People v. Ruiz

2023 IL App (1st) 210541-U
No. 1-21-0541
Order filed February 24, 2023
Fifth Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 13 CR 13196
)
ABEL RUIZ, ) Honorable
) Vincent M. Gaughan,
Defendant-Appellant. ) Judge, presiding.

JUSTICE NAVARRO delivered the judgment of the court.
Presiding Justice Delort and Justice Lyle concurred in the judgment.

ORDER

¶1 Held: We affirm the summary dismissal of defendant’s pro se postconviction petition
where defendant did not state an arguable claim that appellate counsel was
ineffective in failing to argue that the trial court’s noncompliance with Illinois
Supreme Court Rule 431(b) (eff. July 1, 2012) was plain error.

¶2 Defendant Abel Ruiz appeals from the circuit court’s order summarily dismissing his pro

se petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 et seq. (West 2020)).

On appeal, defendant argues that counsel on direct appeal was ineffective in failing to argue that
No. 1-21-0541

the trial court’s failure to comply with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) was

plain error. We affirm.

¶3 Following a jury trial, defendant was found guilty of first degree murder for shooting and

killing Brandon Cage on June 12, 2013, in Chicago, and sentenced to 51 years’ imprisonment. At

trial, defendant testified he shot Cage in self-defense.

¶4 On direct appeal, defendant argued that the trial court erred in denying his motions (1) to

suppress his post-arrest communications with another arrestee, Steve Cervantes, which were

recorded while both were in custody, and (2) to exclude these communications at trial. We

affirmed, but corrected the mittimus concerning sentencing credit. People v. Ruiz, 2019 IL App

(1st) 152157.

¶5 Defendant filed a pro se postconviction petition on July 21, 2020. Defendant argued, inter

alia, that the trial court failed to properly admonish the jury under Illinois Supreme Court Rule

431(b) (eff. July 1, 2012), and counsel on direct appeal was ineffective for failing to raise the

argument.

¶6 Relevant to defendant’s claim, the report of proceedings reflects that, during jury selection,

the trial court advised the venire that a defendant is “presumed to be innocent” and that this

presumption “is not overcome unless from all the evidence in this case” the jury is “convinced

beyond a reasonable doubt that the defendant is guilty.” The trial court further noted that the State

bears the burden of proving the defendant’s guilt beyond a reasonable doubt and that the defendant

“is not required to present any evidence on his own behalf,” but “may rely upon the presumption

of innocence.” The following exchange then occurred:

-2-
No. 1-21-0541

“THE COURT: Ladies and gentlemen, *** I want to discuss some basis [sic]

principles of constitutional law that apply to all criminal cases. First off, anybody that’s

placed on trial in a criminal case is presumed to be innocent of the charges against him. As

I stated earlier, [defendant] is not required to present any evidence on his own behalf, and

he may rely upon the presumption of innocence.

Does anybody have any qualms or problems understanding that constitutional

principle of presumed innocent? Please raise your hand.

Could you stand up.

UNIDENTIFIED PERSON: Is he charged with two murders or one?

THE COURT: He’s charged in two ways with one murder.

UNIDENTIFIED PERSON: Oh.

THE COURT: Does anybody have any problems understanding the presumption of

innocence? Please raise your hand. Let the record indicate no one raised their hand.”

¶7 The court then asked the venire whether anyone had “any problems applying or qualms

about applying the presumption of innocence,” and again indicated no hands were raised.

¶8 Next, the trial court addressed the applicable burden of proof, noting that the preponderance

of evidence standard applies in civil cases, “[b]ut in a criminal case, the burden of proof is proof

beyond a reasonable doubt, and this is the highest burden of proof at law.” The court asked, as

separate questions, whether anyone had “any problems understanding” the burden of proof in a

criminal case or had “any problems *** or qualms about applying that principle,” and to raise their

hand if they did After each question, the court indicated no one raised a hand.

-3-
No. 1-21-0541

¶9 The trial court next told the venire that the burden of proof beyond a reasonable doubt

remains with the State throughout the case. The court again asked, separately, whether anyone had

“any problems understanding that principle” or “any problems about applying that principle,” and

after each question indicated no hands were raised.

¶ 10 Next, the trial court informed the venire that, if defendant were to testify, the jury should

“judge his credibility like any other witness.” The court asked whether anyone had any problems

understanding, or problems or qualms about applying that principle, and after each question

indicated no hands were raised.

¶ 11 Finally, the trial court addressed the venire as follows:

“THE COURT: Now, if you look at that as a constitutional coin and turn it over,

[defendant] does have a constitutional right not to testify, and if he decides not to testify,

no inference can be drawn from his silence.

Does anybody have any problems understanding that constitutional principle?

Please raise your hand.

Indicating no one raised their hand.

