People v. Blair, 2-07-0862.

• Court: United States Appellate Court of Illinois
• Writing for the Court: Hudson
• Citation: 917 N.E.2d 43,334 Ill.Dec. 446
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ricky G. BLAIR, Defendant-Appellant.
• Docket Number: No. 2-07-0862.,2-07-0862.
• Decision Date: 29 September 2009

917 N.E.2d 43 334 Ill.Dec. 446 The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Ricky G. BLAIR, Defendant-Appellant. No. 2-07-0862. Appellate Court of Illinois, Second District. September 29, 2009.

[917 N.E.2d 46]

Patricia Unsinn, Deputy Defender, Jonathan Krieger (both Court-appointed), Office of the State Appellate Defender, Chicago, for Ricky G. Blair.

Joseph P. Bruscato, Winnebago County State's Attorney, Rockford, Lawrence M. Bauer, Deputy Director, State's Attorney Appellate Prosecutor, Elgin, Stephanie Hoit Lee, Algonquin, for the People.

Justice HUDSON delivered the opinion of the court:

Following a jury trial in the circuit court of Winnebago County, defendant, Ricky G. Blair, was found guilty of two counts of aggravated domestic battery (one count based on great bodily harm and one count based on permanent disfigurement) (720 ILCS 5/12-3.3(a) (West 2006)). The trial court vacated the permanent-disfigurement-based conviction on one-act, one-crime principles and sentenced defendant to seven years' imprisonment. On appeal, defendant urges the reversal of his conviction, on two grounds. First, he asserts that the trial court failed to comply with Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007) in that it did not ask each prospective juror during voir dire if he or she understood and accepted each of four key principles governing criminal trials. Second, defendant contends that the State violated Supreme Court Rule 412 (188 Ill.2d R. 412) by calling a doctor to provide testimony without first disclosing, via a statement of his qualifications, the doctor's status as an expert. For the reasons set forth herein, we agree with the first claim of error and accordingly reverse defendant's conviction and remand the cause for a new trial.

I. BACKGROUND

Defendant was charged by superseding indictment with one count of aggravated battery (720 ILCS 5/12-4(b)(1) (West 2006)), two counts of aggravated domestic battery based on permanent disfigurement (720 ILCS 5/12-3.3(a) (West 2006)), and one count of aggravated domestic battery based on great bodily harm (720 ILCS 5/12-3.3(a) (West 2006)). The charges stemmed from a March 2006 altercation between defendant and Joya Scott at a Rockford housing project. The aggravated battery count and one of the aggravated domestic battery (permanent disfigurement) counts related to a knife wound sustained by Scott in her arm. The remaining counts alleged that defendant punched Scott in the face, causing permanent disfigurement (a laceration) and great bodily harm (a broken nose). Jury selection commenced on June 11, 2007. At trial, Scott claimed that defendant attacked her unprovoked. The State also presented the testimony of radiologist Edward Steffen, who, over an objection by the defense, testified that a CAT scan showed Scott's nose was broken. Testifying on his own behalf, defendant stated that he hit Scott only because he thought she was going to stab him with a steak knife. The jury acquitted defendant of the charges related to the knife wound to Scott's arm but convicted him of the other two counts. Upon the motion of the State, however, the trial court, citing the one-act,

917 N.E.2d 47

one-crime rule, vacated the conviction of aggravated domestic battery (permanent disfigurement). Defendant was sentenced to seven years' imprisonment. Following the denial of his posttrial motion, defendant filed the present appeal.

II. ANALYSIS A. Voir Dire

On appeal, defendant first argues that he was denied a fair and impartial jury by the court's failure to question prospective jurors during voir dire in compliance with Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007). We note initially that defendant did not object to the manner in which voir dire was being conducted and he did not include this issue in his posttrial motion. Normally, such omissions result in forfeiture of the contested issue on appeal. See People v. Barrow, 133 Ill.2d 226, 260, 139 Ill.Dec. 728, 549 N.E.2d 240 (1989). However, Supreme Court Rule 615(a) (134 Ill.2d R. 615(a)) creates an exception to the forfeiture rule by allowing courts of review to note "[p]lain errors or defects affecting substantial rights." A reviewing court may consider a forfeited error under the plain-error rule when "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 when "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, 294 Ill.Dec. 55, 830 N.E.2d 467 (2005). As the supreme court explained, the "closely balanced evidence" prong of the plain-error doctrine "guards against errors that could lead to the conviction of an innocent person," while the substantial-rights prong "guards against errors that erode the integrity of the judicial process and undermine the fairness of the defendant's trial." Herron, 215 Ill.2d at 186, 294 Ill.Dec. 55, 830 N.E.2d 467. In order for plain error to exist, however, we must first determine if an error actually occurred. People v. Naylor, 229 Ill.2d 584, 593, 323 Ill.Dec. 381, 893 N.E.2d 653 (2008).

