People v. Brazziel

FIRST DIVISION
November 22, 2010

No. 1-08-1455

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
JAMAEL BRAZZIEL, ) The Honorable
) Nicholas R. Ford,
Defendant-Appellant. ) Judge Presiding.

JUSTICE LAMPKIN delivered the opinion of the court:

A jury convicted defendant, Jamael Brazziel, of first degree

murder proximately caused by his personal discharge of a firearm.

Defendant was sentenced to an aggregate of 60 years’

imprisonment. On appeal, defendant contends that (1) the State

failed to prove him guilty beyond a reasonable doubt; (2) the

trial court’s failure to comply with the mandates of Supreme

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

11, 2007), R. 431(b), eff. May 1, 2007) entitles him to a new

trial; (3) the State improperly raised the issue of the defense

witnesses’ moral character; and (4) his sentence was excessive in

light of mitigating factors. Based on the following, we affirm.

FACTS

On April 26, 2006, the victim, Larry Brown, was shot to

death following an altercation on the west side of Chicago,
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Illinois.

Prior to conducting voir dire, the trial judge, in relevant

part, told the prospective jurors:

“Under the law, a defendant is presumed to be

innocent of the charges against him. The presumption

remains with him throughout every stage of the

proceeding. It is not overcome unless from all the

evidence in this case you are convinced beyond a

reasonable doubt that the defendant is guilty.

The State has the burden of proving the guilt of

defendant beyond a reasonable doubt. The burden

remains on the State throughout the case. The

defendant is not required to prove his innocence nor is

he required to present any evidence in his own behalf.

He may not even testify if he chooses to do so. He

doesn’t even have a duty to do so. He may rely simply

on the presumption of his innocence in this case.

* * *

You shall be bound by your oath as jurors to

follow the law as it is given to you. You may not

disregard the law as given to you and apply the law

that you think individually or collectively should be

the law. In other words, I’m going to give you rules

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and those are the rules. You’re to follow the rules

that I give you in conjunction with your review of the

evidence, okay? That’s important.

* * *

If you become convinced beyond a reasonable doubt

from all the charges in this case that the defendant is

charged guilty within the indictment, it will be your

duty to find him guilty. Do you all understand that?

(Nodding.)

Everybody is nodding.

Is there anyone who cannot follow that law?

I don’t see anyone that’s indicating that they

couldn’t.

On the other hand, if after hearing all the

evidence in this case you are not convinced beyond a

reasonable doubt of the defendant’s guilt, it will be

your duty to find him not guilty. Do you all

understand that instruction?

Everybody is indicating yes.

Is there anyone who doesn’t understand that

instruction?

I got no one raising their hand. So that won’t be

something I’ll address further.”

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While conducting voir dire of the first panel, the trial

court asked the first prospective juror:

“Q. Do you understand if the State proves their

case beyond a reasonable doubt, that it will be your

duty to find the defendant guilty?

A. Yes, I do.

Q. Do you understand also that if you feel that

the defendant’s guilt hasn’t been proven beyond a

reasonable doubt, it would be your duty to find him not

guilty?

A. Correct.

Q. Would you follow those rules along with all the

other rules in this case in reaching a verdict?

A. Yes.”

The judge then directed his inquiry to the entire first panel:

“THE COURT: I’m going to ask that of all of you in

the audience, do all of you understand that?

THE VENIRE: Yes.

THE COURT: And would all of you follow that law

along with all the other law I give you in the case?

THE VENIRE: Yes.

THE COURT: All indicating yes. That’s important

stuff also, folks.”

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Later, while questioning a different prospective juror from

the first panel, the judge inquired:

“Q. Do you understand the defendant–-and I’m

talking to all of you now and I’m going to see if

anybody has a problem with it, just raise your hand.

Do you understand the defendant doesn’t have to

prove anything; it’s the State’s burden to prove the

defendant guilty beyond a reasonable doubt. Do you

understand that?

A. Yes.

Q. And would you follow that law along with all

the other law I give you in this case?

A. Yes.”

Ten jurors were selected from the first panel. Nine of the

ten were asked individually some version of whether the juror

could find defendant guilty if the evidence had demonstrated

defendant’s guilt beyond a reasonable doubt or find him not

guilty if the evidence had not demonstrated defendant’s guilt

beyond a reasonable doubt. Of that group of nine, one juror was

asked whether he understood that “defendant has to prove

nothing.” The juror replied “yes.” One other juror in the group

of nine was asked, “You heard me talk about the burden of proof

and the other things with everyone else. Were there any

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questions that you had for me[?]” The juror responded, “No. I

understand and I could be objective, yes.”

Prior to conducting voir dire of the second panel, from

which two jurors were selected, the judge addressed the entire

panel:

“THE COURT: Good morning. Again, folks, I’ve

given several times the law that you’ll all follow as a

group. Have you all understood what I’ve been talking

about all morning here?

THE VENIRE: Yes.

THE COURT: And would you follow the law that I’ve

been talking about all morning along with all the other

law I give you in this case in reaching a verdict?

THE VENIRE: Yes.

THE COURT: Everyone has indicated yes.

If there was one of these questions that I asked

before where you kind of raised your hand, bring it to

my attention now when I begin to question you

individually.”

The judge asked the eleventh impaneled juror:

“Q. Do you understand that it’s the State’s burden

to prove the defendant’s guilt beyond a reasonable

doubt and that burden remains with him throughout the

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entire case?

A. Yes.

Q. If the State failed to prove the defendant’s

guilt beyond a reasonable doubt, could you find him not

guilty?

A. Yes.

Q. If the State did succeed at proving his guilt

beyond a reasonable doubt, could you find him guilty?

A. Yes.”

The judge asked the twelfth impaneled juror:

“Q. Would you follow all the law I gave you in

this case in reaching your verdict?

A. Yes, sir.

Q. You’ve heard me talk about it with many of the

jurors before. Do you have any problem following all

of the law that I’ve given so far?