Does anybody have any problem applying that constitutional principle or qualms

about applying that constitutional principle? Please raise your hand.

Indicating no one raised their hand.

Thank you, ladies and gentlemen.”

¶ 12 At trial, the State called Joseph Santiago, Amber Glassco, and Kristina Diosdado, who

were present during the shooting.

-4-
No. 1-21-0541

¶ 13 Santiago testified that a misdemeanor DUI charge was pending against him and that he had

been convicted of misdemeanor theft. On June 12, 2013, he and his girlfriend, Glassco, were at his

house drinking with friends. Both wanted cocaine. At about 1 a.m., they drove Santiago’s van to

Cage’s home, because Cage knew someone who sold cocaine. From there, Santiago drove Glassco

and Cage to 60th Street and Homan Avenue. Cage went to the spot “where he would normally get

cocaine” while Santiago and Glassco remained in the van with the windows down.

¶ 14 Santiago saw a dark Ford Taurus drive by and heard someone say, “Ho, ho, ho. Hold up.

Hold up.” The Taurus stopped, and defendant exited the back seat; he had a “shag” haircut. He

drew a firearm, approached Santiago’s open window, put the firearm to Santiago’s head, and

asked, “What are you?” Santiago, intending to convey that he was not a gang member, replied,

“Nothing.” Defendant told Santiago to “drop the forks”—an order to make a gang-related hand

signal—and Santiago complied. Defendant said, “You’re lucky. I would have killed your a***.

You’re lucky your girlfriend’s here.”

¶ 15 Defendant walked back to the Taurus. Cage stood about 10 feet from defendant and said,

“What’s up?” Defendant asked, “Well, what you is?” Cage replied, “GD Folks.” Defendant walked

toward Cage, shot him three times, and ran to the back passenger seat of the Taurus, which left the

area. Santiago told Glassco to call 911. After speaking with the officers who arrived at the scene,

Santiago entered the back seat of a police vehicle, viewed defendant in a show-up, and identified

him as the shooter. Santiago testified that, before the shooting, Cage did not make physical contact

with defendant, try to strike him, or make threatening comments to him. Cage stood too far from

defendant to hit him, and was unarmed.

-5-
No. 1-21-0541

¶ 16 Glassco testified that, shortly after midnight on June 12, 2013, she and Santiago were at

home drinking. Around 1 a.m., they drove to Cage’s house in their van, picked him up, and drove

to 60th and Homan to buy drugs. Glassco and Santiago stayed in the van while Cage went to make

the buy. Someone near the driver’s side of the vehicle asked Santiago “what he was.” Although

Glassco’s view of the man’s face was blocked by Santiago, she saw that the bottom part of his hair

was long. The man told Santiago to “[d]rop the forks.” After Santiago complied, the man told

Santiago that he was lucky that Glassco was beside him because the man would have shot Santiago

otherwise.

¶ 17 As the man walked to a dark Ford Taurus that was in front of the van, Cage returned and

said, “What’s up? Folks.” The man asked what Cage was. After Cage replied, “I’m GD,” the man

shot Cage. Glassco heard three shots. Cage fell, and the man ran to the Taurus, which was then

driven away. Glassco called 911. Glassco did not see Cage with a weapon and did not see Cage

threaten or hit the man.

¶ 18 On cross-examination, Glassco stated that she could not see the man’s body, face, and

hands when he approached the van. She did not identify the shooter in a show-up at the scene or

in a subsequent lineup at the police station.

¶ 19 Diosdado testified that on June 11, 2013, she spent the day at the beach with defendant,

Andres Davila, and Cervantes, who was her boyfriend. 1 Later, Diosdado, Cervantes, and Davila

drove to defendant’s house. Cervantes became intoxicated and fell asleep. After a few hours,

Diosdado entered a dark green Ford Taurus, driving Cervantes, who sat in the front passenger seat,

1
Diosdado referred to Davila as “Andrew” and “Tiny.” On cross-examination, defense counsel
referred to Davila as Andres Davila.

-6-
No. 1-21-0541

and defendant, who sat in the back passenger seat. She intended to take Cervantes home. Near 60th

and Homan, defendant asked her to stop; she complied, and he exited the vehicle. A van was

behind them. In the rearview mirror, Diosdado saw defendant approach the driver’s side of the

van. Through the open windows of the Taurus, she heard defendant ask the van’s occupants, a

woman and a man, about their gang affiliations. Diosdado testified that defendant also spoke to

Cage, whose name she did not know at the time. She heard defendant say, “King love,” and heard

Cage say, “I’m Folks.” She then heard three or four shots. She did not see Cage punch or swing at

defendant. She did not hear anyone say, “I’ll smoke you” or “take your things.” Defendant returned

to the Taurus and told Diosdado to “go.” She saw a handgun on defendant’s lap. She drove around

and saw Davila, who jumped into the Taurus. A few blocks later, the police curbed the Taurus.

