People v. Joseph
| Docket Number | 1-17-0741 |
| Decision Date | 30 June 2021 |
| Citation | 2021 IL App (1st) 170741,197 N.E.3d 296,458 Ill.Dec. 883 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. LB JOSEPH, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
James E. Chadd, Patricia Mysza, and David T. Harris, of State Appellate Defender's Office, of Chicago, for appellant.
Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Jon J. Walters, and Paul E. Wojcicki, Assistant State's Attorneys, of counsel), for the People.
¶ 1 A jury convicted defendant LB Joseph and his codefendant and brother, Leondo Joseph, of aggravated kidnapping, aggravated criminal sexual assault, and aggravated battery. The jury also found that LB was armed with a firearm during the kidnapping and sexual assault.
¶ 2 Codefendant Leondo has filed his own appeal and is not a party to this one. See People v. Joseph , 2021 IL App (1st) 171026-U, 2021 WL 2841577. Here, defendant LB claims the trial court failed to question the prospective jurors in compliance with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) and that the error, while unpreserved, warrants reversal because the evidence was closely balanced. Defendant also claims the testimony of the victim, L.D., was not sufficient to prove beyond a reasonable doubt that he was armed with a firearm. For the reasons that follow, we affirm.
¶ 4 Defendant LB and codefendant Leondo waived their respective rights to counsel. They were tried jointly, before a single jury, with each defendant representing himself.
¶ 5 The key witness for the State, particularly for our purposes here, was L.D., the victim of the charged offenses. L.D. testified that she was approached by the defendants on the night of December 17, 2011, while waiting for a bus on a street corner. L.D. gave conflicting accounts of exactly which corner it was, but she was clear that the encounter began late at night, sometime around midnight, when a car pulled up and stopped in front of her.
¶ 6 The driver, defendant LB, rolled down the window to talk to L.D., but she ignored him. LB then got out of the car. He was holding a gun at his side. He walked toward L.D. and said that she had "two options, get in the car or get shot."
¶ 7 L.D. did not know what kind of gun it was. As a general matter, she explained, she "don't know nothing about no guns." As best she could recall, it was not silver or blue steel. By the time of trial, she could not remember whether it was a revolver.
¶ 8 Scared for her life, L.D. got into the front passenger seat. Defendant LB drove around for "a long time" before eventually parking in an alley. Along the way, L.D. noticed codefendant Leondo in the back of the car.
¶ 9 The defendants told L.D. to get into the back seat and take off her clothes. She complied. Over the next several hours, until 8 a.m. or so, the defendants took turns forcing L.D. to perform oral, vaginal, and anal sex. When she tried to escape, codefendant Leondo punched her in the face, below her right eye. Before the trial, she had told the police it was below her left eye.
¶ 10 Sometime after daybreak, another car drove into the alley. The defendants told L.D. to get dressed and let her out of the car at the end of the alley. She went into a nearby business, said she was just raped, and asked to call the police. She was taken directly to the hospital in an ambulance, where she reported that she had been raped orally, vaginally, and anally.
¶ 11 Swabs were taken from L.D.’s mouth, vagina, anus, and underwear. Semen was detected in every sample; there was blood in the underwear sample. Although the DNA analysis was not conclusive, it did show, in sum, that neither of the codefendants could be excluded from the sperm fractions identified in the oral, anal, and underwear samples. The vaginal sample matched codefendant Leondo but not defendant LB.
¶ 12 The State also offered other-crimes evidence to show propensity, modus operandi , and lack of consent. Another complainant, D.K., testified to an unrelated incident in which she was abducted off the street and forced to perform oral and vaginal sex on Leondo in the back seat of the defendants’ car. LB stood by, waiting for his "turn" (as he called it) with his pants down, only to be interrupted by an approaching police car.
¶ 13 After the State rested, LB called codefendant Leondo to the stand. Leondo testified that he was driving with LB, in an area known for drugs and prostitution, when he saw L.D. standing on a street corner. They pulled up and talked to her. L.D. said that "she was out there dating" and that her pimp "got a little rough with her." After talking and smoking a cigarette together, Leondo offered L.D. $100 for sex. She got into the back seat of the car willingly, and Leondo drove off.
