People v. Shorty

No. 3--08--0994

Opinion filed March 30, 2011

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2011

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 06--CF--882
)
LLOYD SHORTY, )
) Honorable James E. Shadid,
Defendant-Appellant. ) Judge, Presiding.

JUSTICE SCHMIDT delivered the judgment of the court, with
opinion.
Presiding Justice Carter and Justice Lytton concurred in the
judgment and opinion.

OPINION
The State charged defendant, Lloyd Shorty, with unlawful

possession of heroin and possession with intent to deliver heroin

in violation of sections 402(c) and 401(c)(1) of the Illinois

Controlled Substances Act. 720 ILCS 570/401(c)(1), 402(c) (West

2006). A jury found defendant guilty of both charges and the

circuit court of Peoria County sentenced him to 19 years'

incarceration. Defendant appealed, claiming he was denied a fair
trial by the introduction of improper hearsay evidence and the

trial court's failure to properly ask the potential jurors if

they understood and accepted fundamental principles of criminal

law as mandated by Illinois Supreme Court Rule 431(b) (eff. May

1, 2007). This court affirmed defendant's conviction. People v.

Shorty, 403 Ill. App. 3d 625 (2010).

In a supervisory order dated January 26, 2011, our supreme

court directed us to vacate our judgment and reconsider our
decision in light of People v. Thompson, 238 Ill. 2d 598 (2010).

People v. Shorty, 239 Ill. 2d 582 (2011) (table). After

reconsideration, we, again, affirm defendant's conviction.

FACTS

Defendant's case proceed to trial on July 14, 2008. At the

beginning of voir dire, the court spoke to the venire as a group

and told prospective jurors that the defendant was presumed

innocent. The court further informed the jury pool that the

State had the burden of proving defendant's guilt beyond a

reasonable doubt, that defendant was not required to prove his
innocence or present evidence, that defendant was not required to

testify, and finally that defendant's choice not to testify could

not be used against him.

After announcing those principles, the court stated that

"all jurors must be willing to accept this basic principle."

When individual questions were posed to the prospective jurors,

2
the court asked all but one if they accepted those basic

principles. Each juror asked responded in the affirmative.

The case proceeded to trial, and in opening arguments, the

State informed the jury that Officer Batterham would testify that

a confidential informant told him that "defendant was going to be

going to Chicago later that evening to buy heroin and that he

would be going in a certain vehicle, which was a blue Toyota

Solara, and going with a female who was supposed to be his
girlfriend." The court overruled defendant's objection to this

statement, noting that opening statements only indicate what the

State believed its evidence would show.

During Officer Batterham's testimony, he indicated that he

received information from a confidential informant about

defendant. The State asked Batterham to detail the circumstances

surrounding his receipt of that information and defendant

objected, claiming that any testimony concerning what the

informant told Batterham was impermissible hearsay. The court

allowed Batterham to testify that he "received information from
an individual that defendant was supposed to be making a trip to

Chicago that evening to pick up a large quantity of heroin." The

informant told Batterham that defendant was at the Townehouse

hotel and the type of vehicle that would be used.

Batterham testified that based on that information, he set

up surveillance on the Townehouse hotel. He witnessed the

3
described vehicle arrive at the location, then leave minutes

later with Holly Felton driving; defendant was in the front

passenger seat, and the informant was in the backseat. The

police followed the vehicle to Morton, then called off surveil-

lance.

Batterham continued his testimony by noting that shortly

after midnight on July 13, 2006, he received information

regarding defendant. When Batterham was asked to summarize that
information, defendant objected. The State claimed the

information was essential to explain the officer's further

conduct and the trial court overruled defendant's objection.

Batterham then testified that the information he received

indicated that defendant did "in fact have the heroin" and that

he would be returning to the Townehouse hotel in the vehicle

previously described.

During this testimony, the trial court instructed the jury

that "the information the officer is testifying to that he

received is allowed for the purpose of explaining the actions of
the officer and not for the truth of the matter that might have

been told to the officer, but to explain the officer's actions

then." Batterham concluded his testimony by noting that he,

again, set up surveillance at the Townehouse hotel and witnessed

the described vehicle pull into the parking lot.

Officer John Couve testified that he was driving a van

4
carrying "an arrest team." He parked the van on the passenger

side of the a blue Toyota in the Townehouse hotel parking lot.