¶ 20 On cross-examination, Diosdado admitted that she did not see what occurred between

defendant and Cage and did not know whether Cage struck defendant.

¶ 21 Officer Filiberto Rosas testified that, after monitoring a call around 1:25 a.m. on June 12,

2013, he curbed a vehicle and observed defendant in the back seat. Upon a search, a firearm was

recovered from beneath the front passenger seat.

¶ 22 Ellen Chapman, a forensic scientist for the Illinois State Police, testified that analysis of a

gunshot residue collection kit administered to defendant revealed sufficient particles from both of

his hands to conclude that he had discharged a firearm, had contacted a gunshot residue-related

item, or had been in the environment of a discharged firearm. The State entered a stipulation that

Dr. James Filkins performed Cage’s autopsy and would have testified that Cage was 5 feet, 11

inches tall, weighed 254 pounds, and had three gunshot wounds to his abdomen and chest. The

cause of death was multiple gunshot wounds, and the manner of death was homicide.

-7-
No. 1-21-0541

¶ 23 Chicago police detective Michael Jackson testified that defendant, Diosdado, Cervantes,

and Davila were taken to a police station and placed in separate areas, each of which had video

surveillance. At one point, Jackson was informed that people in the areas were yelling and

conversing in Spanish.

¶ 24 The State entered a stipulation between the parties that, if called, Chicago police officer

Raul Cortez would have testified that he was fluent in English and Spanish. On June 12, 2013,

Cortez listened to a conversation between defendant and Cervantes in Spanish, which was filmed

and translated to English. Cortez watched the recording, which accurately represented the

conversation, and read the English translation, which was true and accurate. The State entered the

DVD recording into evidence, the court overruling the defense objection that the recording

contained hearsay statements by Cervantes. A transcript of the DVD was provided to the members

of the jury as demonstrative evidence. Before the DVD was played, the court instructed the jury

that only the video was evidence, the transcript was provided only to aid in watching the video,

and the jury would not receive the transcript during deliberations. The DVD, but not the transcript,

was admitted into evidence, and contained the following conversation between defendant and

Cervantes 2:

“CERVANTES: What happened?

DEFENDANT: We did a f*** job, dude.

2
The DVD is not included in the record on appeal. In our order on direct appeal, we noted that, as
the written transcript given to the jury was not in the record, the excerpts of the DVD quoted in our order
were derived from a transcript, prepared by defendant’s appellate counsel, of the captions included in the
video recording. Ruiz, 2019 IL App (1st) 152157, ¶ 20 n.3. The State agreed that this transcript accurately
reflected the captions at the bottom of the video recording. Id. The record for the instant appeal contains
neither the transcript given to the jury (which was not admitted into evidence) nor the transcript prepared
by defendant’s appellate counsel. Therefore, in this order, we incorporate excerpts from the latter transcript
as quoted in our order on direct appeal.

-8-
No. 1-21-0541

CERVANTES: Who?

DEFENDANT: I did.

CERVANTES: Huh?

DEFENDANT: I did it.

***

DEFENDANT: What the f***, man? They got me handcuffed dog.

CERVANTES: What—what did they tell you?

DEFENDANT: Nothing that—that they are investigating, dude, but they found the

f*** cannon in the car, dude.

CERVANTES: And who did they blame?

DEFENDANT: Nobody, dude. They just—they just took us, dude, but I told this

guy run, dude, and the guy just put it under the car, dude.

CERVANTES: Who?

DEFENDANT: Tiny put the cannon under the seat. I told this guy to run, dude and

guy didn’t run. Hey!

***

DEFENDANT: I caught—I caught an a*** over there, dude. I caught a f***, dude.

CERVANTES: And what happened?

DEFENDANT: I let him have it, dude.

CERVANTES: But who is going to take the blame, dude?

-9-
No. 1-21-0541

DEFENDANT: Man, n***, this guy told me—he’s all like, look when I told him

to run he’s all like, man, I’m going to say it’s mine dude. That’s what he told me.

***

DEFENDANT: That guy said he was going to take the blame, dude. I told this guy

to run dude and the guy didn’t run. I told him way before that they were going to stop us

when—when we saw the cops I told him, get out dude and run dude. Just put it under the

seat, dude. He said, I’m going to say that it’s mine. That’s what he told me, dog.

CERVANTES: But don’t f*** around, dude. I’m here and also my lady.

***

CERVANTES: What—what was the f*** stupid fight about, dude.

DEFENDANT: Huh?

CERVANTES: What were all of you doing yesterday, dude?

DEFENDANT: Yesterday we went to eat, a***.

CERVANTES: And you filled him up with lead?

DEFENDANT: Hell yeah.

***

CERVANTES: Did they get the—the gun?