A. No.

Q. And would you do so?

A. Yes.”

Voir dire concluded on a Friday. Opening statements and the

presentation of witnesses began the following Monday. Prior to

swearing in the jury, the judge said:

“Do you all – and I’m going to ask this of the

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group. Do you remember the rules of law that I gave

you on Friday?

Everybody is indicating yes.

And will you follow that along with all the other

law that I give you in this case in reaching your

verdict?

Everybody is indicating yes.”

The trial evidence demonstrated that a crowd of teenagers

was gathered on the street around 9 p.m. on April 26, 2006. The

victim had been “slap boxing” with a girl named Jean McDaniel.

McDaniel alerted her cousin, Anthony “Red” Raper. In response,

Raper began searching for the victim. When McDaniel identified

the victim, Raper approached him. Raper and the victim exchanged

punches, none of which made contact. The victim then ran in the

opposite direction and the crowd on the street, including Raper,

chased after him. Raper’s cousin, defendant, was at the front of

that crowd with Raper. Defendant then drew a handgun and pointed

it at the victim. He fired one fatal shot to the back of the

victim’s head. The victim immediately fell to the ground.

The State called six witnesses, all of whom testified to

being in or near the crowd when the shooting occurred. Yolanda

Floyd, who lived on the street where the crowd was gathered, and

Raper testified that they witnessed defendant shoot the victim as

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the victim ran away from the crowd.

Raper said he was next to his cousin, defendant, when

defendant pulled a handgun from his waist, pointed the weapon at

the victim, and shot the victim. On cross-examination, however,

Raper testified that he never saw defendant with a handgun or

knew that defendant had a gun. Raper said he did not see

defendant at the time of the victim’s shooting. Raper testified

that he was interviewed by the police in the presence of his

mother and he implicated defendant out of fear of being charged

himself. Then, on redirect examination, Raper testified that

defendant was the shooter. Raper said his direct testimony was

the truth. Raper added that he was afraid to testify against his

cousin. Raper acknowledged that he was three feet away from

defendant when he witnessed defendant draw a handgun and shoot

the victim.

Floyd testified that she lived at 5512 W. Cortland Street in

Chicago, Illinois. Floyd said she heard commotion on the night

in question and exited her house to see 50 to 100 people on her

street. Floyd then attempted to retrieve her young children that

were playing outside at the time. She heard a female yell,

“there he is” and saw someone swing at the victim, Lloyd’s

neighbor. The victim returned a swing and then ran toward his

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house. Lloyd saw defendant raise a revolver and shoot the gun at

the victim. Lloyd was approximately eight feet from defendant

when he shot the victim. The victim was approximately one to two

feet from Lloyd when he was shot. Lloyd identified defendant as

the shooter in a photographic array and during a lineup. Lloyd

testified that her son was friends with the victim.

Shontrice Smith testified that she was with Lakesha Gibbs

and the victim on the night in question. Smith witnessed the

fight between the victim and Raper and saw the crowd chasing the

victim. Smith said she heard a gunshot and saw that the victim

had been shot. In response, Smith ran in the opposite direction

of the crowd. According to Smith, she was 5 or 10 feet away from

the victim when he was shot. Smith testified that she did not

remember if she saw the shooter. Smith testified that she was

interviewed in her mother’s presence a few hours after the

shooting. She provided a statement to the police and identified

defendant as the shooter in a photographic array. Smith

testified that she could not recall identifying defendant as the

shooter; however, Smith admitted that she and her mother signed

each page of her statement. The State introduced Smith’s

handwritten statement. Smith also identified defendant as the

shooter before the grand jury. At trial, however, Smith said she

could not remember testifying before the grand jury. Smith was

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treated as a hostile witness. The State introduced Smith’s grand

jury testimony, in which Smith testified that she was five feet

away from defendant when he shot the victim.

Gibbs testified that she saw a crowd approach Cortland

Street on the night in question. Gibbs witnessed Raper and the

victim exchange swings. The victim then walked toward his house.

Gibbs could not recall whether the crowd followed the victim.

Gibbs did not see anything else. She could not recall hearing a

gunshot or seeing defendant shoot the victim. Gibbs recalled

speaking to the police following the incident, but did not recall

providing a written statement. Gibbs acknowledged that her

statement provided that she was off to the side of the victim

when defendant fired a handgun. In the statement, Gibbs said she

could clearly see defendant and he was the only individual with a

handgun. The State introduced Gibbs’ signed, handwritten

statement. Gibbs testified that she did not recall testifying

before the grand jury. Gibbs did not remember testifying that

she was a couple of inches away from defendant when he shot the

victim. The State introduced Gibbs’ grand jury testimony

inculpating defendant.

DeSean Henry testified that he witnessed the fight between

Raper and the victim; however, Henry was at home prior to the

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shooting and did not see anything. Henry testified that he spoke

to the police and provided a handwritten statement following the

incident while in the presence of his mother, but said the

statement was untrue. Henry testified that he provided the false

statement because he was threatened by the police. Henry and his

mother signed each page of the statement. The State introduced

Henry’s statement and his grand jury testimony, both of which

reflected that Henry reported being near defendant when defendant

shot the victim. Henry testified at trial that he lied in his

grand jury testimony because the police told him what to say.

A law clerk from the State’s Attorney’s office later

testified that, while accompanying Henry to the courtroom prior

to his testimony, Henry was talking on his cellular telephone.

The clerk overheard Henry say that “Red flipped” and that if he

testified that “I don’t remember, they can’t do anything.” Henry

admitted having a phone conversation in front of the law clerk.

Henry admitted reporting that “Red flipped,” but denied saying,

“if I say I don’t remember, they can’t do anything to me.”

Johnny Ceasar testified that he was walking on the street

where the crowd was gathered when he heard two gunshots. Caesar

did not see anyone get shot. Ceasar ran home in response.

Ceasar initially said he spoke to the police and the prosecutor;

however, Ceasar testified that the police told him what to say in

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the statement under threat of being charged with an offense.

Later in his testimony, Ceasar denied having provided a

statement. Ceasar wavered regarding whether he signed the

statement; however, Ceasar identified his signature on the

statement. The State read Ceasar’s statement into the record.

