People v. Staple

Filed 7/9/10
NO. 4-09-0312

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
DEBRA M. STAPLE, ) No. 08CF818
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
_________________________________________________________________

JUSTICE KNECHT delivered the opinion of the court:

In January 2009, a jury convicted defendant, Debra M.

Staple, of (1) aggravated battery (720 ILCS 5/12-4(b)(18) (West

Supp. 2007)) for striking a peace officer with her car door and

(2) obstructing justice (720 ILCS 5/31-4(a) (West 2008)) for

providing a false name in order to avoid arrest. In February

2009, the trial court denied defendant's motion for acquittal or,

in the alternative, a new trial and sentenced defendant to 10

years' imprisonment for aggravated battery and 3 years' imprison-

ment for obstructing justice, to run concurrently. In April

2009, the court denied defendant's motion to reduce sentence.

Defendant appeals, arguing the court erred by (1) denying defen-

dant's motion to continue to retain private counsel and (2)

failing to comply with Supreme Court Rule 431(b) (Official

Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May
1, 2007). We affirm.

I. BACKGROUND

On April 29, 2008, at approximately 2 a.m., police

approached defendant and her husband in their parked car as

possible witnesses to a reported nearby shooting. Defendant

denied hearing a gunshot; provided a false name for herself,

apparently to avoid arrest on two outstanding warrants; refused

to exit the car after police ascertained her true identity;

attempted to close the car door, which the officers had ordered

opened to try to remove her, thereby striking an officer standing

within its sweep; and was then restrained and taken into custody

by police with the use of pepper spray.

On April 30, 2008, the State charged defendant with (1)

aggravated battery (720 ILCS 5/12-4(b)(18) (West Supp. 2007)) for

knowingly making contact of an insulting or provoking nature with

a known peace officer engaged in the execution of official duties

and (2) obstructing justice (720 ILCS 5/31-4(a) (West 2008)) for

providing the police a false name in order to prevent her own

arrest. On May 5, at defendant's arraignment, the court ap-

pointed an attorney for defendant. On June 3, defendant failed

to appear for a hearing.

The trial court set trial for January 5, 2009. On that

date, defendant moved for a continuance to retain private coun-

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sel. The motion stated, "[Defendant] has talked with one attor-

ney, but he has not yet entered his appearance." When she

presented the motion to the court, defense counsel said, "At this

point this morning [defendant], after the pre[]trial, informed me

that she wants to hire private counsel. She said that she had

spoken with someone but was not able to get that attorney in

court this afternoon." In response to the court's inquiry into

the identity of the attorney, counsel said, "Your Honor, she

would not tell me. She said she didn't feel like she could use

that person's name unless she'd actually hired that attorney."

The court noted "in [Champaign County case No.] 07[-]CF[-]349

[defendant] was in court in March of '07, some close to two years

ago. In [Champaign County case No.] 08[-]CF[-]818 [(this case)]

she was in court May of '08." The court concluded defendant was

"using this [request for private counsel] merely as a ploy to get

a continuance" and denied the motion.

After a recess, defense counsel renewed the motion to

continue, provided the name of the attorney defendant allegedly

consulted, and stated defendant "was expecting that he would be

able to be here to enter his appearance tomorrow morning at 9."

The trial court again expressed its doubts as to defendant's

motives and diligence, noted the case was set for trial that day,

and expressed further doubts as to the availability of the named

attorney. The court denied the motion. Moments later, during

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discussion of the parties' witness lists, the court added:

"That's another reason why the [c]ourt's

going to deny the [m]otion to [c]ontinue.

The defense has writted [a witness] back from

the Department of Corrections. He is here

presently in our custody for trial today.

Again, all this [d]efendant is doing is try-

ing to delay a trial in this matter."

The court did not address the motion further at trial.

For voir dire, the trial court addressed the entire

venire, stating as follows:

"I want to go over some of the instructions

with you now so that you can keep them in

perspective as you listen to the testimony.

I will continue to repeat these instructions

throughout the course of the afternoon as we

go through our jury selection.

The first instruction is that [defen-

dant] is presumed to be innocent of the

charges against her. This presumption re-

mains with her throughout every stage of the

trial and during your deliberations on the

verdict and is not overcome unless, from all

of the evidence in this case, you are con-

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 vinced beyond a reasonable doubt that she is

guilty.

The State has the burden of proving the

guilt of [defendant] beyond a reasonable

doubt, and this burden remains on the State

throughout the case. [Defendant] is not requ-

ired to prove her innocence.

