People v. Wheeler

FIRST DIVISION
March 31, 2010

No. 1-08-1370

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 06 CR 12782
)
JAMES WHEELER, ) The Honorable
) Lawrence W. Terrell,
Defendant-Appellant. ) Judge Presiding.

JUSTICE GARCIA delivered the opinion of the court.

The defendant, James Wheeler, was convicted of residential burglary by a jury and

sentenced to 15 years' imprisonment. He seeks automatic reversal under the plain error doctrine

based on the trial judge's alleged violation of Illinois Supreme Court Rule 431(b) (Official

Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007) for failing to

establish that each prospective juror understood and agreed with the four principles enunciated

by our supreme court in People v. Zehr, 103 Ill. 2d 472, 469 N.E.2d 1062 (1984). The State

counters the trial judge complied with Rule 431(b) and, in any event, the alleged error is not a

second-prong plain error, triggering automatic reversal.

We find the trial judge violated Rule 431(b), but the violation did not challenge the

integrity of the trial process such that automatic reversal is triggered. We follow the line of

decisions since People v. Glasper, 234 Ill. 2d 173, 917 N.E.2d 401 (2009), holding a violation of
No. 1-08-1370

Rule 431(b) is not a second-prong plain error. Because the defendant makes no claim that the

Rule 431(b) error is a first-prong plain error, the claimed error is forfeited. We affirm.

BACKGROUND

In the early morning of January 15, 2006, Daryl James Mortensen returned to his home in

a western suburb to find some of his belongings missing and one of his windows open.

Mortensen called the village police, who dusted his apartment for fingerprints. The police

obtained one set of prints from a vase that had been in Mortensen's sole custody for at least seven

years. Mortensen had used the vase to store coins but the vase was empty when he returned

home.

On May 7, 2006, the defendant was arrested outside his Chicago apartment. Edward

Rottman, a fingerprint examiner for the Illinois State Police, found that two of the fingerprints

lifted from the vase matched the defendant's. After a trial in April 2008, a jury found the

defendant guilty of residential burglary.

In the course of jury selection, Judge Lawrence W. Terrell admonished the venire of the

four principles set forth in Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8

(April 11, 2007), R. 431(b), eff. May 1, 2007). The judge informed the venire:

"Every defendant in our country is presumed to be innocent

of the charges. This presumption remains with the defendant

throughout every stage of the trial, even through your deliberations

on your verdict.

***

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No. 1-08-1370

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.

A defendant is not required to prove his or her innocence,

nor is a defendant required to present any evidence at all. Any

defendant may simply rely on the presumption of innocence.

Moreover, every defendant has a Constitutional right not to

testify, and the jury cannot draw any inference of guilt if the

defendant fails to testify."

After announcing these principles, the judge discussed the division of labor between

judge and jury, the requirement that the jury arrive at a decision only after hearing all evidence

and arguments, and the prohibition against allowing one's prejudices or sympathies to taint the

verdict. He then discussed administrative matters, such as the purpose of objections, the

requirement that jurors not discuss the case outside of court, and the procedure for recesses and

lunch breaks.

Only after a relatively lengthy discussion of matters unconnected to the Zehr principles he

announced earlier, did the trial judge question the venire directly. He asked the first group of

prospective jurors: "The principles of law I described earlier, are you in agreement with those

principles?" Each eventual juror answered affirmatively. In questioning the second group of

prospective jurors, the judge asked whether they agreed with "the presumption of innocence and

the burden of proof" in addition to "the principles of law I described earlier." Each eventual juror

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No. 1-08-1370

answered affirmatively.

The selected jurors found the defendant guilty; he was sentenced to 15 years in prison.

This timely appeal followed.

