concurring in part and dissenting in part:
I concur in that portion of the majority’s decision finding that: (1) the trial court’s failure to sua sponte instruct the jury of IPI Criminal 4th No. 24 — 25.09X was not plain error, and (2) defendant’s claim of ineffective assistance of trial counsel fails on its merits. I dissent, however, from that portion of the majority’s decision finding that trial court’s failure to comply with Supreme Court Rule 431(b) (177 Ill. 2d R. 431(b)) does not entitle defendant to a new trial.
Defendant claims the trial court failed to comply with the mandates of Rule 431(b). The rule was amended effective May 1, 2007. The amendment imposed upon the trial court a duty to question the potential jurors during voir dire to ascertain their understanding and acceptance of the principles related to the basic constitutional guarantees of a criminal defendant during his trial. See 177 Ill. 2d R. 431(b).
The State concedes that the trial court failed to comply with Rule 431(b). Specifically, the State acknowledges that the court failed to “provide each juror an opportunity to respond to the specific questions of whether they understood and accepted the principles set out in the section.” I, as did the majority, accept the State’s concession and find that the court’s failure to specifically comply with the rule was error. This finding, however, does not end our analysis. Instead, we must determine whether the error entitles defendant to a new trial.
The State claims that the error was harmless and thus does not warrant reversal. In support of this assertion, the State cites the Fourth District’s holding in People v. Stump, 385 Ill. App. 3d 515, 896 N.E.2d 904 (2008). Upon review, the majority affirms defendant’s conviction on the grounds that the error does not constitute reversible plain error. 391 Ill. App. 3d at 432. I address both the State’s argument and the majority’s finding in turn.
As did defendant here, the defendant in Stump also claimed that the trial court erred in failing to question the jurors during voir dire in compliance with Rule 431(b). While the State conceded error, it argued that the error was harmless given the weight of evidence against defendant and the fact that the trial court sufficiently complied with the gist of Rule of 431(b). On appeal, the court agreed that the error was harmless because all four of the principles announced in Rule 431(b) were addressed to each juror at some point during voir dire and the evidence against the defendant was overwhelming. Stump, 385 Ill. App. 3d at 522, 896 N.E.2d at 909. The court cited our supreme court’s holding in People v. Houston, 226 Ill. 2d 135, 874 N.E.2d 23 (2007), as authority to employ a harmless-error analysis rather than mandating strict compliance with Rule 431(b). Stump, 385 Ill. App. 3d at 520, 896 N.E.2d at 908. Specifically, the court stated:
“Given the mandatory nature of *** [R]ule [431(b),] it would appear that we are required to reverse defendant’s conviction regardless of whether the court’s failure to question the jurors as required by Rule 431(b) resulted in prejudice to defendant.
However, we find guidance in our supreme court’s decision in People v. Houston, 226 Ill. 2d 135, 874 N.E.2d 23, where the court failed to give full effect to the principle of strict compliance with the mandatory nature of the Illinois Supreme Court rules. In Houston, the defendant claimed that his trial counsel was ineffective for waiving a court reporter during voir dire. The supreme court found that counsel’s waiver constituted deficient performance because it violated Supreme Court Rule 608(a)(9) [citation], a rule that provides that voir dire ‘shall’ be recorded. [Citation.] Although the court specifically noted that the supreme court rules must be obeyed and enforced, it remanded the case with directions to conduct a hearing to reconstruct the voir dire record so that the defendant’s claim of prejudice could be further examined. [Citation.] The court did not find that the failure to comply with Rule 608(a)(9) resulted in automatic reversal; but rather, the court held that the prejudice prong of Strickland analysis [citation] needed to be further examined.
Similar to a Strickland analysis, prejudice is inherent in a harmless-error analysis. [Citation.] Because the court in Houston sought to have the prejudice to the defendant further examined before reversing on the basis of ineffective-assistance-of-counsel claim, this court will likewise engage in a harmless-error analysis and search the record for a demonstration that defendant was prejudiced by the trial court’s failure to comply with Rule 431(b).” (Emphasis in original.) Stump, 385 Ill. App. 3d at 520-21, 896 N.E.2d at 908.