DEFENDANT: Yeah, n***, I told you—I told you what happened, dude. This idiot

I told guy to run I told the guy to run, man and—and this guy said he put it under the seat

and he said, I’m going to say it’s mine. That’s what he said, dog. I tellin’ this n***, run

dude, run your a*** off—run and this guy didn’t want to, dude.

CERVANTES: F*** dumb guy. What happened, man?

- 10 -
No. 1-21-0541

DEFENDANT: I filled a guy with lead close range, n***.

CERVANTES: What?

DEFENDANT: Close range—I filled him with lead, dude. (Inaudible)—

***

CERVANTES: Hey dude.

DEFENDANT: Yeah.

CERVANTES: Did you see the f*** fall?

DEFENDANT: He fell, dude, in front of me, dude. And when I—and when I tried

to fill him up with lead again I didn’t have anymore, dude. I let him have like four or five,

dude. Hey dude!

CERVANTES: Yes.

DEFENDANT: When you get out, dude, ask your old lady. She saw everything,

dude.”

¶ 25 Defendant testified that he had been convicted of armed robbery in 2008. On June 11, 2013,

he, Davila, Cervantes, and Diosdado went to Lake Michigan and then to defendant’s house, where

they drank. Early on June 12, Cervantes became very intoxicated and passed out. Diosdado asked

defendant for cocaine. Defendant did not know where to get cocaine. Davila made some phone

calls in order to procure cocaine. All four of them left in Diosdado’s car, with Diosdado driving

and Davila directing her.

¶ 26 At 60th and Homan, Davila told defendant to buy the cocaine, said the seller would come

via a gangway, and gave defendant a firearm, which defendant put in his waistband. Defendant

walked toward the sidewalk, where he saw a black man whom he did not know at the time but

- 11 -
No. 1-21-0541

testified was Cage. Believing Cage to be the seller, defendant approached him. Cage said, “What

up, Folks?” Defendant—a member of the Latin Kings and opposed to the Folks alliance—

responded, “I ain’t no m***f*** Folks.” Cage asked, “Then what the f*** you doing in my hood,

b***?” Defendant said he was there to meet somebody. Cage said, “You better take your a***

home before I take all your s*** and smoke your a***,” words defendant interpreted as a threat to

rob and kill him. Cage smacked defendant on the left side of his head. Defendant stepped back,

and Cage approached defendant with closed fists. Defendant guarded his face with his arm, drew

the firearm, and fired “back to back to back.” Cage fell. Defendant testified that he fired the weapon

because Cage’s conduct put defendant in fear for his life. At the time, defendant was 5 feet, 5

inches tall and weighed around 135 pounds, and Cage was “bigger.” After shooting Cage,

defendant ran to Diosdado’s car and returned the firearm to Davila. Defendant denied conversing

with anyone in a van or seeing a van at the scene.

¶ 27 As to his recorded conversation with Cervantes, defendant disputed certain aspects of the

translation. In the video, “plomie” was translated as “filled him up with lead,” but, according to

defendant, means “I shot him.” Defendant testified that the statement “I let him have it four or five

times” was also an incorrect translation. Defendant further asserted that his statements that he did

a “f*** job” and “I let him have it, dude” should have been translated as “I shot somebody.”

Defendant did not recall saying, “I let him have it like four or five, dude.”

¶ 28 In closing, defense counsel asserted that defendant acted in self-defense and feared for his

life when he shot Cage. Defense counsel further stated that a finding that one acted in self-defense

did not require that the other person “had a gun or knife or stick.” Cage was six inches taller than

- 12 -
No. 1-21-0541

defendant and outweighed him by 100 pounds. Defense counsel also challenged Diosdado’s

credibility and noted that the State failed to call Davila and Cervantes.

¶ 29 In rebuttal, the State noted that defendant’s videotaped conversation with Cervantes gave

no indication of self-defense and contended that the cause of this omission was that “it didn’t

happen that way.”

¶ 30 The jury found defendant guilty of first degree murder. The trial court denied defendant’s

motion for a new trial, in which he argued, inter alia, that the court should have granted his

motion in limine to exclude Cervantes’s statements from the video. After a hearing, defendant was

sentenced to 51 years in prison, which included a 25-year firearm enhancement.

¶ 31 On direct appeal, defendant contended that the trial court erred by allowing into evidence

certain statements made by Cervantes in the police station video recording as tacit admissions, and

that the court should have excluded Cervantes’s statements that defendant and others took matters

“too far.” This court agreed that Cervantes’s statements at issue were impermissible hearsay and

that the limiting instruction was imperfect, but affirmed. Ruiz, 2019 IL App (1st) 152157, ¶¶ 42-

43, 48. We determined that the evidence presented against defendant was “overwhelming” and

that no reasonable probability existed that the jury would have acquitted him but for the admission

of Cervantes’s statements; thus, their admission was harmless error. Id. ¶ 44.