ANALYSIS

Compliance With Rule 431(b)

Underlying his claim of plain error, the defendant contends the trial judge erred by not

"strictly [complying] with amended Supreme Court Rule 431(b)." The State responds the trial

judge followed Rule 431(b) by noting strict compliance is not required: the rule does not require

" 'magic words' or 'catechism.' "

We examine whether the trial judge complied with Rule 431(b), but only to determine

whether plain error occurred. We find no aid to our plain error analysis to decide whether the

rule requires "strict" or, as the State suggests, substantial compliance. See People v. Garstecki,

234 Ill. 2d 430, 445, 917 N.E.2d 465 (2009) ("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"). Rule 431(b) mandates that each prospective juror be asked about his or her

acceptance and understanding of each of the essential principles, now referred to as the Zehr

questions. In the course of making such an inquiry, the method employed by the trial judge must

afford "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. We examine the record to determine whether the clear mandates of the rule were

followed. Both sides agree that "[t]he issue of compliance with a supreme court rule is reviewed

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No. 1-08-1370

de novo." People v. Gardner, 347 Ill. App. 3d 578, 583, 808 N.E.2d 10 (2004).

In 1984, our supreme court declared: "[E]ssential 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 1997, the supreme court amended Rule 431(b) to require the Zehr questions be asked

when requested by the defendant by replacing the word "may" with "shall." 177 Ill. 2d R. 431(b).

In 2007, the supreme court again amended Rule 431(b) to place "an affirmative sua sponte duty

on the trial courts to ask potential jurors in each and every case whether they understand and

accept the Zehr principles." People v. Graham, 393 Ill. App. 3d 268, 273, 913 N.E.2d 99 (2009);

Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007. The

Committee Comments continue to state that the rule "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." 177 Ill. 2d R. 431(b), Committee Comments, at lxxix.

Here, the trial judge recited each of the four Zehr principles to the entire venire, followed

by a recitation of matters not pertaining to the Zehr principles. After this relatively lengthy

recitation, he proceeded to ask the first group of prospective jurors whether they agreed with

"[t]he principles of law I described earlier." In addition to this question, the trial judge asked the

second group of prospective jurors whether they agreed specifically with "the presumption of

innocence and the burden of proof." As the State points out: "Of the 14 jurors selected, 9 jurors

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No. 1-08-1370

were asked if they agreed with the principles of law discussed earlier. With the other jurors

selected, the court asked the jurors if they agreed with the principles of law discussed earlier, and

specifically stated the presumption of innocence and the burden of proof."

We find the trial judge's inquiry of the first nine jurors, as to whether they agreed with the

"principles" he had addressed earlier, fell short of the inquiry required by Rule 431(b). The

question put to this first group of prospective jurors was much like "a general question

concerning the juror's willingness to follow the law" that Rule 431(b) sought to prohibit. 177 Ill.

2d R. 431(b), Committee Comments, at lxxix; People v. Arredondo, 394 Ill. App. 3d 944, 953-

54, 916 N.E.2d 1263 (2009) (trial judge's general inquiry about the

"appropriate verdict form" was general questioning concerning the

jurors' willingness to follow the law, which Rule 431(b) sought

to prohibit).

To be clear, we do not suggest that the rule requires

questioning of each prospective juror, either individually or in

a group, regarding the acceptance and understanding of each Zehr

principle, although following this method would obviate plain

error review on appeal. See People v. Strickland, No. 1-08-1304,

slip op. at 24-28 (March 8, 2010) (rejecting claim that the voir

dire method employed by the circuit court violated Rule 431(b)).

We do find, however, that the questioning of the prospective

jurors about each Zehr principal must be timely connected to an

"opportunity to respond to specific questions concerning the

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No. 1-08-1370

principles." Official Reports Advance Sheet No. 8 (April 11,

2007), R. 431(b), eff. May 1, 2007. As our supreme court stated

in Zehr, "essential to the qualification of jurors in a criminal

case" is that they understand and accept each of the Zehr

principles. Zehr, 103 Ill. 2d at 477. To ensure that juror

qualification is ascertained, we believe informing the

prospective jurors of the Zehr principles must precede closely in

time with "an opportunity to respond to specific questions

concerning the principles." (Emphasis added.) Official Reports

Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1,

2007.

