People v. Yusuf

NO. 4-08-0034 Opinion Filed 4/14/11

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
AHMED A. YUSUF, ) No. 06CF1876
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
_________________________________________________________________

JUSTICE McCULLOUGH delivered the judgment of the court,
with opinion.
Presiding Justice Knecht and Justice Turner concurred
in the judgment and opinion.

OPINION

In October 2007, a jury convicted defendant, Ahmed A.

Yusuf, of armed robbery (720 ILCS 5/18-2(a)(2) (West 2006)). In

December 2007, the trial court sentenced him to seven years’

imprisonment. Defendant appealed, arguing the court erred in

failing to question the jurors during voir dire in compliance

with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007)

regarding the jurors' understanding of the four basic constitu-

tional guarantees afforded criminal defendants at trial. In

November 2008, this court affirmed. People v. Yusuf, No. 4-08-

0034 (Nov. 19, 2008) (unpublished order under Supreme Court Rule

23).

In September 2009, the Illinois Supreme Court denied

defendant’s petition for leave to appeal but issued a supervisory

order (People v. Yusuf, 233 Ill. 2d 598, 914 N.E.2d 489 (2009)
(nonprecedential supervisory order on denial of petition for

leave to appeal) (No. 107674)) directing this court to vacate our

order and to reconsider in light of People v. Glasper, 234 Ill.

2d 173, 917 N.E.2d 401 (2009). In accordance with the supreme

court’s directions, we vacated our prior judgment and reconsid-

ered in light of Glasper. We reversed defendant’s conviction and

remanded the matter for a new trial. People v. Yusuf, 399 Ill.

App. 3d 817, 928 N.E.2d 143 (2010).

In January 2011, the supreme court issued a supervisory

order (People v. Yusuf, 239 Ill. 2d 588, 940 N.E.2d 1152 (2011)

(nonprecedential supervisory order on denial of petition for

leave to appeal) (No. 110420)) directing this court to vacate our

order and to reconsider in light of People v. Thompson, 238 Ill.

2d 598, 939 N.E.2d 403 (2010). In accordance with the supreme

court’s directions, we vacate our prior judgment and reconsider

in light of Thompson to determine whether a different result is

warranted. After considering the supreme court’s reasoning in

Thompson, we affirm defendant’s conviction.

On November 20, 2006, the State charged defendant with

two counts of armed robbery. At trial, Sarad Chandra, a conve-

nience store clerk, testified that shortly after 10 p.m. on

November 19, 2006, a man carrying a gun and dressed in dark

clothing and a ski mask came into the store and demanded money.

Chandra opened the register, and the man took the money and ran

out of the store. The store surveillance tape was played for the

jury.

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 The State also presented evidence at trial establishing

that on the evening of November 19, 2006, Maokun Li left his

office and was walking to his vehicle when defendant, wearing a

black ski mask, appeared from behind a bush. Defendant produced

a gun and ordered Li to give him his wallet and cellular phone.

Defendant also demanded Li’s personal identification number for

the debit card. Li testified defendant also threatened to shoot

him. According to Li’s testimony, defendant ordered Li to lay on

the ground and not to look at him. Li called the police after

defendant fled. The police arrested defendant shortly thereaf-

ter.

Defendant did not present any evidence at trial. After

considering the State's evidence, closing arguments, and jury

instructions, the jury acquitted defendant of the armed robbery

of Chandra but found him guilty of the armed robbery of Li. The

trial court sentenced defendant as stated.

On appeal, defendant claims the trial court erred where

it failed to comply with the mandates of Supreme Court Rule

431(b). Specifically, defendant argues the procedure used by the

court failed to allow the venire an opportunity to respond to or

be questioned on the Zehr principles, i.e., it failed to comply

with the directives of Rule 431(b). See People v. Zehr, 103 Ill.

2d 472, 477-78, 469 N.E.2d 1062, 1064 (1984).

In this case, defendant’s trial counsel did not object

at the time of the trial court’s error. In addition, defendant’s

posttrial motion did not allege the court failed to comply with

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Rule 431(b). As a result, the issue has been forfeited. See

People v. Hestand, 362 Ill. App. 3d 272, 279, 838 N.E.2d 318, 324

(2005). Defendant, however, argues the court's failure to comply

with Rule 431(b) constitutes plain error affecting his right to a

fair trial by an impartial jury.

A reviewing court may disregard a defendant's forfei-

ture and review the issue under the plain-error doctrine to

determine whether reversal is required. People v. Lewis, 234

Ill. 2d 32, 42, 912 N.E.2d 1220, 1226 (2009). The plain-error

doctrine allows a reviewing court to consider forfeited error

when (1) the evidence is closely balanced or (2) the 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. Walker, 232 Ill. 2d

113, 124, 902 N.E.2d 691, 697 (2009). Under either prong of the

plain-error analysis, the defendant has the burden of persuasion.