Ceasar then admitted stating that he saw a crowd moving down the

street; that he saw defendant at the front of the group; and that

he saw defendant discharge his handgun. Ceasar, however, said

that his statement was untrue. Ceasar maintained that the police

told him what to say. In the statement, Ceasar identified

defendant as taller than the others in the group and wearing a

red shirt.

Detective Michael Landando testified that neither Henry nor

Ceasar was threatened in order to obtain a statement.

Assistant State’s Attorney (ASA) Michael Clarke testified

that he interviewed Smith, Gibbs, Henry, and Ceasar. ASA Clarke

said all of the witnesses provided handwritten statements. Each

witness signed each page of his or her statement. All of the

witnesses reported that they were treated well by the police and

that no threats or promises were made in exchange for their

statements.

ASA Diana Garcia-Camilo testified that she examined Smith,

Gibbs, and Henry before the grand jury. ASA Garcia-Camilo

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testified that each witness identified defendant as the shooter.

Moreover, each witness testified that no threats or promises were

made by the State or the police. Henry never reported being

threatened by the police.

Defendant was arrested at his home located two blocks from

the scene of the shooting. Defendant is 6 feet 4 inches tall.

Three witnesses testified for the defense. Samuel Harris,

Curtis Palmer, and Eric Harris all testified that they were “good

friends” with defendant. Samuel testified that he was with his

cousin Eric, defendant, “Roni,” and “Terrell” on the night in

question. Samuel had known defendant for 12 years. They learned

that a fight was in progress and went to watch. Samuel said they

saw Raper and the victim exchanging punches while a crowd was

gathered nearby. Samuel was standing two houses away from the

fight. Samuel reported seeing a flash from the crowd and hearing

a gunshot. As a result, the group ran to safety approximately

one block away. Samuel said the group remained together for an

hour after they fled. Samuel testified that defendant was with

him throughout the time in question and was not armed with a

handgun. Samuel testified that he never reported what he

observed to the police.

Palmer testified that he was with four or five friends on

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the night in question. Palmer had known defendant for over 10

years. Later in his testimony, Palmer said he was with

defendant, Samuel, and Eric, “[t]hat’s about it.” The group went

to observe a fight; however, due to his height, Palmer could not

see anything. Palmer reported that when he heard a gunshot

defendant was standing next to him and did not have a handgun.

Palmer said he and defendant ran away after the gun was fired.

Palmer did not know whether Samuel ran with them. The group met

back together approximately one block from where the shooting

took place. Palmer remained with defendant at the meeting spot

for 45 minutes or an hour. Palmer never reported what he

observed to the police because he “didn’t want to get in the way

of their work.”

Eric testified that he was with Samuel, Palmer, defendant,

“Roni,” and “Terrance” while watching the fight between Raper and

the victim. Eric had known defendant for 10 years. Eric

reported seeing the victim run away and that a gunshot was fired

from the crowd in front of his group. Eric testified that

defendant was standing directly in front of him when the shot was

fired and did not have a gun in his hand. Eric and the members

of his group ran from the scene after the gunfire and remained

together for 45 minutes or an hour. Eric did not report what he

observed to the police.

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In closing, while instructing the jury, the court said:

“The defendant is presumed to be innocent of the

charge against him. The presumption remains with him

throughout every stage of the proceedings *** every

stage of trial and during your deliberations on the

verdict and is not overcome unless from all the

evidence in this case you are convinced beyond a

reasonable doubt that he is guilty.

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 State has alleged that during the commission

of the offense of first degree murder, the defendant

personally discharged a firearm that proximately caused

the death of another person. The defendant is presumed

to be innocent of this allegation.

This presumption remains with the defendant

throughout every stage of the trial and during your

deliberations on the verdict and is not overcome unless

from all the evidence in this case you are convinced

beyond a reasonable doubt that the allegation is

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proven.

The State has the burden of proving the allegation

beyond a reasonable doubt, and this burden remains on

the State throughout the case. The defendant is not

required to disprove the allegation.

The fact that the defendant did not testify must

not be considered by you in any way in arriving at your

verdict.”

The jury found defendant guilty of first degree murder and

that defendant personally discharged a firearm that caused the

death of the victim. Defendant’s motion for a new trial was

denied.

The trial court sentenced defendant to an aggregate 60-year

prison term, 35 years’ imprisonment for the first degree murder

conviction and 25 years’ consecutive imprisonment for the firearm

enhancement. Defendant’s motion to reconsider his sentence was

denied.

DECISION

I. Sufficiency of the Evidence

Defendant contends the evidence was insufficient to prove

his guilt beyond a reasonable doubt where the State’s evidence

was unreliable.

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When reviewing a challenge to the sufficiency of the

evidence, we must determine "whether, after viewing the evidence

in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” (Emphasis in original.)

Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99

S. Ct. 2781, 2789 (1979). It is not the reviewing court’s

function to retry the defendant or substitute its judgment for

that of the trial court. People v. Evans, 209 Ill. 2d 194, 209,

808 N.E.2d 939 (2004). The trial court assesses the credibility

of the witnesses, determines the appropriate weight to be given

to the testimony, and resolves conflicts or inconsistencies in

the evidence. Evans, 209 Ill. 2d at 211. In order to overturn

the trial court’s judgment, the evidence must be "so

unsatisfactory, improbable or implausible” to raise a reasonable

doubt as to the defendant’s guilt. People v. Slim, 127 Ill. 2d

302, 307, 537 N.E.2d 317 (1989).

A defendant is guilty of first degree murder1 when the State

proves beyond a reasonable doubt that, in performing the acts

which cause the death of an individual:

1
Defendant does not expressly challenge the jury’s finding

as to his personal discharge of a firearm.

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"(1) he either intends to kill *** that

individual *** or knows that such acts will

cause death to that individual ***; or

(2) he knows that such acts create a

strong probability of death *** to that

individual ***; or

(3) he is attempting or committing a

forcible felony other than second degree

murder.” 720 ILCS 5/9-1(a)(1) through (3)

(West 2002).