We construe the reference to "specific questions" in Rule

431(b) to mean that the questions must specifically reference the

Zehr principles. This may be done by the question itself stating

the principle and asking the prospective jurors whether they

accept and understand the principle or the specific question

regarding their understanding and acceptance may timely follow a

recitation of each of the principles. See Strickland, slip op.

at 24-28 (where the circuit court employed the latter method).

It is clear, however, that in order to connect the Zehr

principles to the opportunity of the venire to express their

understanding and acceptance of each of the principles, the

recitation of the principles and the questioning of the venire

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No. 1-08-1370

must be connected closely in time. We find the general question

concerning the prospective jurors' acceptance of "the principles

of law I described earlier" to be inadequate because the trial

judge gave a lengthy recitation of matters outside the scope of

Zehr (15 pages of transcript) before he asked this question. As

a consequence, the trial judge failed to give the first nine

jurors "an opportunity to respond to specific questions

concerning [each of the Zehr] principles." Official Reports

Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1,

2007. Supreme court rules "are not aspirational. They are not

suggestions. They have the force of law, and the presumption

must be that they will be obeyed and enforced as written."

Bright v. Dicke, 166 Ill. 2d 204, 210, 652 N.E.2d 275 (1995).

We find that the remaining five jurors were given an

opportunity to respond to specific questions regarding "the

presumption of innocence and the burden of proof," as the State

points out. However, these eventual jurors were never asked

specific questions concerning the remaining two Zehr principles.

The method of inquiry the trial judge followed did not comply

with the mandates of Rule 431(b) because the remaining five

jurors were never asked specific questions concerning each of the

four Zehr principles. See Glasper, 234 Ill. 2d at 189 ("[t]he

trial court committed error when it ignored our long-standing

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No. 1-08-1370

precedent and our rules by refusing to question the venire in

accordance with Rule 431(b)(4)"); People v. Magallanes, No. 1-07-

2826, slip op. at 15 (December 23, 2009) ("the court failed to

ascertain whether all of the potential jurors understood and

accepted the fourth Zehr principle").

Based on the record before us, we find the trial judge

violated Supreme Court Rule 431(b) by asking the prospective

jurors whether they agreed with "[t]he principles of law," he

described much earlier, the sort of general question Rule 431(b)

sought to prohibit. The trial judge violated Rule 431(b) when he

did not inform the prospective jurors of all four Zehr principles

followed by a timely opportunity to respond to specific questions

concerning their acceptance and understanding of the principles

set out in the rule.

Plain Error

The parties agree that defense counsel did not object to the

judge's failure to comply with Supreme Court Rule 431(b) and

defense counsel did not raise the trial judge's violation in his

posttrial motion. "An unbroken line of precedent mandates that a

defendant must object to claimed errors at trial and raise them

in his posttrial motions." People v. Martinez, 386 Ill. App. 3d

153, 163, 897 N.E.2d 879 (2008), citing People v. Banks, 161 Ill.

2d 119, 143, 641 N.E.2d 331 (1994). "Otherwise, they are

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No. 1-08-1370

procedurally defaulted or forfeited." Martinez, 386 Ill. App. 3d

at 163, citing People v. Naylor, 229 Ill. 2d 584, 893 N.E.2d 653

(2008).

The defendant maintains, however, that the omission by the

trial judge is reviewable under the plain error doctrine. See

People v. Hammonds, No. 1-08-0194, slip op. at 41 (February 11,

2010) ("Since defendant did not object at trial or raise this

issue in his posttrial motion, we review the issue under the

plain-error doctrine").

