ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Radcliff, 2011 IL App (1st) 091400
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ERIC RADCLIFF, Defendant-Appellant.
District & No. First District, Fourth Division
Docket No. 1–09–1400
Filed June 23, 2011
Held Defendant’s conviction was reversed and his sentence was vacated for
(Note: This syllabus possession of a stolen motor vehicle and the cause was remanded for a
constitutes no part of the new trial where the presiding judge left the courtroom without calling
opinion of the court but a recess and allowed the cross-examination of a witness to continue
has been prepared by the while he was absent, since the Illinois Supreme Court established a
Reporter of Decisions for bright-line rule in Vargas that only a rule that requires reversal when a
the convenience of the judge totally absents himself or herself from the proceedings will
reader.) effectively remove any incentive that might otherwise exist for the
judge to disregard the significant interests involved in a criminal trial.
Decision Under Appeal from the Circuit Court of Cook County, No. 09–CR–4166; the
Review Hon. Vincent M. Gaughan, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Michael J. Pelletier, Patricia Unsinn, and Daniel T. Mallon, all of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Miles J. Keleher, and Jeremiah R. Davis, Assistant State’s Attorneys,
of counsel), for the People.
Panel JUSTICE STERBA1 delivered the judgment of the court, with opinion.
Justices Neville and Salone2 concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial, defendant Eric Radcliff was found guilty of possession of a stolen
motor vehicle and burglary, and judgment was entered only on the charge of possession of
a stolen motor vehicle, on which he was sentenced to nine years in prison. On appeal,
Radcliff contends that his conviction should be reversed and the cause remanded for a new
trial because the judge was absent from the bench while defense counsel cross-examined a
State witness and the court failed to question prospective jurors in compliance with Illinois
Supreme Court Rule 431(b) (eff. May 1, 2007). Radcliff also challenges the fines and fees
order entered against him. Because the circuit court’s admonitions to potential jurors did not
comply with Rule 431(b), this court reversed Radcliff’s conviction and sentence and
remanded for a new trial in a Rule 23 order filed August 5, 2010 (People v. Radcliff, No.
1–09–1400 (2010) (unpublished order under Supreme Court Rule 23)). On January 26, 2011,
the Illinois Supreme Court issued a supervisory order directing this court to vacate its order
and reconsider in light of People v. Thompson, 238 Ill. 2d 598 (2010). People v. Radcliff, 239
Ill. 2d 577, 578 (2011). For the reasons that follow, we reverse Radcliff’s conviction and
sentence.
¶2 BACKGROUND
1
Pursuant to Justice Gallagher’s retirement, Justice Sterba delivered the judgment of the
court, with opinion, in the reconsideration of this case. Justice Sterba has reviewed all relevant
materials, including the original Rule 23 order filed on August 5, 2010, and the supervisory order
issued by our supreme court on January 26, 2011.
2
Pursuant to Justice O’Brien’s retirement, Justice Salone has participated in the
reconsideration of this case. Justice Salone has reviewed all relevant materials, including the original
Rule 23 order filed on August 5, 2010, and the supervisory order issued by our supreme court on
January 26, 2011.
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¶3 At trial, Chicago police officer Michael Coughlin testified that on February 6, 2009, he
was working with a group of officers as part of a covert auto theft team that had planned to
place a bait vehicle in an area of high auto thefts to curb such thefts in that area. The bait
vehicle was equipped with window and trunk sensors, internal cameras and microphones, a
computer system that could lock the doors and ignition, and a GPS system. About 8:45 p.m.,
Officer Coughlin drove the bait vehicle, a silver 2006 Mercury Milan, in an erratic manner
to give the impression that he was inebriated. Officers Delcason and Salvador followed
Officer Coughlin in a marked squad car, activated their lights and siren, and curbed the bait
vehicle at the intersection of 63rd and Carpenter on the south side of Chicago.
¶4 At this point, Officer Coughlin saw approximately six individuals standing on a nearby
corner, including Radcliff. Officers Dalcason and Salvador then pretended to arrest Officer
Coughlin, who acted belligerent and caused a scene, and handcuffed him and took him into
custody while leaving the bait vehicle on the street. When the officers left the vehicle, the
keys were on the center console, the doors were unlocked, and the front driver and passenger
side windows were halfway open. Officer Coughlin was then taken to the intersection of 61st
and Morgan, where he joined Officer Sheetz.
