People v. Willhite

NO. 4-09-0158 Filed 5/13/10

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
FABIAN A. WILLHITE, ) No. 08CF976
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
_________________________________________________________________

JUSTICE POPE delivered the opinion of the court:

In May 2008, the State charged defendant, Fabian A.

Willhite, with one count each of possession with intent to

deliver 1 gram or more but less than 15 grams of any substance

containing cocaine (720 ILCS 570/401(c)(2) (West 2008)) and

possession with intent to deliver more than 10 grams but not more

than 30 grams of cannabis (720 ILCS 550/5(c) (West 2008)).

Following an October 2008 trial, a jury convicted defendant on

the possession-with-intent-to-deliver-cannabis charge but acquit-

ted him as to the possession-with-intent-to-deliver-cocaine

charge. The trial court sentenced defendant to 3 years' impris-

onment; awarded him 210 days' presentence credit and $1,050

credit toward any fines imposed; and assessed him a $10 drug-

court fee and a $100 trauma-fund fine.

Defendant appeals, arguing (1) the trial court failed

to conduct voir dire appropriately pursuant to Supreme Court Rule
431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R.

431(b), eff. May 1, 2007) by (a) asking about the four principles

in compound form, (b) asking for group answers in response, and

(c) refraining from asking Zehr-related questions until after the

individual questioning was over and both parties had selected

jurors and (2) he is entitled to $110 credit toward his drug-

court and trauma-fund assessments. We affirm as modified and

remand with directions.

I. BACKGROUND

In May 2008, defendant was a passenger in a van parked

in a restricted parking lot located in an area known for drug and

gang activities. Because the parking lot had a strict anti-

loitering policy, police approached the van and spoke with its

driver and defendant. When asked to produce identification, the

driver opened her bag, and one of the officers detected the scent

of cannabis. The officer searched the bag and found 7 Baggies

containing marijuana, 3 razor blades, $145 in United States

currency, and 16 empty Baggies. Next, the officers searched the

van, recovering three cellular phones, $850 in United States

currency, and defendant's wallet. Defendant consented to a

search of his person, during which police found three additional

cellular phones, $190 in United States currency, and a

pocketknife. The officers arrested the driver and defendant.

After a subsequent, consensual search of the driver's apartment,

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police further discovered more cellular phones; a small, digital

scale; a Baggie containing a chunk of cocaine; and an eyeglasses

case also containing cocaine. Defendant told police the driver

was his girlfriend and that he had been staying in her apartment

for the last nine months. When one officer informed him he found

drugs on defendant's girlfriend, defendant told him the drugs

belonged to him, he sold drugs regularly, and he was planning on

selling marijuana in the parking lot.

The State charged defendant with one count each of

possession with intent to deliver 1 gram or more but less than 15

grams of any substance containing cocaine (720 ILCS 570/401(c)(2)

(West 2008)) and possession with intent to deliver more than 10

grams but not more than 30 grams of cannabis (720 ILCS 550/5(c)

(West 2008)). Defendant pleaded not guilty to both charges, and

the case was tried to a jury.

At the start of voir dire, the trial court addressed

the entire venire, stating as follows:

"I want to go over some of the instructions

with you now this afternoon so that you can

keep them in perspective as you listen to the

testimony.

The first instruction is that [defen-

dant] is presumed to be innocent of the

charges against him. This presumption re-

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mains with [defendant] 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

convinced beyond a reasonable doubt he 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 re-

quired to prove his innocence.

In connection with that last sentence,

this [d]efendant, as does every citizen,

possesses an absolute right not to testify at

his trial if he so choose[s]. 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.

You will also receive *** a written

instruction[] that defines your role in judg-

ing the believability of the witnesses. This

instruction states that only you are the

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 judges of the believability of the witnesses

and of the weight to be given to the testi-

mony of each ***.

In considering the testimony of any

witness, you may take into account his abil-

ity and opportunity to observe[;] his mem-

ory[;] his manner while testifying[;] any

interest, bias[,] or prejudice he may have[;]

and the reasonableness of his testimony con-

sidered in the light of all the evidence in

the case. And you should judge the testimony

of [defendant] in the same manner as you

judge the testimony of any other witness."

After further individual questioning of the venire by the court

about their families, whether they knew any of the parties

involved in defendant's case, and whether they could be fair and

impartial, the court addressed the first venire panel, consisting

of four potential jurors, stating as follows:

"THE COURT: I want to go over again some

of the instructions that we started this

afternoon.