After reviewing the record, we find the evidence was

sufficient to support defendant’s conviction. Six witnesses

testified that they saw defendant shoot the victim. Two of the

six testified at trial that defendant was the shooter, while the

remaining four witnesses were impeached with their handwritten

statements identifying defendant as the shooter. Three of the

four witnesses impeached with their handwritten statements were

also impeached with their grand jury testimony implicating

defendant. One of the witnesses that positively identified

defendant at trial was defendant’s cousin. The other witness

that identified defendant at trial was a woman who exited her

home when she heard commotion outside on the street and then saw

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defendant point and shoot his weapon at the victim as the victim

attempted to run away.

“A single witness’ identification of the accused is

sufficient to sustain a conviction if the witness viewed the

accused under circumstances permitting a positive

identification.” Slim, 127 Ill. 2d at 307. Generally,

identification testimony is assessed pursuant to the factors

announced in Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93

S. Ct. 375 (1972), which include: (1) the opportunity the

witness had to view the offender at the time of the crime; (2)

the degree of attention given by the witness; (3) the accuracy of

the witness’ prior description of the offender; (4) the level of

certainty the witness demonstrated when identifying the

perpetrator in person; and (5) the amount of time that lapsed

between the crime and the in-person identification. Slim, 127

Ill. 2d at 307-08.

Defendant challenges Lloyd’s identification, arguing it was

unlikely Lloyd would have seen the shooter, whom she described as

being within eight feet of her, because a person in a similar

situation would have “at least instinctively covered her face” to

protect against the gunshot. Lloyd, however, testified that she

clearly saw defendant when he raised his revolver and shot the

victim in the back of the head. Investigator William Moore

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confirmed the likelihood that defendant used a revolver to shoot

the victim because no discharged cartridges were found at the

scene. According to Investigator Moore, cartridges are not

discharged from revolvers; rather, cartridges remain in the

cylinder of a revolver after the bullet is shot. Lloyd

positively identified defendant in a photographic array on May 2,

2006, and positively identified defendant in a lineup on May 7,

2006, within days of the April 26, 2006, shooting. To the extent

defendant infers from the unclear record that Lloyd provided a

contradicting account of the victim’s distance from her when he

was shot, it was the jury’s duty to resolve inconsistencies in

the witness testimony. See Evans, 209 Ill. 2d at 211.

Defendant does not challenge the circumstances surrounding

Raper’s identification. Defendant, instead, challenges the

reliability of Raper’s trial testimony where he stated on cross-

examination that his handwritten statement in which he identified

defendant was coached by the police. We note, however, that on

redirect examination Raper confirmed that his direct testimony

identifying defendant as the shooter was accurate as given.

Moreover, it was the jury’s duty to assess Raper’s credibility.

See Evans, 209 Ill. 2d at 211. Therefore, the identification by

Raper or Lloyd alone would be sufficient to sustain defendant’s

conviction.

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As to the four witnesses that were impeached at trial,

“[v]ariances between a witness’ trial testimony and pretrial

statements raise questions of credibility which the trier of fact

must assess in making a determination of guilt.” Slim, 127 Ill.

2d at 308. It was the jury’s duty to resolve inconsistencies

across the witnesses’ testimony. Evans, 209 Ill. 2d at 211.

The jury was entitled to believe that Smith, Gibbs, Henry, and

Ceasar provided truthful handwritten statements shortly after the

incident and that Smith, Gibbs, and Henry testified truthfully

before the grand jury. Moreover, ASAs Clarke and Garcia-Camilo

and Detective Landando refuted Henry’s and Ceasar’s testimony

that they were threatened prior to making their statements.

Defendant contends that, contrary to the State’s witnesses,

the defense witnesses provided “strong” and “consistent” accounts

of what transpired on the night in question. Defendant maintains

that Samuel, Palmer, and Eric all presented credible testimony

that defendant was with them while watching the fight between

Raper and the victim. According to Samuel, Palmer, and Eric,

defendant was standing next to them when a gun was discharged,

but defendant was not armed. The jury, however, was not

obligated to believe defendant’s alibi over the State’s

witnesses, especially where Samuel, Palmer, and Eric each

reported being defendant’s “good” friend for 10 to 12 years, yet

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none came forward with his version of the events during the

investigation.

We conclude that the evidence was not so unsatisfactory,

improbable, or implausible to create a reasonable doubt regarding

defendant’s guilt. The evidence supported the jury’s verdict.

II. Rule 431(b)

Defendant contends the trial court failed to comply with the

mandates of Rule 431(b), and he, therefore, should be afforded a

new trial. Defendant admits he did not object at trial or

include the error in a posttrial motion (People v. Enoch, 122

Ill. 2d 176, 186, 522 N.E.2d 1124 (1988)); however, he contends

that we should relax the rules of forfeiture and find plain

error. The State responds that defendant failed to establish

error. The State contends that, in the event we find error, this

court should apply a harmless error analysis because a violation

of Rule 431(b) is not a structural error requiring automatic

reversal.

We review a 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 (2007).

We first address whether the trial court erred.

Supreme Court Rule 431(b) codified our supreme court’s

holding in People v. Zehr, 103 Ill. 2d 472, 477, 469 N.E.2d 1062

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(1984). The rule was amended effective May 1, 2007, prior to the

April 4, 2008, date jury selection began in this case. See

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

eff. May 1, 2007. The amended rule places a sua sponte duty on

trial courts to ensure compliance with the mandates of Rule

431(b). People v. Thompson, No. 109033, slip op. at 6 (October

21, 2010). The amended rule provides:

“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.”

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(Emphasis added.) Official Reports Advance Sheet No. 8

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

Supreme court rules are not aspirational; they must be “obeyed

and enforced as written.” Bright v. Dicke, 166 Ill. 2d 204, 210,

652 N.E.2d 275 (1995).

The trial court erred in this case by conducting a voir dire

that failed to fully comply with Rule 431(b). Prior to

individually questioning the prospective jurors, the trial judge

provided three of the four Zehr principles, in narrative form.

