People of The State of Ill. v. WILLIS

• Decision Date: 06 July 2010
• Docket Number: No. 1-08-2609.,1-08-2609.
• Citation: 402 Ill.App.3d 47,343 Ill.Dec. 163,934 N.E.2d 487
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Priest WILLIS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

402 Ill.App.3d 47

934 N.E.2d 487

343 Ill.Dec. 163

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Priest WILLIS, Defendant-Appellant.

No. 1-08-2609.

Appellate Court of Illinois,First District, Fifth Division.

May 21, 2010.

Rehearing Denied July 6, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

State Appellate Defender, Chicago, IL, Michael J. Pelletier, State Appellate Defender; Patricia Unsinn, Deputy Defender, Deepa Punjabi, Assistant Appellate Defender, for Appellant.

State's Attorney, County of Cook, Chicago, IL, Anita Alvarez, State's Attorney; Allan J. Spellberg, Mary L. Boland, Assistant State's Attorneys, for Appellee (Petitioner).

Justice FITZGERALD SMITH delivered the opinion of the court:

After a jury trial, defendant Priest Willis was convicted of delivery of less than one gram of heroin within 1,000 feet of a school. The trial court sentenced defendant, based on prior criminal history, as a Class X offender to eight years' imprisonment. On appeal, defendant does not contest the sufficiency of the evidence to sustain his conviction, but contends that: (1) the trial court's failure to strictly comply with Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007), requires reversal and remand for a new trial; (2) he was prejudiced by the State's allegedly improper comments during closing arguments; and (3) his sentence is excessive in light of the nonviolent nature of the crime and the existence of mitigating factors. Defendant also contends, and the State properly agrees, that he was entitled to an additional four days of credit for time served and he is entitled to a reduction in the total amount of fees assessed against him. For the following reasons, we affirm defendant's conviction and sentence, and modify the mittimus.

BACKGROUND

Defendant's conviction arose from a drug transaction which occurred less than 300 feet from an elementary school on August 2, 2007, and was witnessed by various narcotics task force officers of the Chicago police department. The task force was composed of Officers Evangelides, Lopez, Srisuth, Flores, Dobek, Pentimone, Rivera, and Padar. Officer Evangelides served as the undercover buy officer and purchased drugs from two dealers that morning. The first dealer was a man named Keith Adams who was 6 feet tall and 210 pounds, and the second was defendant, who was 5 feet, 8 inches tall and 180 pounds.

Officer Evangelides testified that he saw defendant standing at 4936 West Maypole. Defendant asked Officer Evangelides if he was looking for “blows,” which is the street term for heroin. Officer Evangelides exchanged a prerecorded $20 bill for two plastic baggies with black scorpion logos on them. The substance inside was later determined to be heroin. After the purchase, Officer Evangelides walked two blocks to his undercover vehicle from which he radioed the rest of his team to inform them of the purchase.

Officer Rivera testified that he detained defendant while Officer Pentimone detained Adams. Officer Evangelides identified both men. Officer Rivera recovered $70 from defendant, including the prerecorded $20 bill. Police searched the area and found a rock across the street with bags containing what was later determined to be heroin beneath it.

The State rested, and the defense presented evidence by way of defendant's testimony. Defendant testified that he fixed friends' and neighbors' cars for a living and was paid in cash for doing so. He testified that, on August 1, 2007, he put new brakes on Adams' car. Adams instructed defendant to meet him the following day to collect the $20 he was owed. On August 2, 2007, defendant met Adams at 4936 West Maypole Street, and Adams paid defendant with a single $20 bill. Then, defendant and Adams stood on the sidewalk for about 15 minutes, discussing the condition of Adams' car. During that time, nobody else approached Adams, and defendant testified that Adams was not selling drugs. Defendant denied knowing of any drug sales in the area. Soon, the police arrived. Defendant and Adams were arrested. Defendant denied he had been selling drugs.

Defense rested. On this evidence, the jury found defendant guilty. Defendant appeals.