Defendant was opening, or had just opened, the passenger door as

Couve parked.

Officer Erin Barisch testified that he was part of the

arrest team at the Townehouse hotel on July 13, 2006. When he

arrested defendant, the front passenger door to the Toyota was

open and defendant was turned in the seat talking to the backseat
passenger. Barisch stated that defendant had a purple cloth

Crown Royal bag in his right hand and he dropped the bag onto his

seat when he saw the officers. The cloth bag held a plastic bag

containing a substance believed to be heroin, a bottle of Dormin

pills, and a digital scale.

The parties stipulated that $225 was found in defendant's

pocket and that no fingerprints were found on the items in the

purple bag. Denise Hanley, an Illinois State Police forensic

scientist, testified that the substance recovered from inside the

purple bag contained heroin and weighed 7.9 grams.
Officer Batterham was qualified as an expert in narcotics

investigation and then testified that, based on his opinion, the

heroin was to be sold and not for personal use. Batterham came

to this conclusion based on the quantity of the heroin, the

presence of the digital scale, and the presence of Dormin.

Batterham noted Dormin is a sleep aid used to cut heroin.

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 After putting on its expert testimony, the State rested its

case. Defendant chose not to testify or put on any testimony in

his defense. The jury found defendant guilty of both possession

of a controlled substance and possession with intent to deliver a

controlled substance. Defendant filed a timely posttrial motion,

alleging error in allowing statements of the confidential

information into evidence. The trial court denied defendant's

motion.
ANALYSIS

Defendant raises two claims of error on appeal. Initially,

defendant claims the circuit court erroneously allowed the State,

during opening, to reference impermissible hearsay statements

made by a confidential informant. Specifically, defendant

alleges it was reversible error to allow the prosecutor to inform

the jury that the police received information indicating

defendant planned a trip to Chicago to buy heroin. Defendant

claims the court compounded this error by allowing a police

officer to testify that the confidential informant told him
defendant did, in fact, purchase the heroin and was on his way

back to Peoria with it. The State responds that the opening

statements made by the prosecutor were proper, as was the

testimony of the officer. The State notes that parties are given

great latitude when making opening statements and that the

officer's statements were not made to prove the truth of the

6
matter asserted but, rather, to properly explain investigatory

proceedures. Alternatively, the State proffers that any error

that may have occurred was harmless.

I. Hearsay v. Nonhearsay Purpose

Defendant claims People v. Singletary, 273 Ill. App. 3d 1076

1333 (1995), is on all fours with the case at bar, supports his

position, and belies that of the State. In Singletary, the

police received a tip from an informant that defendant would be
driving to a specific address to pick up a package of cocaine.

Singletary, 273 Ill. App. 3d at 1078. The police surveilled the

address, witnessed the defendant arrive as a passenger in an

autombile, exit the vehicle, go into the building, and return

minutes later to the vehicle. Singletary, 273 Ill. App. 3d at

1079. The police stopped the vehicle after it left the location

and a drug dog alerted to narcotics under the seat in which

defendant was riding. Singletary, 273 Ill. App. 3d at 1079. A

police officer testified that a confidential informant told him

about defendant's intentions. The officer specifically stated
that the informant provided " 'a description, a brief description

of [defendant], type of auto that he would be riding in, and that

he was going to go to 2971 South Dearborn and pick up a package

of cocaine.' " Singletary, 273 Ill. App. 3d at 1082. The

informant also provided the officer with defendant's first name.

The appellate court held such testimony "went beyond what was

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necessary to explain investigatory procedures and [was] used to

establish defendant's guilt rather than explain police conduct."

Singletary, 237 Ill. App. 3d at 1085.

Our research reveals that three reported decisions have

discussed this holding from Singletary, and all have done so

favorably. See People v. Jura, 352 Ill. App. 3d 1080, 1086

(2004) ("The prosecution merely needed to demonstrate that the

officer was on duty, received a radio call, and as a result of
that call proceeded to the alley behind 38th Street. The three

police witnesses went beyond explaining the investigative steps

taken by testifying to the substance of the radio call, including

the description of the offender."); People v. Williams, 289 Ill.

App. 3d 24, 34 (1997) (The court held that the State's "repeated

references to" an anonymous citizen's statements to an officer in

which the citizen provided the defendant's given and street

names, gave a physical description of defendant and described

defendant's gun, "in an effort to convince the jury of

defendant's guilt[,] was error"; the Williams court did find it
to be harmless error, however.); People v. Rivera, 277 Ill. App.