According to defendant, Rule 431(b) requires the trial court to ascertain during voir dire each potential juror's understanding and acceptance of the legal principles that: (1) the defendant is presumed innocent; (2) the State must prove the defendant guilty beyond a reasonable doubt; (3) the defendant need not present any evidence on his own behalf; and (4) the defendant's failure to testify cannot be held against him. See Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007. Defendant claims that during jury selection in this case, the court did not ask any prospective juror about his or her understanding and acceptance of all of the principles listed in Rule 431(b). Thus, defendant asserts, the trial court's incomplete questioning violated Rule 431(b) and deprived him of a fair and impartial jury. The State responds that Rule 431(b) is sufficiently complied with if, after being informed of the four principles set forth in Rule 431(b), each of the prospective jurors agrees to follow the law as given by the trial court. Because the admonishments provided by the trial court in this case conformed with this procedure, the State reasons that each juror understood and accepted the principles contained in Rule 431(b) and thus no error occurred through the manner in which the trial court questioned the prospective jurors.

We begin our analysis by reviewing the genesis of Supreme Court Rule 431(b). Rule 431(b) was promulgated to give effect to our supreme court's decision in People v. Zehr, 103 Ill.2d 472, 83 Ill.Dec. 128, 469 N.E.2d 1062 (1984). See 177 Ill.2d R. 431,

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Committee Comments, at 1xxix. In Zehr, the trial court refused defense counsel's request to ask prospective jurors during voir dire three supplemental questions concerning the State's burden of proof, the defendant's right not to testify, and the presumption of innocence. The supreme court held that the trial court's refusal to ask the questions posed by defense counsel constituted "prejudicial error" and required reversal of the judgment. Zehr, 103 Ill.2d at 477-78, 83 Ill.Dec. 128, 469 N.E.2d 1062. The court explained:

"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 the trial will have little curative effect. * * * We agree with the appellate court that `[e]ach of these questions goes to the heart of a particular bias or prejudice which would deprive defendant of his right to a fair and impartial jury' [citation], and although they need not have been asked in precisely the form submitted, the subject matter of the questions should have been covered in the course of interrogation on voir dire." Zehr, 103 Ill.2d at 477, 83 Ill.Dec. 128, 469 N.E.2d 1062.

The four principles cited by the supreme court have become known as the Zehr principles. People v. Martinez, 386 Ill. App.3d 153, 158, 325 Ill.Dec. 340, 897 N.E.2d 879 (2008).

In 1997, to ensure compliance with the requirements of Zehr, the supreme court rewrote Rule 431. 177 Ill.2d R. 431, Committee Comments, at 1xxix. Although the Supreme Court Rules Committee recommended that the revised rule require the trial court to question prospective jurors on each of the Zehr principles, the supreme court modified the proposal so that questioning on the Zehr principles would be required only if the defendant so requested. People v. Glasper, 234 Ill.2d 173, 187-89, ___ Ill.Dec. ___, ___ N.E.2d ___ (2009), citing Illinois Supreme Court Rules Committee, Recommendations to the Supreme Court of Illinois (March 1997). To effectuate the supreme court's intent, the 1997 version of Rule 431 added subsection (b), which provided in relevant part that, "[i]f requested by the defendant, the court shall ask each potential juror, individually or in a group, whether that juror understands and accepts" the four Zehr principles. 177 Ill.2d R. 431(b). According to the committee comments, the new language sought to "end the practice where the judge makes a broad statement of the applicable law followed by a general question concerning the juror's willingness to follow the law." 177 Ill.2d R. 431, Committee Comments, at 1xxix.

More recently, the supreme court amended Rule 431(b) to eliminate the requirement that the defendant request the trial court to ask prospective...