Upon review, I would reject the Stump court’s reasoning. Instead, I believe that the trial court’s error in failing to require each juror to demonstrate in response to questions asked by the court that he or she fully understood and accepted the bedrock principles integral to a fair trial, which are set out in Rule 431(b), mandates reversal of a new trial. I base this finding on two factors. The first basis is that our supreme court has expressly stated on numerous occasions that its 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.” ’ ” Rodriguez v. Sheriff’s Merit Comm’n, 218 Ill. 2d 342, 353, 843 N.E.2d 379, 385 (2006), quoting Roth v. Illinois Farmers Insurance Co., 202 Ill. 2d 490, 494, 782 N.E.2d 212, 215 (2002), quoting Bright v. Dicke, 166 Ill. 2d 204, 210, 652 N.E.2d 275, 277-78 (1995). The Stump court’s ruling fails to give effect to this proscription and instead inappropriately expands the Houston court’s limited holding. While the Houston court ultimately held that the failure to obtain the presence of a court reporter during voir dire does not create, in itself, a per se presumption of ineffective assistance of counsel, it “emphasize[d] the limited scope of [its] decision.” Houston, 226 Ill. 2d at 152, 874 N.E.2d at 34. Specifically, the court stated:
“We hold that where, as in the unusual case before us, a defendant attempts to raise in the trial court a Batson claim of discrimination in jury selection, and the claim may not be pursued because trial counsel waived the presence of the court reporter for voir dire, in violation of our Rule 608(a)(9), resulting in the absence of a voir dire record,, the appropriate course, in the first instance, is to remand to the circuit court for an attempt to reconstruct the record of the proceedings regarding the selection of the jury.” Houston, 226 Ill. 2d at 152-53, 874 N.E.2d at 34.
The above language illustrates the limited scope of the Houston court’s holding. Thus, I view Houston merely as an exception to the general rule that supreme court rules must be enforced as written. In doing so, I reject the Stump court’s decision to engage in a harmless-error analysis to determine whether defendant was prejudiced by the trial court’s failure to comply with Rule 431(b). Just as the supreme court has the authority to draft the rules which bind us, it also holds the authority to enact exceptions to those rules. We, at the appellate level, are not endowed with such authority. Instead, we are bound to follow the supreme court precedent, which requires strict compliance and enforcement of supreme court rules as written. See Rodriguez v. Sheriffs Merit Comm’n, 218 Ill. 2d 342, 353, 843 N.E.2d 379, 385 (2006); Roth v. Illinois Farmers Insurance Co., 202 Ill. 2d 490, 494, 782 N.E.2d 212, 215 (2002); Bright v. Dicke, 166 Ill. 2d 204, 210, 652 N.E.2d 275, 277-78 (1995). If the supreme court wishes to make an exception to this general rule for Rule 431(b) violations, as it did in Houston for Rule 608(a)(9) violations, it may absolutely do so. However, until it does, we are not at liberty to excuse such violations. In order to give full effect to Rule 431(b) as written, we must reverse defendant’s conviction and remand the matter for a new trial. Only through a new trial will defendant be afforded the protections Rule 431(b) sets out to provide.
I believe my position is actually supported by the supreme court’s express caution in Houston. Even in choosing not to give full effect to the principle of strict compliance with the mandatory nature of the Illinois Supreme Court rules, the Houston court took the time to limit its decision to the particular facts before it. Specifically, the court stated:
“We emphasize the limited scope of our decision. We do not conclude that the failure to obtain the presence of a court reporter during voir dire creates, in itself, a per se presumption of ineffective assistance of counsel. [Citation.] Nor do we conclude that the mere failure to record voir dire, without any claim of error in the jury selection process, requires a remand for reconstruction of the jury selection proceedings. [Citation.] This is not to say, however, that our rules are unimportant. We point out that the difficulty presented in the case at bar could have been avoided had the trial judge simply followed the mandate of Rule 608(a)(9). This court has often noted that our rules are not mere suggestions. Rather, ‘[t]hey have the force of law, and the presumption must be that they will be obeyed and enforced as written.’ [Citation.] The situation here confronting us illustrates the importance of our rules and the need for compliance with them.” Houston, 226 Ill. 2d at 152, 874 N.E.2d at 34.
Clearly, the Houston court did not overrule the principle of strict compliance with the mandatory nature of the Illinois Supreme Court rules. In fact, the court reaffirmed the presumption that its rules will he obeyed and enforced as written. See Houston, 226 Ill. 2d at 152, 874 N.E.2d at 34. Thus, until our supreme court makes an exception to this general rule for Rule 431(b) violations, we are not at liberty to excuse such violations.
