People v. Vesey

• Decision Date: 27 September 2011
• Docket Number: No. 3–09–0570.,3–09–0570.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Janet VESEY, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2011 IL App (3d) 090570

354 Ill.Dec. 460

957 N.E.2d 1253

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

v.Janet VESEY, Defendant–Appellant.

No. 3–09–0570.

Appellate Court of Illinois, Third District.

Sept. 27, 2011.

Robert Agostinelli, Deputy Defender (Court-appointed), Office of the State Appellate Defender, Ottawa, Ron D. Dolak (Court-appointed), Konicek & Dillon, P.C., Geneva, for Janey Vesey.

Terry A. Mertel, Deputy Director, State's Attorneys Appellate Prosecutor, Jeff Terronez, State's Attorney, Gary F. Gnidovec, State's Attorneys Appellate Prosecutor, Rock Island, for People.

OPINION

Justice HOLDRIDGE delivered the judgment of the court, with opinion.

[354 Ill.Dec. 461] ¶ 1 After a jury trial, the defendant, Janet Vesey, was convicted of unlawful possession of a controlled substance. 720 ILCS 570/ 402(c) (West 2008). She appeals her conviction and argues that she is entitled to a new trial because the trial court failed to comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007). We reverse and remand.

¶ 2 FACTS

¶ 3 I. Discovery of the Controlled Substance

¶ 4 On December 23, 2008, the defendant and her sister had spent the day finishing their Christmas shopping. They had also visited Walmart so the defendant could try on bras and girdles for an event that the defendant had to attend the following January. During the early morning hours of December 24, they were pulled over by Officer Ibrahim Ramirez. Ramirez pulled the defendant over because the vehicle's license plates were suspended. During the traffic stop, the defendant admitted to the officer that her driver's license was suspended. She was arrested, and the officer performed a limited pat-down on her, which mainly consisted of checking her pockets for weapons.

¶ 5 The defendant was taken to the Rock Island County jail, and she was turned over to correctional officer Michelle Haun. Haun took the defendant to a small room so that she could have some privacy while changing into jail-issued clothing. Haun testified that she looked in the room before taking the defendant in. As the defendant was removing her bra, Haun heard a noise and the defendant say “[t]hat's not mine, [t]hat's not mine!” Haun described the noise as a “light little thud.” Looking down, she saw a bag on the floor that contained a white substance and a straw.

¶ 6 According to the defendant, she was strip searched when she was taken into the small room. After she had changed into the jumpsuit, she bent over to put on flip-flops and saw the bag on the floor. She told Haun about the bag because she did not want to be blamed for it later. Haun said that it must have fallen from the defendant's bra and gave the bag to another officer. The substance tested positive for cocaine.

¶ 7 II. Voir Dire

¶ 8 The trial of this matter took place on April 23, 2009. The trial court conducted voir dire by calling panels of four prospective jurors at a time. During the first panel, the court asked:

“Do each of you folks understand that the defendant is presumed innocent at this point and has a right to have a trial?

* * *

And the presumption of innocence, folks, remains with the defendant throughout the entire case, and it's not overcome unless the State is able to show her guilt beyond a reasonable doubt. Do each of you understand that?

* * *

And do each of you understand that the defendant is presumed innocent and has a right to rely on that presumption of innocence and has a right to put on no evidence whatsoever if she wants to. Do each of you understand that?

* * *

And if the defendant would choose not to put on any evidence, that fact could not be considered by you in judging her guilt or innocence. Do each of you understand that?

* * *

Do any of you have any quarrels or disagreements with any of these propositions of law?”

¶ 9 The State and the defendant accepted all four individuals on the jury. The trial court then called the second panel and asked:

“And do all of you understand the burden of proof issues that we have been talking about? In other words, at this point the defendant is presumed innocent of the charge and she is entitled to rely on that presumption of innocence throughout the entire case. Do each of you understand that?

* * *

And do each of you understand that presumption of innocence is not overcome unless the State is able to prove her guilt beyond a reasonable doubt? Do each of you understand that?”

The defense attorney also inquired of the second panel:

“Does anyone feel as though myself or Ms. Vesey has anything that they have to prove here today? Anyone? Raise your hand if you think that we do?

* * *

If I were to sit here, and obviously I'm not going to, I've obviously expressed that I'm going to be calling some witnesses, and stare at the ceiling tile and not call any witnesses, would you think that I have done something wrong?