Lewis, 234 Ill. 2d at 43, 912 N.E.2d at 1227.

Before reviewing the issue under the plain-error

doctrine, however, we must first determine whether any error

occurred. People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d

403, 411 (2007). This court reviews de novo a trial court’s

compliance with a supreme court rule. People v. Young, 387 Ill.

App. 3d 1126, 1127, 903 N.E.2d 434, 435 (2009).

In Zehr, the Supreme Court of Illinois held a trial

court erred during voir dire by refusing defense counsel's

request to ask questions about (1) the State's burden of proof,

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(2) defendant's right to not testify, and (3) the presumption of

innocence. Zehr, 103 Ill. 2d at 477, 469 N.E.2d at 1064.

The supreme court amended Rule 431(b) to assure compli-

ance with its decision in Zehr. Adopted March 21, 2007, and

effective May 1, 2007, the rule now reads as follows:

"(b) 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

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.) Ill. S. Ct. R. 431(b) (eff. May 1,

2007).

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The committee comments provide as follows:

"The new language is intended to ensure

compliance with the requirements of People v.

Zehr, 103 Ill. 2d 472[, 469 N.E.2d 1062]

(1984). It 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." Ill. S. Ct. R. 431(b), Committee

Comments (eff. May 1, 1997).

As of May 1, 2007, the plain language of Rule 431(b)

requires a trial court to (1) sua sponte question each potential

juror as to whether he understands and accepts the Zehr princi-

ples (2) in a manner that allows each juror an opportunity to

respond. As the voir dire in this case occurred in October 2007,

after the amendment became effective, the court was required to

comply with the rule as amended May 1, 2007.

At the beginning of voir dire, prior to the jurors

being sworn in, the trial court addressed the pool as follows:

"I want to go over some of those [jury]

instructions with you now so that you can

keep them in perspective as you listen to the

testimony. The first instruction is *** that

the defendant is presumed to be innocent of

the charge[s] against him [(Rule 431(b) prin-

ciple (1))]. This presumption remains with

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 him throughout every stage of the trial and

during your deliberations on the verdict, and

is not overcome unless from all of the evi-

dence in this case, you are convinced beyond

a reasonable doubt that he is guilty [(Rule

431(b) principle (2))].

The State has the burden of proving the

guilt of the defendant beyond a reasonable

doubt, and this burden remains on the State

throughout the case. The defendant is not

required to prove his innocence [(an apparent

reference to Rule 431(b) principle (3))]. In

connection with the last sentence, this de-

fendant, as does every citizen, possesses an

absolute right not to testify at his trial if

he so chooses. If the defendant chooses not

to testify, you will receive an instruction

that states that the fact the defendant did

not testify must not be considered by you in

any way in arriving at your verdict [(Rule

431(b) principle (4))]." (Emphases added.)

During voir dire, the trial court questioned the

potential jurors about their previous experiences with the legal

system and whether they were familiar with the defendant, attor-

neys, or witnesses. The court also asked each juror whether he

or she could think of any reason why he or she could not be "fair

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and impartial." While each of the 12 jurors selected to hear the

case answered those questions in the negative, the court did not

conduct Zehr questioning of individual jurors. As a result, the

court never directly questioned the individual jurors regarding

their understanding of the Zehr principles as required by the

second paragraph of amended Rule 431(b).

Prior to deliberations, the trial court gave the jury

Illinois Pattern Jury Instructions, Criminal, Nos. 2.03 and 2.04

(4th ed. 2000) (hereinafter, IPI Criminal 4th), regarding (1)

defendant’s presumption of innocence, (2) the State’s burden of

proof, and (3) "[t]he fact that defendant did not testify must

not be considered by [the jurors] in any way in arriving at [a]

verdict."

In this case, the record shows the trial court did not

fully comply with Rule 431(b). While the court advised the

venire en masse of the four Zehr principles, it did not pose the

specific questions of whether the jurors understood and accepted

all four of those principles during voir dire. See Ill. S. Ct.

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

As a result, the court in this case did not follow the mandate of

Rule 431(b), and this failure to comply was error.

Having found error, we next consider whether the error

was so serious that it affected the fairness of defendant's

trial. We note defendant does not argue the evidence was closely

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balanced. Instead, defendant contends the error "allowed for the

possibility of a partial jury, which affects the integrity of the

judicial process and ignores [his] constitutional rights to a

fair trial." As a result, we confine our review to the second

prong of the plain-error analysis. See People v. Blue, 189 Ill.

2d 99, 139, 724 N.E.2d 920, 941 (2000) (where a defendant has

been denied the right to a fair trial, a reviewing court must

remedy the error to preserve the integrity of the judicial

process without regard to the evidence against the defendant).

