THIRD DIVISION
December 23, 2009
No. 1-07-2826
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
) the Circuit Court
Plaintiff-Appellee, ) of Cook County.
)
v. )
)
AARON MAGALLANES, ) Honorable
) Thomas V. Gainer,
Defendant-Appellant. ) Judge Presiding.
JUSTICE QUINN delivered the opinion of the court:
Following a jury trial, defendant was found guilty of burglary and sentenced, based on his
criminal history, as a Class X offender (730 ILCS 5/5-5-3(c)(8) (West 2006)), to seven years in
prison. On appeal, defendant contends that: (1) the circuit court erred in failing to grant his
motion to quash arrest and suppress evidence where the police officer who stopped defendant
lacked a reasonable suspicion that defendant was engaged in unlawful activity; (2) his conviction
should be reversed where the circuit court failed to comply with Supreme Court Rule 431(b)
(Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431 (b), eff. May 1, 2007); and (3) he
received ineffective assistance of counsel where trial counsel during opening remarks said it was
defendant’s “side of the story” that defendant merely found the items in the alley, but counsel
failed to present defendant’s testimony or any other evidence, thereby opening the door for the
No. 1-07-2826
State to comment during closing arguments on defendant’s lack of evidence. For the following
reasons, we affirm defendant’s conviction and sentence.
I. BACKGROUND
Prior to trial, defendant filed a motion to quash arrest and suppress evidence, arguing that
defendant’s warrantless arrest was invalid because the off-duty police officer lacked reasonable
suspicion of criminal activity that would have justified a brief stop under Terry v. Ohio, 392 U.S.
1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). Defendant argued that because the police officer
lacked reasonable suspicion to conduct a Terry stop, defendant’s statements to police, the
discovery of the items in his pickup truck, and the identification of the items by the alleged owner
should be suppressed.
At the hearing on defendant’s motion, Chicago police sergeant Mark Nottoli testified that
at 1 a.m., on June 30, 2006, he was off duty and on his way home from work. Sergeant Nottoli
was driving home in his personal vehicle, a convertible with the roof down, and wearing his police
uniform. At about 1:30 a.m., Sergeant Nottoli observed defendant driving on 129th Street, near
Saginaw and Marquette Avenues. Defendant was driving a pickup truck with a 24-foot extension
ladder protruding from the back, and a lawnmower, leaf blower and other lawn equipment in the
back of the pickup truck. Sergeant Nottoli testified that he decided to initiate a stop of
defendant’s vehicle because the condition of the ladder protruding from the back of the pickup
truck created an unsafe condition and violated a city ordinance. Sergeant Nottoli testified that he
also decided to initiate a stop of defendant’s vehicle because the sergeant lived in the area, did not
recognize defendant’s truck, and there had been a rash of garage burglaries in that neighborhood
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during that time. Sergeant Nottoli explained that defendant’s vehicle had been “[e]xiting from an
alley at that time of night with such a load with garages on both sides and [defendant’s] load being
things that are usually kept in the garage.”
Sergeant Nottoli also testified that under the rules of the Chicago police department, even
when off duty, he was required to take action when he saw what he believed to be illegal activity
occurring. Sergeant Nottoli testified that he stopped defendant’s vehicle at 130th Street and
Saginaw Avenue. Sergeant Nottoli exited his vehicle and asked defendant for his driver’s license
and insurance card, which defendant failed to produce. Sergeant Nottoli then placed defendant
into custody, advised him of his Miranda rights, and called “911" from his cellular phone to
request the assistance of on-duty police officers. Sergeant Nottoli asked defendant where the
materials in the back of his truck came from and defendant provided a statement. Sergeant
Nottoli testified that he eventually learned that the items in the truck where taken from a garage in
the 12800 block of Saginaw Avenue.
Based on the above evidence, the circuit court found that Sergeant Nottoli’s testimony
was credible and that he had the authority to initiate a stop of defendant’s vehicle despite being
off duty at the time. The circuit court noted that Sergeant Nottoli testified that his primary
purpose for stopping defendant’s vehicle was the unsafe condition of the ladder protruding from
the rear of the truck. The court also noted that Sergeant Nottoli testified that he lived in the
neighborhood, that he did not recognize defendant or his truck, that there had been many garage
burglaries in the area, and that defendant was driving down an alley in a truck that contained items
commonly kept in garages. The circuit court explained that was “a secondary reason that gave
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rise to some suspicion that maybe the defendant had been involved in criminal activity.” The
circuit court then denied defendant’s motion to quash arrest and suppress evidence.
During opening remarks to the jury, defense counsel argued that she would present
defendant’s “side of the story.” Defense counsel argued that defendant had not committed the
offense of burglary but, rather, that defendant had found the items in his truck when he was
driving through the alley collecting junk discarded by others.
At trial, Sergeant Nottoli provided testimony similar to that during defendant’s motion to
quash arrest and suppress evidence. Sergeant Nottoli also testified that after he placed defendant
into custody and advised him of his Miranda rights, defendant stated that he bought the items in
his truck from “Murray’s.” Sergeant Nottoli testified that he did not believe defendant because
the ladder and lawn trimmer had “Menard’s” stickers on them. After other police officers arrived,
Sergeant Nottoli accompanied them to look at garages in the area. Sergeant Nottoli testified that
the gate and side garage door were open at 12805 South Saginaw Avenue. Sergeant Nottoli
testified that he spoke to the resident of the house at that address, Frank Farro. Farro identified a
sports chair, extension ladder and lawn mower in the back of defendant’s truck as belonging to
him.
Frank Farro testified that he lived at 128th Street and Saginaw Avenue. At about 1:30
a.m., on June 30, 2006, Farro was awakened by police officers knocking on his door. Farro told
the police officers that he did not leave his gate or side door to his garage open. Farro went out
to his garage with the officers and noticed that the gate and side garage door were open. Farro
also observed that his lawnmower was no longer in his garage. After looking in defendant’s
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pickup truck, Farro identified his lawnmower, an extension ladder, and a sports chair. Farro
testified that these items had been in his garage, that he did not know defendant, and that he had
not given defendant permission to enter his garage or take any of the items.
Detective Daniel O’Connor testified that he was on patrol with his partner on the morning
in question and responded to Sergeant Nottoli’s call for assistance. Officer O’Connor and his
partner arrived at the scene, took defendant into custody, and transported defendant to the police
station. Detective O’Connor testified that he advised defendant of his Miranda rights as
defendant was processed for the burglary charge. Defendant then stated, “The door was open. I
didn’t break in.”
After the State rested its case, defendant indicated that he did not want to testify. The
circuit court admonished defendant about his right to chose whether or not to testify, and despite
defense counsel’s prior indication that defendant’s “side of the story” was that he had merely
found the items in the alley, defendant stated that he was choosing not to testify.
Based on this evidence, the jury found defendant guilty of burglary and defendant was
subsequently sentenced to seven years in prison. Defendant now appeals.
II. ANALYSIS
A. Defendant’s Motion to Quash Arrest and Suppress Evidence
Defendant argues that the circuit court erred in denying his motion to quash arrest and
suppress evidence where the police officer who stopped defendant’s vehicle lacked reasonable
suspicion to believe that defendant was engaged in unlawful activity.
Review of a trial court’s ruling on a motion to quash arrest and suppress evidence presents
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mixed questions of fact and law. People v. Bennett, 376 Ill. App. 3d 554, 563 (2007).
“ ‘The trial court’s factual and credibility determinations are accorded great deference, and we
reverse only if the findings are against the manifest weight of the evidence.’ ” Bennett, 376 Ill.
App. 3d at 563, quoting People v. Novakowski, 368 Ill. App. 3d 637, 640 (2006). “ ‘Legal
conclusions, however, are reviewed de novo.’ ” Bennett, 376 Ill. App. 3d at 563, quoting
Novakowski, 368 Ill. App. 3d at 640. “ ‘Therefore, we review the ultimate determination of
whether the evidence should have been suppressed de novo.’ ” Bennett, 376 Ill. App. 3d at 563,
quoting Novakowski, 368 Ill. App. 3d at 640.
Defendant argues that the police officer lacked reasonable suspicion to justify an initial
stop of defendant’s vehicle, pursuant to Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct.