ANALYSIS

I. Rule 431(b)

On appeal, defendant first contends that he was denied his right to a fair and impartial jury because the trial judge failed to question the prospective jurors regarding the four principles enumerated in People v. Zehr, 103 Ill.2d 472, 83 Ill.Dec. 128, 469 N.E.2d 1062 (1984), and codified in Rule 431(b). Under that rule, the trial court must ask jurors whether they understand and accept that: (1) defendant is presumed innocent of the charges against him; (2) the State must prove defendant guilty beyond a reasonable doubt; (3) defendant is not required to present evidence on his behalf; and (4) defendant has the right not to testify and his failure to do so cannot be held against him. Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007. Specifically, defendant argues that he was prejudiced where the trial court failed to admonish the potential venire regarding defendant's right not to testify. Defendant also argues that he was prejudiced where the trial court gave only 20 of the 32 prospective jurors that were admonished as to the remaining Zehr principles an opportunity to respond to whether or not they understood and accepted the principle regarding defendant's right not to present evidence.

The State does not dispute that the trial court erred in failing to strictly comply with Rule 431(b), but asserts that defendant forfeited review of this error because he failed to object to it at trial or raise it in a timely filed posttrial motion. See People v. Enoch, 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988) (failure to properly preserve an alleged error by both an objection at trial and a written posttrial motion constitutes a procedural default of that error on review).

Defendant admits that he failed to properly preserve this issue for appeal, but urges us to review the error under the second prong of the plain error exception because the error itself was so serious that he was denied a substantial right and thus a fair trial, requiring automatic reversal. 134 Ill. 2d R. 615; People v. Herron, 215 Ill.2d 167, 186-87, 294 Ill.Dec. 55, 830 N.E.2d 467 (2005) (plain error rule permits consideration of errors even though technically waived for review where the evidence is closely balanced or where the claimed error is of such magnitude that there is a substantial risk that the defendant was denied a fair and impartial trial). In support of this argument, defendant relies on People v. Graham, 393 Ill.App.3d 268, 332 Ill.Dec. 504, 913 N.E.2d 99 (2009), and People v. Anderson, 389 Ill.App.3d 1, 328 Ill.Dec. 603, 904 N.E.2d 1113 (2009) ( Anderson I ), which so found.

The record clearly shows that defendant failed to object to the claimed error at trial and also failed to raise it in his motion for a new trial. As such, he did not properly preserve the error for appellate review. Enoch, 122 Ill.2d at 186, 119 Ill.Dec. 265, 522 N.E.2d 1124. Although this generally results in forfeiture, this court may notice plain error or defects affecting substantial rights. People v. Piatkowski, 225 Ill.2d 551, 564-65, 312 Ill.Dec. 338, 870 N.E.2d 403 (2007).

We examine whether the trial court complied with Rule 431(b) to determine whether there was error here. See People v. Williams, No. 1-07-2657, slip op. at 5 (April 8, 2010).

In Zehr, 103 Ill.2d at 477, 83 Ill.Dec. 128, 469 N.E.2d 1062, our supreme court held that a trial court erred during voir dire where it refused defense counsel's request to ask questions regarding the State's burden of proof, defendant's right not to testify, and the presumption of innocence. Specifically, the court held:

“We are of the opinion that essential to the qualification of jurors in a criminal case is that they know that a defendant is presumed innocent, that he is not required to offer any evidence in his own behalf, that he must be proved guilty beyond a reasonable doubt, and that his failure to testify in his own behalf cannot be held against him. If a juror has a prejudice against any of these basic guarantees, an instruction given at the end of trial will have little curative effect.” Zehr, 103 Ill.2d at 477, 83 Ill.Dec. 128, 469 N.E.2d 1062.

In 1997, our supreme court amended Rule 431(b) to ensure compliance with the Zehr requirements. 177 Ill. 2d R. 431, Committee Comments. Under that amendment, the court was required, if requested by the defendant, to ask the potential jurors, individually or as a group, whether they understand the Zehr principles. 177 Ill. 2d R. 431(b). Effective May 1, 2007, our supreme court again amended Rule 431(b), omitting the language “[i]f requested by the defendant,” and leaving the remainder of the rule unchanged. Rule 431(b) now provides, inter alia:

“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.” Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007.

This rule, which was in effect at the time of defendant's trial, imposes a sua sponte duty on ...