dissenting:
In People v. Glasper, 234 Ill. 2d 173, 185, 917 N.E.2d 401 (2009), 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. Our supreme court ruled harmless-error analysis applies. Glasper, 234 Ill. 2d at 185.
The version of Rule 431(b) at issue in Glasper was the 1997 version, which required that each of the Zehr questions be asked of the venire only upon request of the defendant. Glasper, 234 Ill. 2d at 187. The version of Rule 431(b) at issue before us is the 2007 version, which places a sua sponte duty on the circuit court to ask each of the Zehr questions. Ill. S. Ct. R. 431(b) (eff. May 1, 2007); People v. Graham, 393 Ill. App. 3d 268, 273, 913 N.E.2d 99 (2009). Just as we found the trial court violated Rule 431(b) in Anderson I, the supreme court in Glasper 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.
The dispositive question before us now 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 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”). The majority finds automatic reversal is mandated (399 Ill. App. 3d at 866); I cannot agree.
As our supreme court stated in Glasper:
“The error in this case does not involve a fundamental right, or even a constitutional protection. The error involves a right made available only by rule of this court.” Glasper, 234 Ill. 2d 193.
The only difference between the version of Rule 431(b) that the trial judge was required to follow in this case and the version violated in Glasper is that the right in question is now afforded to all defendants by virtue of the sua sponte duty imposed upon the circuit court by the 2007 amendment. That change, however, does not change the right in question: it remains neither “a fundamental right, [nor] even a constitutional protection.” Glasper, 234 Ill. 2d at 193; see People v. Alexander, 396 Ill. App. 3d 563, 576 (2009) (“We do not think that this difference precludes application of the Glasper rationale to the instant case”).
I acknowledge that the supreme court in Glasper directed the lower courts not to look beyond its exact holding:
“We emphasize that this 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 a Rule 431(b)(4) violation could never result in reversible error.” Glasper, 234 Ill. 2d at 200.
I acknowledge reasonable grounds exist, as expressed by the majority here, 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 Glasper decision was issued in 2009, while the court’s supervisory order, vacating Anderson I, directed we reconsider the decision in light of Glasper. I 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). I find the reasoning in Glasper applies with equal force here.
Critical to my change in view is the defendant’s failure to marshal a persuasive reason the 2007 amendment to Rule 431(b), imposing a sua sponte duty on the circuit court, warrants a change in the analysis we should follow. In his supplemental brief, allowed by this court after the supervisory order was issued, the defendant simply restates the rule to support the outcome he urges:
“[Questioning is now mandatory in all cases under the current version of Rule 431(b), which was in effect at the time of Anderson’s trial. See Official Reports Advance Sheet No. 8 (April 11, 2007), Rule 431(b), eff. May 1, 2007. As a result, compliance with this rule is now indispensable to a fair trial, making this precisely the sort of error that should not be subject to harmless error analysis.”
The defendant fails to explain why the change to a sua sponte duty on the circuit court makes it indispensable to a fair trial for him, but the trial judge’s erroneous denial of the request that a specific Zehr question be asked of the venire was not indispensable to a fair trial for defendant Glasper. As I read it, the defendant’s supplemental brief offers nothing more than what we considered in issuing our decision in Anderson I when we did not have the benefit of the Glasper analysis.
Having reconsidered my special concurrence in Anderson I, I am no longer convinced that the circuit court’s failure to thoroughly conduct Rule 431(b) questioning makes it inevitable that the jury that decided the defendant’s case was biased. See Glasper, 234 Ill. 2d at 201 (“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”). I cannot agree that the defendant is entitled to a new trial based solely on his otherwise meritorious claim that the circuit court did not comply with Rule 431(b), an error that does not trigger automatic reversal as it may constitute harmless error. See People v. Magallanes, 397 Ill. App. 3d 72, 98 (2009) (“The holding in Glasper *** compels us to reject defendant’s argument that Rule 431(b)(4) errors are automatically reversible”).
I respectfully dissent.