People v. Chester

NO. 4-08-0841 Opinion Filed 4/11/11

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
GREGORY J. CHESTER, ) Nos. 07CF1069
Defendant-Appellant. ) 07CF797
)
) Honorable
) Robert L. Freitag,
) Judge Presiding.
_________________________________________________________________

JUSTICE POPE delivered the judgment of the court, with
opinion.
Justices Appleton and McCullough concurred in the
judgment and opinion.

OPINION

In October 2007, defendant, Gregory J. Chester, was

indicted on three counts of aggravated battery (720 ILCS 5/12-

4(a), (b)(6) (West 2006)) and one count of resisting a peace

officer (720 ILCS 5/31-1(a-7) (West 2006)). Following a jury

trial, defendant was convicted and sentenced to 12 years' impris-

onment for aggravated battery (McLean County case No. 07-CF-1069)

with the sentence to run consecutive to defendant's sentences in

McLean County case No. 07-CF-797 of 5 years' imprisonment for

obstructing justice and 364 days in jail for resisting arrest.

Defendant appealed only issues raised in his

aggravated-battery case (McLean County case No. 07-CF-1069),

arguing the following: (1) the trial court violated Illinois

Supreme Court Rule 431(b) (eff. May 1, 2007); (2) the State

improperly commented during closing argument on defendant's
exercise of his right to refrain from testifying and presenting

evidence; and (3) the trial court abused its discretion in

sentencing defendant to 12 years' imprisonment. In January 2010,

this court affirmed. People v. Chester, 396 Ill. App. 3d 1067,

926 N.E.2d 723 (2010).

The Supreme Court of Illinois denied defendant’s

petition for leave to appeal but issued a supervisory order

(People v. Chester, 239 Ill. 2d 561 (2011) (nonprecedential

supervisory order on denial of petition for leave to appeal))

directing this court to vacate our judgment 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. Because

Thompson does not change the result in this case, we again

affirm.

I. BACKGROUND

On October 6, 2007, Bloomington police officer Andrew

Chambers was in complete police uniform patrolling in a marked

police car when he passed a purple Cadillac driven by defendant,

who Officer Chambers knew did not have a valid driver's license.

After Officer Chambers activated his car's lights and siren, the

Cadillac pulled into the driveway of an apartment complex.

Defendant exited the vehicle and looked back at Officer Chambers,

then proceeded to take off running. Officer Chambers got out of

his vehicle and, standing approximately 20 feet from defendant,

- 2 -
yelled at defendant to stop. Defendant proceeded into the common

area of the apartment building through a steel door. As Officer

Chambers followed, defendant slammed the door into the officer.

Officer Chambers shielded his face with his left arm. He immedi-

ately felt extreme pain, and his fingers went numb when the door

slammed on his arm.

Once inside the building, Officer Chambers attempted to

deploy his Taser, but the probe fell off in the hallway. As he

proceeded up the stairs, defendant yelled, "[B]aby, police are

chasing me. Open the door." Officer Chambers followed defendant

up the stairs and saw defendant banging on the door of apartment

C, saying "let me in, let me in." A female inside the apartment

opened the door for defendant, who entered the apartment and

slammed the door on Officer Chambers' right arm. Officer Cham-

bers braced himself and pushed the door back on defendant,

knocking him to the ground. Defendant continued to resist arrest

as Officer Chambers attempted to subdue him with pressure-point

tactics. Defendant ripped the officer's uniform and ripped off

his credentials and badge. Officer Chambers was eventually able

to conduct a "drive stun" on defendant, holding the gun directly

against defendant's body. The drive stun was not successful, and

defendant continued hitting Officer Chambers and became more

aggressive in his resistance. The officer issued a second drive

stun for approximately five seconds. Defendant dropped his arms

to his side and said, "I quit."

X rays of Officer Chambers's left arm revealed frac-

- 3 -
tures in the ulna and radius, both of the bones in the forearm.