¶ 14 At first, Leondo testified that his brother got out of the car after they parked. He later testified that he dropped LB off at a friend's house along the way. In any event, Leondo and L.D. had oral and vaginal sex, but not anal sex, in the back seat. It was consensual, no force was ever used, and LB did not participate at all.
¶ 15 Afterwards, L.D. demanded more money. When Leondo refused, L.D. grew angry, got out of the car, and slammed the door.
¶ 16 Leondo denied that he had a gun or a knife with him during the encounter. He further testified, in sum, that D.K. was also a prostitute, whom he paid $20 for oral sex.
¶ 17 After the jury returned its verdicts, the trial court sentenced defendant to 147 years in prison. That was the minimum sentence allowed by the confluence of consecutive-sentencing provisions and 15-year firearm enhancements that applied to the aggravated kidnapping and six aggravated criminal sexual assault convictions (two counts each of oral, vaginal, and anal penetration—one committed by defendant himself, and one by Leondo, for whom defendant was accountable). "These are strange sentencing laws," the trial judge lamented, but he lacked any discretion to depart downward from the de facto life sentence they generated.
¶ 20 Defendant argues that the trial court committed first-prong plain error when it failed to ask the prospective jurors whether they understood the principles of a fair trial set forth in Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). We review the trial court's compliance with Rule 431(b) de novo. People v. Belknap , 2014 IL 117094, ¶ 41, 387 Ill.Dec. 633, 23 N.E.3d 325.
¶ 21 Rule 431(b) requires the trial court to "ask each potential juror, individually or in a group, whether that juror understands and accepts" these four principles, commonly known as the Zehr principles: (1) that the defendant is presumed innocent, (2) that the State must prove the defendant's guilt beyond a reasonable doubt, (3) that the defendant is not required to offer any evidence on his own behalf, and (4) that the defendant's decision not to testify cannot be held against him. Ill. S. Ct. R. 431(b) (eff. July 1, 2012); see People v. Zehr , 103 Ill. 2d 472, 477-78, 83 Ill.Dec. 128, 469 N.E.2d 1062 (1984).
¶ 22 The trial court must ask prospective jurors two distinct questions: whether they understand the Zehr principles and whether they accept them. Because a fair trial depends on selecting jurors who meet both conditions, omitting either question is error, and the error is reversible, under the plain-error rule, if (but only if) the evidence was closely balanced. People v. Sebby , 2017 IL 119445, ¶¶ 49-52, 417 Ill.Dec. 756, 89 N.E.3d 675 ; Belknap , 2014 IL 117094, ¶¶ 42-46, 387 Ill.Dec. 633, 23 N.E.3d 325 ; People v. Wilmington , 2013 IL 112938, ¶¶ 32-34, 368 Ill.Dec. 211, 983 N.E.2d 1015.
¶ 23 In a perfect world, the trial court would not stray from those precise terms—whether the jurors "understand" and "accept" the four Zehr principles. But in practice, the trial courts often do, leaving reviewing courts to determine whether the words the trial court chose were sufficient to capture the essence of the two required questions. See, e.g. , People v. Morris , 2013 IL App (1st) 110413, ¶ 83, 377 Ill.Dec. 146, 1 N.E.3d 1033 (" ‘understand’ and ‘embrace’ "); People v. Atherton , 406 Ill. App. 3d 598, 611, 346 Ill.Dec. 406, 940 N.E.2d 775 (2010) (); People v. Ingram , 401 Ill. App. 3d 382, 393, 340 Ill.Dec. 608, 928 N.E.2d 1205 (2010) (); see also People v. Emerson , 122 Ill. 2d 411, 427, 119 Ill.Dec. 250, 522 N.E.2d 1109 (1987).
¶ 24 Here, the trial court began its inquiry by reciting each Zehr principle and, after each one, asking whether any prospective juror had "any quarrel with" that principle. None did. Defendant concedes that, in doing so, the trial court sufficiently confirmed that the jurors accepted the four principles. He raises no claim that the trial court violated the "accept" prong of the Rule 431(b) inquiry and, in fact, concedes that this portion of Rule 431(b) was satisfied. So we need not consider the "accept" portion of the Rule 431(b) requirement further; like defendant, we will focus our inquiry on the "understand" prong of the Rule 431(b) admonishments.
¶ 25 The trial court next asked the prospective jurors to consider the following scenario, meant to illustrate how the Zehr principles are to be applied:
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