1868 (1968), based on the officer’s belief that defendant’s truck violated a city ordinance and may
have been connected to recent burglaries in the area. Under Terry v. Ohio, where a police officer
observes unusual conduct, he may stop and detain a person without probable cause to investigate
possible criminal activity. Terry v. Ohio, 392 U.S. at 30, 20 L. Ed. 2d at 911, 88 S. Ct. at 1884-
85. To justify a Terry stop, an officer “must be able to point to specific and articulable facts
which, taken together with rational inferences from those facts, reasonably warrant [the]
intrusion.” Terry v. Ohio, 392 U.S. at 21, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880. Illinois has
codified the holding of Terry in section 107-14 of the Code of Criminal Procedure of 1963: “[A]
peace officer *** may stop any person in a public place for a reasonable period of time when the
officer reasonably infers from the circumstances that the person is committing, is about to commit
or has committed an offense *** and may demand the name and address of the person and an
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explanation of his actions.” 725 ILCS 5/107-14 (West 2006). We apply a de novo standard of
review to determine the existence of ‘reasonable suspicion’ supporting a Terry stop. Bennett, 376
Ill. App. 3d at 564.
In this case, Officer Nottoli testified that he decided to initiate a stop of defendant’s
vehicle because the condition of the ladder protruding from the back of the pickup truck created
an unsafe condition and violated a city ordinance. Sergeant Nottoli also testified that he decided
to stop defendant’s vehicle because the sergeant lived in the area, he did not recognize
defendant’s truck, and there had been a rash of garage burglaries in that neighborhood during that
time, and defendant’s vehicle exited from an alley at night and contained items usually kept in
garages.
Defendant asserts that Sergeant Nottoli’s stop was not justified where defendant was not
in violation of section 9-72-060(e) of the Chicago Municipal Code (Chicago Municipal Code §9-
72-060(e) (amended October 7, 1998)) for which he was subsequently cited. Defendant maintains
that the load protruding from the rear of his vehicle did not violate section 9-72-060(e), which
provides that the load upon the front of a vehicle “shall not extend more than three feet beyond
the front wheels of such vehicle or the front bumper of such vehicle” Chicago Municipal Code
§9-72-060(e) (amended October 7, 1998)). However, defendant did not present this argument
before the circuit court, and arguments made for the first time on appeal are waived. People v.
Brooks, 187 Ill. 2d 91, 128 (1999).
Moreover, we find that the facts Sergeant Nottoli testified to provided the minimal
articulable suspicion required to stop defendant’s vehicle. Defendant argues that his presence in
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an area of suspected criminal activity was not enough to support a reasonable suspicion to justify
a Terry stop. However, defendant’s presence in the area of recent garage burglaries was not the
only factor considered by Sergeant Nottoli. Sergeant Nottoli explained that there had been a rash
of garage burglaries in the neighborhood, that he lived in the area and did not recognize
defendant’s vehicle, and that defendant’s vehicle was exiting an alley late at night containing a
number of items usually kept in garages. We therefore conclude that the investigatory stop was
proper and find no error in the circuit court’s denial of defendant’s motion to quash arrest and
suppress evidence.
B. Compliance with Supreme Court Rule 431(b)
Defendant contends that the trial judge violated Rule 431(b) by failing to ask the potential
jurors whether they accepted all of the principles set forth in People v. Zehr, 103 Ill. 2d 472
(1984). Defendant maintains that the trial judge’s error requires automatic reversal, not subject to
harmless-error analysis, where he failed to conduct the voir dire in accordance with Zehr and Rule
431(b). The State argues that defendant forfeited the argument by not objecting in the trial court
or in a posttrial motion and that any shortcomings in the conduct of the voir dire should be
deemed harmless where the alleged error is not “structural” error requiring automatic reversal.
1. Standard of Review
This issue concerns compliance with a supreme court rule, and, therefore, this court’s
review is de novo. People v. Lloyd, 338 Ill. App. 3d 379, 384 (2003).
2. The Plain-Error Doctrine
Defendant failed to object at trial to the error he now claims and failed to raise the claim of
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error in his motion for a new trial. Therefore, the alleged error has not been properly preserved
for this court’s review. People v. Lovejoy, No. 104443, slip op. at 38 (September 24, 2009),
citing People v. Enoch, 122 Ill. 2d 176, 186 (1988). This court recognizes, as defendant
suggests, the “application of the waiver rule is less rigid where the basis for the objection is the
trial judge’s conduct.” People v. Nevitt, 135 Ill. 2d 423, 455 (1990). Thus, defendant maintains
that this court should review his claim pursuant to the plain error doctrine (134 Ill. 2d R. 615(a)).
In the seminal case of People v. Thurow, 203 Ill. 2d 352 (2003), our supreme court
discussed the application of the plain error doctrine.
“Though plain-error analysis normally requires the same kind of inquiry as does
harmless-error review, there is an ‘important difference’ between the two. United States
v. Olano, 507 U.S. 725, 734, 123 L. Ed. 2d 508, 520, 113 S. Ct. 1770, 1778 (1993). In a
harmless-error analysis, which applies where, as in the case at bar, the defendant has made
a timely objection, it is the State that ‘bears the burden of persuasion with respect to
prejudice.’ Olana, 507 U.S. at 734, 123 L. Ed. 2d at 520, 113 S. Ct. at 1778. In other
words, the State must prove beyond a reasonable doubt that the jury verdict would have
been the same absent the error. See Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d
705, 710-11, 87 S. Ct. 824, 828 (1967); Neder v. United States, 527 U.S. 1, 19, 144 L.
Ed. 2d 35, 53, 119 S. Ct. 1827, 1838 (1999). The situation is different under a plain-error
analysis, which applies where the defendant has failed to make a timely objection. There,
‘[i]t is the defendant rather than the [State] who bears the burden of persuasion with
respect to prejudice.’ Olano, 507 U.S. at 734, 123 L. Ed. 2d at 520, 113 S. Ct. at 1778.
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‘In most cases, a court of appeals cannot correct the forfeited error unless the defendant
shows that the error was prejudicial.’ Olano, 507 U.S. at 734, 123 L. Ed. 2d at 520,
113 S. Ct. at 1778." Thurow, 203 Ill. 2d at 363.
When assertions of instructional error are raised, our supreme court has consistently
applied the principles of Supreme Court Rules 451(c) and 615(a). Rule 451(c) is applicable when
the defendant fails to object to the alleged instructional error at trial. 210 Ill. 2d R. 451(c). Rule
615(a) is applicable when the defendant objected at trial but failed to preserve the instructional
issue by including it in a posttrial motion. 134 Ill. 2d R. 615(a). “[P]lain-error analyses under
Supreme Court Rules 451(c) and 615(a) are construed identically.” People v. Durr, 215 Ill. 2d
283, 296-97 (2005), citing People v. Keene, 169 Ill. 2d 1, 32 (1995).
Supreme Court Rule 451(c) provides that “substantial defects are not waived by failure to
make timely objections thereto if the interests of justice require.” 210 Ill. 2d R. 451(c). Supreme
Court Rule 615(a) provides that “[p]lain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the trial court.” 134 Ill. 2d R. 615(a).
In People v. Herron, 215 Ill. 2d 167, 186-87 (2005), our supreme court held that “the
plain-error doctrine bypasses normal forfeiture principles and allows a reviewing court to consider
unpreserved error when either (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.” Under the first prong, the
defendant must prove “prejudicial error,” by showing both that there was plain error and that “the
evidence was so closely balanced that the error alone severely threatened to tip the scales of
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justice against him.” Herron, 215 Ill. 2d at 187. Under the second prong, the defendant must
prove that there was plain error and that “the error was so serious that it affected the fairness of
the defendant’s trial and challenged the integrity of the judicial process.” Herron, 215 Ill. 2d at
187. Prejudice to the defendant is presumed because of the importance of the right involved, “
‘regardless of the strength of the evidence.’ ” (Emphasis in original.) Herron, 215 Ill. 2d at 187,
quoting People v. Blue, 189 Ill. 2d 99, 138 (2000). In both instances, the burden of persuasion
remains with the defendant. Herron, 215 Ill. 2d at 187.
Defendant argues that under the second prong, the trial court’s failure to comply with
Rule 431(b) denied him the basic guarantees for obtaining a fair and impartial jury such that his
conviction must be automatically reversed. Before considering whether the plain-error exception
applies, we must first determine whether any error occurred in this case. Lovejoy, No. 104443,
slip op. at 38.
3. The Trial Court’s Voir Dire
The trial judge commenced voir dire by addressing the entire venire. The trial judge told
the venire:
“[A]ll persons charged with a crime are presumed to be innocent and [it] is the burden of
the State who has brought the charges to prove the defendant guilty beyond a reasonable
doubt. What this means is the defendant has no obligation to testify in his own behalf or
to call any witnesses in his defense. He may simply sit here and rely upon what he and his
attorneys perceive to be the inability of the State to present sufficient evidence to meet
their burden of proof of guilt beyond a reasonable doubt. Should that happen, you will
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have to decide this case on a basis of the evidence presented by the prosecution. The fact
that the defendant chooses not to testify must not be considered by you in anyway in
arriving at your verdict. ***
The bottom line, however, is this: There is no burden upon the defendant to prove
his innocence. It is the State’s burden to prove him guilty beyond a reasonable doubt.”