3d 811, 820 (1996) ("Hearsay testimony identifying the defendant

as the one who committed the crime cannot be explained away as

'police procedure,' even where the trial judge limits the

evidence to a nonhearsay purpose.").

In People v. Gacho, 122 Ill. 2d 221 (1988), our supreme

8
court acknowledged the investigatory procedure exception to the

hearsay rule. The officer in Gacho testified that he talked to

the victim "at the hospital for three or four minutes *** and he

and his partner then went to Chicago to look for Robert Gacho[,

the defendant]." Gacho, 122 Ill. 2d at 247-48. The court held

such testimony was permissible but stated, "[h]ad the substance

of the conversation that [the officer] had with [the victim] been

testified to, it would have been objectionable as hearsay. The
testimony of [the officer], however, was not of the conversation

with [the victim] but to what he did and to investigatory

procedure." Gacho, 122 Ill. 2d at 248.

Thereafter, our supreme court elaborated on its language

from Gacho in People v. Jones, 153 Ill. 2d 155 (1992). The State

convicted the Jones defendant of armed robbery and aggravated

unlawful restraint. Jones, 153 Ill. 2d at 157. The Jones victim

testified that two armed men, one being the defendant, forced her

into her car at gunpoint, drove her to an alley, stole her

possessions then ordered her out of the car and drove away with
her car. Jones, 153 Ill. 2d at 158. An officer testified that

he received a report of a car stripping in progress, and when

officers arrived on the scene, two men were stripping the

victim's car. Jones, 153 Ill. 2d at 159. The men ran and one

was captured while the other escaped. Officers' testimony made

it clear that they learned defendant's name after speaking with

9
the man they apprehended, named Colvin, the night of the car

stripping. Jones, 153 Ill. 2d at 159. The Jones defendant

claimed the officers' testimony constituted impermissible

hearsay.

Our supreme court disagreed, and in doing so stated as

follows:

"It is undisputed that an officer may

testify to his investigatory procedures,
including the existence of conversations,

without violating the hearsay rule. This

is true even if a logical inference may

be drawn that the officer took subsequent

steps as a result of the substance of that

conversation. [Citation.]

The defendant argues that the testimony

in this case exceeds that allowed by Gacho,

since [the officers] testified to the

substance of Colvin's statements. Gacho
stated that, '[h]ad the substance of the

conversation *** been testified to, it

would have been objectionable as hearsay.'

[Citation.] However, this language is

not applicable to the facts of this case.

In Gacho, the defendant was convicted

10
of murder, aggravated kidnapping, and armed

robbery, and was sentenced to death. The

defendant challenged the sufficiency of his

trial, inter alia, because of alleged hearsay

in a police officer's testimony and improper

references to this testimony during closing

argument. This occurred when the officer,

while detailing his investigation, testified
to a conversation he had with the surviving

victim in which the victim identified the

defendant as the perpetrator of the crime.

This is the dispositive factual

difference between Gacho and the instant case.

In Gacho, the substance of the conversation

would have gone to the very essence of the

dispute: whether the defendant was the man who

committed the crime. Thus, if the substance

of the conversation came into evidence it would
inevitably go to prove the matter asserted.

The substance of the conversations with

Colvin, on the other hand, could in no way go

to prove any matter relevant to the trial.

If offered to prove the matter asserted, the

testimony would show that the defendant was

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 involved in the car stripping, or at least

present at the scene. This provides nothing

to the State to help prove the defendant's

guilt in the armed robbery. Rather, this

simply showed the jury how the officer and

the detective came to suspect the defendant."

Jones, 153 Ill. 2d at 159-61.

In the case at bar, however, the alleged improper statements
go directly to the matter in controversy: whether defendant

possessed the heroin found in the vehicle. Undoubtedly, the

prosecution could have elicited testimony from Officer Batterham

that explained his investigatory procedures without disclosing

the substance of the conversations had between the officer and

the informant and without hearsay as to defendant's guilt. By

way of explanation, the prosecutor could have simply elicited

testimony from the officer that a confidential informant (CI)

provided information that at the time and place in question, a

blue Toyota Solara would appear with three occupants and the
vehicle would contain drugs. This would explain why the officers

were at the Townehouse hotel and why they stopped defendant's

vehicle. There was no need to go beyond that if the only goal

was to explain police conduct.