In connection with that last sentence,

this [d]efendant, as does every citizen,

possesses an absolute right not to testify at

her trial if she so chooses. If [defendant]

chooses not to testify, you'll receive an

instruction that states the fact that [defen-

dant] did not testify must not be considered

by you in any way in arriving at your ver-

dict."

After further individual questioning of the venirepersons by the

court, the State, and the defense about their families, whether

they knew any of the parties involved in the case, and whether

they could be fair and impartial, and after the parties exercised

peremptory challenges, the court addressed the first venire

panel, consisting of four potential jurors accepted by the

parties, stating as follows:

"THE COURT: *** For the four of you, I

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 want to go over again the instructions that

we started with this afternoon.

The four of you understand that [defen-

dant] is presumed to be innocent of the

charges against her; that before [defendant]

can be convicted the State must prove her

guilty beyond a reasonable doubt; that [de-

fendant] is not required to offer any evi-

dence on her own behalf[;] and that if [de-

fendant] chooses not to testify, her failure

to testify cannot be held against her in any

way.

The four of you understand those in-

structions; is that correct?

[THE JURORS:] (In unison) Correct.

THE COURT: And they answer in the affir-

mative.

And the four of you will follow those

instructions; is that correct?

[THE JURORS:] (In unison) Yes.

THE COURT: Again, they answer in the

affirmative."

The court swore in all four members of the first panel as jurors.

The court and the parties proceeded to question individual

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members of a second venire panel, consisting of four potential

jurors, a third panel, consisting of four potential jurors, and a

fourth panel, consisting of two potential alternate jurors.

Following individual questioning and further peremptory chal-

lenges, the parties accepted the members of each panel. The

court repeated the above instructions and asked the members of

each panel collectively if they understood and accepted the

instructions. Each panel affirmed the instructions in unison.

The court swore in the members of the panels as jurors and

alternate jurors. After evidence and arguments, the court again

instructed the jury regarding the presumption of innocence, the

burden of proof, and defendant's rights not to present evidence

and not to testify. See Illinois Pattern Jury Instructions,

Criminal, No. 2.03 (4th ed. 2000).

On January 7, 2009, the jury returned guilty verdicts

on both charges. On February 20, defendant orally amended her

motion for acquittal or, in the alternative, a new trial to

allege the trial court erred in denying defendant's motion to

continue to retain private counsel. Defendant's motion did not

allege deficiencies in voir dire. The court again emphasized

"the matter was set for trial and had been on the call for a

considerable period of time." The court denied the motion as

amended and sentenced defendant to concurrent terms of 10 years'

imprisonment for aggravated battery and 3 years' imprisonment for

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obstructing justice. At that point, the State said, "Your Honor,

Ms. Staple also has [No.] 07[-]CF[-]349 pending. I would move to

dismiss that at this time." The court granted the State's motion

to dismiss. On April 27, the court denied defendant's motion to

reduce sentence, which failed to include either the court's

ruling on the motion to continue or its voir dire directions.

This appeal followed.

II. ANALYSIS

A. Motion To Continue To Retain Private Counsel

Defendant argues the trial court erred when it denied

defendant's motion to continue to retain private counsel and asks

this court to reverse and remand for a new trial. Specifically,

defendant argues the court abused its discretion by failing to

inquire into defendant's possible motives for requesting new

counsel on the day of trial and concluding "ipse dixit" her

purpose was to delay trial. The State responds the court acted

within its discretion because (1) defendant did not allege she

had in fact obtained substitute counsel who was ready, willing,

and able to proceed with the case and (2) the charges against

defendant had been pending sufficiently long for the court to

infer defendant was using her motion to continue to stall trial.

We agree with the State.

"The determination whether to grant a continuance for

substitution of counsel is a matter left to the discretion of the

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trial court, and will not be overturned absent an abuse of that

discretion." People v. Segoviano, 189 Ill. 2d 228, 245, 725

N.E.2d 1275, 1283 (2000). "[A] court abuses its discretion when

its decision is fanciful, arbitrary, or unreasonable to the

degree that no reasonable person would agree with it." People v.

Ortega, 209 Ill. 2d 354, 359, 808 N.E.2d 496, 500-01 (2004).

Factors to consider "in evaluating a trial court's exercise of

its discretion include the diligence of the movant, the right of

the defendant to a speedy, fair[,] and impartial trial, and the

interests of justice." Segoviano, 189 Ill. 2d at 245, 725 N.E.2d

at 1283.