¶ 32 Defendant filed his pro se postconviction petition on July 21, 2020. He argued, in relevant

part, that the trial court failed to comply with Illinois Supreme Court Rule 431(b) by “conflat[ing]”

the presumption of innocence with “the principle that defendant is not required to present

evidence,” and by failing to ask the venire persons whether they understood and accepted this

principle. He contended that trial counsel failed to preserve this issue for appeal, and that appellate

- 13 -
No. 1-21-0541

counsel was ineffective in not raising the issue on direct appeal. Further, he contended that both

he and the State’s witnesses presented “plausible theories,” rendering the evidence “close rather

than overwhelming.”

¶ 33 The circuit court, in a written order on October 8, 2020, summarily dismissed the petition

as frivolous and patently without merit. The court concluded, in relevant part, that it adequately

complied with Rule 431(b) in examining the venire and that defendant could not show prejudice

from appellate counsel’s failure to raise the issue on direct appeal.

¶ 34 On May 13, 2021, this court allowed defendant’s motion for leave to file a late notice of

appeal. 3

¶ 35 In this appeal, defendant argues that the circuit court’s summary dismissal of his

postconviction petition was erroneous because counsel on direct appeal was ineffective for failing

to argue that the trial court had not complied with Rule 431(b). Although defendant acknowledges

that trial counsel failed to preserve the issue for direct appeal, defendant maintains that it is at least

arguable that appellate counsel was ineffective in failing to raise the issue under the first prong of

the plain error doctrine and that, had counsel done so, this court would have reversed defendant’s

conviction and remanded for a new trial.

¶ 36 The Act provides for three-stage postconviction proceedings to evaluate a defendant’s

claim of constitutional error in the original conviction and sentencing. People v. English, 2013 IL

3
Defendant initially filed an untimely motion to reconsider the dismissal order of October 8, 2020,
accompanied by a notice of appeal of the order and any denial of the motion to reconsider, on November
13, 2020, according to his certification of mailing. See 735 ILCS 5/1-109 (West 2020). The trial court
denied the motion on December 9, 2020. Defendant’s subsequent motion for leave to file a late notice of
appeal from the October 8, 2020, order was timely filed on May 4, 2021. See Ill. S. Ct. R. 606(c) (eff. Mar.
12, 2021).

- 14 -
No. 1-21-0541

112890, ¶¶ 22-23. At the first stage—relevant to the present appeal—the circuit court, without

input from the State, determines whether the defendant’s petition is frivolous or patently without

merit, such that summary dismissal is warranted. 725 ILCS 5/122-1(a-5), 122-2.1(a)(2) (West

2020). The circuit court may consider the court file, transcripts of the proceeding giving rise to the

conviction, and any action taken by an appellate court. 725 ILCS 5/122-2.1(c) (West 2020).

¶ 37 Summary dismissal of a pro se petition is appropriate “only if the petition has no

arguable basis either in law or in fact”—that is, when it is based on an indisputably meritless legal

theory or fanciful factual allegation. People v. Hodges, 234 Ill. 2d 1, 11-12, 16 (2009). An

indisputably meritless legal theory includes one that is completely contradicted by the record. Id.

at 16. A petition lacks an arguable basis in fact when based on a fanciful factual allegation, such

as one that is clearly baseless, fantastic, or delusional. Id. at 16-17. The circuit court must liberally

construe pro se postconviction petitions at the first stage, viewing them “ ‘with a lenient eye,

allowing borderline cases to proceed.’ ” Id. at 21 (quoting Williams v. Kullman, 722 F. 2d 1048,

1050 (2d Cir. 1983)). “At the pleading stage of postconviction proceedings, all well-pleaded

allegations in the petition and supporting affidavits that are not positively rebutted by the trial

record are to be taken as true.” People v. Robinson, 2020 IL 123849, ¶ 45. We review the summary

dismissal of a postconviction petition de novo. Hodges, 234 Ill. 2d at 9.

¶ 38 The scope of postconviction proceedings is limited. “[I]ssues that could have been raised

on direct appeal, but were not, are forfeited.” English, 2013 IL 112890, ¶ 22. However, an

exception to the rule of forfeiture may be recognized where fundamental fairness so requires,

including where the forfeiture results from ineffective assistance of appellate counsel. Id.