There is another reason we cannot accept the prosecutor's

stated reason for offering the disputed testimony. The testimony

12
elicited by the prosecutor clearly identified the CI to the

defendant. (Hint: it was the guy in the backseat.) It strains

our credulity to accept that this was anything more than a

prosecutor's successful attempt to put on the not-so-confidential

informant's testimony as to defendant's guilt without subjecting

the witness to cross-examination and impeachment. The CI's

shopping trip to the heroin store with defendant on the day in

question provided fertile ground for cross-examination. We
cannot reconcile telling the defendant who dropped the dime on

him while arguing that the snitch is a CI. The prosecutor was

clearly not worried about protecting the CI's identity. One

would not have to be a cynic to conclude that the State did not

call the witness because it did not want the witness exposed to

cross-examination.

In discussing the issue before us, the Fourth District in

People v. Cameron, 189 Ill. App. 3d 998 (1989), favorably cited

the following language from Professor McCormick's treatise on

evidence:
" 'In criminal cases, an arresting or

investigating officer should not be put in

the false position of seeming just to have

happened upon the scene; he should be allowed

some explanation of his presence and conduct.

His testimony that he acted "upon information

13
 received," or words to that effect, should be

sufficient. Nevertheless, cases abound in

which the officer is allowed to relate

historical aspects of the case, replete with

hearsay statements in the form of complaints

and reports, on the ground that he was entitled

to give the information upon which he acted.

The need for the evidence is slight, the
likelihood of misuse great.' " Cameron, 189

Ill. App. 3d at 1004 (quoting Kenneth S.

Brown, et al., McCormick on Evidence §249,

at 734 (Edward W. Cleary ed., 3d ed. 1984).

The court went on to suggest:

"When an objection was first raised to [the

officer's] testifying about what he was told

by the confidential informant, the court should

have conducted a hearing out of the presence of

the jury to determine both the scope of these
third-party out-of-court statements and the need

for the jury to hear them. Had such a hearing

been conducted in this case, the court could

have directed that the improper portions of [the

officer's] testimony be deleted, thereby

permitting the State to provide its legitimate

14
 explanations for police conduct, while protect-

ing the defendant against prejudicial hearsay

statements." (Emphasis in original.) Cameron,

189 Ill. App. 3d at 1005.

Courts cite Cameron with approval. See, e.g., People v.

Singletary, 273 Ill. App. 3d 1076 (1995); People v. Warlick, 302

Ill. App. 3d 595 (1998). When faced with the prospect of hearsay

testimony to explain police conduct, a brief Cameron hearing
makes perfect sense. The hearing, outside the presence of the

jury, need only take a few minutes. The court could simply ask

the prosecutor, What witness (CI or otherwise) testimony do you

intend to elicit through a police officer to explain police

conduct? The prosecutor answers and then the court can quickly

decide how much of that is actually necessary to explain why the

police did what they did and exclude unduly prejudicial

testimony that the jury might reasonably misuse to determine the

defendant's guilt. This very brief process will protect both the

State's right to explain to a jury why the police did what they
did in any given circumstance and, at the same time, protect a

defendant's right to a fair trial and his or her right not to be

convicted with the use of incompetent hearsay. An explanation by

the prosecutor that he or she is only offering the testimony to

show why police officers did what they did should not be the end

of the discussion.

15
 The testimony elicited by the prosecutor went far beyond

that necessary to explain police conduct. Therefore, it was

hearsay. We hold the trial court erred by overruling defendant's

objections. We further find that the trial court's limiting

instruction to the jury did not cure the error and agree with the

Rivera court's statement that, in this instance, the "[h]earsay

testimony identifying the defendant as the one who committed the

crime cannot be explained away as 'police procedure,' even where
the trial judge limits the evidence to a nonhearsay purpose."

Rivera, 277 Ill. App. 3d at 820. The limiting instruction was

only given in response to the testimony that defendant had

acquired the heroin and was on his way back from Chicago. No

limiting instruction was given in response to the testimony that

"defendant was going to be going to Chicago later that evening to

buy heroin."

II. Harmless Error

The State argues that even if we find the trial court erred

by allowing the statements into evidence, the error was harmless.
The admission of hearsay evidence is harmless error where there

is no reasonable probability that the jury would have acquitted

defendant absent the hearsay testimony. People v. Sims, 192 Ill.

