specially concurring:
The majority has found that defendant, Chad M. Lane, was improperly tried in absentia because the admonishments were not given to him contemporaneously with or after he entered his plea of not guilty. Because the State has waived the potential issues of waiver and forfeiture, it is unnecessary for us to undertake a plain error analysis. Even were we to do so, defendant would prevail because a trial in absentia is inherently unfair. People v. Watson, 109 Ill. App. 3d 880, 884, 441 N.E.2d 152, 154 (1982). There is, thus, plain error when a defendant is improperly tried in absentia. I, therefore, concur in the result reached by the majority.
I write separately to express my belief that defendant should also prevail on his challenge to the trial court’s noncompliance with Supreme Court Rule 431(b).
Defendant contends that the present matter must be “remanded for a new trial because the trial court failed to strictly comply with Supreme Court Rule 431(b).” Specifically, defendant alleges that the trial court failed to advise prospective jurors of the fourth Zehr principle. He also alleges that the trial court’s manner of addressing the first three Zehr principles was insufficient in that the court did not specifically question whether the venire understood those principles. Where an issue concerns compliance with a supreme court rule, the standard of review is de novo. People v. Garner, 347 Ill. App. 3d 578, 583, 808 N.E.2d 10, 14 (2004).
Supreme Court Rule 431(b) was passed to ensure compliance with the supreme court’s decision in People v. Zehr, 103 Ill. 2d 472, 469 N.E.2d 1062 (1984). Zehr held that it was reversible error where the trial court refused to ask questions proffered by the defendant concerning the presumption of innocence and the State’s burden to prove the defendant guilty beyond a reasonable doubt, and the subject matter of those questions was not otherwise included during voir dire. Zehr, 103 Ill. 2d at 476-78, 469 N.E.2d at 1063-64. Initially, the rule provided that the court shall ask potential jurors whether they understand and accept certain principles if the defendant requests that the court do so. The rule was amended in 2007, deleting the phrase “If requested by the defendant,” from the beginning of the paragraph. Effective May 1, 2007, Rule 431(b) provides:
“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 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 (eff. May 1, 2007).
Here, prior to trial, the trial court addressed counsel for both parties, stating:
“Now, next question. We can pick a jury in one of two ways. The way I have been doing it for the last eight years, eight or nine years, is the Bruce Black method of just talking to all prospective jurors at once. If we do that, we are going to have to make up a seating chart that fits for this room, and then you will be given a seating chart with 50 people’s — 54, for some reason, with 54 names on it, and we can talk to everybody at once, or we can do it the more traditional method and put 12 people in the jury box and talk to the first four and go through panels of four. Do you care?”
Counsel for both parties informed the trial court that talking to all potential jurors at once was acceptable.
After all the potential jurors were brought into the courtroom, the trial court addressed them as a group on various matters including introduction of parties and attorneys, reading the bill of indictment, and reading the list of witnesses. The court then stated:
“Our criminal justice system has some fundamental principles that apply. You have all heard them before. They are as follows. The Defendant is presumed innocent. The State’s got the burden of proof. The State must prove the Defendant guilty beyond a reasonable doubt. The Defendant does not have to prove his innocence.
Is there anybody in the room who has a quarrel with those fundamental principles of our criminal justice system? Stated somewhat differently, is there anybody in the room who cannot promise to follow the law as instructed by me at the conclusion of the case in deliberating on the verdict in this case?
Is there anybody in the room who can think of any reason why he or she should not serve on this particular jury?”
Several jurors subsequently raised their hands, and the trial court made inquiries as to each of them.
Defendant calls our attention to the fact that the trial court failed to specifically inform “that defendant’s failure to testify cannot be held against him.” See Ill. S. Ct. R. 431 (eff. May 1, 2007). At the outset, I note that defendant neither objected at the time of voir dire nor raised the issue in his posttrial motion. We should accept defendant’s request, however, and review for plain error. See Herron, 215 Ill. 2d at 178-79, 830 N.E.2d at 475.