- 15 -
No. 1-21-0541

¶ 39 As noted, defendant claims appellate counsel was ineffective in failing to raise, on direct

appeal, the deficiency of the trial court’s examination of the potential jurors under Rule 431(b). A

claim of ineffective assistance of appellate counsel based on his or her failure to raise an issue

requires the defendant to show that (1) counsel’s failure to raise the issue rendered his performance

deficient such that it fell below an objective standard of unreasonableness, and (2) the defendant

was prejudiced on appeal in that the outcome would have differed had counsel not erred. See

People v. Childress, 191 Ill. 2d 168, 175 (2000). Accordingly, prejudice can result from appellate

counsel’s failure to raise an argument only where such argument would have been successful had

it been raised. Id. (“Unless the underlying issue is meritorious, petitioner suffered no prejudice

from counsel’s failure to raise it on direct appeal.”). At the first stage of proceedings, a petition

based on a claim of ineffective assistance need only show that (1) counsel’s alleged failure

arguably rendered his performance so deficient that it fell below an objective standard of

reasonableness, and (2) the defendant was arguably prejudiced thereby. People v. Hatter, 2021 IL

125981, ¶ 25.

¶ 40 As defendant concedes, he forfeited review of the error he now alleges appellate counsel

failed to raise—the trial court’s failure to comply with Rule 431(b)—when trial counsel failed to

object during voir dire and failed to include this issue in a posttrial motion. See People v. Sebby,

2017 IL 119445, ¶ 48. On direct appeal, this court may excuse a defendant’s forfeiture under the

“plain error” doctrine. Id.; see also Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967) (“Plain errors or defects

affecting substantial rights may be noticed [on appeal] although they were not brought to the

attention of the trial court.”). The doctrine applies where a “clear or obvious error occurred” and

either (1) “ ‘the evidence is so closely balanced that the error alone threatened to tip the scales of

- 16 -
No. 1-21-0541

justice against the defendant, regardless of the seriousness of the error,’ ” or (2) the 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. Gaines, 2020 IL 125165,

¶ 18 (quoting People v. Piatkowski, 225 Ill. 2d 551, 565 (2007)). The burden of persuasion lies

with the defendant. Gaines, 2020 IL 125165, ¶ 18 (citing People v. Thompson, 238 Ill. 2d 598, 613

(2010)).

¶ 41 Here, defendant argues that only the first prong of the doctrine applies. Thus, at this stage,

defendant must establish that appellate counsel’s failure to claim that the trial court’s Rule 431(b)

admonitions constituted first-prong plain error rendered counsel’s performance arguably deficient

and that, had counsel raised the issue, defendant arguably would have prevailed on direct appeal.

Hatter, 2021 IL 125981, ¶ 25. Mindful of these principles, we consider, first, whether the trial

court’s admonitions were constitutionally deficient under Rule 431(b), such that they constituted

“clear or obvious error” for purposes of the plain error doctrine. See Gaines, 2020 IL 125165,

¶ 18. We find clear and obvious error.

¶ 42 Rule 431(b) requires the trial court to ask each potential juror, individually or in a group,

whether that juror “understands and accepts” the following four 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 if a defendant does not testify it cannot be held against him or her;

however, no inquiry of a prospective juror shall be made into the defendant’s decision not

- 17 -
No. 1-21-0541

to testify when the defendant objects.” (Emphasis added.) Ill. S. Ct. R. 431(b) (eff. July 1,

2012).

¶ 43 Rule 431(b) is based on the four principles articulated by our supreme court in People v.

Zehr, 103 Ill. 2d 472, 477 (1984). The rule imposes on trial courts an affirmative duty to ask the

venirepersons, sua sponte, whether they understood and accepted the principles. Birge, 2021 IL

125644, ¶ 31. Thus, the rule’s plain language “mandates a specific question and response process”

between the trial court and potential jurors. Thompson, 238 Ill. 2d at 607. A trial court’s failure to

inquire regarding the potential jurors’ understanding or acceptance of one or more of the principles

of Rule 431(b) violates the rule. Id. Whether the trial court complied with Rule 431(b) is reviewed

de novo. People v. Wilmington, 2013 IL 112938, ¶ 26.

¶ 44 Our review of the record shows that the trial court did not fully comply with Rule 431(b)

with respect to the third principle. The trial court announced the first and third principles together,

stating twice that a defendant “is not required to prove his innocence” nor “to present any evidence

on his own behalf” (the third principle) and that he “may rely upon the presumption of innocence”

(the first principle). The court asked the potential jurors repeatedly whether they had “qualms,”

“problems understanding,” or “qualms about applying that constitutional principle of presumed

innocent” and sought a show of hands. The trial court did not, however, ask the potential jurors

whether they understood and accepted the third principle.

¶ 45 Our supreme court held in Sebby that a trial court’s mere question to the potential jurors

“whether they ‘had any problems with’ ” or “ ‘ believed in’ ” the four Zehr principles failed to

sufficiently comply with the rule and constituted clear error. Sebby, 2017 IL 119445, ¶ 49. Rather,

the rule “requires the trial court to ask potential jurors whether they understand and accept the four

- 18 -
No. 1-21-0541

Zehr principles.” Id. ¶ 49. This ruling compels our finding that the trial court’s failure to ask the

venire whether it accepted and understood the third principle was clear error.