The trial judge did not advise the prospective jurors that

defendant’s decision not to testify could not be held against

him. More importantly, the trial judge did not ask the venire

whether they understood or accepted any of the Zehr principles.

Much later in his opening remarks, the trial judge secured the

venire’s understanding and acceptance of the State’s burden of

proof. The prospective jurors, however, were never given an

“opportunity to respond” to the remaining three Zehr principles.

While individually questioning a prospective juror from the

first venire, the trial judge turned his attention to the entire

first panel and asked whether they would follow the law regarding

the State’s burden of proof “along with all the other law I give

you in the case?” The venire responded in the positive. Then,

although the judge seemingly addressed the entire first panel

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when he stated that the defendant does not have to prove

anything, the record does not reflect that the judge secured the

venire’s understanding and acceptance of this principle. Ten

jurors were selected from the first panel.

While addressing the entire second panel, the trial judge

asked whether the group understood and would follow “the law that

I’ve been talking about all morning.” The trial judge then

specifically asked one of the two impaneled jurors whether he

understood and accepted the law regarding the State’s burden of

proof. The juror responded in the positive.

Prior to swearing in the jury, the trial judge referenced

the “rules of law” that were given during jury selection and

secured that the jurors “remembered” and would follow “that along

with all the other law” given in the case.

We find the trial court fell short of complying with Rule

431(b). The trial judge’s narrative recitation of three of the

four Zehr principles was not timely connected to specific

questions providing the jurors with an opportunity to express

their understanding and acceptance of those principles. People

v. Wheeler, 399 Ill. App. 3d 869, 874, 927 N.E.2d 829 (2010).

The trial judge only secured the jurors’ understanding and

acceptance of the Zehr principle regarding the State’s burden of

proof. The trial judge’s questions as to whether the jurors

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would follow all of “the law” given was “a general question

concerning the juror[s’] willingness to follow the law,” which is

a practice the rule sought to prohibit. 177 Ill. 2d R. 431(b),

Committee Comments, at 1xxix. Our supreme court recently

instructed:

“Rule 431(b), therefore, mandates a specific

question and response process. The trial court must

ask each potential juror whether he or she understands

and accepts each of the principles in the rule. The

questioning may be performed either individually or in

a group, but the rule requires an opportunity for a

response from each prospective juror on their

understanding and acceptance of those principles.”

Thompson, slip op. at 6.

Here, the trial court violated Rule 431(b).

Our court has been divided as to whether a harmless or plain

error analysis is appropriate when such error is found. The

supreme court’s recent decision in Thompson, however, resolves

the question regarding the impact of a Rule 431(b) violation.

In Thompson, the supreme court relied on its prior decision,

People v. Glasper, 234 Ill. 2d 173 (2009), to conclude that a

trial court’s failure to comply with Rule 431(b) is not a

structural error requiring automatic reversal. Thompson, slip

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op. at 9-10. The supreme court recognized that the Glasper court

was addressing the preamended version of Rule 431(b), which

required Zehr questioning only when requested by the defendant;

however, the court determined that the structural error

discussion in Glasper equally applied to the amended Rule 431(b).

Thompson, slip op. at 8-9. In relevant part, the supreme court

reasoned that “[a]n error is typically designated as structural

only if it necessarily renders a criminal trial fundamentally

unfair or an unreliable means of determining guilt or innocence.”

Thompson, slip op. at 8. The supreme court found that a

violation of Rule 431(b) does not necessarily result in a biased

jury; rather, “Rule 431(b) questioning is simply one way of

helping to ensure a fair and impartial jury.” Thompson, slip op.

at 9. The court added that “violation of [Rule 431(b)] does not

necessarily render a trial fundamentally unfair or unreliable in

determining guilt or innocence.” Thompson, slip op. at 9. The

supreme court concluded that where there is no evidence that a

defendant was tried by a biased jury, a Rule 431(b) violation

does not fall within the very limited category of structural

errors requiring automatic reversal. Thompson, slip op. at 9-10.

Because there is no structural error for Rule 431(b)

violations, we may review defendant’s forfeited contention only

if there was plain error. Thompson, slip op. at 10. As was the

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case in Thompson, we find that the rules of forfeiture should not

be relaxed in this case. Pursuant to the Sprinkle doctrine, the

rules of forfeiture may be relaxed only in extraordinary

circumstances where a trial judge oversteps his authority in

front of the jury or when counsel’s objection would fall on deaf

ears. See Thompson, slip op. at 10. There is no indication in

the record that either circumstance existed here. We, therefore,

do not find it appropriate to relax the forfeiture rule.

Turning to the question of plain error, the plain error

doctrine (134 Ill. 2d R. 615(a)) allows us to review an issue

affecting substantial rights despite forfeiture in two instances:

“First, where the evidence in a case is so closely

balanced that the jury’s guilty verdict may have

resulted from the error and not the evidence, a

reviewing court may consider a forfeited error in order

to preclude an argument that an innocent person was

wrongly convicted. [Citation.] Second, where the error

is so serious that defendant was denied a substantial

right, and thus a fair trial, a reviewing court may

consider a forfeited error in order to preserve the

integrity of the judicial process.” People v. Herron,

215 Ill. 2d 167, 178-79, 830 N.E.2d 467 (2005).

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Once it is determined that an error occurred at trial, the burden

is on the defendant to establish plain error. Thompson, slip op.

at 11.

The supreme court in Thompson reaffirmed the Glasper finding

that the second prong of plain error review is equated with

structural error. Thompson, slip op. at 12. Relying on the

reasoning in Glasper, the Thompson court said a structural error

is a systemic error that erodes the integrity of the judicial

process and undermines the fairness of trial. Thompson, slip op.

at 12, citing Glasper, 234 Ill. 2d at 197-98. The supreme court

clarified that the 2007 amendment did “not indicate that

compliance with the rule is now indispensable to a fair trial.”