2d 592 (2000); People v. Nevitt, 135 Ill. 2d 423 (1990). The

State notes that it is undisputed that the substance contained

within the purple cloth Crown Royal bag contained heroin and that

16
Officer Barisch's testimony indicating he witnessed defendant

holding that bag is uncontradicted. Therefore, the State

submits, even had the informant's statements been excluded, there

is no reasonable probability that the jury would have acquitted

defendant. We agree. It is undisputed that the police caught

defendant literally "holding the bag."

Defendant offers no plausible explanation of why this error

is anything but harmless. Defendant simply claims it cannot be
harmless given the fact that the testimony "went straight to the

heart of the guilt or innocence of defendant and therefore should

not be considered harmless." However, defendant cites no

authority for this proposition and fails to comment on the true

standard to be applied when determining whether introduction of

such statements is harmless: is there a reasonable probability

that a jury would have acquitted absent the hearsay testimony.

Our research failed to identify a single case, and defendant

cites none, that holds hearsay testimony that comments directly

on the matter at issue cannot be harmless error.
III. Supreme Court Rule 431

Finally, defendant claims the trial court failed to comply

with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) and,

as such, he is entitled to a new trial. The State responds that

defendant has forfeited this issue. In the alternative, the

State argues the trial court properly complied with Rule 431(b).

17
We review issues concerning the compliance with a Supreme Court

Rule de novo. People v. Graham, 393 Ill. App. 3d 268 (2009);

People v. Reed, 376 Ill. App. 3d 121 (2007).

Rule 431(b) states as follows:

"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 ***.

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(b)

(eff. May 1, 2007).

The record indicates the trial court announced these

principles to the entire jury venire. Then, while announcing the

final principle, the court stated, "He [the defendant] is not

18
required to testify, and if he does not do so, that cannot be

used against him. All jurors must be willing to accept this

basic principle." Defendant acknowledges that, "in one form or

another," the court asked all but one juror individually if they

accepted the principles of law outlined in Rule 431(b). The

State acknowledges that the court failed to ask juror

Krishnamoorthi whether or not he accepted these four basic

principles of law. The State argues, however, that defendant has
forfeited this alleged error. We agree.

To properly preserve an issue for appellate review, the

defendant must object at trial and raise the issue in a posttrial

motion. People v. Allen, 222 Ill. 2d 340 (2006). "The violation

of a Supreme Court Rule does not mandate reversal in every case

***." People v. Glasper, 234 Ill. 2d 173, 193 (2009). Defendant

failed to object to the manner in which the trial court conducted

voir dire. Thus, the issue has been forfeited.

Nevertheless, defendant asks that we review the matter as

plain error. "Plain errors or defects affecting substantial
rights may be noticed although they were not brought to the

attention of the trial court." Ill. S. Ct. R. 615(a) (eff. Aug

27, 1999). Under this rule, a reviewing court is permitted to

consider a forfeited issue where: (1) the evidence in a case 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

19
so serious that the defendant was denied a substantial right, and

thus a fair trial. People v. Herron, 215 Ill. 2d 167 (2005). As

noted above, the evidence in this matter was not closely

balanced. Moreover, we find the alleged error was not so serious

that defendant was denied a fair trial.

In People v. Amerman, 396 Ill. App. 3d 586 (2009), this

court was called upon to analyze a similar situation regarding

Rule 431(b) admonishments. The trial court in Amerman did not
strictly comply with Rule 431(b) as it failed to ask all

potential jurors if they understood and accepted the principle

that the defendant's failure to testify could not be used against

him. Amerman, 396 Ill. App. 3d at 588. In reviewing the matter,

we stated:

"In this case, the jurors were instructed of

the Rule 431(b)(4) principles prior to their

deliberations, albeit not in the proper manner.

As the supreme court stated in Glasper, '[w]e

reject the idea that the trial court's failure
to conduct Rule 431(b)(4) questioning makes it

inevitable that the jury was biased,' particularly

where the record demonstrates that the jury was

instructed of the principles before its

deliberations. [Citation.] 'To do so would

require us to presume that citizens sworn as

20
 jurors ignore the law and the jury instructions

given to them. This notion is contrary to our

precedent which instructs us to make the opposite

presumption.' " Amerman, 396 Ill. App. 3d at 594-

95 (quoting Glasper, 234 Ill. 2d at 201).