"[T]he plain-error doctrine allows a

reviewing court to consider unpreserved error

when (1) a clear or obvious error occurred

and the evidence is so closely balanced that

the error alone threatened to tip the scales

of justice against the defendant, regardless

of the seriousness of the error, or (2) a

clear or obvious error occurred and that

error is so serious that it affected the

fairness of the defendant's trial and

challenged the integrity of the judicial

process, regardless of the closeness of the

evidence." People v. Piatkowski, 225 Ill. 2d

551, 565, 870 N.E.2d 403 (2007), citing

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No. 1-08-1370

People v. Herron, 215 Ill. 2d 167, 186-87,

830 N.E.2d 467 (2005).

The defendant alleges error only under the second prong of

plain error. He argues that the error itself was so serious that

it affected the integrity of the judicial process and requires

automatic reversal. Under the second-prong analysis, if the

defendant proves the error occurred, "[p]rejudice to the

defendant is presumed because of the importance of the right

involved." Herron, 215 Ill. 2d at 187.

Two Lines of Cases

Whether a violation of Rule 431(b) is a second-prong plain

error is the source of divergent lines of cases. The supreme

court issued supervisory orders on both sides of the issue,

directing that the decisions be reconsidered in light of Glasper.

See Hammonds, No. 1-08-0194, slip op. at 49 (Justice R. Gordon

provides a complete list of the cases vacated by the supreme

court).

We add our decision to the line of cases finding no second-

prong plain error decided since the supreme court ordered the

issue be reconsidered in light of Glasper. We note that at the

time of this decision, People v. Thompson, No. 1-07-2891 (July

16, 2009), appeal allowed, 234 Ill. 2d 547 (2009), is pending

before the supreme court. In Thompson, the First District, in an

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No. 1-08-1370

unpublished decision under Rule 23, held a violation of Rule

431(b) constituted plain error under the second prong, triggering

automatic reversal.

In Glasper, our supreme court addressed whether the circuit

court's failure "to conduct voir dire in accordance with Zehr and

Rule 431(b)" is subject to harmless-error analysis. Glasper, 234

Ill. 2d at 185. The supreme court found "[t]he trial court

committed error when it ignored our long-standing precedent and

our rules by refusing to question the venire in accordance with

Rule 431(b)(4)." Glasper, 234 Ill. 2d at 189. Our supreme court

ruled that harmless-error analysis applies to a violation of the

1997 version of Rule 431(b)(4). Glasper, 234 Ill. 2d at 185.

The 2007 version of Rule 431(b) at issue before us places a

sua sponte duty on the circuit court to ask each of the Zehr

questions. Official Reports Advance Sheet No. 8 (April 11,

2007), R. 431(b), eff. May 1, 2007; Graham, 393 Ill. App. 3d at

273. The 1997 version required that each of the Zehr questions

be asked of the venire only upon request of the defendant, a

request defendant Glasper made. 177 Ill. 2d R. 431(b); Glasper,

234 Ill. 2d at 187.

The dispositive question before us is whether the 2007

amendment to Rule 431(b), imposing a sua sponte duty upon the

circuit court, changed the analysis we must follow regarding a

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violation of the rule from one where harmless error applies, such

that automatic reversal is rejected, to one where prejudice is

presumed under the second prong of the plain error doctrine, such

that automatic reversal is mandated. See Glasper, 234 Ill. 2d at

189 ("We are called upon to determine whether the trial court's

error requires us to presume prejudice and automatically reverse

defendant's conviction, or whether the error is subject to

harmless-error analysis").

According to the State, because a violation of the 1997

version of Rule 431(b) is subject to harmless error under

Glasper, a violation of the 2007 version of the rule, to which no

substantive language change was made, cannot create "an error so

serious that it affected the fairness of the defendant's trial

and challenged the integrity of the judicial process."

Piatkowski, 225 Ill. 2d at 565, citing Herron, 215 Ill. 2d at

186-87.