¶ 46 We reject the State’s reliance on People v. Birge, 2021 IL 125644, and contention that the

trial court merely, and permissibly, “conflated” the first and third principles of Rule 431(b) by

stating them together. In Birge, the supreme court found Rule 431(b) satisfied where the trial court

instructed the jury to “ ‘listen carefully as I will be asking if you understand these principles of

law and if you accept [them]’ ”; read all four principles in the rule verbatim; and asked the

following questions: “ ‘By a show of hands, do each of you understand these principles of law?’ ”

and “ ‘Do each of you accept these principles of law?’ ” (Emphasis added.) Id. ¶¶ 4-6, 35.

¶ 47 In the case at bar, the trial court did not ascertain the jury’s understanding and acceptance

of all four principles simultaneously, as in Birge, but instead directed individual questions as to

the first, second, and fourth principles, but not the third. Thus, Birge does not dissuade us from

finding clear error in this case.

¶ 48 The State, citing People v. Albarran, 2018 IL App (1st) 151508, further argues that,

regardless of whether the trial court erred in failing to question the potential jurors about the third

Zehr principle, defendant cannot show “prejudice” because he offered evidence at trial. In

Albarran, as here, the potential jurors were not asked whether they understood and accepted that

a defendant is not required to offer evidence on his behalf. Id. ¶ 58. The defendant, who had not

preserved the issue, sought first-prong plain error review on direct appeal. Id. ¶ 51. A panel of this

court affirmed his conviction, finding, inter alia, that he had, in fact, offered evidence at trial. Id.

¶ 58. Reasoning that the defendant was required to show prejudice resulting from the court’s error

and that “ ‘[w]hat makes an error prejudicial is the fact that it occurred in a close case where its

- 19 -
No. 1-21-0541

impact on the result was potentially dispositive,’ ” the appellate court concluded there was no

possibility that the error affected the outcome of the trial. (Emphasis added.) Id. (quoting Sebby,

2017 IL 119445, ¶ 68).

¶ 49 Defendant, in his reply brief, contends we should decline to follow Albarran because it

deviates from principles set forth in Sebby. In Sebby, our supreme court instructed that the finding

of prejudice under the first prong of the plain error doctrine depends on “the closeness of the

evidence,” not on “the seriousness of the error.” Sebby, 2017 IL 119445, ¶ 68. “Thus, whether a

Rule 431(b) violation is trivial or de minimis—and we have repeatedly found it is neither—is

simply the wrong inquiry.” Id. ¶ 69. When a reviewing court finds the trial court erred in failing

to comply with Rule 431(b), “[t]he only question” remaining under the first-prong inquiry “is

whether the evidence is closely balanced.” Id. Accordingly, here, defendant contends his

presentation of evidence at trial should not preclude plain error relief.

¶ 50 Even accepting defendant’s position that he may show “prejudice” under the first prong of

the plain error doctrine even though he presented evidence at trial, we would not find he is entitled

to relief because, in this case, the evidence was not closely balanced.

¶ 51 Defendant argues the trial evidence is closely balanced because “the case came down to a

credibility contest between [defendant] and the State’s witnesses” and thus he was “arguably

prejudiced.” Citing Sebby and People v. Naylor, 229 Ill. 2d 584 (2008), defendant claims that a

credibility contest sufficient to establish that the evidence is closely balanced occurs when the

State’s witnesses and the defense witnesses testify to opposing versions of events, no extrinsic

evidence corroborates or contradicts either version, and both versions are “credible” or not

“fanciful.” See Sebby, 2017 IL 119445, ¶ 61 (finding both accounts credible where “neither the

- 20 -
No. 1-21-0541

prosecution nor the defense accounts of *** events were fanciful”); Naylor, 229 Ill. 2d at 607

(“Given these opposing versions of events, and the fact that no extrinsic evidence was presented

to corroborate or contradict either version, the trial court’s finding of guilty necessarily involved

the court’s assessment of the credibility of the two [testifying] officers against that of defendant.”).

¶ 52 However, Naylor and Sebby did not involve assertions by the defendant that he acted in

self-defense, and are not otherwise factually analogous to this case. In Sebby, the defendant was

charged with resisting a peace officer; three officers called by the State claimed he resisted arrest

and injured an officer, whereas the defendant and other witnesses testified the officers manhandled

him. Sebby, 2017 IL 119445, ¶¶ 27-36. The court noted that while “[m]inor inconsistencies clouded

the testimony on both sides, *** neither the prosecution nor the defense accounts” of the events

“were fanciful.” Id. ¶ 61. The State’s argument that the defendant’s witnesses were biased was not

dispositive, each side’s version of events was internally consistent, and no extrinsic evidence

corroborated either version. Id. ¶¶ 61-62.

