People v. Pearson

• Decision Date: 31 March 2005
• Docket Number: No. 1-03-3550.,1-03-3550.
• Citation: 826 N.E.2d 1099,356 Ill. App.3d 390,292 Ill.Dec. 663
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Terant PEARSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

826 N.E.2d 1099

356 Ill. App.3d 390

292 Ill.Dec. 663

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Terant PEARSON, Defendant-Appellant.

No. 1-03-3550.

Appellate Court of Illinois, First District, Second Division.

March 31, 2005.

Michael J. Pelletier, Deputy Defender, and Elizabeth Monkus, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for Appellant.

Richard A. Devine, State's Attorney of Cook County, Chicago (Renee Goldfarb, Margaret J. Campos, and Sally Dilgart, of counsel), for Appellee.

Justice WOLFSON delivered the opinion of the court:

As of the moment they were selected and sworn, the twelve jurors who decided this case had not heard the words "presumption of innocence." Nor had they heard the defendant had no duty to present evidence or that the defendant could not be penalized for declining to testify. The question is this: Did the trial court's failure to address these basic principles threaten the integrity of the judicial process? We hold that it did, and we reverse the defendant's conviction for aggravated unlawful use of a weapon and remand the cause for a new trial.

FACTS

Before the questioning of potential jurors began, the trial court made some preliminary comments, but they did not contain any reference, direct or indirect, to the presumption of the defendant's innocence or to the principles that the defendant is not required to offer any evidence on his own behalf and the defendant's failure to testify cannot be held against him.

During jury selection, the trial judge questioned the potential jurors about their previous experiences with crime and the legal system. The judge also asked the venire the following questions:

"Is there anybody seated in the jury box, should the State meet their burden of proof beyond a reasonable doubt that could not go back into the jury room with your fellow jurors and the law as I give it to you and sign a verdict form of guilty? * * *

Should the State fail to meet their burden of proof beyond a reasonable doubt, is there anybody seated in the jury box who could not and would not go back into the jury room with your fellow jurors and the law as I give it to you and sign a verdict form of not guilty?"

The trial judge did not question potential jurors about the presumption of innocence, whether they understood that defendant had no duty to present evidence, or whether they would hold against the defendant his decision not to testify. Neither the State's attorney nor defense counsel requested additional questions, although the trial judge offered them that opportunity.

At trial, Detective Tim McDermott testified he and his partners John Burzinski and Carl Suchocki were conducting a directed patrol in the area of 3500 West Ohio Street in Chicago on September 21, 2002, at 2:58 in the afternoon. When they arrived at 3500 West Ohio Street, several individuals began to shout, "He's got a gun," and pointed to defendant standing nearby. Detective McDermott and Officer Suchocki got out of their vehicle and walked toward defendant, who looked at them, pulled a handgun from his waistband, and began to run. The officers ran after defendant. Officer Suchocki was running just a few feet behind defendant. Detective McDermott saw the gun in defendant's hand as he was running. During the chase, defendant threw the gun over his shoulder into a fenced parkway. Detective McDermott retrieved the gun, a nine-millimeter semi-automatic handgun, while Officer Suchocki pursued defendant. Eventually, Suchocki caught defendant and placed him under arrest. Detective McDermott gave defendant the Miranda warnings, and defendant said he understood his rights. Defendant also said, "I didn't rob nobody, I just had a gun." Upon further examination of the gun, the officers discovered one bullet in the chamber and five in the magazine. The gun was ready to fire. Later, when defendant was questioned at the police station, he again admitted having a gun.

Officer Suchocki described the same sequence of events and his testimony corroborated Detective McDermott's. The parties stipulated defendant had a prior conviction for delivery of a controlled substance. The State rested its case. Defendant did not testify and rested his case without offering any evidence.

The trial judge gave several instructions to the jury after final arguments. Those instructions covered, among other things, the presumption of innocence, the State's burden of proof, and defendant's right not to testify without adverse implication.

The defendant was convicted of aggravated unlawful use of a weapon and sentenced, based on his criminal history, to a Class X prison term of eight years.

On appeal, he contends: (1) he was deprived of a fair trial because the trial court failed to question potential jurors about their acceptance of basic principles of law; (2) he received ineffective assistance of counsel because his lawyer did not ask the court to question jurors regarding those principles; (3) the trial court failed to give proper Rule 605(a) admonishments (Official Reports Advance Sheet No. 21 (October 17, 2001), R. 605(a), eff. October 1, 2001); and (4) the court's order requiring defendant to submit a DNA sample was an unreasonable search and seizure.