A criminal defendant's right to counsel of choice is

constitutionally protected. Powell v. Alabama, 287 U.S. 45, 53,

77 L. Ed. 158, 162, 53 S. Ct. 55, 58 (1932); People v. Green, 42

Ill. 2d 555, 557, 248 N.E.2d 116, 117 (1969); see also People v.

Jones, 269 Ill. App. 3d 925, 932, 647 N.E.2d 612, 617 (1995),

overruled on other grounds by People v. Smith, 188 Ill. 2d 335,

721 N.E.2d 553 (1999). A trial court considering a motion to

continue to retain private counsel must balance defendant's

constitutional right against the interests in trying the case

efficiently. People v. Jackson, 216 Ill. App. 3d 1, 6, 574

N.E.2d 719, 723 (1991); see People v. Friedman, 79 Ill. 2d 341,

349, 403 N.E.2d 229, 234 (1980). Thus, "[a] defendant cannot

assert that right in order to, even temporarily, thwart the

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administration of justice or to otherwise impede the effective

prosecution of a crime." Jones, 269 Ill. App. 3d at 932, 647

N.E.2d at 617. To avoid trial delay, this court has ruled "[a

trial] court does not abuse its discretion in denying a defendant

a continuance to obtain substitute counsel where new counsel is

unidentified or does not stand ready, willing, and able to make

an unconditional entry of appearance on defendant's behalf."

Jones, 269 Ill. App. 3d at 932, 647 N.E.2d at 617. Especially

when a defendant cannot "articulate an acceptable reason for

desiring new counsel and is already being represented by an

experienced, court-appointed criminal lawyer, it is not an abuse

of discretion to deny defendant's trial-day request for a contin-

uance." Jackson, 216 Ill. App. 3d at 7, 574 N.E.2d at 723.

Factors indicating a defendant's diligence include the

defendant's opportunity to retain counsel and the steps the

defendant has taken toward retaining counsel. In Friedman, 79

Ill. 2d at 348, 403 N.E.2d at 233, for example, the supreme court

held the trial court did not err in denying a motion to continue

when defendant had more than 2 1/2 months to find substitute

counsel but first made contact with a potential substitute only

three days before trial and moved to continue on the day of trial

because counsel was unavailable. In People v. Free, 112 Ill.

App. 3d 449, 454, 445 N.E.2d 529, 532 (1983), this court affirmed

the trial court's denial of a motion to continue when the defend-

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ant "had ample time [from December 3, 1981, when counsel was

appointed, until March 2, 1982, when trial was set to begin,] to

attempt to obtain counsel of his own choosing if he so wished and

was able to do so." In People v. Terry, 177 Ill. App. 3d 185,

190-91, 532 N.E.2d 568, 572 (1988), this court affirmed the trial

court's denial of a motion to continue when the "[d]efendant was

represented by counsel for almost four months and at no time

prior to the day of trial complained about his representation, or

indicated a desire to obtain other counsel." A court may infer

from these two factors whether a defendant's motion is "really

for purposes of delay." Terry, 177 Ill. App. 3d at 190, 532

N.E.2d at 572.

The trial court did not abuse its discretion in this

case. Defendant admitted she had not hired substitute counsel,

and did not allege counsel was ready, willing, and able to

represent her. Moreover, the court considered the time defendant

had to find counsel and defense counsel's statement defendant had

only decided to substitute counsel on the morning of trial.

Defendant's initial refusal to provide the name of an attorney

with whom she had allegedly spoken about representing her was

also before the court. The court also found a continuance would

be prejudicial with respect to a defense witness who had been

transported from the Department of Corrections to testify. The

court was allowed to infer from these facts defendant was using

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her motion to continue "to *** thwart the administration of

justice or to otherwise impede the effective prosecution of a

crime."

In addition to these considerations by the trial court,

we note defendant was already represented by an able, court-

appointed criminal lawyer. Moreover, defendant did not allege in

her written motion, or in argument before the court, any specific

deficiencies in the public defender's representation that hiring

private counsel would address. Under these circumstances, the

court "could reasonably conclude that the request was made solely

for the purpose of delay." Friedman, 79 Ill. 2d at 349, 403

N.E.2d at 234.

Finally, we note "[t]he purpose of a review is to

evaluate the record of the trial court proceeding, and, in

general, the review will be limited to what appears in the

record." People ex rel. Walker v. Pate, 53 Ill. 2d 485, 503-04,

292 N.E.2d 387, 398 (1973). The trial court alluded twice to

defendant's pending case No. 07-CF-349 in ruling on defendant's

motion. There was no objection by either party. Neither party

moved to amend the record on appeal with information regarding

that charge, and neither party addresses this issue in its brief.