* * *

Does anybody feel as though—my question here is to make sure you understand that my client as she sits here today is an innocent person. She does not have to prove anything. That the entire burden of proof remains on the State. Does anybody have a problem with that?”

¶ 10 Three of the four panel members were accepted onto the jury. The next prospective juror was questioned individually by the trial court and the attorneys, and he was accepted onto the jury. The trial court asked him if he understood the principles of reasonable doubt and the presumption of innocence. This juror was not asked if he accepted those principles of law.

¶ 11 The last four jurors that eventually made it onto the jury were all asked if they understood the presumption of innocence and the fact that the State had to prove the defendant guilty beyond a reasonable doubt. Those jurors were also asked if they had any quarrels with those principles of law.

¶ 12 After the trial, all of the jurors were instructed on the presumption of innocence and the burden of proof. The jury found the defendant guilty, and she was sentenced to 24 months of probation. She appealed.

¶ 13 ANALYSIS

¶ 14 The defendant argues that she was denied the right to a fair trial because the trial court failed to strictly comply with Rule 431(b). Ill. S.Ct. R. 431(b) (eff. May 1, 2007). The defendant admits that she did not object to this error during trial, or raise the issue in a posttrial motion, and that failure to do so ordinarily results in forfeiture of the issue. People v. Schaefer, 398 Ill.App.3d 963, 338 Ill.Dec. 650, 924 N.E.2d 1176 (2010). Therefore, in order for the defendant to succeed in her argument, the trial court must have committed plain error. People v. Herron, 215 Ill.2d 167, 294 Ill.Dec. 55, 830 N.E.2d 467 (2005). Under the plain error rule, we will remand for a new trial only if: (1) the evidence is closely balanced; or (2) the error was so serious it denied the defendant a fair trial. Herron, 215 Ill.2d 167, 294 Ill.Dec. 55, 830 N.E.2d 467.

¶ 15 Rule 431(b) provides:

“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.” (Emphases added.) Ill. S.Ct. R. 431(b) (eff. May 1, 2007).

¶ 16 In this case, error occurred because certain members of the jury were not asked about some of these principles. No member of the jury was asked whether he or she understood and accepted that the defendant's refusal to testify could not be held against her. In addition, 4 of the 12 jurors were not asked by the trial court if they accepted the presumption of innocence or the State's burden of proof.¹ The trial court's failure to properly question jurors under Rule 431(b) constitutes noncompliance with the rule. People v. Thompson, 238 Ill.2d 598, 345 Ill.Dec. 560, 939 N.E.2d 403 (2010).

¶ 17 The issue then becomes whether the error warrants a new trial. The defendant first argues that she is entitled to a new trial because the evidence in this case is closely balanced. The defendant points out that she presented four witnesses at trial while the State only offered two. In addition, the trial largely came down to Haun's word against the defendant's. This suggests that the evidence was closely balanced because there was no corroborating evidence of guilt and defendant's verdict was decided by who the jury found more credible. See People v. Naylor, 229 Ill.2d 584, 608, 323 Ill.Dec. 381, 893 N.E.2d 653 (2008) (holding that evidence was closely balanced where “[t]he evidence boiled down to the testimony of * * * two police officers against that of the defendant”).

¶ 18 In Herron, the court stated that where there is error in a closely balanced case it is important to err on the side of fairness so as to not convict an innocent person. Herron, 215 Ill.2d 167, 294 Ill.Dec. 55, 830 N.E.2d 467. Once the defendant proves that there was an error and that the evidence was closely balanced, the error is considered prejudicial. Id. The Herron court explained:

“If the defendant carries the burden of persuasion and convinces a reviewing court that there was error and that the evidence was closely balanced, the case is not cloaked with a presumption of prejudice. The error is actually prejudicial, not presumptively prejudicial.” Herron, 215 Ill.2d at 193, 294 Ill.Dec. 55, 830 N.E.2d 467.

See also People v. Piatkowski, 225 Ill.2d 551, 564–65, 568, 571–72, 312 Ill.Dec. 338, 870 N.E.2d 403 (2007).

¶ 19 In People v. White, 2011 IL 109689, 353 Ill.Dec. 517, 956 N.E.2d 379, our supreme court noted that a defendant may...