DECISION

I. Failure to Ask the Questions Contained in Rule 431(b)

Defendant contends the trial court had a sua sponte duty to ask certain questions of prospective jurors concerning the defendant's basic rights. He relies on People v. Zehr, 103 Ill.2d 472, 476, 83 Ill.Dec. 128, 469 N.E.2d 1062 (1984), where the supreme court held a trial court abused its discretion during voir dire by refusing defense counsel's request to ask questions concerning the State's burden of proof, the right of the defendant not to testify without penalty, and the presumption of innocence.

Before we can address the issue raised by defendant, we must determine whether his failure to preserve it in the trial court prohibits us from making any further inquiry.

Defendant recognizes he forfeited the issue he now raises by not making a request for questions to jurors and by failing to preserve error in his post-trial motion. See People v. Enoch, 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988). He asks us to consider the trial court's omission under the plain error doctrine.

Supreme Court Rule 615(a) provides: "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court." 134 Ill.2d R. 615(a). Our supreme court has held the plain error rule may be invoked to review forfeited alleged errors under two circumstances, stated in the disjunctive: (1) the evidence in a criminal case is closely balanced or (2) the error is so fundamental and of such magnitude that the accused is denied the right to a fair trial and remedying the error is necessary to preserve the integrity of the judicial process. People v. Johnson, 208 Ill.2d 53, 64, 281 Ill.Dec. 1, 803 N.E.2d 405 (2003); see also People v. Nieves, 192 Ill.2d 487, 502-03, 249 Ill.Dec. 760, 737 N.E.2d 150 (2000). The procedural default is to be honored "if, in the end, the error is found not to rise to the level of plain error as contemplated by Rule 615(a) * * *." People v. Keene, 169 Ill.2d 1, 17, 214 Ill.Dec. 194, 660 N.E.2d 901 (1995).

Some courts have held the first stop in a plain error analysis is to determine whether any error in fact occurred. People v. Sims, 192 Ill.2d 592, 621, 249 Ill.Dec. 610, 736 N.E.2d 1048 (2000) (before invoking the plain error exception it is appropriate to determine whether any error occurred); People v. Wade, 131 Ill.2d 370, 376, 137 Ill.Dec. 608, 546 N.E.2d 553 (1989); People v. Precup, 73 Ill.2d 7, 17, 21 Ill.Dec. 863, 382 N.E.2d 227 (1978); People v. Bradley, 336 Ill.App.3d 62, 66, 270 Ill.Dec. 266, 782 N.E.2d 825 (2002).

The supreme court imposed a four-part plain error test in People v. Crespo, 203 Ill.2d 335, 273 Ill.Dec. 241, 788 N.E.2d 1117 (2001), where an Apprendi sentencing issue was raised. The court held an appellate court may correct an error not raised at trial only if there was (1) an error, (2) that is plain, (3) that affects substantial rights, and (4) that "seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Crespo, 203 Ill.2d at 348, 273 Ill.Dec. 241, 788 N.E.2d 1117. The Crespo analysis was used to affirm use of a possibly defective witness identification instruction in People v. Tisley, 341 Ill.App.3d 741, 275 Ill.Dec. 701, 793 N.E.2d 181 (2003).

In People v. Metcalfe, 202 Ill.2d 544, 552, 270 Ill.Dec. 69, 782 N.E.2d 263 (2002), the supreme court held the question of whether a trial court has the sua sponte duty to remove a juror for cause should be examined under the plain error doctrine. The reason, said the court, is "because the issue affects defendant's constitutional right to a fair trial." Metcalfe, 202 Ill.2d at 552, 270 Ill.Dec. 69, 782 N.E.2d 263. The court went on to find there was no error.

On several occasions this court has used the plain error doctrine to examine issues concerning the selection of a fair and impartial jury. See People v. Bowman, 325 Ill.App.3d 411, 425, 259 Ill.Dec. 285, 758 N.E.2d 408 (2001); People v. Boston, 271 Ill.App.3d 358, 360, 208 Ill.Dec. 80, 648 N.E.2d 1002 (1995); but see People v. Williams, 221 Ill.App.3d 1061, 164 Ill.Dec. 411, 582 N.E.2d 1355 (1991) (defense counsel did not request the Zehr questions and the trial court did not ask them; the court held the failure to make the Zehr inquiries was not plain error in light of the overwhelming evidence against the defendant but did not consider whether a substantial right was at stake).

Because of the nature of the forfeited issue in this case, we feel obliged to examine it in spite of the strong evidence presented by the State.

In Zehr, 103 Ill.2d at 477, 83 Ill.Dec. 128, 469 N.E.2d 1062, the court said:

"We are of the

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