A short time later, the trial judge questioned the potential jurors as follows:
“I spoke about the fact that the defendant is presumed to be innocent of the charges
against him and that this presumption stays with the defendant through the trial and is not
overcome unless and until the jury determine[s] the defendant is guilty beyond a
reasonable doubt. Is there anyone among you who disagrees with that fundamental
principle of our law. If so, please, raise your hand. The record should reflect that no
hands are raised.
I also spoke about the fact that the State bears the burden of proving the defendant
guilty beyond a reasonable doubt. Is there anyone among you who disagrees with that
fundamental principle of law. If so, please, raise your hand. The record should reflect that
there are no hands raised.
Because the defendant is presumed to be innocent, he does not have to present any
evidence at all in this case. He can simply rely on the presumption of innocence. Is there
anyone among you who disagrees with that fundamental principle of law. If so, please,
raise your hand. The record [should] reflect that no hands are raised.”
Before the trial judge commenced individual questioning of the potential jurors, defense
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counsel asked the judge to “question each juror individually about the defendant not testifying and
burden of proof.” The trial judge responded, “I will pretty much ask the same questions that I
just asked. I can do that. That’s not a problem. “
During individual questioning of the potential jurors, the trial judge asked the jurors
questions similar to those above, pertaining to the presumption of innocence, the State’s burden
of proof, and the proposition that defendant need not prove his innocence.
4. Did the Voir Dire Procedure Comply with Rule 431(b)?
In Zehr, our 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.” Zehr, 103 Ill. 2d at 477. In
response to Zehr, Supreme Court Rule 431(b) was amended in 1997 to provide that, if requested
by the defendant, the trial court was required to ask the jurors, individually or in a group, whether
they understood and accepted the Zehr principles. 177 Ill. 2d R. 431(b). Because questioning the
jurors with respect to the Zehr principles was contingent on a request by the defendant, cases
construing the 1997 amendment found no duty on the part of the trial judge to sua sponte
question the jurors as to the Zehr principles. See People v. Gilbert, 379 Ill. App. 3d 106, 109
(2008); People v. Williams, 368 Ill. App. 3d 616, 623 (2006); People v. Foreman, 361 Ill. App. 3d
136 (2005).
In 2007, Rule 431(b) was amended to impose “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
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principles.” People v. Graham, 393 Ill. App. 3d 268, 273 (2009). Rule 431(b) currently provides
as follows:
“The court shall ask each potential juror, individually or in a group, whether that
juror understands and accepts the following 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 defendant 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 principles set out in this section.” Official Reports
Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007.
Defendant’s trial commenced on August 22, 2007, which was several months after the effective
date of the 2007 amendments. Therefore, the 2007 amended version of Rule 431(b) governs this
case.
Rule 431(b) requires the trial court to address all four Zehr principles in a manner that
allows each venireperson an opportunity to respond whether he or she understands and accepts
those principles. The only exception to this requirement applies to the principle that the
defendant’s failure to testify cannot be held against him when the defendant objects to inquiry
being made into that principle. See Official Reports Advance Sheet No. 8 (April 11, 2007), R.
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431(b)(4), eff. May 1, 2007 (no inquiry “shall be made into the defendant’s failure to testify when
the defendant objects”).
In this case, the trial court questioned each venireperson as to whether he or she
understood and accepted the first three Zehr principles in a manner that allowed each
venireperson an opportunity to respond. However, the court failed to question and allow each
venireperson to respond to whether he or she understood and accepted the fourth Zehr principle,
i.e., that the defendant’s failure to testify could not be held against him (hereinafter referred to as
the fourth Zehr principle). The record does not reflect that defense counsel objected to inquiry
being made into the fourth Zehr principle, such that the trial court would not be required to
question each venireperson with respect to that principle. Rather, the record shows that defense
counsel affirmatively requested that the trial court “question each juror individually about the
defendant not testifying.” Therefore, error clearly occurred here because the trial court did not
question each venireperson as to whether he or she understood and accepted the fourth Zehr
principle. While we note that the trial court began the voir dire with a general statement of law
which included all four of the Zehr principles, the court failed to ascertain whether all of the
potential jurors understood and accepted the fourth Zehr principle to fully comply with Rule
431(b). See 177 Ill. 2d R. 431(b), Committee Comments, at 1xxix (“The new language is
intended to ensure compliance with the requirements of People v. Zehr, 103 Ill. 2d 472 (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”).
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5. Does the Error Require Automatic Reversal
Defendant did not object to the error in the trial court. However, defendant contends that
under the second prong of plain error, the trial court’s failure to comply with Rule 431 deprived
him of a fair trial such that automatic reversal is required and the error is not subject to harmless
error analysis. The State maintains that the failure to fully comply with Rule 431 was not a
“structural error” requiring automatic reversal but, rather, that the error was harmless.
As previously mentioned, in discussing the second prong of plain-error analysis, our
supreme court in Herron cited its prior decision in People v. Hopp, 209 Ill. 2d 1 (2004). In Hopp,
our supreme court considered whether the failure to include a definition of “first degree murder”
in the instructions for a defendant charged with conspiracy to commit first degree murder
constituted plain error. The court affirmed the defendant’s conviction, holding:
“Without referring to the record to explain how defendant’s trial may have been rendered
unfair by the omission of the instruction defining first degree murder, the appellate court
held that the omission was ‘a substantial and prejudicial defect.’ [Citation.] However, we
have never held any such omission to be plain error without considering the effect that the
omission had on defendant’s trial. On the contrary, the result in [People v.]Underwood,
[72 Ill. 2d 124 (1978)], demonstrates that omission of the definition of a term used to
instruct the jury on the essential issue in the case is not necessarily plain error. See
Underwood, 72 Ill. 2d at 130-31. Furthermore, even an incorrect instruction on an
element of the offense is not necessarily reversible error. People v. Jones, 81 Ill. 2d 1, 10
(1979).” Hopp, 209 Ill. 2d at 10.
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Our supreme court concluded:
“[A]n omitted jury instruction constitutes plain error only when the omission
creates a serious risk that the jurors incorrectly convicted the defendant because they did
not understand the applicable law, so as to severely threaten the fairness of the trial. This
rule does not require that defendant prove beyond doubt that her trial was unfair because
the omitted instruction misled the jury to convict her. It does require that she show that
the error caused a severe threat to the fairness of her trial.” (Emphasis in original.) Hopp,
209 Ill. 2d at 12.
In Herron, 215 Ill. 2d at 181-83, our supreme court also considered its holding in Thurow
and its holding in People v. Crespo, 203 Ill. 2d 335 (2001), which reviewed whether an extended-
term sentence based on a judge’s finding that the crime was “brutal and heinous” violated the
holding in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000),
under a plain-error analysis: “[In Crespo,] [w]e then returned to [United States v.] Cotton, [535
U.S. 625, 152 L. Ed. 2d 860, 122 S. Ct. 1781 (2002),] where the [United States] Supreme Court
applied the plain-error test of Federal Rule of Criminal Procedure 52(a) to a forfeited claim.”
Herron, 215 Ill. 2d at 182. In Herron, our supreme court further explained:
“We noted that the Court in Cotton assumed the defendant’s substantial rights were
affected by the Apprendi violation, but held that error did not seriously affect the fairness,
integrity, or public reputation of judicial proceedings because the government presented
overwhelming evidence of guilt. See Crespo, 203 Ill. 2d at 348. We reached ‘the same
conclusion by the same reasoning.’ Crespo, 203 Ill. 2d at 348. Because the State
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presented overwhelming evidence that the murder was brutal and heinous, ‘there [was] no
basis for concluding that the Apprendi violation “seriously affected the fairness, integrity
or public reputation of judicial proceedings.” ’ Crespo, 203 Ill. 2d at 348.” Herron, 215
Ill. 2d at 182-83.
Our supreme court concluded, “We simply referred to the plain-error standard in Cotton and
[United States v.] Olano, [507 U.S. 725, 123 L. Ed. 2d 508, 113 S. Ct. 1770 (1993),] because, at
its core, it is the same standard we already use. Ultimately, plain error involves the same
considerations in federal and state court. The differences between the federal and the state plain-
error tests are a function of the common law process. Over time, different justices of different
courts have added their idiosyncratic language to the case law, but changes in the language of
plain error have not resulted in changes in the meaning of plain error.” Herron, 215 Ill. 2d at 186.
