concurring in part and dissenting in part:
I agree that no discovery violation occurred with respect to Dr. Steffen’s testimony. However, because the majority’s decision is inconsistent with our supreme court’s recent decision in People v. Glasper, 234 Ill. 2d 173 (2009), I must respectfully dissent from that portion of the decision reversing the defendant’s conviction and remanding the matter for a new trial.
In Glasper, our supreme court determined that the trial court’s failure to comply with Rule 431(b)(4) did not necessarily deprive the defendant of a fair trial, as such an error was subject to harmless error analysis. Glasper, 234 Ill. 2d at 200. In so ruling, the supreme court explained that its holding was limited to the version of the rule that was in effect at the time and would not necessarily apply to subsequent versions of the rule (such as the version of the rule at issue in this case). Glasper, 234 Ill. 2d at 200-01. The supreme court’s analysis in reaching this determination, however, strongly suggested that it would reach the same conclusion if confronted with the facts in this case.
In its analysis, the supreme court first revisited its decision in People v. Zehr, 103 Ill. 2d 472 (1984). Zehr is the basis for Rule 431. See Glasper, 234 Ill. 2d at 187. The supreme court explained that Zehr did not address whether the error at issue in that case was subject to harmless-error analysis, because none of the parties had raised the issue. Glasper, 234 Ill. 2d at 190. The supreme court further explained that in People v. Emerson, 122 Ill. 2d 411 (1987), it had “moved away from the portion of the Zehr holding which stated that the relevant questions should be covered ‘in the course of interrogation on voir dire,’ and that failure to ask these questions amounts to ‘prejudicial error.’ ” Glasper, 234 Ill. 2d at 197, quoting Zehr, 103 Ill. 2d at 477.
The supreme court additionally reviewed its recent decision in People v. Smith, 233 Ill. 2d 1 (2009). In that case, the supreme court declined to conduct a harmless-error review, because the error at issue involved a basic fundamental protection guaranteed by the sixth amendment to the federal constitution — the right to have a jury, rather than a judge, determine an accused’s guilt. Smith, 233 Ill. 2d at 24-25. The supreme court found that Smith was not comparable to Glasper, because the trial court’s failure to comply with Rule 431(b)(4) did not impinge upon any fundamental rights or constitutional protections; rather, the error involved a right made available only by rule of court. Glasper, 234 Ill. 2d at 193. The supreme court further expounded that a violation of a rule mandates reversal “only in a ‘very limited class of cases’ ” and that such a violation would be more commonly subject to a harmless error analysis. 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).
Applying the supreme court’s analysis in Glasper to the instant case, it logically follows that the trial court’s failure to comply with Rule 431 does not mandate automatic reversal. Rather, this court must look to whether the defendant was prejudiced. Since the defendant did not raise the issue in a timely fashion, he is entitled to relief only if this court concludes that the trial court’s error constituted plain error. As the majority sets forth, this court will consider a forfeited error under the plain-error rule only when (1) the evidence “is so closely balanced that the jury’s guilty verdict may have resulted from the error and not the evidence” or (2) “the error is so serious that the defendant was denied a substantial right, and thus a fair trial.” People v. Herron, 215 Ill. 2d 167, 178-79 (2005). Pursuant to Glasper, the error at issue herein was not so serious that it deprived the defendant of a fair trial. See Glasper, 234 Ill. 2d at 192. Thus, the defendant is entitled to relief in this case only if the evidence was closely balanced. That, it was not. The defendant was convicted of aggravated domestic battery. The victim claimed that the defendant attacked her. The defendant acknowledged that he hit the victim. Because the evidence was not closely balanced, the defendant is not entitled to any relief in this court on his contention of error.
In support of its decision, the majority analyzes and cites numerous cases that would suggest that the trial court’s failure to comply with Rule 431 in this case mandates reversal. However, all of these cases, other than People v. Graham, 393 Ill. App. 3d 268 (2009), predate Glasper. It is this court’s obligation to follow our supreme court’s most recent pronouncement on an issue. See People v. Romero, 387 Ill. App. 3d 954, 968 (2008). That pronouncement is that reversal is not necessarily required unless there is a demonstration that the defendant was prejudiced. As for Graham, it is not compelling authority, because, in seeking to distinguish Glasper, the Graham court failed to address the analysis that the supreme court used in reaching its decision that a violation of Rule 431(b)(4) did not warrant automatic reversal. See Graham, 393 Ill. App. 3d at 276.
Finally, I note that the majority’s opinion is entirely consistent with the dissent in Glasper. As an intermediate court of review, this court must follow the majority opinion of our state’s supreme court rather than the dissent. See People v. Kolton, 347 Ill. App. 3d 142, 155 (2004) (Theis, J., dissenting).
For the foregoing reasons, I would affirm the defendant’s conviction.