The four of you understand that ***

defendant is presumed to be innocent of the

charges against him; that before *** defen-

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 dant can be convicted the State must prove

him guilty beyond a reasonable doubt; that

*** defendant is not required to offer any

evidence on his behalf; and that if defendant

chooses not to testify his failure to testify

cannot be held against him in any way. The

four of you understand those instructions; is

that correct?

THE JURORS: (Collectively) [Y]es.

THE COURT: And they answer in the affir-

mative.

And the four of you will follow those

instructions; is that correct?

THE JURORS: (Collectively) [Y]es.

THE COURT: And again they answer in the

affirmative."

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

The court proceeded to individually question members of the

second venire panel, consisting of four potential jurors, and the

third panel, consisting of six potential jurors. Following

individual questioning, the court repeated the above instructions

and asked each panel collectively if they understood and accepted

the instructions. Each panel collectively answered "yes." The

court swore in all the members of the second panel as jurors,

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four members of the third panel as jurors, and two members of the

third panel as alternate jurors.

II. ANALYSIS

A. Voir Dire

Defendant argues the trial court erred by failing to

comply with the mandates of Supreme Court Rule 431(b). Since we

are construing a supreme court rule, our standard of review is de

novo. People v. Suarez, 224 Ill. 2d 37, 41-42, 862 N.E.2d 977,

979 (2007). Specifically, defendant contends the court violated

Rule 431(b) by failing to ask jurors individually as to whether

they understood and accepted each principle set forth by the

supreme court in People v. Zehr, 103 Ill. 2d 472, 477-78, 469

N.E.2d 1062, 1064 (1984). Defendant also contends the court was

required to ask a separate question as to each principle, rather

than "leading, compound questions." Defendant concedes he failed

to preserve this issue for review but maintains the issue may be

addressed by this court as it constitutes plain error.

Under the plain-error doctrine, a reviewing court may

consider an unpreserved and otherwise forfeited error when (1)

"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 defen-

dant was denied a substantial right[] and thus a fair trial."

People v. McLaurin, 235 Ill. 2d 478, 489, 922 N.E.2d 344, 351

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(2009). However, before 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).

In Zehr, the Supreme Court of Illinois held a trial

court erred during voir dire by refusing to ensure jurors under-

stood the following four principles: (1) the defendant is

presumed innocent, (2) the State must prove the defendant's guilt

beyond a reasonable doubt, (3) the defendant need not present

evidence on his own behalf, and (4) the defendant's decision not

to testify must not be held against him. Zehr, 103 Ill. 2d at

477-78, 469 N.E.2d at 1064.

Prior to 2007, Rule 431(b) required defendants to

request the trial court to question jurors regarding 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 understand 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-

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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.

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." (Emphases

added.) Official Reports Advance Sheet No. 8

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

2007.

Pursuant to the above language, a trial court must (1) sua sponte

question each potential juror as to whether he understands and

accepts the Zehr principles (2) in a manner that allows each

juror an opportunity to respond.

In the case at bar, defendant argues the trial court

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failed to allow each individual venireperson an opportunity to

respond to the Zehr principles. Although the court twice recited

the Zehr principles to the jury, defendant alleges "on neither

occasion were jurors asked to reply individually as to whether

they understood and accepted those propositions." Defendant

contends the rule does not anticipate group responses to Zehr

questioning.

At the start of voir dire, the trial court recited the

four Zehr principles to the entire venire. Immediately follow-

ing, the court did not ask the jurors if they understood or

accepted those principles. Had the court ended its inquiry

there, error would have occurred. For example, in People v.

Yusuf, No. 4-08-0034, slip op. at 9 (April 13, 2010), ___ Ill.

App. 3d ___, ___, ___ N.E.2d ___, ___, this court found the trial

court erred--despite reciting the Zehr principles at the begin-

ning of voir dire to the venire en masse--by failing to directly

question the jurors as to whether they understood those princi-

ples, i.e., the second paragraph of Rule 431(b). The same was

true in our decision in People v. Owens, 394 Ill. App. 3d 147,

914 N.E.2d 1280 (2009). However, Yusuf and Owens are distin-

guishable from the case at bar.

Here, the trial court questioned the jurors a second

time regarding their understanding and acceptance of the four

specific Zehr principles. After dividing the potential jurors

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into panels, the court asked each panel the following:

"The four of you understand that ***

defendant is presumed to be innocent of the

charges against him; that before *** defen-

dant can be convicted the State must prove

him guilty beyond a reasonable doubt; that

*** defendant is not required to offer any

evidence on his behalf; and that if defendant

chooses not to testify his failure to testify

cannot be held against him in any way. The

four of you understand those instructions; is

that correct?"

Each group answered affirmatively. The court then asked each

panel, "And the four of you will follow those instructions; is

that correct?" Again, each group answered affirmatively.