It appears the trial court may have considered defendant's

behavior in litigating her other case together with her behavior

in and the circumstances of the case immediately before the

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court. Defendant did not object, and both case numbers appear in

the caption for defendant's motion to continue. We would prefer

the record be complete, but the facts of record support the trial

court's exercise of discretion. We find the court did not abuse

its discretion in denying defendant's motion for a continuance to

seek private counsel.

B. Voir Dire

Defendant also contends the trial court erred by

failing to comply with the mandates of Supreme Court Rule 431(b).

Defendant argues the rule, as she maintains it ought to be

construed, would require the court to do more to ascertain the

jurors' understanding and willingness to abide by the principles

the rule addresses. Specifically, defendant argues the court

improperly delayed questioning potential jurors as required by

Rule 431(b) until after the parties had accepted them; because

she argues noncompliance with Rule 431(b) per se denies a defen-

dant a fair trial, she argues the error requires us to reverse

and remand for a new trial. The State argues (1) the court

satisfied the requirements of Rule 431(b) and (2) assuming

otherwise, the error is harmless. We agree with the State the

court did not err in its application of Rule 431(b).

Defendant concedes she failed to preserve the alleged

defect in the trial court's administration of Rule 431(b) for

review. Under the plain-error doctrine, however, a reviewing

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court may consider an unpreserved and otherwise forfeited error

"(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). "[B]efore we consider application of the plain-

error doctrine to the case at bar, we must determine whether the

trial court erred in its application of Rule 431(b)." People v.

Willhite, No. 4-09-0158, slip op. at 7 (May 13, 2010), ___ Ill.

App. 3d ___, ___ N.E.2d ___. We review the court's compliance

with a supreme court rule de novo. People v. Suarez, 224 Ill. 2d

37, 41-42, 862 N.E.2d 977, 979 (2007).

Rule 431(b) (Official Reports Advance Sheet No. 8

(April 11, 2007), R. 431(b), eff. May 1, 2007) was principally

adopted to ensure trial-court compliance with the Supreme Court

of Illinois's decision in People v. Zehr, 103 Ill. 2d 472, 469

N.E.2d 1062 (1984). 177 Ill. 2d R. 431(b), Committee Comments,

at lxxix. In Zehr, the supreme court held a trial court erred

during voir dire by refusing to ensure jurors understood the

following four principles: (1) the State bears the burden of

proof, (2) the defendant need not present evidence on his own

behalf, (3) the State must prove the defendant's guilt beyond a

reasonable doubt, and (4) the defendant's decision not to testify

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must not be held against him. Zehr, 103 Ill. 2d at 477-78, 469

N.E.2d at 1064.

Prior to its 2007 amendment, Rule 431(b) required

defendants to request the trial court to question jurors regard-

ing their understanding of the Zehr principles. See 177 Ill. 2d

R. 431(b). In 2007, the supreme court amended Rule 431(b),

"plac[ing] an affirmative sua sponte duty on the trial courts to

ask potential jurors in each and every case whether they under-

stand and accept the Zehr principles." People v. Graham, 393

Ill. App. 3d 268, 273, 913 N.E.2d 99, 103 (2009); see also

Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b),

eff. May 1, 2007. Following amendment, Rule 431(b) now states as

follows:

"The court shall ask each potential

juror, individually or in a group, whether

that juror understands and accepts the fol-

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

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 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 princi-

ples set out in this section." Official

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

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

Whether the trial judge's admonishments to the jury

constitute error under Rule 431(b) is controlled by our recent

precedent in Willhite, No. 4-09-0158, ___ Ill. App. 3d ___, ___

N.E.2d ___. In that case, a jury convicted the defendant at a

trial presided over by the same judge as the case at bar. The

trial court addressed the potential jurors in substantially the

same manner as here: it noted the Zehr principles before the

venire en masse, recited the principles to panels of four poten-

tial jurors before they were sworn in, and asked the potential

jurors whether they understood and assented to the principles.