Thompson, slip op. at 12. Moreover, “[a] violation of Rule

431(b) does not implicate a fundamental right or constitutional

protection, but only involves a violation of [the supreme]

court’s rules.” Thompson, slip op. at 13. The supreme court

concluded that a defendant must demonstrate he was tried by a

biased jury to establish under the second plain error prong that

his right to a fair trial and the integrity of the judicial

process were affected. Thompson, slip op. at 12.

Here, defendant challenges the trial court’s Rule 431(b)

error under both prongs of plain error. We first address

defendant’s second-prong attack in light of Thompson. The jury

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was admonished and instructed on the Rule 431(b) principles.

Although the jurors received some, but not all, of the Rule

431(b) questioning, defendant did not present any evidence

demonstrating that the jury was biased. As a result, defendant

failed to meet his burden of establishing that the trial court’s

error affected the fairness of his trial and challenged the

integrity of the judicial process. Thompson, slip op. at 13.

Therefore, there was no second-prong plain error.

Turning to defendant’s first-prong attack, defendant

contends the evidence was closely balanced because “the State

called two unreliable witnesses who identified Brazziel from the

stand, while the defense called three strong witnesses who

testified Brazziel was not shooter” and the State’s remaining

occurrence witnesses did not “affirm their prior

identifications.” We recognize that the question of whether the

evidence is closely balanced is distinct from a sufficiency of

the evidence challenge. People v. Piatkowski, 225 Ill. 2d 551,

566, 830 N.E.2d 467 (2007). After reviewing the evidence, we

find defendant failed to meet his burden of demonstrating that

the evidence was closely balanced. On the contrary, we find that

the strength of the evidence was overwhelming.

Two eyewitnesses, Raper and Floyd, identified defendant as

the shooter. Raper testified against his cousin that he was next

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to him when defendant shot the victim. Floyd testified that she

was in front of her home within eight feet of defendant when he

shot the victim. Four additional witnesses, Smith, Gibbs, Henry,

and Ceasar, identified defendant as the shooter in handwritten

statements given within days of the victim’s murder, and Smith,

Gibbs, and Henry also inculpated defendant before the grand jury.

Although Smith, Gibbs, Henry, and Ceasar did not identify

defendant as the shooter at trial, their prior statements were

admitted as evidence. We conclude that defendant’s forfeiture

may not be excused based on the first prong of plain error.

III. Propriety of the State’s Cross-examination and Rebuttal

Argument

Defendant contends the State committed prosecutorial

misconduct when the defense witnesses’ moral character was

attacked during cross-examination and highlighted by the State

during rebuttal closing argument. The State responds that

defendant forfeited review of this contention. In the

alternative, the State contends its cross-examination of the

defense witnesses and rebuttal closing argument were proper.

“Generally, cross-examination is limited in scope to

the subject matter of direct examination of the witness

and to matters affecting the credibility of the

witness. [Citations.] However, this limitation is

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construed liberally to allow inquiry into whatever

subject tends to explain, discredit, or destroy the

witness’ direct testimony. [Citation.]” People v.

Terrell, 185 Ill. 2d 467, 498, 708 N.E.2d 309 (1998).

It is within the trial court’s discretion to determine the

latitude to be given on cross-examination. People v. Hall, 195

Ill. 2d 1, 23, 743 N.E.2d 146 (2000). We will not interfere with

the trial court’s decision unless the court clearly abused its

discretion such that there is manifest prejudice to the

defendant. Hall, 195 Ill. 2d at 23.

Defendant takes issue with certain portions of the State’s

cross-examinations of the defense witnesses. In regard to the

cross-examination of Samuel, defendant challenges the following

exchange:

“Q. You don’t–-did you care that anybody could

have got shot over there?

A. Yes, I did care, but...

Q. You did care?

A. Mm-hmm.

Q. Because you’re a caring person, right?

A. Yes.

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Q. And you’re such a caring person that if someone

got shot, you would want to go tell the police what you

saw, right?

DEFENSE COUNSEL: Objection.

THE COURT: Overruled.

A. Yeah.

Q. Okay. But you didn’t?

A. No, because I was young.

Q. Even though there’s police officers all over

the place, right?

A. Yep.

Q. You could have walked up there and talked to

one of the officers, right?

A. No. I was young.

Q. You were young?

A. Mm-hmm.

Q. So that stops you from talking to a police

officer?

A. What was I gonna tell?”

As the cross-examination continued, Samuel admitted that, despite

his knowledge that the police wrongly arrested defendant for the

victim’s murder, Samuel did not share this information with the

police, the ASAs, any newspapers, or any television stations.

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Defendant challenges the portion of Palmer’s cross-

examination after the State asked Palmer who he was with as he

fled after the gunshot. Palmer maintained that the group of

friends intended to meet back together; however, Palmer’s primary

focus was on getting himself to safety. In response, the State

asked, “right, because you’re really concerned ultimately about

yourself, right.” Defense counsel’s objection was overruled and

Palmer replied, “yes.” Later, Palmer testified that he and

defendant waited at the meeting place until the entire group

arrived and then they went their separate ways. The State asked

in response, “because you care about yourself, right?” Defense

counsel objected and the objection was sustained.

During his cross-examination, Eric testified that it was not

important to him to tell the police what occurred on the night in

question. Defendant challenges the following exchange:

“Q. You didn’t really care about anybody who got

shot out there, right?

A. It wasn’t none of my people.

Q. None of your people, right, so you really don’t

care about them?

A. I ain’t saying I don’t care about them. It

wasn’t none of my people.

Q. Who’s your people?

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DEFENSE COUNSEL: Objection.

A. My friends.

THE COURT: Overruled.

Q. So if some random guy gets shot, because he’s

not one of your people, you really don’t care about

him, right?

A. I didn’t say I didn’t care.

Q. Are you happy they got shot?

A. No, I’m not.

Q. Are you sad that they got shot?

A. No, I’m not.

Q. You just have no feelings whatsoever about it?

A. No, sir.

Q. So the boy that got shot over there, you have

no feelings for whatsoever?