¶5 Officer Don Cornelious testified that on the night of February 6, 2009, he was acting as
the surveillance officer for the covert auto theft team. Officer Cornelious set up a point of
surveillance at 63rd and Carpenter and remained in radio contact with the other team
members. From his surveillance point, Officer Cornelious observed Radcliff standing across
the street from the bait vehicle in a group of approximately six people. Radcliff walked to
the vehicle, leaned inside, and fumbled around for about a minute before returning to the
group. Shortly thereafter, Radcliff returned to the vehicle and unsuccessfully attempted to
open the trunk, then returned to the group. About 15 minutes later, Radcliff entered and
started the vehicle, then drove away.
¶6 During cross-examination, defense counsel questioned Officer Cornelious regarding the
contents of the vehicle theft case report of the incident, and he stated that he could not
remember “word for word” what was in the report. Defense counsel asked Officer Cornelious
if anything would refresh his recollection, and he responded that the report would. At this
point, the judge presiding over the trial said “[c]ounsel, excuse me, you can show him the
report. One thing I have to take care of.” The judge then left the bench. While the judge was
away, defense counsel asked Officer Cornelious if he remembered what the incident report
he was using to refresh his recollection was about, and if it was from the date of the incident,
and Officer Cornelious responded that it was from that day. Defense counsel then said
“[w]hy don’t you take a look at it until the judge gets back.” Defense counsel resumed
questioning Officer Cornelious after the judge returned to the bench.
¶7 Sergeant James Kolodziej testified that his role in the covert operation was to sit in an
unmarked car with a laptop computer that controlled the bait vehicle. Once the bait vehicle
was in position, Sergeant Kolodziej activated the system that would “arm” the vehicle. Once
the vehicle was armed, messages would be sent to the computer about what was happening
with the vehicle. Sergeant Kolodziej received a message that a door had been opened, but the
vehicle remained in the same location. About 15 minutes later, he received another message
that a door had been opened. He then received a “door closed” message, followed by an
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“ignition on” message. Using the GPS tracking system, Sergeant Kolodziej saw that the bait
vehicle turned north on Aberdeen. He notified Officers Coughlin, Sheetz, Dalcason and
Salvador of the vehicle’s location. Once the officers communicated to Sergeant Kolodziej
that they were in position to stop the vehicle, he sent a command to shut off the ignition and
disable the vehicle. Radcliff was the only person in the vehicle, and Officer Coughlin placed
him under arrest.
¶8 Radcliff testified that about 8:40 p.m. on February 6, 2009, he stopped at a liquor store
at 62nd and Carpenter on his way from his sister’s house to his girlfriend’s house. Radcliff
had planned on taking a bus from the liquor store to his girlfriend’s house and encountered
his friend Kenny outside of the liquor store. Kenny asked Radcliff if he needed a ride
somewhere and offered him the use of a car so long as he returned it. Kenny handed Radcliff
a set of keys for a car parked across the street, and Radcliff entered the car and drove away
until he was stopped by police. Radcliff explained that he had planned on returning the
vehicle when he had finished using it.
¶9 The State called Officer Richard Salvador in rebuttal, who was part of the covert auto
theft team, and corroborated the testimony of the other officers regarding the incident and
Radcliff’s arrest. The State also recalled Officer Coughlin, who testified that he conducted
an interview with Radcliff at the police station about 9:30 p.m. on February 6, 2009, during
which Radcliff stated that Kenny told him that the police had locked up a white male and left
the keys in the car, and then gave him the keys in exchange for a beer.
¶ 10 The jury found Radcliff guilty of possession of a stolen motor vehicle and burglary. The
circuit court entered judgment only on the count of possession of a stolen motor vehicle and
sentenced Radcliff to nine years in prison.
¶ 11 ANALYSIS
¶ 12 We first address Radcliff’s contention that this court must reverse his conviction and
remand for a new trial because the circuit court’s admonitions to the prospective jurors did
not comply with Rule 431(b). Our review of the interpretation of a supreme court rule is de
novo. People v. Suarez, 224 Ill. 2d 37, 41-42 (2007).