Because of the injuries he sustained, he was in physical therapy

for 1 1/2 months and missed approximately 3 months of work.

After presenting its case, the State dropped one count

of aggravated battery (720 ILCS 5/12-4(b)(6) (West 2006)) as

improperly charged. The jury convicted defendant of the remain-

ing two aggravated-battery charges and resisting a peace officer.

After the trial court found the resisting charge and one of the

aggravated-battery charges merged with the remaining count of

aggravated battery, the court sentenced defendant as stated.

We affirmed, and the supreme court denied defendant’s

petition for leave to appeal but directed this court to vacate

our judgment and to reconsider in light of Thompson.

II. ANALYSIS

On appeal, defendant argues (1) the trial court vio-

lated Supreme Court Rule 431(b); (2) the State improperly com-

mented during closing argument on defendant's exercise of his

right to refrain from testifying and presenting evidence; and (3)

the trial court abused its discretion in sentencing defendant to

12 years' imprisonment.

A. Voir Dire

Defendant argues the trial court violated Illinois

Supreme Court Rule 431(b) (eff. May 1, 2007) when it failed to

question jurors on the third and fourth Rule 431(b) principles,

which provide defendant is not required to present evidence on

his own behalf and defendant's choice not to testify may not be

- 4 -
held against him. 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.

The plain-error doctrine allows a reviewing court to

consider an unpreserved and otherwise forfeited error when "(1)

the evidence is close, regardless of the seriousness of the

error[;] or (2) the error is serious, regardless of the closeness

of the evidence." People v. Herron, 215 Ill. 2d 167, 186-87, 830

N.E.2d 467, 479 (2005). A harmless-error analysis applies when

the defendant timely objected to the error. People v. Johnson,

388 Ill. App. 3d 199, 203, 902 N.E.2d 1265, 1268 (2009). Because

defendant failed to object at trial, we analyze any error under

the plain-error doctrine. However, before we consider the plain-

error doctrine, we must determine whether the trial court commit-

ted an error. We review the trial 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).

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

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

qualification of a jury in a criminal case is each juror's

knowledge of the following four principles: (1) a defendant is

presumed innocent, (2) he is not required to present evidence on

his own behalf, (3) the State must prove him guilty beyond a

reasonable doubt, and (4) his decision not to testify may not be

held against him. The subject matter of these principles should

be addressed in the course of voir dire as a juror's prejudice as

- 5 -
to any of them would not be automatically cured with closing

remarks by counsel or jury instructions from the trial court.

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

In 1997, our supreme court adopted Rule 431(b) to

embrace the voir dire principles established in Zehr. Ill. S.

Ct. R. 431(b) (eff. May 1, 1997). The original rule provided,

"[i]f requested by the defendant, the court shall ask each

potential juror, individually or in a group, whether that juror

understands and accepts" the four Zehr principles. (Emphasis

added.) Ill. S. Ct. R. 431(b) (eff. May 1, 1997). At that time,

the trial court had no obligation to sua sponte question jurors

as to the Zehr principles. People v. Graham, 393 Ill. App. 3d

268, 272, 913 N.E.2d 99, 103 (2009).

However, effective May 1, 2007, the supreme court

amended the language to require trial courts to question jurors

on the Rule 431(b) principles without a defendant's prompting,

providing:

"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

- 6 -
 any evidence on his or her behalf; and (4)

that the defendant's failure to testify can-

not 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." Ill. S. Ct. R.

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

By removing the language that only required Zehr

questioning at defendant's request, our supreme court imposed a

sua sponte duty on courts to ask potential jurors individually or

in a group whether they accept these principles. Graham, 393

Ill. App. 3d at 273, 913 N.E.2d at 103. In carrying out this new

duty, trial courts are required to allow each juror an opportu-

nity to respond. Graham, 393 Ill. App. 3d at 273, 913 N.E.2d at

103.