In reaching our decision, we relied on language in the rule

requiring the trial court (1) to "ask each potential juror,

individually or in a group" (emphasis added) whether he under-

stands and accepts the principles (2) in a manner that provides

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"each juror an opportunity to respond to specific questions

concerning the principles." Official Reports Advance Sheet No. 8

(April 11, 2007), R. 431(b), eff. May 1, 2007. We held Rule

431(b) allows trial courts to ask potential jurors in panels

whether they understand and will follow the principles in com-

pound form and allows panels of potential jurors to answer in

unison. Further, we held Rule 431(b) questioning could occur

after potential jurors had been accepted and before they were

sworn in because, presumably, the court would dismiss any juror

who did not understand or would not affirm the principles. The

court's method of inquiry was sufficiently specific to afford

jurors an opportunity to respond, and the court itself did

nothing to discourage jurors from objecting to or asking about

the principles. Because the case at bar presents us with sub-

stantially the same facts, we decline to find error here.

We expand on our decision in Willhite, however, to

address and reject defendant's argument the trial court's proced-

ure contravened the rule's purpose as suggested by committee

comments. The committee comments to Rule 431(b) as it was

originally adopted state the rule "seeks to end the practice

where the judge makes a broad statement of the applicable law

followed by a general question concerning the juror's willingness

to follow the law." 177 Ill. 2d R. 431, Committee Comments, at

lxxix. Defendant argues the trial court's compound inquiry as to

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whether each panel of prospective jurors understood and would

follow all four Zehr principles is "precisely what the rule was

designed to prevent."

The present case is immediately distinguishable from

one in which "the judge makes a broad statement of the applicable

law followed by a general question concerning the juror's willin-

gness to follow the law." In People v. Emerson, 122 Ill. 2d 411,

522 N.E.2d 1109 (1987), for example, the supreme court affirmed a

death sentence after rejecting the defendant's challenge to the

trial court's voir dire. Emerson was decided after and in light

of Zehr but before adoption of Rule 431(b). In that case, the

court admonished the venire en masse as follows:

"'As I tell all jurors, I am the boss of

the law. So, considering that, is there any

juror, including the jurors that are out

there that will not follow the law as I give

it to them? Anybody? When I tell you the

law is a particular way, that's the law you

must follow.

Will everybody do it? Are you abso-

lutely sure? You might--everybody said yes.

I want you to remember that.'" Emerson, 122

Ill. 2d at 426, 522 N.E.2d at 1114.

Later, the court said, again to the entire venire:

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 "'There's one thing I forgot to mention

to you before and that is that as the

[d]efendant sits in court at the present

time, he is presumed innocent. This in a

sense will remain with him throughout the

case until or if the State proves him guilty

beyond a reasonable doubt. So, if I were to

take the first twelve whose names I first

called out, told you to go back to the jury

room, give me a verdict at this time, I'm

sure all twelve of you would look at me and

say what's that man talking about. How could

we possibly go ahead and give a verdict at

this time since we haven't heard anything.

It would be absolutely wrong because if I

asked you to give me a verdict at this time,

your verdict would have to be not guilty

since you have not heard anything.

Until the State proves him guilty beyond

a reasonable doubt, he is not guilty, do you

understand? It goes to the fundamental as-

pect of our law in the United States.'"

Emerson, 122 Ill. 2d at 426, 522 N.E.2d at

1114.

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The supreme court held the trial court had "sufficiently complied

with Zehr" by asking whether the potential jurors would be able

to follow the law as the judge told it to them and later in-

structing the potential jurors with respect to the burden of

proof, the presumption of innocence and, by implication only, the

defendant's right not to present evidence. Emerson, 122 Ill. 2d

at 427, 522 N.E.2d at 1114-15.

The trial court's procedure in Emerson would likely not

now withstand scrutiny under amended Rule 431(b) (which the

supreme court had not yet adopted), because the trial court did

not pose sufficiently specific questions to potential jurors in

sufficiently small groups to afford each juror "an opportunity to

respond." In fact, the court asked the venire whether each

member would follow the law as the court expounded it and only

afterward instructed the jurors as to the Zehr principles. Thus,

the questioning did not address the jurors' attitudes toward the

Zehr principles specifically.

In contrast, the trial court in the present case

instructed the jury clearly and specifically with respect to the

Zehr principles. It then repeated the principles and asked small

groups of prospective jurors whether they understood the princi-

ples and then whether they would abide by the principles. We

conclude the court complied with Rule 431(b), and the court's

admonishments in this case were not the practice the supreme

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court sought to prohibit. We reject defendant's argument to the

contrary.

We find the trial court committed no error in reciting

the four Zehr principles to the venire and inquiring about the

jurors' understanding and acceptance of those principles in small

groups. Thus, we need not consider defendant's contention under

plain-error analysis.

III. CONCLUSION

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

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

statutory assessment against defendant as costs of this appeal.

Affirmed.

MYERSCOUGH, P.J., and POPE, J., concur.

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