¶ 13 In People v. Zehr, 103 Ill. 2d 472, 477 (1984), our supreme court held that it was
essential to the qualification of jurors in a criminal case 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. Rule 431(b) codifies the court’s holding in Zehr, and the
version of the rule that was in effect when Radcliff’s trial occurred provided:
“(b) 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
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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.” Ill. S. Ct. R.
431(b).
¶ 14 In this case, prior to swearing in the prospective jurors, the court admonished the group
in the following manner:
“Under the law, a defendant is presumed to be innocent of the charges against
him, and this presumption remains with him throughout every stage of the trial and
during your deliberations on the verdict and is not overcome unless from all of 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 the defendant beyond a
reasonable doubt, and this burden remains on the State throughout the entire trial.
The defendant is not required to prove his innocence, nor is he required to present
any evidence on his own behalf. He may rely on the presumption of innocence.”
¶ 15 The court further admonished the group:
“If [defendant] decides not to testify in his own behalf, you can’t use any
inference in that to say well, if he was innocent, why wouldn’t he testify in his own
behalf?
As soon as I say that, that thought is going to be in your head. But that’s not bad.
What you do, if it does pop out in your head, you just put it out of the way. You
cannot consider the fact that if [defendant] decides not to testify as any evidence of
anything against him. All right.
Does anybody have any qualms with that principle? If you do, raise your right
hand or raise any hand. I don’t care.
All right. Let the record reflect nobody has raised their hand.”
¶ 16 Radcliff asserts that although the court explained all four Zehr principles to the jurors,
it failed to comply with Rule 431(b) because it did not ask the jurors whether they accepted
and understood the first three principles. The State argues that Radcliff has forfeited this
issue on appeal by failing to object to the court’s error. Issues raised on appeal are preserved
for review by objecting during trial and filing a written posttrial motion raising the alleged
error (People v. Enoch, 122 Ill. 2d 176, 186 (1988)), and when a defendant does not object
at trial to a subsequently claimed error, a plain error analysis is appropriate. See People v.
Herron, 215 Ill. 2d 167, 181-82 (2005) (plain error applies when defendant fails to object,
while harmless error applies when a timely objection is made).
¶ 17 The plain error doctrine allows errors not previously challenged to be considered on
appeal if either: (1) the evidence is so closely balanced that the error alone threatened to tip
the scales of justice against the defendant; or (2) the error was so fundamental and of such
magnitude that it affected the fairness of the trial and challenged the integrity of the judicial
process, regardless of the closeness of the evidence. People v. Piatkowski, 225 Ill. 2d 551,
565 (2007); Herron, 215 Ill. 2d at 177. However, before conducting a plain error analysis we
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must determine whether an error in fact occurred. People v. Sims, 192 Ill. 2d 592, 621 (2000).
¶ 18 The circuit court asked potential jurors if they accepted the principle that a defendant’s
choice not to testify could not be held against him. The court did not question prospective
jurors about the remaining three principles. In Thompson, our supreme court noted that the
circuit court did not ask prospective jurors whether they understood and accepted the
principle that the defendant is not required to present any evidence on his own behalf.
Thompson, 238 Ill. 2d at 607. The court stated that this failure, by itself, constituted
noncompliance with the rule. Id. However, the court went on to say that although the circuit
court asked prospective jurors whether they understood the presumption of innocence, it did
not ask whether they accepted that principle. Thus, the court concluded, this was an
additional violation of the rule. Id.
¶ 19 Applying this reasoning to the case at bar, we conclude that the circuit court erred in
failing to question prospective jurors about three of the four principles. Under Thompson, the
court further erred in only asking potential jurors whether they accepted the principle that a
defendant’s choice not to testify cannot be held against him, without asking if they also
understood that principle. Accordingly, we must now determine whether this was reversible
error under the plain error doctrine.
¶ 20 In our original order, we held that the circuit court’s failure to ask potential jurors if they
understood and accepted three of the four principles was reversible error. People v. Radcliff,
No. 1–09–1400, slip op. at 9 (2010) (unpublished order under Supreme Court Rule 23). We
determined that under the second prong of the plain error analysis, Radcliff was denied his
substantial right to a fair and impartial jury by the court’s failure to comply with Rule 431(b).