The defendant contends the Glasper holding does not apply to

his case. He points to the express language in Glasper: "[T]his

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." Glasper,

234 Ill. 2d at 200. The supreme court also made clear that it

did not hold, in the context where the error was preserved, "that

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No. 1-08-1370

a Rule 431(b)(4) violation could never result in reversible

error." Glasper, 234 Ill. 2d at 200. Relying on the express

limitation in the Glasper decision, various appellate decisions

have since determined Glasper is inapplicable to cases involving

the 2007 version of the rule. See, e.g., People v. Anderson, No.

1-07-1768 (March 29, 2010) (Anderson II); People v. Yusuf, No. 4-

08-0034 (February 4, 2010) (Yusuf II).

In Yusuf II, the Fourth District held "the trial court's

failure to fully comply with the amended version of Rule 431(b)

caused 'a complete breakdown of the judicial process that

undermines this court's confidence in the jury's verdict.' "

Yusuf II, slip op. at 12, quoting People v. Owens, 394 Ill. App.

3d 148, 153, 914 N.E.2d 1280 (2009). In reconsidering in light

of Glasper, the Yusuf II court relied on the very same language

the defendant asserts to argue that a second-prong plain error

occurred: "[T]he supreme court expressly limited its holding in

Glasper to the preamended version of Rule 431(b)." Yusuf II,

slip op. at 13. Anderson II followed much the same analysis.

We acknowledge reasonable grounds exist, as expressed in

Yusuf II, Anderson II, and the dissent in this case, to disagree

on the plain error issue before us. The supreme court in Glasper

expressly held that its decision might not apply to the 2007

version of Rule 431(b), a version in existence at the time the

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Glasper decision was issued in 2009, while the court's

supervisory orders, vacating decisions on both sides of the

issue, directed the lower courts to reconsider the decisions in

light of Glasper. We read the two directives to mean that we

should not look to the holding in Glasper to control our decision

but we may look to the reasoning in Glasper to determine whether

it nonetheless applies to the 2007 version of Rule 431(b). We

find the reasoning in Glasper to apply with equal force here.

No Fundamental Right Involved

The supreme court in Glasper noted its traditional

"reluctance to hold that automatic reversal was required for a

violation of a 'right' conferred upon defendants by a rule of

[the supreme] court." Glasper, 234 Ill. 2d at 197, quoting

People v. Daniels, 172 Ill. 2d 154, 165, 665 N.E.2d 1221 (1996).

It observed the Supreme Court of the United States has recognized

errors as " 'subject to automatic reversal *** only in a "very

limited class of cases." ' " Glasper, 234 Ill. 2d at 198,

quoting Neder v. United States, 527 U.S. 1, 8, 144 L. Ed. 2d 35,

46, 119 S. Ct. 1827, 1833 (1999), 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 Illinois Supreme Court observed that

the trial court's error in Glasper, to follow long-established

precedent and the clear language of Rule 431(b), did not "involve

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No. 1-08-1370

a fundamental right, or even a constitutional protection."

Glasper, 234 Ill. 2d at 193. Because the error involving the

1997 version of Rule 431(b) did not involve a fundamental right

or constitutional protection, the supreme court examined the

legal grounding for defendant Glasper's claim that the error

should give rise to a presumption of prejudice.

While noting that in a different case a violation of Rule

431(b)(4) might constitute reversible error, the supreme court

determined that "the trial court's error [in Glasper] was

harmless beyond a reasonable doubt." Glasper, 234 Ill. 2d at 203

(noting "several federal appellate courts" have determined that

Zehr-type jury instruction errors "may be deemed harmless where

the evidence is overwhelming"). In other words, a clear

violation of the 1997 version of Rule 431(b), with or without a

timely objection, would not give rise to a presumption of

prejudice (as a second-prong plain error would). See Herron, 215

Ill. 2d at 187 (where a second-prong error is proved,

"[p]rejudice to the defendant is presumed because of the

importance of the right involved").