We further noted in Amerman that the alleged error was not

"so serious that it affected the fairness of the defendant's

trial" and ultimately held "that the trial court in this case did
not commit plain error under either prong of the rule by failing

to strictly comply with Rule 431(b). The failure to follow a

supreme court rule in this case, standing alone, was not per se

plain error. [Citations.]" Amerman, 396 Ill. App. 3d at 595.

Similarly, in the case at bar, the jurors were instructed on

the Rule 431(b) principles prior to their deliberations. Not

only were they instructed en masse during voir dire as to the

four principles, but all but one were individually instructed and

asked if they accepted the principles. The record indicates that

the entire jury venire was in the court room when the trial judge
first stated the Rule 431(b) principles and indicated that each

juror "must be willing to accept" them. Then, the court called

groups of four jurors to the jury box for questioning. There is

no notation in the record that the remaining prospective jury

members were asked to leave the courtroom during this

questioning.

21
 While juror Krishnamoorthi was not individually asked if he

accepted the four principles set forth in Rule 431(b), the record

indicates that juror Krishnamoorthi heard the judge instruct at

least seven other jurors individually on these principles and ask

those jurors if they accepted the principles. Moreover, before

deliberations began, the trial court instructed the jury as

follows:

"The fact that the defendant did not testify
must not be considered by you in any way in

arriving at your verdict. ***

The defendant is presumed to be innocent of

the charges against him. This presumption remains

with him throughout every stage of the trial and

during your deliberations on the verdict and is

not overcome unless from all the evidence in this

case you are convinced beyond a reasonable doubt

that he is guilty.

The State has the burden of proving the
guilt of the defendant beyond a reasonable doubt,

and this burden remains on the State throughout

the case. The defendant is not required to prove

his innocence."

Not only did the trial court verbally instruct the jurors as

to these principles, but it gave them written instructions on

22
these principles to take with them into deliberations. As we

found in Amerman, while the trial court failed to strictly comply

with Rule 431(b), we find its failure to do so did not deprive

the defendant of a fair trial. As the evidence in this case is

not closely balanced, we hold that defendant cannot meet his

burden of showing the trial court committed plain error and, as

such, we must honor his procedural default.

Our findings with regard to defendant's claims involving
Rule 431(b) are supported by Thompson. Thompson, 238 Ill. 2d at

615. The Thompson court held that failure to strictly comply

with Rule 431(b)'s mandated "question and response process" does

not "rise to the level of structural error" and, therefore, "does

not require automatic reversal of defendant's conviction."

Thompson, 238 Ill. 2d at 607-11. When faced with a scenario in

which defendant failed to object below or demand strict

compliance with Rule 431(b), therefore forfeiting appellate

review of the matter, the proper path of analysis is to determine

whether the trial court's failure to strictly comply with the
rule equated to plain error. Thompson, 238 Ill. 2d at 611-12.

The venire in Thompson "received some, but not all, of the

required Rule 431(b) questioning. The venire was also admonished

and instructed on Rule 431(b) principles." Thompson, 238 Ill. 2d

at 615. While the trial court in Thompson instructed all the

jurors as to the principles of proof beyond a reasonable doubt

23
and the presumption of innocence, it did not inquire as to

whether any of the jurors accepted those principles. Thompson,

238 Ill. 2d at 602. Furthermore, the trial court failed to ask

the potential jurors if they understood that the defendant need

not present any evidence although it did instruct them that under

"the presumption of innocence, the defense need not present any

evidence." (Internal quotation marks omitted.) Thompson, 238

Ill. 2d at 602. Despite the trial court's failure to strictly
comply with Rule 431(b), our supreme court held defendant did not

meet his "burden of showing the error affected the fairness of

his trial and challenged the integrity of the judicial process.

Accordingly, the second prong of plain-error review does not

provide a basis for excusing defendant's procedural default."

Thompson, 238 Ill. 2d at 615.

In the instant case, the trial court failed to properly

question one juror, yet the entire venire was properly admonished

as to the Rule 431 principles. The evidence was not closely

balanced and defendant has failed to show that the trial court's
error resulted in a biased jury.

CONCLUSION

For the foregoing reasons, the judgment of the circuit court

of Peoria County is affirmed.

Affirmed.

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