However, in Thompson, our supreme court observed that “[w]hile trial before a biased jury
is structural error subject to automatic reversal, failure to comply with Rule 431(b) does not
necessarily result in a biased jury.” Thompson, 238 Ill. 2d at 610. Because there was no
evidence that the defendant in Thompson was tried by a biased jury, the court held that the
circuit court’s error did not require reversal of the defendant’s conviction. Id. at 611.
¶ 21 Here, there is no evidence that the circuit court’s failure to comply with Rule 431(b)
resulted in a biased jury, so the error is not reversible under the second prong. Radcliff did
not argue that the evidence was closely balanced, nor does the record support such an
argument. Thus, we conclude that the circuit court’s failure to comply with Rule 431(b) was
not reversible error.
¶ 22 Because we originally reversed Radcliff’s conviction and remanded for a new trial, we
did not address his argument that his conviction should be reversed because the judge left
the bench during defense counsel’s cross-examination of Officer Cornelious. We now
address this issue. Relying on People v. Vargas, 174 Ill. 2d 355, 371 (1996), Radcliff argues
that judicial absence from a portion of a defendant’s felony trial is per se reversible error,
because it is prejudicial to both a defendant’s right to a fair trial and to the integrity of the
judicial system. Whether the judge’s absence deprived Radcliff of his due process right to
a fair trial is a question of law which we review de novo. People v. Graham, 206 Ill. 2d 465,
474 (2003).
¶ 23 The State argues that Radcliff has forfeited this issue because he did not object at trial
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or raise it in a posttrial motion. As discussed above, when a defendant does not object at trial
to a subsequently claimed error, a plain error analysis is appropriate. See Herron, 215 Ill. 2d
at 181-82. Under the second prong of the plain error doctrine, we will consider errors that
are so fundamental and of such magnitude that the fairness of the trial and the integrity of the
judicial process are called into question. Piatkowski, 225 Ill. 2d at 565; Herron, 215 Ill. 2d
at 177. However, before conducting a plain error analysis we must first determine whether
an error in fact occurred. Sims, 192 Ill. 2d at 621.
¶ 24 The State contends that if any error occurred, it was injected into the proceedings by
defense counsel. The State claims that because the court specifically instructed counsel only
to show the witness the report, defense counsel injected the error by continuing to question
the witness in the judge’s absence. Alternatively, the State argues that if any error occurred,
it did not prejudice Radcliff in any manner. In Vargas, our supreme court determined that an
error occurred when the presiding trial judge was completely absent from the courtroom
during the cross-examination of a witness at a felony jury trial. Vargas, 174 Ill. 2d at 357.
Here, the judge was completely absent from the proceedings during part of the cross-
examination of a witness; thus, we conclude that an error occurred. We must next consider
whether this error is reversible.
¶ 25 As an initial matter, we reject the State’s contention that the court gave specific
instructions and defense counsel injected the error into the proceedings by violating those
instructions. During cross-examination of a witness, defense counsel asked the witness
whether anything would refresh his recollection of the contents of the vehicle theft report
related to the incident. The witness responded, “The report.” The judge then interrupted the
proceedings. He said: “Counsel, excuse me, you can show him the report. One thing I have
to take care of.” He then left the bench. In his absence, the following exchange occurred:
“Q. I’m showing you Defendant’s Exhibit 1 previously shown to counsel. Officer,
do you remember what this report is about? Is that the incident report from that day?
A. Yes. That’s from that day.
Q. Why don’t you take a look at it until the judge gets back.”
¶ 26 Contrary to the State’s assertion, defense counsel was following the court’s instructions.
The court told defense counsel to show the witness the report. Defense counsel asked two
questions to lay the foundation before showing the witness the report, and then deferred all
other questioning until the judge returned to the bench. Moreover, the court confirmed that
defense counsel complied with its order at a later point in the proceedings. During jury
deliberations, a note was sent out with a request to see a portion of the transcripts from the
trial. While the court and the attorneys were discussing the request, the following exchange
occurred:
“MR. VROUSTOURIS [Assistant State’s Attorney]: Next one is page 82, Judge.