Initially, the State concedes that the trial court failed to ask the fourth Zehr principle; however, it argues that this error can be excused because defendant failed to provide a bystanders’ report. The State also argues that the error is harmless because the jury was given a specific instruction stating that “[t]he fact that the defendant did not testify must not be considered by you in any way in arriving at your verdict.” Finally, the State contends that the error does not constitute plain error because the evidence is not closely balanced and the trial court’s failure to give the fourth Zehr principle did not deprive defendant of a fair trial.
I have previously taken the position that a violation of the current Rule 431(b) satisfies the second prong of the plain error test and consequently requires reversal and a new trial. See People v. Alexander, 396 Ill. App. 3d 563, 580, 919 N.E.2d 1016, 1030 (2009) (McDade, J., dissenting). The same analytical framework — that is, analysis under the second prong — was followed by five panels of the First District (People v. Anderson, 389 Ill. App. 3d 1, 904 N.E.2d 1113 (2009); People v. Graham, 393 Ill. App. 3d 268, 913 N.E.2d 99 (2009); People v. Wilmington, 394 Ill. App. 3d 567, 915 N.E.2d 882 (2009); People v. Arredondo, 394 Ill. App. 3d 944, 916 N.E.2d 1263 (2009); People v. Madrid, 395 Ill. App. 3d 38, 916 N.E.2d 1273 (2009)) and one panel of the Second District (People v. Blair, 395 Ill. App. 3d 465, 917 N.E.2d 43 (2009)). The appellate panels in these cases all found that the second prong of the plain error test had been satisfied, reversed each defendant’s conviction, and ordered a new trial.
The majority in Alexander, however, found that there is no significant difference between the previous version of Rule 431(b) and the current version. Alexander, 396 Ill. App. 3d at 576, 919 N.E.2d at 1027. The majority concluded therefore that the supreme court’s ruling in People v. Glasper, 234 Ill. 2d 173, 917 N.E.2d 401 (2009) — which held that the trial court’s failure to comply with the previous version of Rule 431(b) was not a structural error and, thus, automatic reversal was not required — applied to a violation of the current rule. Alexander, 396 Ill. App. 3d at 576, 919 N.E.2d at 1027. Ultimately, the majority held plain error had not occurred. Alexander, 396 Ill. App. 3d at 577, 919 N.E.2d at 1028. Another panel of this court also found that a violation of the current Rule 431(b) did not result in plain error. See People v. Russell, 395 Ill. App. 3d 926, 943, 921 N.E.2d 1, 15 (2009).
I adhere to my dissent in Alexander and my position that a violation of the current Rule 431(b) satisfies the second prong of the plain error test and consequently requires reversal and a new trial. See Alexander, 396 Ill. App. 3d at 580, 919 N.E.2d at 1030 (McDade, J., dissenting). However, both Alexander and Russell are distinguishable and a different result is warranted here. Unlike the present case, the potential jurors in Alexander and Russell were informed of all four Zehr principles. The issues in both those cases, instead, involved whether the trial courts’ failure to ensure that the potential jurors understood those stated principles constituted plain error. In the present case, however, the trial court simply did not inform the trial court that defendant’s failure to testify cannot be held against him.
The First District’s holding in Anderson is instructional. In Anderson, the court held that the trial court had committed plain error by failing to comply with Rule 431(b). In that case, the trial court informed the first panel of prospective jurors of only three of the four Zehr principles. The court considered the language of Rule 431(b) and found that the language imposes a mandatory duty upon the trial courts to inform potential jurors of the rule’s principles. Anderson, 389 Ill. App. 3d at 9, 904 N.E.2d at 1120-21. The court concluded that the trial court’s failure to strictly comply with the requirements of Rule 431(b) rendered defendant’s trial fundamentally unfair and, thus, reversed his conviction. Anderson, 389 Ill. App. 3d at 9, 904 N.E.2d at 1120-21.
Similarly, we should find that the trial court’s failure to comply with Rule 431(b) in the instant case constitutes plain error and, thus, requires reversal of defendant’s conviction and a new trial.
Because I agree with the majority’s conclusion that the evidence presented by the State was sufficient to allow a reasonable jury to find defendant guilty of predatory criminal sexual assault beyond a reasonable doubt, I concur with the decision that double jeopardy does not bar his retrial.