In People v. Davis, 233 Ill. 2d 244 (2009), the defendant challenged his first degree
murder conviction. The jury was instructed on intentional or knowing murder and felony murder
predicated on aggravated battery, and the jury returned a general guilty verdict of first degree
murder. Davis, 233 Ill. 2d at 247. The defendant never requested a special verdict form. On
appeal, the defendant argued that it was reversible error to instruct the jury that felony murder
could be predicated upon aggravated battery because the conduct forming the basis of the
aggravated battery was inherent in the murder. Davis, 233 Ill. 2d at 247. The defendant also
argued that the one-good-count presumption, which provides that a general verdict of guilty on a
multiple count indictment is interpreted to be a finding of guilt on each count, was
unconstitutional and should not apply. Davis, 233 Ill. 2d at 265-66.
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Our supreme court disagreed with the defendant and found that any error in instructing the
jury was harmless. Davis, 233 Ill. 2d at 274-75. In Davis, the court explained that the United
States Supreme Court had recently resolved this issue in Hedgpeth v. Pulido, 555 U.S. , 172
L. Ed. 2d 388, 391, 129 S. Ct. 530, 532 (2008). In Pulido, the United States Supreme Court
found that where a jury returns a general guilty verdict after being instructed on alternative
theories of guilt, but one of the alternative theories upon which the verdict could have been based
was invalid, the error in so instructing the jury does not amount to a “structural” defect and is
subject to harmless-error analysis. The Supreme Court explained, “Neder makes clear that
harmless-error analysis applies to instructional errors so long as the error at issue does not
categorically ‘vitiat[e] all the jury’s findings.’ ” Pulido, 555 U.S. , 172 L. Ed. 2d at 391, 129 S.
Ct. at 532, quoting Neder v. United States, 527 U.S. 1, 11, 144 L. Ed. 2d 35, 119 S. Ct. 1827,
1834 (1999), quoting Sullivan v. Louisiana, 508 U.S. 275, 281, 124 L. Ed. 2d 182, 113 S. Ct.
2078 (1993). Applying Pulido, our supreme court in Davis held that “even if we were to find that
a constitutional due process error occurred in instructing the jury on felony murder or that the
one-good-count presumption is questionable, it would still not require automatic reversal of
defendant’s murder conviction.” Davis, 233 Ill. 2d at 273. “Accordingly, we hold that the instant
felony-murder instruction, even if erroneous, was a typical trial error that did not amount to a
structural defect that required automatic reversal. It would be analogous to the Apprendi cases
that we have decided such as People v. Nitz, 219 Ill. 2d 400 (2006), and People v. Thurow, 203
Ill. 2d 352 (2003).” Davis, 233 Ill. 2d at 273. Our supreme court then concluded that under the
facts of the case, the evidence of intentional and strong probability murder based on accountability
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was not closely balanced and, therefore, any error in instructing the jury on felony murder was
harmless. Davis, 233 Ill. 2d at 275.
In Nitz, our supreme court considered the second prong of plain error under Herron.
Nitz, 219 Ill. 2d at 415. Our supreme court explained:
“Herron’s two prongs establish two categories of plain error: prejudicial errors,
which may have affected the outcome in a closely balanced case, and presumptively
prejudicial errors, which must be remedied although they may not have affected the
outcome. Herron, 215 Ill. 2d at 185. Our analysis in Crespo and Kaczmarek indicates
that the Apprendi violation defendant complains of in this case - a sentence based on a
judge-made finding that a murder was brutal or heinous - is not a presumptively prejudicial
error that must be remedied regardless of its effect on the trial’s outcome. In each of
those cases, we required the defendants to prove that they were prejudiced by the error.
See Crespo, 203 Ill. 2d at 348; [People v.] Kaczmarek, 207 Ill. 2d [288, 302 (2003)].
Thus, the second prong of the Herron plain-error analysis is inapplicable to defendant’s
case.” Nitz, 219 Ill. 2d at 415-16.
In Davis, our supreme court’s plain-error analysis referenced the “structural defect”
standard of federal error analysis. Under federal criminal jurisprudence, not all constitutional
errors require reversal. Pulido, 555 U.S. at , 172 L. Ed. 2d at 391, 129 S. Ct. at 532. The
United States Supreme Court divides constitutional errors into two different classes: “trial
error[s]” and “structural” errors. United States v. Gonzalez-Lopez, 548 U.S. 140, 148, 165 L.
Ed. 2d 409, 419, 126 S. Ct. 2557, 2563-64 (2006). Trial errors are those errors that “ ‘occurred
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during the presentation of the case to the jury’ and their effect may ‘be quantitatively assessed in
the context of other evidence presented in order to determine whether [they were] harmless
beyond a reasonable doubt.’ ” Gonzalez-Lopez, 548 U.S. at 148, 165 L. Ed. 2d at 419, 126 S. Ct.
at 2563-64, quoting Arizona v. Fulminante, 499 U.S. 279, 307-08, 113 L. Ed. 2d 302, 330, 111
S. Ct. 1246, 1264 (1991). Most constitutional errors fall into the trial error classification.
Gonzalez-Lopez, 548 U.S. at 148, 165 L. Ed. 2d at 419, 126 S. Ct. at 2564. In contrast,
structural errors “ ‘defy analysis by “harmless-error” standards’ because they ‘affec[t] the
framework within which the trial proceeds,’ and are not ‘simply an error in the trial process itself.’
” Gonzalez-Lopez, 548 U.S. at 148, 165 L. Ed. 2d at 419, 126 S. Ct. at 2564, quoting
Fulminante, 499 U.S. at 309-10, 113 L. Ed. 2d at 330-31, 111 S. Ct. at 1264. The Supreme
Court has determined that structural errors occur only in a “very limited class of cases” (Neder,
527 U.S. at 8, 152 L. Ed. 2d at 46, 119 S. Ct. at 1833,), including the denial of the right to
counsel, the denial of the right of self-representation, the denial of the right to public trial, and the
denial of the right to trial by jury resulting from the giving of a defective reasonable doubt
instruction (Gonzalez-Lopez, 548 U.S. at 149, 165 L. Ed. 2d at 420, 126 S. Ct. at 2564).
In Puckett v. United States, 556 U.S. , 173 L. Ed. 2d 266, 129 S. Ct. 1423 (2009), the
United States Supreme Court explained that federal “ ‘plain-error review’ - involves four steps, or
prongs. First, there must be an error or defect - some sort of ‘[d]eviation from a legal rule’ - that
has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant
[Citation.] Second, the legal error must be clear or obvious, rather than subject to reasonable
dispute. [Citation.] Third, the error must have affected the appellant’s substantial rights, which in
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the ordinary case means he must demonstrate that it ‘affected the outcome of the district court
proceedings.’ ” Puckett, 556 U.S. at , 173 L. Ed. 2d at 274-75, 129 S. Ct. at 1429, quoting
United States v. Olano, 507 U.S. 725, 123 L. Ed. 2d 508, 113 S. Ct. 1770,(1993). “Fourth and
finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy
the error-discretion which ought to be exercised only if the error “ ‘seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.’ ” Puckett, 556 U.S. at , 173 L. Ed. 2d at
275, 129 S. Ct. at 1429, quoting United States v. Olano, 507 U.S. at 736, 123 L. Ed. 2d at 508,
113 S. Ct. at 1770, (quoting United States v. Atkinson, 297 U.S. 157, 160, 80 L. Ed. 555, 557,
56 S. Ct. 391, 392 (1936)). “Meeting all four prongs is difficult, ‘as it should be.’ ” Puckett,
U.S. at , 129 S. Ct. at 1429, 173 L. Ed. 2d at 275, quoting United States v. Dominguez
Benitez, 542 U.S. 74, 83 n.9, 159 L. Ed. 2d 157, 168 n.9, 124 S. Ct. 2333, 2340 n.9 (2004).
“This limitation on appellate-court authority serves to induce the timely raising of
claims and objections, which gives the district court the opportunity to consider and
resolve them. That court is ordinarily in the best position to determine the relevant facts
and adjudicate the dispute. In the case of an actual or invited procedural error, the district
court can often correct or avoid the mistake so that it cannot possibly affect the ultimate
outcome. And of course the contemporaneous-objection rule prevents a litigant from
‘ “sandbagging ’ ” the court-remaining silent about his objection and belatedly raising the
error only if the case does not conclude in his favor. Cf. Wainwright v. Sykes, 433 U.S.
72, 89, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977); see also United States v. Vonn, 535 U.S.
55, 72, 122 S. Ct. 1043, 152 L. Ed. 2d 90 (2002).” Puckett, 556 U.S. , 173 L. Ed. 2d
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at 214, 129 S. Ct. at 1428.
It must be remembered that in Herron, 215 Ill. 2d at 186, our supreme court explained
that it has relied on the federal plain-error standard “because, at its core, it is the same standard
we already use.” Here, defendant argues that the trial court’s failure to comply with Rule 431
was a “structural” error which deprived him of a fair trial such that automatic reversal is required
under the second type of plain error. We disagree.