¶ 53 In Naylor, the defendant was arrested along with several others during the chaos of a drug

raid at an apartment complex. Naylor, 229 Ill. 2d at 590-91. Two officers testified that they

encountered the defendant in the stairwell and that he sold them heroin, but the defendant testified

that he had left his apartment to pick up his son from school when he was mistakenly apprehended

during the raid. Id. at 588-91. The court found that the defendant’s conviction turned on a “contest

of credibility,” in part because the defense’s version of events was “consistent with much of the

officers’ testimony and the circumstances of his arrest.” Id. at 606-07.

¶ 54 These cases are inapposite to the case at bar. “The evidence presented in a case is not

deemed to be closely balanced merely because it turns on conflicting witness testimony.” People

- 21 -
No. 1-21-0541

v. Ammons, 2021 IL App (3d) 150743, ¶ 60. Our review for first-prong plain error requires “a

commonsense analysis of all the evidence in context” to determine whether it is “closely

balanced.” People v. Belknap, 2014 IL 117094, ¶ 50. The analysis also requires that we make a

qualitative, rather than a quantitative, commonsense assessment of whether the evidence is closely

balanced. People v. White, 2011 IL 109689, ¶ 139.

¶ 55 We find the evidence against defendant was not closely balanced, but rather, as we stated

in our order on direct appeal, “overwhelming.” Compare Ruiz, 2019 IL App (1st) 152157, ¶ 44,

with Piatkowski, 225 Ill. 2d at 568 (noting evidence did not “overwhelming[ly] favor the State”

and was “closely balanced” (emphasis added)). Here, there is no “contest” of credible but

competing versions of events. Applying a commonsense analysis to the totality of the evidence,

defendant’s actions after the shooting do not credibly reflect that he acted in self-defense.

¶ 56 As we previously noted, “[t]he State’s witnesses provided a consistent version of the

incident.” Ruiz, 2019 IL App (1st) 152157, ¶ 44. Santiago testified that defendant approached the

van and asked about Santiago’s gang affiliation. Id. Santiago then saw defendant, upon

encountering Cage, ask about his gang affiliation and shoot him three times. Santiago did not see

Cage make physical contact with defendant, and testified that Cage was too far from defendant to

hit him. Id. Although Glassco could not identify the shooter, she testified that a man on the driver’s

side of the van asked for Santiago’s gang affiliation and then exchanged words with Cage about

his gang affiliation before shooting him. Id. Further, Diosdado—who was in defendant’s vehicle—

similarly testified that defendant approached another vehicle, checked for the occupants’ gang

affiliations, and then spoke to Cage about gang affiliations, whereupon she heard three or four

- 22 -
No. 1-21-0541

shots. Although Diosdado stated she did not see the interaction between defendant and Cage, her

testimony is consistent with the State’s other witnesses, Santiago and Glassco. Id.

¶ 57 Additional evidence suggests that defendant was the aggressor. He was armed. He testified

that he opposed Cage’s gang affiliation and issued the first insult before shooting Cage, an unarmed

man whom he did not know, three times. Further, defendant’s claim that he acted in self-defense

is not only uncorroborated, but inconsistent with his subsequent actions. See People v. Blair, 2011

IL App (2d) 070862, ¶¶ 42-43 (where trial court failed to comply with Rule 431(b), rejecting claim

that evidence was “closely balanced” where the defendant initiated a struggle from behind the

victim and fled rather than contacting authorities or calling an ambulance). In admitting to the

shooting to Cervantes, defendant made no mention of self-defense; rather, he told Cervantes that

the victim “fell, dude, in front of me, dude. And when I—and when I tried to [shoot] him *** again

I didn’t have anymore.” Defendant said he told another individual, presumably Davila, to “run”

and expected him to “take the blame.” Defendant also fled the scene; Diosdado testified that

defendant got back into the Taurus and told her to “go,” and the testimony of Santiago and Glassco

indicates that Glassco called 911. Finally, although defendant challenges Santiago’s credibility on

the grounds of his prior misdemeanor theft conviction, DUI charge, and admitted cocaine use,

defendant had a prior conviction for the more egregious crime of armed robbery. Because the

evidence was not closely balanced, defendant is not entitled to relief under the plain error doctrine.

¶ 58 In sum, because the evidence was not closely balanced, defendant is not entitled to relief

under the first prong of the plain error doctrine. Consequently, defendant cannot show that

appellate counsel was ineffective for failing to argue that the trial court’s noncompliance with

Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) was plain error. As such, defendant’s

- 23 -
No. 1-21-0541

postconviction petition did not state the gist of a constitutional claim. The circuit court therefore

did not err in summarily dismissing the petition.

¶ 59 Affirmed.

- 24 -