A. I never knew him.”

In the two instances where the trial court overruled defense

counsel’s objections to the challenged cross-examination, we find

the court did not abuse its discretion. It is clear from the

record that the State was eliciting testimony regarding the

defense witnesses’ credibility and bringing to light their bias.

“Generally, any permissible kind of impeaching matter may be

developed on cross-examination, since one of the purposes thereof

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is to test the credibility of the witnesses.” Hall, 195 Ill. 2d

at 23. Defendant cannot demonstrate that he suffered manifest

prejudice as a result of the latitude the trial court allowed in

relation to the objected to cross-examination.

In regard to the challenged cross-examinations that

defendant failed to preserve, we find the State did not engage in

prosecutorial misconduct and, therefore, there was no error for

purposes of defendant’s suggested plain error analysis. See

Enoch, 122 Ill. 2d at 186 (an error is forfeited when the

defendant fails to lodge a contemporaneous object and does not

include the alleged error in a posttrial motion). The State was

not attacking the defense witnesses’ morality or lack thereof;

rather, the State attempted to undermine the witnesses’

credibility by attacking the fact that none of the witnesses

reported what occurred on the night in question or attempted to

provide information to the authorities to exonerate defendant.

The State further demonstrated the defense witnesses’ bias by

establishing that Palmer was most concerned about his safety and

that of his group and that Eric’s allegiance was to his group of

friends. “The possible bias of a witness is always material, and

relationship to a defendant is clearly a possible basis for

bias.” People v. Jones, 60 Ill. 2d 300, 306, 325 N.E.2d 601

(1975).

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We find the cases cited by defendant in support of his

argument that the State improperly questioned the defense

witnesses’ character are distinguishable. In People v. Rivera,

145 Ill. App. 3d 609, 495 N.E.2d 1088 (1986), the prosecutor

improperly attempted to impeach a witness based on insinuation,

not evidence in the record. Rivera, 145 Ill. App. 3d at 619-22.

Here, the State attacked the witnesses credibility based on their

direct testimony. In People v. Redmond, 50 Ill. 2d 313, 278

N.E.2d 766 (1972), the prosecutor improperly attacked the

defendant’s character unrelated to the crime charged. Redmond,

50 Ill. 2d at 315-16. In People v. Quick, 236 Ill. App. 3d 446,

603 N.E.2d 53 (1992), the prosecutor improperly attacked the

defendant’s religious beliefs when the direct examination was

limited to testimony regarding the defendant’s religious

activities. Again, the State’s attacks discredited the

witnesses’ direct testimony.

Defendant additionally challenges the following remarks made

by the State during rebuttal argument:

“Well, let’s talk about the defense witnesses

because it’s interesting how the defense characterizes

those witnesses. It’s interesting because apparently

they are like three little angels. Oh, they say they

work. Oh, they got kids. They got jobs. What they

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don’t have is credibility. And you know why? You

heard them up there, three different stories. Three

different stories.

You know, it was Eric Harris that stated, and I

think that basically sums up all three of those

witnesses, he doesn’t care about anybody but his

friends. The boy that got shot, doesn’t care. Didn’t

make him happy. Didn’t make him sad. What a wonderful

individual he is. What a great guy. What a great

witness.

And that is why he testified for the defendant

because he didn’t care about anybody but the defendant.

That’s why he got up there and did not tell you the

truth, basically got up there and gave you a cockamamie

story about how they’re just like spectators at a

football game, about a fight that they didn’t know

anything about.

*** Those witnesses were not credible whatsoever

despite what counsel was saying about them.

* * *

That takes *** us to Eric Harris. And once again,

everything is summed up by this guy. Doesn’t care

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about anybody but his people, his friends. Guy got

shot. So what. Doesn’t care. That’s what he’s about.

***

Credible testimony of witnesses came from Anthony

Raper, came from Yolanda Floyd and came from

handwritten statements and Grand Jury testimony of

Lakesha Gibbs, Shontrice Smith, De[S]ean Henry and

Johnny Ceasar. That’s where the credible testimony is,

not with the defense witnesses who can’t get their

story straight, and basically can all be summed up by

Eric Harris. ‘I only care about my people.’ That’s

one of his people, a guy who shoots down Larry Brown in

the head over a squabble with a girl. That’s the type

of person he is.”

A prosecutor is given wide latitude in making a closing

argument. People v. Nicholas, 218 Ill. 2d 104, 121, 842 N.E.2d

674 (2005). During that argument, a prosecutor may comment on

the evidence and any fair and reasonable inferences therefrom.

Nicholas, 218 Ill. 2d at 121. A closing argument must be

reviewed in its entirety and the challenged comments must be

viewed in context. Nicholas, 218 Ill. 2d at 122.

As with the majority of the challenged cross-examination

questions, defendant failed to object to the State’s rebuttal.

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Defendant, therefore, forfeited review of his contention. See

Enoch, 122 Ill. 2d at 186. We emphasize that defense counsel was

obligated to raise a contemporaneous objection because failure to

do so prevented the trial court from having the opportunity to

correct the alleged error immediately or to grant a mistrial.

People v. McLaurin, 235 Ill. 2d 478, 488, 922 N.E.2d 344 (2009).

Nevertheless, we find no plain error occurred.

After reviewing the State’s rebuttal in its entirety, we

find that the State’s arguments were in direct relation to

testimony elicited on cross-examination. The State addressed the

testimony of each defense witness. Contrary to defendant’s

argument, the State was not attacking the witnesses’ general

moral character; rather, the State was arguing that the witnesses

were not credible when they testified that they, along with

defendant, were innocent observers of the victim’s murder, yet

none of them came forward to report what they observed or to

proclaim defendant’s innocence. To the extent the State crossed

the line of propriety when it facetiously called Eric Harris a

“great guy,” we find any error was cured when the jury was

instructed at the end of trial that closing arguments were not

evidence. Nicholas, 218 Ill. 2d at 122-23. The jury is presumed

to have followed the law as given. People v. Taylor, 166 Ill. 2d

414, 438, 655 N.E.2d 901 (1995). Defendant, therefore, cannot

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establish plain error where, as we previously determined, the

evidence was not closely balanced and any minor error was not so

serious as to affect the integrity of defendant’s trial.