The Glasper court rejected the defendant's claim that

prejudice should be presumed because "automatic reversal is not

even required in cases where the prosecution makes an erroneous

reference to a defendant's decision to exercise his

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No. 1-08-1370

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. It would be

incongruous to require automatic reversal for a judge's failure

to ascertain a juror's understanding and acceptance that a

"defendant's failure to testify cannot be held against him or

her" when it has repeatedly been held that a violation of that

same constitutional right by a prosecutor in the course of a

trial is subject to harmless-error analysis, thus precluding

automatic reversal. Glasper, 234 Ill. 2d at 198, citing People

v. Dameron, 196 Ill. 2d 156, 164-66, 751 N.E.2d 1111 (2001). To

find otherwise would result in anomalous outcomes, granting

automatic reversal when a jury is not informed of the principle,

but rejecting automatic reversal when the principle itself is

violated during the course of a trial. Glasper, 234 Ill. 2d at

198.

An automatic reversal for a violation of the 1997 version of

Rule 431(b) would also engender tension with well-established

case law that juries are presumed to act as instructed:

"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

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No. 1-08-1370

demonstrates 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. To do so would require us to

presume that citizens sworn as jurors ignore

the law and the jury instructions given to

them. This notion is contrary to our

precedent which instructs us to make the

opposite presumption." Glasper, 234 Ill. 2d

at 201, citing People v. Taylor, 166 Ill. 2d

414, 438, 655 N.E.2d 901 (1995) ("The jury is

presumed to follow the instructions that the

court gives it").

Given the reasoning of the supreme court in Glasper, we are

persuaded that its analysis applies with equal force against a

presumption-of-prejudice finding that a second-prong plain error

would trigger in this case. Critical to our holding is the

defendant's failure to marshal a persuasive reason that the 2007

amendment to Rule 431(b), imposing a sua sponte duty on the

circuit court, makes full compliance with the rule indispensable

to a fair trial for him, as he argues for a second-prong plain

error, but the trial judge's erroneous denial of the defendant's

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No. 1-08-1370

request that a specific Zehr question be asked of the venire was

not indispensable to a fair trial for defendant Glasper. As we

see it, the change to Rule 431(b) in the 2007 amendment did not

alter the right in question: it remains neither "a fundamental

right, [nor] even a constitutional protection." Glasper, 234

Ill. 2d at 193. In the absence of a cogent reason to find the

instant defendant's situation substantively different from the

situation of defendant Glasper, we are persuaded that the supreme

court's reasoning in Glasper applies to the 2007 version of Rule

431(b), which means its violation does not give rise to a

presumption of prejudice.

Consistent with the First District cases that reject a

violation of Rule 431(b) as a second-prong plain error--

Magallanes, No. 1-07-2826; Hammonds, No. 1-08-0194--the error

committed by the trial judge in this case did not trigger

automatic reversal.

CONCLUSION

The trial judge violated Supreme Court Rule 431(b) when he

did not inform the prospective jurors, either individually or in

a group, about each Zehr principle followed by a timely

opportunity to respond to specific questions concerning their

acceptance and understanding of the principles set out in the

rule. The error, however, does not involve a fundamental right

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No. 1-08-1370

or constitutional protection, such that prejudice is presumed

upon proof of the error under the second prong of the plain error

doctrine. Because the defendant does not contend the error by

the trial judge was plain error under the first prong, the error

concerning the trial judge's failure to adhere to Rule 431(b) is

forfeited.

Affirmed.

PATTI, J., concurs.

Hall, P.J., dissents.

PRESIDING JUSTICE HALL dissenting:

I agree with the majority's conclusion that the trial court

violated Supreme Court Rule 431(b) (Official Reports Advanced

Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007). I

disagree, however, with the majority's finding that the error

does not warrant reversal under the second prong of the plain-

error analysis.

I believe that word deletions in the 2007 amendment to Rule

431(b) alter our analysis from that of People v. Glasper, 234

Ill. 2d 173, 917 N.E.2d 401 (2009). In Glasper, the rule at

issue was the 1997 version of Rule 431(b), which required trial

courts to question prospective jurors about the Zehr principles

only if requested to do so by defense counsel. Glasper, 234 Ill.