"To determine whether defendant's right to a fair trial

has been compromised, we employ the same test that this court

uses whenever it applies the second prong of the plain error

test." Blue, 189 Ill. 2d at 138, 724 N.E.2d at 940. We consider

whether a substantial right has been affected to the extent we

doubt that defendant's trial was fundamentally fair. Blue, 189

Ill. 2d at 138, 724 N.E.2d at 940-41. Regardless of the weight

of the evidence presented against defendant, a new trial is

essential where the trial court's error threatens the integrity

of the judicial process. Blue, 189 Ill. 2d at 139, 724 N.E.2d at

941.

In Glasper, 234 Ill. 2d at 189, 917 N.E.2d at 411-12,

the supreme court addressed whether (1) the trial court's failure

to comply with preamended Rule 431(b) requires a reviewing court

to presume prejudice and automatically reverse defendant's

conviction or (2) the error is subject to harmless-error analy-

sis. While the supreme court held the trial court erred by not

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fully complying with Rule 431(b), it (1) declined to find that a

violation of Rule 431(b) is per se reversible error and (2)

concluded the error was harmless where (a) no evidence was

presented that the jury was biased and (b) the evidence against

the defendant was overwhelming. Glasper, 234 Ill. 2d at 199-201,

917 N.E.2d at 417-18.

We note in Glasper, the supreme court expressly limited

its holding to the preamended version of Rule 431(b). As a

result, that decision does not purport to govern the application

of amended Rule 431(b), which is at issue in this case. Glasper,

234 Ill. 2d at 200, 917 N.E.2d at 418 (emphasizing "that this

holding is limited to the version of Rule 431(b)(4) that was in

effect at the time of the instant trial, and would not necessar-

ily apply to subsequent versions of the rule").

In Thompson, however, the supreme court clarified Rule

431(b) questioning is not indispensable to a fair trial and a

violation thereof does not necessitate automatic reversal under

the second prong of the plain-error analysis. Thompson, 238 Ill.

2d at 614-15, 939 N.E.2d at 414. Specifically, the supreme court

found the following:

"A finding that defendant was tried by a

biased jury would certainly satisfy the sec-

ond prong of plain-error review because it

would affect his right to a fair trial and

challenge the integrity of the judicial pro-

cess. Critically, however, defendant has not

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 presented any evidence that the jury was

biased in this case. Defendant has the bur-

den of persuasion on this issue. We cannot

presume the jury was biased simply because

the trial court erred in conducting the Rule

431(b) questioning." Thompson, 238 Ill. 2d

at 614, 939 N.E.2d at 413-14.

The Thompson court held that because the defendant had failed to

establish the court’s Rule 431(b) violation resulted in a biased

jury, the defendant had failed to meet his burden of showing the

error affected the fairness of his trial and challenged the

integrity of the judicial process. Thompson, 238 Ill. 2d at 615,

939 N.E.2d at 414.

The supreme court also made it clear its reasoning

applied regardless of whether the analysis took place under the

amended or preamended version of the rule. Thompson, 238 Ill. 2d

at 614, 939 N.E.2d at 414 ("the failure to conduct Rule 431(b)

questioning does not necessarily result in a biased jury, regard-

less of whether that questioning is mandatory or permissive under

our rule"). The court found while amended Rule 431(b) serves to

promote the selection of an impartial jury, it is only one method

of helping ensure the selection of an impartial jury and "is not

the only means of achieving that objective." Thompson, 238 Ill.

2d at 614, 939 N.E.2d at 414. Finally, the supreme court held a

Rule 431(b) violation "does not implicate a fundamental right or

constitutional protection." Thompson, 238 Ill. 2d at 614-15, 939

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N.E.2d at 414. Instead, a Rule 431(b) violation "only involves a

violation of [supreme court] rules." Thompson, 238 Ill. 2d at

615, 939 N.E.2d at 414.

In this case, all four Zehr principles were addressed

to each juror at some point during voir dire, and the evidence

presented at trial against defendant was overwhelming. In

addition, the jury received IPI Criminal 4th Nos. 2.03 and 2.04,

regarding the presumption of innocence, the State’s burden of

proof, and defendant’s decision not to testify. Most important,

defendant does not show the jury acted with bias in reaching its

verdict. See Thompson, 238 Ill. 2d at 611, 939 N.E.2d at 412

("Despite the trial court’s failure to comply with Rule 431(b) in

this case, there is no evidence that defendant was tried by a

biased jury."). We conclude the court's error did not rise to

the level of plain error. Accordingly, defendant has forfeited

his Rule 431(b) claim.

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

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

statutory assessment against defendant as costs of this appeal.

Affirmed.

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