We further conclude that defendant cannot establish a claim

for ineffective assistance of counsel. To demonstrate

ineffective assistance of counsel, a defendant must show

counsel’s performance was deficient and such deficient

performance caused substantial prejudice. Strickland v.

Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct.

2052, 2064 (1984). To establish prejudice, a defendant “must

show 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. Even assuming, arguendo,

defense counsel should have objected to all of the challenged

cross-examination questions and rebuttal, the evidence

overwhelmingly supported defendant’s guilt and defendant cannot

demonstrate that, but for the challenged questions and comments,

the jury would have found him not guilty.

IV. Excessive Sentence

Defendant contends his sentence was excessive in light of

mitigating factors, namely, his age and lack of a criminal

record.

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A trial court’s sentence may not be disturbed absent an

abuse of discretion. People v. Perruquet, 68 Ill. 2d 149, 154,

368 N.E.2d 882 (1977). A sentence must be balanced between the

seriousness of the offense at issue and the potential for the

defendant’s rehabilitation. See Ill. Const. 1970, art. I, §11.

A trial court’s sentence is entitled to great deference and

weight because the trial court is in a superior position to make

such a determination. Perruquet, 68 Ill. 2d at 154. The trial

court weighs the defendant’s credibility, demeanor, general moral

character, mentality, social environment, habits, and age.

People v. Stacey, 193 Ill. 2d 203, 209, 737 N.E.2d 626 (2000). A

reviewing court may not substitute its judgment for that of the

trial court simply because it would have weighed those factors

differently. Stacey, 193 Ill. 2d at 209. Moreover, a sentence

within the statutory limits will not be considered excessive

unless it greatly varies with the spirit and purpose of the law

or is manifestly disproportionate to the nature of the offense.

Stacey, 193 Ill. 2d at 210.

The trial court heard arguments in aggravation and

mitigation. Prior to announcing defendant’s sentence, the trial

court said:

“I have reviewed closely the pre-sentence

investigation. And in addition, I’m going to consider

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what the Illinois State Legislature says I should

consider, those statutory factors in aggravation and

mitigation, in reaching my decision regarding what the

number should be in this case.

* * *

As I said, the idea and the notion that one can

point a gun at another person and fire it while that

person runs away from you carries with it a full story

of who that person that is firing is.

* * *

[Defense counsel] correctly points out that

rehabilitation [is] a secondary aspect or another

aspect that I’m considering. I am considering every

one of those statutory obligations or considerations

that I am asked to use. But it cannot be disputed that

no conduct that he could have engaged in on that

afternoon or early evening could have been worse than

that which he did, which the jury found that he did.

It’s for that reason that the sentence today will

reflect the seriousness of this conduct. It will

reflect the arguments in aggravation and mitigation of

the attorneys, the statutory factors, and the pre-

sentence investigation, everything.”

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A first degree murder conviction carries a sentence of not

less than 20 years and not more than 60 years. 730 ILCS 5/5-8-

1(a)(1) (West 2004). The firearm enhancement adds “25 years or

up to a term of natural life” to the sentence. 730 ILCS 5/5-8-

1(a)(1)(d)(iii) (West 2004). Defendant’s aggregate 60-year

sentence, therefore, falls within the permissive statutory range.

The record clearly demonstrates that the trial court

considered both the seriousness of the offense and defendant’s

potential for rehabilitation. The court repeatedly stated that

it had taken into consideration defendant’s presentence

investigation report, the arguments in aggravation and

mitigation, and the statutory factors while fashioning

defendant’s sentence. “The trial court has no obligation to

recite and assign value to each factor presented at a sentencing

hearing.” People v. Hill, 402 Ill. App. 3d 920, 928, 932 N.E. 2d

173 (2010). Rather, “it is presumed that the trial court

properly considered all mitigating factors and rehabilitative

potential before it; and the burden is on the defendant to

affirmatively show the contrary.” People v. Garcia, 296 Ill.

App. 3d 769, 781, 695 N.E.2d 1292 (1998). Defendant has failed

to demonstrate the trial court abused its discretion.

We find that People v. Bolyard, 61 Ill. 2d 583, 338 N.E.2d

168 (1975), is distinguishable from the case at bar. In Bolyard,

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the supreme court reversed and remanded the cause for

resentencing after finding that the trial court abused its

discretion when it denied a request for probation based on an

expressed categorical belief that the defendant fell within the

court’s group of disfavored offenders. Bolyard, 61 Ill. 2d at

586-87. Here, the record demonstrates that the trial court

considered the facts and circumstances of this case and did not

simply apply a blanket policy. This court repeatedly has stated

that the seriousness of the defendant’s offense is the most

important factor and the defendant’s rehabilitation potential

need not be given greater weight. People v. Tye, 323 Ill. App.

3d 872, 890, 753 N.E.2d 324 (2001).

CONCLUSION

We affirm defendant’s conviction and sentence.

Affirmed.

HALL, P.J., and PATTI, J., concur.

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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

JAMAEL BRAZZIEL,

Defendant-Appellant.

No. 1-08-1455

Appellate Court of Illinois

First District, FIRST DIVISION

November 22, 2010

Justice Bertina E. Lampkin authored the opinion of the court:

Presiding Justice Hall and Justice Patti concur.

Appeal from the Circuit Court of Cook County.

The Hon. Nicholas R. Ford, Judge Presiding.

COUNSEL FOR APPELLANT

Michael J. Pelletier, State Appellate Defender, Chicago, IL 60601

Patricia Unsinn, Deputy Defender

OF COUNSEL: Jonathan Krieger

COUNSEL FOR APPELLEE

Anita Alvarez, Cook County State’s Attorney, Chicago, IL 60602

OF COUNSEL: Alan J. Spellberg, Michelle Fowler,

Rimas F. Cernius and Nancy Colletti

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