In People v. Glasper, 234 Ill. 2d 173, 200 (2009), our supreme court considered whether
the trial judge’s denial of defense counsel’s request to question jurors as to the Zehr principles, in
violation of the prior version of Rule 431(b), was subject to harmless-error analysis. Our supreme
court cited its previous decision in People v. Rivera, 227 Ill. 2d 1, 26 (2007) (Rivera II), in which
the court determined that a violation of the right to seven peremptory challenges afforded a
defendant pursuant to Supreme Court Rule 434(d) was subject to harmless-error review. In
Glasper, our supreme court noted that the defendant in Rivera II challenged this holding and filed
a petition for a writ of certiorari, which the United States Supreme Court granted. The Supreme
Court affirmed the judgment in Rivera II and found no error in applying the harmless-error
doctrine where the defendant had been denied his state law right to a peremptory challenge.
Glasper, 234 Ill. 2d at 195, citing Rivera v. Illinois, 556 U.S. , 173 L. Ed. 2d 320, 129 S. Ct.
1446 (2009).
Our supreme court in Glasper explained:
“The core issue presented to this court in Rivera II is the same as that presented
here: whether the trial court’s error, based on a violation of supreme court rule, denied the
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defendant his constitutional right to a fair and impartial jury such that the error was
presumptively prejudicial and required automatic reversal. The State’s response is also the
same: any error made by the trial court would be subject to harmless-error analysis and
does not warrant automatic reversal. In Rivera II, we agreed with the State, and we reach
the same conclusion in this case.” Glasper, 234 Ill. 2d at 194.
Our supreme court further explained that the defendant in Glasper, like the defendant in Rivera II,
claimed that his sixth amendment right to a fair and impartial jury was violated when the trial
court refused to question the venire in accordance with Rule 431(b)(4) and its holding in Zehr.
However, the court noted that, as intimated by Rivera II, the defendant’s constitutional rights
were not compromised by the trial court’s Rule 431(b)(4) violation. Our supreme court
explained: “Defendants do not have a right to Rule 431(b)(4) questioning under either the United
States or the Illinois Constitution. A defendant’s 'right' to such questioning in Illinois courts is the
product of this court’s inherent power to make rules regulating the conduct of the circuit courts.
[Citation.] While the rule is designed to help ensure that defendants are tried before a fair jury, we
cannot say that Rule 431(b)(4) questioning is indispensable to a fair trial.” Glasper, 234 Ill. 2d at
196.
Our supreme court also revisited its decision in People v. Zehr, 103 Ill. 2d 472 (1984),
and explained that Zehr did not address whether the error at issue in that case was subject to
harmless-error analysis because none of the parties had raised the issue. Glasper, 234 Ill. 2d at
190. The court recognized that the language in Zehr could be construed to suggest that
automatic reversal is required where Rule 431(b)(4) questioning is not conducted. Glasper, 234
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Ill. 2d at 197. However, the court opined that “[r]equiring per se reversal for a Rule 431(b)(4)
violation *** would be contrary to principles espoused by this court in other, analogous cases
decided after Zehr.” Glasper, 234 Ill. 2d at 197. Our supreme court noted that, in People v.
Daniels, 172 Ill. 2d 154, 165 (1996), it expressed a reluctance to hold that automatic reversal was
required for a violation of a “right” conferred upon defendants by rule of the supreme court.
Glasper, 234 Ill. 2d at 197. Our supreme court explained, “This reluctance makes sense when we
consider that automatic reversal is only required where an error is deemed ‘structural,’ i.e., a
systematic error which serves to ‘erode the integrity of the judicial process and undermine the
fairness of the defendant’s trial.’ ” Glasper, 234 Ill. 2d at 197-98, quoting Herron, 215 Ill. 2d at
186. The court also reasoned: “The Supreme Court has recognized errors as ‘ “structural” and
thus subject to automatic reversal, only in a ‘very limited class of cases.’ ” Glasper, 234 Ill. 2d at
198, quoting Neder, 527 U.S. at 8, 144 L. Ed. 2d at 46, 119 S. Ct. at 1833, quoting Johnson v.
United States, 520 U.S. 461, 468-69, 137 L. Ed. 2d 718, 728, 117 S. Ct. 1544, 1549-50 (1997).
The court explained, “The error alleged herein is not included in this class.” Glasper, 234 Ill. 2d
at 198.
In Glasper, our supreme court further reasoned that automatic reversal is not even
required in cases where the prosecution makes an erroneous reference to a defendant’s decision to
exercise his constitutional right to remain silent in violation of Doyle v. Ohio, 426 U.S. 610, 619,
49 L. Ed. 2d 91, 98, 96 S. Ct. 2240, 2245 (1976). Glasper, 234 Ill. 2d at 198. In Doyle, the
Supreme Court held that the prosecution’s use of a defendant’s post-Miranda silence for
impeachment purposes is generally a due process violation. Doyle, 426 U.S. at 619, 49 L. Ed. 2d
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at 98, 96 S. Ct. at 2245. Our supreme court explained: “It would be inconsistent for this court to
hold that a trial court’s failure to question a venire regarding a defendant’s decision not to testify
in violation of Rule 431(b)(4) requires automatic reversal, when we have repeatedly held that
automatic reversal is not required when a prosecutor mentions a defendant’s post-Miranda silence
and commits a Doyle violation.” Glasper, 234 Ill. 2d at 198, citing People v. Dameron, 196 Ill.
2d 156, 164-66 (2001) (listing cases where our supreme court concluded that a Doyle violation
amounted to harmless-error). “Our precedent with respect to Doyle violations is significant to
our instant analysis when we consider that Rule 431(b)(4) has its roots in the constitutional
privilege against self-incrimination.” Glasper, 234 Ill. 2d at 199, citing Zehr, 103 Ill. 2d at 477.
Accordingly, our supreme court concluded: “[T]he trial court’s error in this case does not
rise to the level of structural error. We recognize that we are free to determine that the failure to
question the venire in accordance with Zehr and Rule 431(b)(4) is an error so severe that reversal
is required, regardless of whether the error would be deemed structural under federal law.”
Glasper, 234 Ill. 2d at 199-200. Our supreme court further concluded that a violation of Rule
431(b), as occurred in that case, does not require automatic reversal and is amenable to harmless-
error review. Glasper, 234 Ill. 2d at 200.
Our supreme court also reviewed its decision in Smith, in which the court declined to
conduct a harmless-error review because the issue involved a basic fundamental protection
guaranteed by the sixth amendment to the federal constitution, namely, the right to have a jury,
rather than a judge, determine an accused’s guilt. People v. Smith, 233 Ill. 2d 1, 24-25 (2009). In
Glasper, our supreme court held that the error as described in Smith therefore constituted
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“structural” error unlike the error presented in Glasper. Glasper, 234 Ill. 2d at 192. In Davis, the
court distinguished its holding from Smith in finding: “The present case is a world away from
Smith. Here, defendant did not object to the general verdict form and did not request a special
verdict form. Again, the holding of Smith was conditioned on the trial court's refusal to grant
such a request [to instruct the jury using separate verdict forms for felony murder and intentional
or knowing murder].” Davis, 233 Ill. 2d at 273.
In Glasper, our supreme court explained that its holding was “limited to the version of
Rule 431(b)(4) that was in effect at the time of the instant trial, and would not necessarily apply to
subsequent versions of the rule. We also make clear that we are not holding that a Rule 431(b)(4)
violation could never result in reversible error.” Glasper, 234 Ill. 2d at 200. Our supreme court
further held, “We reject the idea that the trial court’s failure to conduct Rule 431(b)(4)
questioning makes it inevitable that the jury was biased, particularly when the record before us
demonstrate[d] that the jurors in this case were both admonished and instructed against forming
an adverse inference against defendant based on his decision not to testify.” Glasper, 234 Ill. 2d
at 201.
In Glasper, our supreme court also considered the defendant’s argument that the court
cannot assess whether the jury was biased because the Rule 431(b)(4) question was not asked.
Our supreme court noted that it rejected an identical claim by the defendant in Rivera II that the
error could not be “ ‘qualitatively assessed for harm.’ ” Rivera II, 227 Ill. 2d at 20. In Rivera II,
the court held, “ ‘[I]t may in fact be possible to qualitatively assess for harm *** by applying the
rational juror standard to the evidence adduced against defendant. If the evidence is so
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overwhelming that no rational jury *** would have acquitted defendant of the offense, then [a
particular juror’s] presence on the jury cannot be said to have prejudiced him.’ ” Glasper, 234 Ill.