The trial in the present case occurred after the 2007

amendment became effective. Thus, the trial court had a duty to

question the jurors about the Rule 431(b) principles and allow

the jurors to indicate whether they accepted the principles.

During voir dire in the present case, the trial court

addressed the Rule 431(b) principles as follows:

"The defendant in this case is presumed

to be innocent of the charges against him.

This presumption remains with the defendant

throughout every stage of the trial and dur-

ing the jury deliberations on the verdict,

- 7 -
 and it is not overcome unless from all the

evidence in this case the jury is convinced,

both individually and collectively, that the

defendant has been proven guilty beyond a

reasonable doubt.

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."

The trial court then asked the potential jurors in

groups, row by row, whether they understood and accepted those

basic propositions of law. Everyone answered in the affirmative.

After the court addressed individual issues with jurors, defense

counsel began questioning. Defense counsel told the prospective

jurors the following:

"Now [defendant] may or may not testify.

We haven't made that decision yet, but that

is his right to not testify and it is also

his right to testify. If he chooses that he

wishes to do that[,] would anybody have a

problem if he chose not to testify or would

you hold it against him in any way if he did

not testify?"

All of the prospective jurors indicated they accepted the fourth

Rule 431(b) principle. At the end of the trial, before the jury

- 8 -
retired for deliberations, the court properly instructed the jury

on all four Zehr principles.

Defendant argues the trial court erred when it failed

to advise the potential jurors of the third and fourth Rule

431(b) principles, i.e., that defendant need not present evidence

on his own behalf and his decision not to testify cannot be held

against him. The court's statement that "defendant is not

required to prove his innocence" would be interpreted by a

reasonable jury to satisfy the third Rule 431(b) principle

because if defendant is not required to prove his innocence, he

has no reason to present evidence. As Rule 431(b) does not

require the court to recite the principles verbatim, the court's

language was sufficient to comply with the rule.

Despite its satisfaction of the third Rule 431(b)

principle, the trial court erred by not addressing the fourth

principle. While defendant concedes defense counsel rectified

this error by addressing the fourth principle with the prospec-

tive jurors, the court itself is required to address this princi-

ple. Thus, the court did not follow the mandate of Rule 431(b),

and this failure to comply constituted 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

balanced. Instead, defendant contends a Rule 431(b) violation

mandates automatic reversal because of the denial of the funda-

mental right to a fair trial by an impartial jury. As a result,

- 9 -
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 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

- 10 -
 would affect his right to a fair trial and

challenge the integrity of the judicial pro-

cess. Critically, however, defendant has not

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 defendant had failed to

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

jury, 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 a an impartial jury and "is

not the only means of achieving that objective." Thompson, 238

- 11 -
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 [a] constitutional protection." Thompson, 238 Ill. 2d

at 614-15, 939 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, the fundamental fairness of defendant’s

trial was not jeopardized by the trial court's error. Prior to

questioning prospective jurors, the court admonished the venire

of three of the four Rule 431(b) principles. In addition,

defense counsel questioned the potential jurors about the fourth

principle. Following closing arguments, the court instructed the

jury on all four principles. Most important, defendant does not

show the jury acted with bias in reaching its verdict. "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." Thompson, 238 Ill. 2d at 611, 939 N.E.2d at 412. Thus,

we conclude the court's voir dire error did not rise to the level

of plain error. Accordingly, defendant has forfeited his Rule

431(b) claim.

B. Closing Arguments

Defendant argues the State improperly commented on

defendant's decision not to testify and his failure to present

evidence during closing arguments.

The statements at issue are as follows:

"What did the defendant do? Well, we

- 12 -
 have heard testimony from the officer and the

officer testified, hasn't been refuted or

questioned in any way, you haven't heard any

other testimony to refute what the officer

said, and that is that the defendant got out

of the vehicle, turned around and saw the

officer's squad car and proceeded to run.