Defendant contends this did not constitute individual questioning

of each juror pursuant to Rule 431(b). Specifically, defendant

argues the court erred by (1) asking about the four principles in

compound form, (2) asking for group answers in response, and (3)

refraining from asking Zehr-related questions until after the

individual questioning by the attorneys was completed and both

parties had agreed upon the jurors. However, we find the plain

language of the rule does not require the trial court to ask

jurors individually about each principle, receive their answers

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one by one, or ask all venirepersons--rather than only those

selected by the parties--if they understand and accept the Zehr

principles.

The 1997 committee comments to Rule 431(b) noted the

rule sought "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(b), Committee Comments, at lxxix. However, to achieve

this purpose, "[t]he court shall ask each potential juror,

individually or in a group, whether that juror understands and

accepts" the four Rule 431(b) principles. (Emphasis added.)

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

eff. May 1, 2007. Rule 431(b) has no requirement that the trial

court ask separate questions of the jurors about each individual

principle. People v. McCovins, No. 1-08-1805, slip op. at 6

(March 4, 2010), ___ Ill. App. 3d ___, ___, ___ N.E.2d ___, ___

(First District). Nor does the rule require separate, individual

answers from each juror. The jurors in this case were placed

into small groups and collectively answered that they understood

and accepted the principles set forth by the court. Nothing in

the record indicates the trial judge acted in a manner that would

discourage a venireperson from responding if he or she did not

understand or agree with any of the Zehr principles. Moreover,

Rule 431(b) does not state a specific time when the court must

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question venirepersons individually or in groups. Here, the

timing of the court's questioning had no bearing on the jurors'

opportunity to respond as to whether they accepted and understood

the four Zehr principles. The prospective jurors had not yet

been sworn to serve in the case. If at the point of the Zehr

questioning a potential juror had indicated a problem accepting

any of the Zehr principles, the court would have been able to

inquire further and remove any biased juror, if necessary. Thus,

we reject defendant's contentions the court failed to comply with

Rule 431(b).

Because we find the trial court committed no error in

reciting the four Zehr principles to the venire and inquiring

about their understanding and acceptance of those principles in

small groups, we need not consider defendant's contention under

plain-error analysis.

B. Fine Credit

Defendant also contends he is entitled to an additional

$110 credit against his $10 drug-court and $100 trauma-fund

fines. The State concedes this issue.

Section 110-14(a) of the Code of Criminal Procedure of

1963 provides as follows:

"Any person incarcerated on a bailable

offense who does not supply bail and against

whom a fine is levied on conviction of such

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 offense shall be allowed a credit of $5 for

each day so incarcerated upon application of

the defendant." 725 ILCS 5/110-14(a) (West

2008).

Credit under section 110-14(a) applies to the $100 trauma-fund

fine set forth in section 5-9-1.1(b) of the Unified Code of

Corrections (730 ILCS 5/5-9-1.1(b) (West 2008)). People v.

Chambers, 391 Ill. App. 3d 467, 469, 909 N.E.2d 351, 353 (2009).

Section 110-14(a) credit also applies to the $10 drug-court fee

set forth in section 5-1101(d-5) of the Counties Code (55 ILCS

5/5-1101(d-5) (West 2008)) as long as the defendant is not tried

in drug court. People v. Sulton, 395 Ill. App. 3d 186, 193, 916

N.E.2d 642, 647-48 (2009).

Here, defendant spent 210 days in presentence custody

and accumulated $1,050 in potential credit against any fines

imposed against him but received no credit against his trauma-

fund and drug-court fines. Five hundred dollars' credit was

applied to a mandatory assessment under section 411.2(a)(4) of

the Illinois Controlled Substances Act (720 ILCS 570/411.2(a)(4)

(West 2008)), leaving $550 to apply against any remaining fines.

We affirm as modified and remand to the trial court to issue an

amended sentencing judgment giving defendant credit for his $100

trauma-fund fine. We also credit defendant $10 against his drug-

court assessment, since defendant received imprisonment rather

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than a community-based sentence. See 730 ILCS 166/20(a), 30

(West 2008) (drug-court participation occurs only after approval

of the prosecutor and entails community-based treatment).

III. CONCLUSION

For the reasons stated, we affirm as modified and

remand this cause to the trial court for issuance of an amended

sentencing judgment to reflect application of defendant's mone-

tary credit to the $100 trauma-fund fine and the $10 drug-court

assessment. We award the State its $50 statutory assessment

against defendant as costs of this appeal.

Affirmed as modified and cause remanded with direc-

tions.

TURNER and APPLETON, JJ., concur.

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