2d at 201, quoting Rivera II, 227 Ill. 2d at 22. Our supreme court further noted that the United
States Supreme Court has taken a similar approach in Carter v. Kentucky, 450 U.S. 288, 67 L.
Ed. 2d 241, 101 S. Ct. 1112 (1981), where the Supreme Court held that a criminal defendant has
a fifth amendment right to a “no-adverse-inference” jury instruction if the defendant requests such
an instruction. Glasper, 234 Ill. 2d at 201. Our supreme court explained that while the Supreme
Court has never reached the issue of whether a Carter error may be considered harmless, several
federal appellate courts have determined that Carter errors may be deemed harmless where the
evidence against the defendant is overwhelming. Glasper, 234 Ill. 2d at 202, citing United States
v. Brand, 80 F.3d 560 (1st Cir.1996); Lewis v. Pinchak, 348 F.3d 355 (3d Cir.2003); Beathard v.
Johnson, 177 F.3d 340 (5th Cir.1999); Finney v. Rothgerber, 751 F.2d 858 (6th Cir.1985);
Hunter v. Clark, 934 F.2d 856 (7th Cir.1991); United States v. Soto, 519 F.3d 927 (9th
Cir.2008); see also People v. Carreon, 225 Ill. App. 3d 133, 143 (1992).
Applying the same reasoning to the facts in Glasper, our supreme court found that “no
rational juror would have acquitted defendant of the offenses for which he was charged” and
“[t]he evidence of defendant’s guilt is overwhelming.” Glasper, 234 Ill. 2d at 202. Accordingly,
our supreme court concluded that the trial court’s error was harmless beyond a reasonable doubt.
Applying our supreme court’s analysis in Glasper to the instant case, we find that the trial
court’s failure to comply with Rule 431 does not mandate automatic reversal. We note that there
is no quantitative or qualitative difference between the trial court failing to admonish jurors when
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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. The error alleged herein is simply not included in the limited
class of cases that the Supreme Court has recognized as “structural” and thus subject to automatic
reversal. See Glasper, 234 Ill. 2d at 198. Because the error is not classified as “structural,” and
the error was not preserved, we apply a plain-error analysis to this case.
Recently, in People v. Garstecki, 234 Ill. 2d 430 (2009), our supreme court considered the
defendant’s argument that the trial court erred in denying his attorney’s request to pose
supplemental questions directly to the entire venire during voir dire. The defendant was
convicted of driving under the influence of alcohol (DUI) and argued on appeal that, pursuant to
the 1997 amendments to Supreme Court Rule 431 (177 Ill. 2d R. 431), the trial court was
required to allow his attorney to participate in voire dire. Garstecki, 234 Ill. 2d at 432. Our
supreme court held that Rule 431 “clearly mandates” that the trial court consider: (1) the length of
examination by the court; (2) the complexity of the case; and (3) the nature of the charges; and
then determine, based on those factors, whatever direct questioning by the attorneys would be
appropriate. Garstecki, 234 Ill. 2d at 443.
Our supreme court determined that the trial court complied with the rule where it inquired
into the questions that the defendant’s attorney wanted to ask and then explained that these were
areas that the court was already going to cover in its own questioning. The trial court also asked
if the case would involve complex factual or legal issues and the defendant’s attorney stated that it
would not. Following its own voir dire, the trial court then allowed defendant’s attorney to pick
out any prospective jurors he wished to question further, allowing defendant’s attorney to ask
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follow-up questions to any jurors whose answers to the trial court’s questions indicated a
potential for bias. Garstecki, 234 Ill. 2d at 445. Our supreme court held that the trial court did
exactly what Rule 431 mandates where “it considered the appropriate factors and allowed
whatever supplemental questioning it deemed appropriate.” Garstecki, 234 Ill. 2d at 445.
Our supreme court further held, “ ‘[T]he trial court is to exercise its discretion in favor of
permitting direct inquiry of jurors by attorneys.’ [Citation]. We are not prepared to say,
however, that it is impossible to conceive of a case in which the court could determine, based on
the nature of the charge, the complexity of the case, and the length of the court’s examination,
that no attorney questioning would be necessary.” Garstecki, 234 Ill. 2d at 444, quoting People
v. Allen, 313 Ill. App. 3d 842, 847 (2000). The court then concluded that “Because the trial
court complied with the rule’s mandatory obligation, we are not presented with the question of
whether the rule is mandatory or directory. *** [B]ecause we find no error, we have no occasion
to consider whether a violation of Rule 431 can be harmless-error.” Garstecki, 234 Ill. 2d at 445.
Applying our supreme court’s analyses to the instant case, we decline to find that the trial
court’s failure to comply with Rule 431(b) mandates automatic reversal under the second prong
of the plain-error doctrine. Our supreme court’s recent determinations continue the unbroken line
of decisions holding that in applying the plain-error doctrine under either prong to an alleged
instructional error, an analysis of the facts and circumstances of each particular case is required.
See Thurow, 203 Ill. 2d at 363; Crespo, 203 Ill. 2d at 348; Nitz, 219 Ill. 2d at 415-16; Herron,
215 Ill. 2d at 181-83; Hopp, 209 Ill. 2d at 10; Davis, 233 Ill. 2d at 273; Glasper, 234 Ill. 2d at
200; Daniels, 172 Ill. 2d at 165; Garstecki, 234 Ill. 2d at 444.
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As our supreme court explained in Durr:
“We have repeatedly held that ‘we can review any question not otherwise properly
preserved if we believe that plain error affecting a substantial right may have occurred.’
(Emphasis added.) People v. Shaw, 186 Ill. 2d 301, 326 (1998). We have reviewed
alleged instructional errors under the plain-error doctrine, as affecting substantial rights,
even though we have ultimately concluded that ‘any instructional error was [not] so
substantial that it reflected on the fairness of the trial.’ People v. Williams, 181 Ill. 2d 297,
317-20 (1998). Indeed, ‘to determine whether a purported error is "plain" requires a
substantive look at it. But if, in the end, the error is found not to rise to the level of a
plain error ***, the procedural default must be honored.’ Keene, 169 Ill. 2d at 17.” Durr,
215 Ill. 2d at 298.
We note that after our supreme court’s decision in Glasper, other panels of the First
District Appellate Court and the Second District Appellate Court have considered the effect of a
trial court’s failure to fully comply with the amended Rule 431(b) both in the contexts of plain
error and harmless-error.1 In People v. Graham, 393 Ill. App. 3d at 275, a different panel of the
1
While this case was pending before this court, the parties cited decisions by different
districts of the Appellate Court of Illinois, which predated Glasper. Our supreme court recently
vacated and directed the appellate court to reconsider its judgment, in light of Glasper, in the
following cases: People v. Stump, 385 Ill. App. 3d 515 (2008)(Fourth District), appeal denied &
judgment vacated, 233 Ill. 2d 592; People v. Anderson, 389 Ill. App. 3d 1 (2009)(First District),
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First District Appellate Court held that “a trial judge’s failure to comply with Rule 431(b) denies a
defendant a substantial right and thus a fair trial and obviates the need to inquire into the
harmfulness or the measure of prejudice to the defendant.” In Graham, the trial judge addressed
three out of the four Zehr principles. However, the trial judge failed to question and allow the
jurors to respond to the second Zehr principle, namely, whether they understood and accepted
that the State had the burden to prove the defendant guilty beyond a reasonable doubt. Graham,
393 Ill. App. 3d at 273. The Graham court found that the failure to fully comply with Rule
431(b) required a new trial. Graham, 393 Ill. App. 3d at 275. The Graham court recognized that
our supreme court in Glasper applied a harmless-error analysis to the trial court’s violation of the
prior version of Rule 431(b). However, the Graham court determined that harmless-error did not
apply to the amended Rule 431(b) because our supreme court emphasized in Glasper that its “
‘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 necessarily apply to subsequent versions of the rule.’ ” Graham, 393 Ill. App.
3d at 276, quoting Glasper, 234 Ill. 2d at 260. In so holding, the Graham court explained that
“[u]nlike the version of the rule at issue in the present case, the rule’s protections are now
extended to all defendants, not just those who chose to invoke them.” Graham, 393 Ill. App. 3d
at 276.
Following the Graham court’s reasoning, a different panel of this court in People v.
Wilmington, No. 1-07-2518, slip op. at 8 (September 24, 2009), held, “[w]e do not read Glasper
appeal denied & judgment vacated, 233 Ill. 2d 565; People v. Alexander, 391 Ill. App. 3d 419
(2009)(Third District), appeal denied & judgment vacated, 233 Ill. 2d 565.