There is, I’d just [sic] to bring to the Court’s attention on line 8 the record reflects
that your Honor left the courtroom and during that time there was a question and
answer and a second question in your absence, Judge. We don’t have an objection to
that, but I just want to bring that to the Court’s attention that the Court is aware, there
was a question and answer in your absence.
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THE COURT: *** All right. The question was, ‘Was there anything that could
refresh your recollection? Answer: The report. And then it’s, The Court: Counsel,
excuse me, you can show him the report. One thing I have to take care of.’ And then
Mr. Simmons [defense counsel] went on his own, but the questions are, and it’s
nothing but complying with the order is, ‘I’m showing you Defendant’s Exhibit 1
previously shown to counsel. Also do you remember what this report is about? Is this
the incident report from that day? Answer: Yes, from that day. Question: Why don’t
you take a look at it until the Judge gets back.’ And then the next salutation is the
Judge returns.
So that’s just compliance with my order that he could show him the report.
Nobody has made any objections about this, correct?
MR. VROUSTOURIS: That’s correct, Judge.”
¶ 27 Thus, we conclude that defense counsel did not violate an order of the court and inject
an error into the proceedings. As previously stated, the error occurred when the presiding
trial judge completely absented himself from the courtroom during part of the cross-
examination of a witness. We now turn to the State’s alternative argument that the error did
not prejudice Radcliff in any manner.
¶ 28 In Vargas, our supreme court considered the issue of whether a presiding trial judge’s
complete absence from the courtroom during the cross-examination of a witness at a felony
jury trial constitutes per se reversible error or whether prejudice to the defendant must be
shown. Id. In its analysis, the court explained that two important policy concerns supported
its conclusion that the judge’s absence from the bench was reviewable under the second
prong of the plain error analysis. Id. at 364. “First, a judge’s active presence on the bench
during a criminal jury trial is an essential safeguard which aids in providing a defendant with
a fair trial. Second, *** a judge’s absence from the bench might unduly influence the attitude
of jurors so as to deny defendant an impartial trial.” Id. The court concluded that total
judicial absence from a portion of a felony trial is per se reversible because such error is
inherently prejudicial to both the defendant’s right to a fair trial and the integrity of the
judicial process. Id. at 366. The court further explained that “[b]ecause prejudice is inherent
when felony trials continue in the absence of the presiding [trial] judge, we regard any
showing of demonstrable prejudice, or lack thereof, to defendant either resulting from, or
during, the judge’s absence as immaterial to the disposition of this issue.” Id. at 371.
¶ 29 Moreover, the court observed that a trial judge’s presence in the courtroom is necessary
because without it, “there is no judicial authority which can observe, cure, and deter
objectionable conduct which may have the effect of prejudicing the defendant in the minds
of the jury.” Id. at 364. The court went on to discuss a case in which it noted that the circuit
court has a duty to sua sponte suppress any attempt on the part of counsel to drag irrelevant
matters into a case. Id. at 364-65 (discussing People v. Chrfrikas, 295 Ill. 222, 228-29
(1920)). We note that here, defense counsel did not lay the proper foundation to refresh the
officer’s recollection and also that, in this failed attempt to lay such a foundation, asked a
compound question; something that could have been corrected if the judge had been present.
¶ 30 We recognize that in the case at bar, no substantive questions were asked of the witness
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during the judge’s brief absence. However, our supreme court established a bright line rule
in Vargas and explained that “only a rule which requires reversal when a judge totally
absents himself or herself from the proceedings will effectively remove any incentive which
might otherwise exist for the judge to disregard the significant interests involved in a
criminal trial.” Id. at 372. The court further explained that “[a] presiding judge’s supervision
over every stage of the proceedings precludes speculation that jurors may perceive evidence
received in the judge’s absence as less significant, and impresses upon jurors the importance
of the interests of the State and the defendant.” Id. Thus, because the court did not call a
recess and the cross-examination of a witness continued in the complete absence of the
presiding trial judge, we hold that Radcliff’s right to a fair trial was compromised.
¶ 31 Accordingly, we reverse Radcliff’s conviction and sentence and remand for a new trial.
Because we are reversing Radcliff’s conviction, his challenges to the fines and fees order
entered against him have been rendered moot.
¶ 32 Reversed and remanded.
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