***

I want to kind of go over the testimony

of the door detail because I think it is

important because what the officer said about

what happened next shows that what happened

here was a deliberate intentional act. It

was definitely a knowing act. There was no

accident here. There hasn't been any one

testify that it was an accident."

Defendant contends the State told the jury "no one"

refuted Officer Chambers and "no one" testified that the door-

slamming incident was an accident. Defendant's characterization

is not entirely accurate. The State actually said "you haven't

heard any other testimony to refute what the officer said."

Improper remarks during closing argument are only

reversible when they cause the defendant substantial prejudice

and affect the defendant's right to an impartial and fair trial.

People v. Ward, 371 Ill. App. 3d 382, 426, 862 N.E.2d 1102, 1144

(2007). When no witness besides defendant could provide evidence

- 13 -
contrary to the State's case, the State may argue the evidence is

uncontradicted but may not repeatedly tell the jury "'no one'"

contradicted the State's evidence. People v. Edgecombe, 317 Ill.

App. 3d 615, 620-21, 739 N.E.2d 914, 919-20 (1st Dist. 2000). In

Edgecombe, the State made the following references to the State's

uncontradicted evidence:

"'There has been no evidence whatsoever from

that witness stand that says $60 wasn't taken

***. No one said $60 wasn't taken from them

***'; 'There's no one that got up there that

said anything different ***'; 'There's no one

that got up there and said the defendant was

just standing there ***'; and 'Is there any

evidence that you heard that this guy was

just there? Nobody told you that.'" Edge-

combe, 317 Ill. App. 3d at 621, 739 N.E.2d at

920.

The Edgecombe court found the repeated references to

"'no one'" refuting the testimony "crossed the line" and were

improper comments on the defendant's failure to testify. Edge-

combe, 317 Ill. App. 3d at 621, 739 N.E.2d at 920. Here, the

State used the phrase "no one" once while describing the door-

slamming incident. While the comment was improper, the error did

not deny defendant a fair and impartial trial. The trial court

corrected this error with the following jury instructions: "The

defendant is not required to prove his innocence. The fact that

- 14 -
the defendant did not testify must not be considered by you in

any way in arriving at your verdict." Thus, defendant suffered

no prejudice because the jury knew the State was required to

prove the elements of aggravated battery and it was to give no

consideration to defendant's failure to testify.

C. Twelve-Year Sentence

Defendant argues the trial court abused its discretion

in imposing a 12-year sentence for his aggravated-battery convic-

tion. Trial courts are given broad discretion in fashioning

appropriate criminal sentences. People v. Stacey, 193 Ill. 2d

203, 209, 737 N.E.2d 626, 629 (2000). Absent an abuse of the

court's discretion, we will not alter the sentence on review.

Stacey, 193 Ill. 2d at 209-10, 737 N.E.2d at 629.

Here, defendant's aggravated-battery conviction was

elevated to a Class 1 felony because defendant knew the victim

was a peace officer (720 ILCS 5/12-4(e)(3) (West 2006)), render-

ing him eligible for a 4- to 15-year sentence (730 ILCS 5/5-8-

1(a)(4) (West 2006)). Despite defendant's stated remorse for his

actions, the 12-year sentence was appropriate considering defen-

dant's scant rehabilitative potential. Defendant's criminal

record dates back to 1995 when at 18 years old he was first

convicted of unlawful use of a weapon. Since then, defendant has

been convicted of unlawful use of a weapon twice, once as a

felon, manufacturing and delivering narcotics, criminal damage to

property, assault, and numerous traffic violations. The court

observed that at age 31, defendant had amassed 10 felony convic-

- 15 -
tions. In 2003, defendant was given a seven-year prison term for

delivery of a controlled substance. While on mandatory super-

vised release in 2007, defendant committed the offenses in the

present case. In light of defendant's penchant for criminal

activity, the trial court did not abuse its discretion in render-

ing the statutorily permissible 12-year sentence.

III. CONCLUSION

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.

- 16 -