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to hold that a harmless-error analysis can apply to the 2007 rule.” The Wilmington court noted
that Glasper involved the earlier version of Rule 431(b) under which a defendant had to request
that the Zehr questions be asked of the venire, as opposed to the current version of the rule under
which the admonitions are required. Wilmington, slip op. at 8. In Wilmington, the trial court
informed the venire members of all four Zehr principles, but did not question the potential jurors
about their understanding and acceptance of one of the principles, i.e., the defendant’s right not to
testify. Wilmington, slip op. at 7. In Wilmington, the State argued that the first prong of the plain
error doctrine should not apply where the evidence of the defendant’s guilt was “overwhelming.”
However, the Wilmington court declined to consider the first type of plain error and held that the
second prong of plain error applied because “[t]he failure to conduct a complete admonition in
accordance with Rule 431(b) denied defendant the right to a fair and impartial jury, which is a
substantial right, and therefore constituted plain error.” Wilmington, slip op. at 12. Based on its
finding of plain error, the Wilmington court reversed the defendant’s conviction and sentence for
first degree murder and concealing that homicide, and remanded for a new trial. Wilmington, slip
op. at 14.
In People v. Arredondo, No. 1-07-2825, slip op. at 17-18 (October 8, 2009), and People
v. Madrid, No. 1-08-0324, slip op. at 15-16 (October 8, 2009), another panel of this court agreed
with the Wilmington analysis and held that the circuit court’s failure to fully comply with the 2007
amended version of Rule 431(b) constituted plain error necessitating reversal and remandment for
a new trial. While the State argued in both cases that the error was harmless, “as it was not a
‘structural error’ rendering the criminal trial fundamentally unfair or an unreliable vehicle for
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determining guilt or innocence,” the courts in Arredondo and Madrid declined to apply a
harmless-error analysis. Arredondo, slip op. at 15; Madrid, slip op. at 13. Rather, the Arredondo
and Madrid courts expressly followed Wilmington and held that the circuit court’s failure to fully
comply with Rule 431(b) constituted the second type of plain error, where defendants were
denied a “substantial right” and obviated the need to inquire into any prejudice to defendants.
Based on their findings of second-prong plain error, the courts in Arredondo and Madrid reversed
the defendants convictions and remanded for a new trial. Arredondo, slip op. at 17-18; Madrid,
slip op. at 15.
Finally, in People v. Blair, No. 2-07-0862, slip op. at 18 (September 29, 2009), the
Second District Appellate Court determined that the circuit court’s failure to fully comply with
amended Rule 431(b) required that the defendant’s conviction be reversed and remanded the
matter for a new trial. The Blair court found the error amounted to the second type of plain error
where it “denied defendant a substantial right, undermined the fairness of his trial, and impacted
the integrity of the judicial process.” Blair, slip op. at 18. The Blair court distinguished Glasper
based on the fact that our supreme court limited its holding in Glasper to the 1997 version of Rule
431(b), which, unlike the 2007 version of the rule, did not require the trial court to sua sponte
ascertain each prospective juror’s understanding and acceptance of all four Zehr principles in all
criminal jury trials. Blair, slip op. at 19-20. The Blair court also noted that Glasper involved the
trial court’s failure to ask the prospective jurors about just one of the Zehr principles; whereas the
trial court in Blair did not ask any prospective juror about his or her understanding and
acceptance of all four principles enumerated in Rule 431(b). Blair, slip op. at 20.
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These recent cases therefore held that while harmless-error applied in Glasper, it was
inapplicable under the 2007 version of Rule 431(b). The appellate courts in these cases then
found the second type of plain error based on the fact that the trial court’s failure to fully comply
with amended Rule 431(b) denied the defendants a “substantial right.” Based on their findings of
the second type of plain error, the appellate courts declined to consider the closeness of the
evidence or prejudice to the defendants.
As previously discussed in this opinion, Supreme Court Rule 615(a) does provide that
“[p]lain errors or defects affecting substantial rights may be noticed although they were not
brought to the attention of the trial court.” 134 Ill. 2d R. 615(a). As the defendant in the instant
case failed to object to the alleged instructional error at trial, Rule 451(c) is applicable rather than
Rule 615(a). Rule 451(c) provides, as previously explained, that “substantial defects are not
waived by failure to make timely objections thereto if the interests of justice require.” 210 Ill. 2d
R. 451(c). However, as plain error analyses under Supreme Court Rules 451(c) and 615(a) are
construed identically (Durr, 215 Ill. 2d at 296-97), the difference in language between the rules is
immaterial.
In Herron, our supreme court pointed out that in its previous holding in Crespo, the court
had “assumed that defendant’s substantial rights were affected by the Apprendi violation,” but
held that, because the State presented overwhelming evidence that the murder was brutal and
heinous, “ ‘there [was] no basis for concluding that the Apprendi violation “seriously affected the
fairness, integrity or public reputation of judicial proceedings.” ’ ” Herron, 215 Ill. 2d at 182-83,
quoting Crespo, 203 Ill. 2d at 348.
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Thus, as explained in Herron and Crespo, the fact that an instructional error has affected
the “substantial rights” of a defendant is not a sufficient basis in itself for a court of review to
reverse a conviction. Similarly, in Davis, our supreme court held that “even if we were to find
that a constitutional due process error occurred in instructing the jury on felony murder or that
the one-good-count presumption is questionable, it would still not require automatic reversal of
defendant’s murder conviction.” Davis, 233 Ill. 2d at 273.
We further note that in Nitz, our supreme court held that “a sentence based on a judge-
made finding that a murder was brutal or heinous-is not a presumptively prejudicial error that
must be remedied regardless of its effect on the trial’s outcome. In [Crespo and Kaczmarek], we
required the defendants to prove that they were prejudiced by the error. See Crespo, 203 Ill. 2d
at 348; Kaczmarek, 207 Ill. 2d at 302. Thus, the second prong of the Herron plain-error analysis
is inapplicable to defendant’s case.” Nitz, 219 Ill. 2d at 415-16.
It appears that the Graham-Wilmington line of cases hold that whenever an instructional
error affects a “substantial right,” the error is presumptively prejudicial and is, therefore, subject
to automatic reversal. This holding is erroneous. The holdings in Herron, Crespo, Nitz, Durr,
and Davis make it clear that a reviewing court may consider the applicability of the second prong
of plain-error analysis and then decide not to reverse a case. In applying a plain error analysis,
our supreme court in Nitz held, “To execute either [a harmless error or a plain error] analysis, a
reviewing court must examine the evidence adduced at trial and determine objectively whether a
rational jury would have made the finding in question.” Nitz, 219 Ill. 2d at 414.
In Herron, our supreme court explained:
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“We reiterate: the plain-error doctrine bypasses normal forfeiture principles and
allows a reviewing court to consider unpreserved error when either (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. In the first instance, the defendant must prove ‘prejudicial
error.’ That is, the defendant must show both that there was plain error and that the
evidence was so closely balanced that the error alone severely threatened to tip the scales
of justice against him. The State, of course, can respond by arguing that the evidence was
not closely balanced, but rather strongly weighted against the defendant. In the second
instance, the defendant must prove there was plain error and that the error was so serious
that it affected the fairness of the defendant’s trial and challenged the integrity of the
judicial process. Keene, 169 Ill. 2d at 17. Prejudice to the defendant is presumed because
of the importance of the right involved, ‘regardless of the strength of the evidence.’
(Emphasis in original.) Blue, 189 Ill. 2d at 138. In both instances, the burden of
persuasion remains with the defendant. See Thurow, 203 Ill. 2d at 363; see also Hopp,
209 Ill. 2d at 12 (the plain-error rule requires the defendant to ‘show that the error caused
a severe threat to the fairness’ of the trial (emphasis in original)).” Herron, 215 Ill. 2d at
186-87.
The holding in Glasper also compels us to reject defendant's argument that Rule 431(b)(4)
errors are automatically reversible. "Requiring per se reversal for a Rule 431(b)(4) violation ***
would be contrary to principles espoused by this court in other, analogous cases decided after
Zehr." Glasper, 234 Ill. 2d at 197. Also, “[w]e reject the idea that the trial court’s failure to
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conduct Rule 431(b)(4) questioning makes it inevitable that the jury was biased.” Glasper, 234
Ill. 2d at 201. The court in Glasper explained, "It would be inconsistent for this court to hold that
a trial court's failure to question a venire regarding a defendant's decision not to testify in violation
of Rule 431(b)(4) requires automatic reversal, when we have repeatedly held that automatic
reversal is not required when a prosecutor mentions a defendant's post-Miranda silence and
commits a Doyle violation." Glasper, 234 Ill. 2d at 198, citing People v. Dameron, 196 Ill. 2d
156, 164-66 (2001) (listing cases where our supreme court concluded that a Doyle violation
amounted to harmless-error). "Our precedent with respect to Doyle violations is significant to
our instant analysis when we consider that Rule 431(b)(4) has its roots in the constitutional
privilege against self-incrimination." Glasper, 234 Ill. 2d at 198, citing Zehr, 103 Ill. 2d at 477.
