2d at 418. Further, the

court rejected the claim that the error in failing to comply with

Rule 431(b) could not be "'"qualitatively assessed for harm,"'"

finding a rational-juror standard could be applied to the evi-

dence adduced against the defendant. Glasper, 234 Ill. 2d at

201, 917 N.E.2d at 418, quoting People v. Rivera, 227 Ill. 2d 1,

20, 879 N.E.2d 876, 888 (2007). Here, the record contains no

evidence that defendant's jury was biased and, again, the evi-

dence against defendant was overwhelming.

Additionally, as stated, Glasper held "[i]t would be

inconsistent to conclude that the failure to question the venire

in compliance with Rule 431(b)(4) ensures that biased jurors will

be impaneled when a defendant can choose to forgo such question-

ing, apparently without such concerns." Glasper, 234 Ill. 2d at

196-97, 917 N.E.2d at 416. The amended version of Rule 431(b)

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continues to allow a defendant to forgo questioning regarding his

decision not to testify. While nothing in the record indicates

that defendant in this case chose to forgo Rule 431(b)(4) ques-

tioning, he did expressly reject the opportunity to have his jury

instructed regarding his decision not to testify.

Although the facts in Blanton are similar to the facts

of the case at bar, we disagree with the distinctions made in

Blanton with respect to Glasper. Instead, we find the rationale

employed in Glasper equally applies to the facts of the present

case. Here, potential jurors were questioned as to their under-

standing of the first three Zehr principles. Defendant, himself,

rejected instructing the jury as to the subject matter of the

fourth principle. No evidence was presented that showed defen-

dant was tried before a biased jury. Also, the evidence against

him was overwhelming. The trial court's errors were not "struc-

tural." Further, its errors do not amount to plain error or

warrant reversal of defendant's conviction.

Finally, on appeal, defendant argues he is entitled to

a $5 per diem credit, totaling $15, toward the $200 domestic-

violence fine the trial court imposed. Section 110-14 of the

Code of Criminal Procedure of 1963 (725 ILCS 5/110-14 (West

2008)) provides that "[a]ny person incarcerated on a bailable

offense who does not supply bail and against whom a fine is

levied on conviction *** shall be allowed a credit of $5 for each

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day so incarcerated upon application of the defendant." On

appeal, a defendant may be allowed a per diem credit pursuant to

section 110-14 for incarceration prior to sentencing. People v.

Woodard, 175 Ill. 2d 435, 457-58, 677 N.E.2d 935, 946 (1997).

The State concedes that defendant is entitled to a $15 credit,

and the record supports its concession. We modify the court's

sentence to show defendant is entitled to a $15 credit for his

three days of presentence incarceration.

For the reasons stated, we affirm the trial court's

judgment as modified and remand for issuance of an amended

sentencing judgment reflecting the credit against fine stated.

As part of our judgment, we award the State its $50 statutory

assessment against defendant as costs of this appeal.

Affirmed as modified; cause remanded with directions.

KNECHT and TURNER, JJ., concur.

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