2d at 187.

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The 1997 version of Rule 431(b) actually represented a

compromise. See People v. Alexander, 396 Ill. App. 3d 563, 580,

919 N.E.2d 1016 (2009) (McDade, J., concurring in part and

dissenting in part). The Supreme Court Rules Committee initially

recommended that trial courts be required to question prospective

jurors on each of the four Zehr principles. Alexander, 396 Ill.

App. 3d at 580 (McDade, J., concurring in part and dissenting in

part); Glasper, 234 Ill. 2d at 187. The supreme court rejected

the recommendation and instead added subsection (b), requiring

trial courts to undertake such questioning only if requested by

defendant. Alexander, 396 Ill. App. 3d at 580 (McDade, J.,

concurring in part and dissenting in part); see also Glasper, 234

Ill. 2d at 200 ("As previously stated, when crafting the version

of Rule 431(b) applicable here, this court had the opportunity to

mandate Zehr questioning in every case, but chose not to.

Instead, this court made the right to Zehr questioning

permissive").

In 2007, the supreme court amended Rule 431(b), this time

adopting the procedure it had rejected 10 years earlier.

Alexander, 396 Ill. App. 3d at 580 (McDade, J., concurring in

part and dissenting in part). The 2007 amendment deleted the

words: "If requested by the defendant." Official Reports Advanced

Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007). The

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deletion had the effect of imposing an affirmative sua sponte

duty on trial courts to question prospective jurors about the

Zehr principles, even absent a request by defendant. See People

v. Graham, 393 Ill. App. 3d 268, 273, 913 N.E.2d 99 (2009).

Rules of statutory construction apply equally to the

interpretation of supreme court rules. People v. Roberts, 214

Ill. 2d 106, 116, 824 N.E.2d 250 (2005). Every amendment to a

rule is presumed to have a purpose, and a court must consider the

language of the amendment in light of the need for the amendment

and the purpose it serves. People v. Allen, 313 Ill. App. 3d 842,

846, 730 N.E.2d 1216 (2000).

In amending Rule 431(b), by deleting the words: "If

requested by the defendant," our supreme court evidently

determined that the Zehr principles are so integral to the

selection of an impartial jury, and thus a fair trial, that trial

courts should be required to raise them sua sponte even if not

requested to do so by defense counsel. The majority's

interpretation of the 2007 version of Rule 431(b) renders

meaningless the deletion of the words: "If requested by the

defendant."

In light of the mandatory language of the 2007 amended

version of Rule 431(b), I believe that the trial court's failure

to fully comply with the rule denied defendant a fair trial and

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No. 1-08-1370

was so fundamental an error that reversal is required under the

second prong of the plain-error analysis.

REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,

v.

JAMES WHEELER,
Defendant-Appellant.
________________________________________________________________

No. 1-08-1370

Appellate Court of Illinois
First District, First Division
Opinion Filed March 31, 2010
Corrected Opinion Filed: May 11, 2010
_________________________________________________________________

JUSTICE GARCIA delivered the opinion of the court.

PATTI, J., concurs.
HALL, P.J., dissents.
_________________________________________________________________

Appeal from the Circuit Court of Cook County
Honorable Lawrence W. Terrell, Judge Presiding
_________________________________________________________________

For DEFENDANT- Adrienne River
APPELLANT PATRICIA UNSINN, Deputy Defender
MICHAEL J. PELLETIER, State Appellate Defender
Office of the State Appellate Defender
203 N. LaSalle St., 24th Floor
Chicago, IL 60601

For PLAINTIFF- James F. Fitzgerald

23
No. 1-08-1370

APPELLEE Mary L. Boland
Brian W. Reidy
ANITA ALVAREZ, State's Attorney
County of Cook
Room 309 - Richard J. Daley Center
Chicago, Illinois 60602

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