In their most recent decision addressing Rule 431 error, People v. Garstecki, the court
held: “ ‘[T]he trial court is to exercise its discretion in favor of permitting direct inquiry of jurors
by attorneys.’ [Citation]. We are not prepared to say, however, that it is impossible to conceive
of a case in which the court could determine, based on the nature of the charge, the complexity of
the case, and the length of the court’s examination, that no attorney questioning would be
necessary.” Garstecki, 234 Ill. 2d at 444, quoting Allen, 313 Ill. App. 3d at 847. We recognize
that the court continued: "because we find no error, we have no occasion to consider whether a
violation of Rule 431 can be harmless-error," (Garstecki, 234 Ill. 2d at 445). We also knowledge
that the court in Glasper explained that its holding was "limited to the version of Rule 431(b)(4)
that was in effect at the time of the instant trial, and would not necessarily apply to subsequent
versions of the rule." Glasper, 234 Ill. 2d at 200.
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The Graham-Wilmington line of cases relies on this language in Glasper to require per se
reversal for Rule 431(b)(4) violations. It is clear to this court that our supreme court, in Glasper,
used the phrase “would not necessarily apply” to the amended version of Rule 431 to ensure that
other courts applying its holding should address the differences in the versions of the rule and how
the difference impacted on the facts of the particular case. If our supreme court had wished to
simply say that its holding would not apply to the amended rule, it would have said so. Again, we
see no quantitative or qualitative difference between a trial court's refusal to ask the required
questions under the version of Rule 431 in effect prior to the amendment of 2007 and a trial
court's failure to ask the same questions as required by Rule 431 after the amended rule became
effective. Under both versions of the rRule, the trial court was required to ask the venire the
identical questions. Indeed, in Glasper the trial court refused to ask the required questions while
in Graham, Wilmington , Arredondo, Madrid, Blair and the instant case, the trial court
inadvertently failed to ask the required questions, and defense counsel failed to bring this failure to
the court's attention.
Glasper applied a harmless-error analysis and affirmed the defendant's conviction under
the first factual scenario. The Graham-Wilmington line of cases applied a plain error analysis to
the failure of the trial court to ask the questions required by Rule 431 and reversed the defendant's
convictions. As explained in Thurow, "plain-error analysis normally requires the same kind of
inquiry as does harmless-error review," with the "important difference" between the two being
that the State has the burden of persuasion in a harmless analysis and the defendant has the burden
of persuasion in a plain-error analysis. Thurow, 203 Ill. 2d at 363. The holdings in the Graham-
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Wilmington line of cases do not attempt to explain why the defendants in those cases should be
rewarded for their failure to ask the trial court to correct its mistake while the defendant in
Glasper, who did everything a person could do to prevent the court from committing a violation
of Rule 431, should lose his argument.
A rule requiring per se reversal is particularly inappropriate for violations of Rule 431.
The trial court may, as in the instant case, fail to ask one of the Zehr questions, or may fail to ask
all four, as in Blair. The trial court may ask some jurors all of the Zehr questions but fail to ask all
of the jurors. If the defendant testifies, how is he prejudiced by the trial court's failure to instruct
the jury that they should not hold his failure to testify against him? The Graham-Wilmington line
of cases would appear to require automatic reversal in all of these factual scenarios.
In Glasper, our supreme court specifically rejected the State’s argument that Rule
431(b)(4) errors are not reversible because they do not constitute “structural” error under federal
law. Glasper, 234 Ill. 2d at 199-200. Consequently, we reject the State’s identical argument
before us. The court in Glasper further held: "We also make clear that we are not holding that a
Rule 431(b)(4) violation could never result in reversible error." Glasper, 234 Ill. 2d at 200. The
court held that a court of review could qualitatively assess for harm "by applying the rational juror
standard to the evidence adduced against defendant. If the evidence is so overwhelming that no
rational jury *** would have acquitted defendant of the offense" for which he was charged, the
error cannot be said to have prejudiced the defendant. Glasper, 234 Ill. 2d at 201. We note that
this is an extremely high standard and that as Glapser involved a harmless-error analysis, it was
the State’s burden to meet it.
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In applying the plain error doctrine as explained in Herron, to the facts in this case, the
circuit court’s failure to ask each venireperson whether he or she understood and accepted the
fourth Zehr principle in Rule 431(b)(4) constituted plain error for the purpose of determining
whether either prong was satisfied so as to bypass normal forfeiture principles. However,
defendant cannot seriously argue that “the evidence was so closely balanced that the error alone
severely threatened to tip the scales of justice against him.” Herron, 215 Ill. 2d at 186-87.
Consequently, we cannot consider the unpreserved error under the first prong of the plain error
doctrine.
As to the second prong, as previously pointed out, the error in the instant case was not
quantitatively or qualitatively different from the error found to be harmless in Glasper. Therefore,
defendant has failed to prove that “ ‘the error caused a severe threat to the fairness’ ” of the trial.
Herron, 215 Ill. 2d at 187, quoting Hopp, 209 Ill. 2d at 12.
Defendant argues that his trial counsel’s opening argument made the failure of the circuit
court to ask members of the venire whether they understood and accepted the principle that if
defendant did not testify, the jurors could not hold this against him more prejudicial than the
failure would have been in the absence of trial counsel’s argument. Defendant also uses this
argument to support his claim that trial counsel was ineffective in this regard.
We note that in determining whether a defendant was denied the effective assistance of
counsel, we apply the familiar two-prong test set forth in Strickland v. Washington, 466 U.S. 668,
80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), and adopted by our supreme court in People v.
Albanese, 104 Ill. 2d 504 (1984). To prevail on a claim of ineffective assistance of counsel, a
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defendant must show both that counsel’s performance was deficient and that the deficient
performance prejudiced the defendant. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S.
Ct. at 2064 (1984). More specifically, the defendant must demonstrate that counsel’s
performance was objectively unreasonable under prevailing professional norms and that there is a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.
The failure to satisfy either prong of the Strickland test precludes a finding of ineffective
assistance of counsel. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.
Defendant maintains that defense counsel “promised” the jury that defendant would
testify. However, the record does not support this contention. In her opening argument, defense
counsel argued that there were no fingerprints or DNA collected at the scene of the victim’s
garage. Further, defense counsel argued that “no one saw [defendant] enter or leave that garage.”
Defense counsel continued:
“The other part of the story that the State isn’t aware of is [defendant’s] side of
the story. He was driving that night around the area, doing what most of us might do,
collecting what we might call junk. He was driving down alleys looking for what
people place outside of their garage, for others to take, because they don’t want it
any more.
But that night, [defendant] didn’t find an old dresser with a drawer hanging off
it to fix up. That night he found a lawn mower and a ladder. He threw it in his truck.”
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During rebuttal argument, the State commented on defense counsel’s opening argument. The
State argued as follows:
“Now during opening statement defense counsel said you know that this guy here,
he was junking in the alley. That’s why he got this stuff. He was driving around looking
for things. I believe they actually said he found the lawn mower and that he found the
ladder and put it in his truck, in the alley. Well, where is the evidence of that. There is
absolutely no evidence of that.”
Contrary to defendant’s assertion, the record does not show that his trial counsel promised that
defendant would testify or that the State was allowed to comment on his decision not to testify.
The State’s rebuttal argument merely responded to defense counsel’s alternative explanation that
defendant was collecting junk in the alley.
The records also shows that after the State rested its case, the circuit court admonished
defendant regarding his right to testify. The circuit court asked defendant whether he understood
that the right to testify was a right that only he could waive and defendant indicated that he
understood. Defendant also indicated that he considered the advice of his attorney, and made the
decision not to testify freely and voluntarily. The trial record therefore reveals that it was
defendant who decided not to testify after the State rested its case. Defendant “cannot rightly
attribute to counsel any damage caused by the unfulfilled opening statement concerning
defendant’s expected testimony.” People v. Topps, 293 Ill. App. 3d 39, 46 (1997) (where the
defendant changed his mind and chose not to take the stand after the prosecution rested its case,
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the defendant could not show that trial counsel was ineffective based on opening statements
regarding defendant’s anticipated testimony). Accordingly, defendant has failed to establish that
trial counsel’s performance was deficient with respect to opening arguments. Further, nothing in
defense counsel’s opening argument had any impact on the applicability of plain-error analysis
under either prong.
III. CONCLUSION
For the above reasons, we affirm defendant’s conviction and sentence.
Affirmed.
MURPHY, P.J. and STEELE, J., concur.
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