The second basis for believing defendant’s conviction must be reversed and the matter remanded for a new trial is that, contrary to the majority’s conclusion, I would find that the error does constitute reversible plain error. In support of its finding, the majority cites People v. Emerson, 122 Ill. 2d 411, 522 N.E.2d 1109 (1987). The holding in Emerson, however, is not relevant to the disposition of the instant appeal in light of the fact it predates Rule 431(b). Instead, I believe we should adopt the First District’s reasoning in People v. Anderson, 389 Ill. App. 3d 1 (2009). While the defendant in Anderson failed to make a Rule 431(b) objection at trial, the appellate court found plain error where the trial court failed to inform the prospective jurors of all the principles enumerated in Rule 431(b) and failed to inquire whether the jurors understood and would comply with those principles it did discuss. Anderson, 389 Ill. App. 3d at 9-10. After discussing the general rule that supreme court rules must be enforced as written, the court stated:
“Before the 2007 amendment, the court was required to admonish the jurors and ascertain whether they understood and accepted the enumerated principles announced in People v. Zehr, 103 Ill. 2d 472, 469 N.E.2d 1062 (1984), ‘[i]f requested by the defendant.’ [Citation.] Before that, in 1997, Rule 431 was amended to ensure compliance with the Zehr principles by changing the court’s voir dire requirements from discretionary to compulsory by amending the word ‘may’ to ‘shall.’ [Citation.]
It is axiomatic that amendments to rules are designed to serve some purpose. [Citation.] We must construe the rule consistent with the purpose of the amendments, relying on the presumption that the supreme court intended to change the law in 1997 and 2007. [Citation.]
The clear language of Rule 431(b) requires the court to ensure jurors are qualified to know, understand, and accept the enumerated principles and are provided with an opportunity to respond. [Citation.] The rule ‘seeks to end the practice where the judge makes a broad statement of applicable law followed by a general question concerning the juror’s willingness to follow the law.’ [Citation.]
When the 2007 amendment deleted the language ‘[i]f requested by the defendant,’ the rule charged trial courts with an affirmative sua sponte duty to ask potential jurors whether they understand and accept the Zehr principles in each and every case. [Citation.] Moreover, the court must provide each juror with ‘an opportunity to respond to’ the specific Zehr principles. We find Rule 431(b) was amended to send a clear message to trial and appellate courts: it is the courts’ responsibility to enforce the rules as written. Compliance with Rule 431(b) is a judicial duty.
* * *
We recognize the evidence against the defendant was substantial. But the weight of the evidence is not something we are obliged to consider. We have found the plain error described in the second circumstance of the Herron test. That is, the Rule 431(b) error ‘is so serious that defendant was denied a substantial right, and thus a fair trial.’ [Citation.] Once having said that, there is no need to inquire into the harmfulness of the error or the measure of prejudice incurred by the defendant. Plain error is reversible error. [Citation.] There is no need for further inquiry.” Anderson, 389 Ill. App. 3d at 7-9.
In adopting the Anderson court’s reasoning, I reject the majority’s finding that Anderson is distinguishable on the ground that the trial court here informed the potential jurors of all four Rule 431(b) principles. The majority’s reasoning misses the point. A criminal defendant is constitutionally entitled to a fair trial by an impartial jury, as a matter of due process. Turner v. Louisiana, 379 U.S. 466, 471, 13 L. Ed. 2d 424, 428, 85 S. Ct. 546, 549 (1965). Rule 431(b) helps ensure that this fundamental due process principle is carried out. In amending Rule 431(b), our supreme court has told us that merely informing the jurors of the four Rule 431(b) principles is insufficient to ensure defendant of a fair trial. Instead, the current amended version of Rule 431(b) requires trial courts to ensure that the jurors actually know, understand, and accept the enumerated principles by requiring them to demonstrate their knowledge and acceptance by response to direct questions. 177 Ill. 2d R. 431(b). Thus, I believe a trial court’s failure to comply with Rule 431(b) as a whole not only violates the general supreme court mandate requiring strict compliance and enforcement of supreme court rules as written, but also constitutes plain error.
Although it is not necessary to my analysis, I would like to address the majority’s conclusion that the failure to comply with Rule 431(b) was “harmless.” How could they possibly know that? Counsel for the parties and trial judges are frequently astounded by jury verdicts. It is impossible to predict what facts or assumptions tip the scales for the jurors one way or the other. The only thing we can know with certainty is how we would have decided the case. When we do our review, pursuant to our standard of review, the defendant has lost the presumption of innocence — a presumption which the jurors are required to maintain until their verdict divests him of its protection. How can we possibly know how they woüld view the evidence if they had truly internalized that obligation? Nor can we do more than speculate about the impact of a juror’s sure understanding that it is the State’s burden to prove defendant guilty beyond a reasonable doubt and exactly what that standard means. The same is true concerning the defendant’s lack of any burden of proof. Finally, defendant’s election not to testify could have been completely dispositive of his guilt if the jurors did not know that they could not hold that choice against him. Absent adherence to Rule 431(b), we can have no confidence that jurors knew not only of the existence of these principles but also of their sworn obligation to understand and follow them.
For the foregoing reasons, I would reverse defendant’s conviction and remand for a new trial.