People v. Yarbor

• Decision Date: 13 June 2008
• Docket Number: No. 1-07-0657.,1-07-0657.
• Citation: 889 N.E.2d 1225
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Terrell YARBOR, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

889 N.E.2d 1225

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Terrell YARBOR, Defendant-Appellant.

No. 1-07-0657.

Appellate Court of Illinois, First District, Sixth Division.

June 13, 2008.

Richard A. Devine, State's Attorney, Chicago (James Fitzgerald, Miles J. Keleher and Douglas P. Harvath, Assistant State's Attorneys, of counsel), for Plaintiff-Appellee.

Michael J. Pelletier, Deputy Defender of Cook County, Chicago (Adrienne River, Assistant Appellate Defender, of counsel), for Defendant-Appellant.

Presiding Justice McBRIDE delivered the opinion of the court:

Defendant, Terrell Yarbor, appeals his conviction for aggravated criminal sexual assault, arguing that the trial court failed to follow the decision in People v. Zehr, 103 Ill.2d 472, 83 Ill.Dec. 128, 469 N.E.2d 1062 (1984), and the amended version of Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007), when it failed to question the prospective jurors on their understanding and acceptance of the legal principles that the defendant is presumed innocent, the defendant need not present any evidence on his own behalf, the State must prove the defendant guilty beyond a reasonable doubt, and the defendant's failure to testify cannot be held against him. Alternatively, defendant contends that his trial counsel was ineffective for failing to question the jurors on these legal principles or to request the questioning by the trial court.

Defendant was charged by indictment with multiple counts of aggravated criminal sexual assault, aggravated kidnaping, and robbery arising from the August 2001 sexual assault of T.W. The trial court conducted defendant's jury trial in July 2006.

At the beginning of jury selection, the trial court made the following statements to the venire.

"Mr. Yarbor as with other persons charged with crimes is presumed to be innocent of the charges that bring him before you. That presumption cloaks him now at the onset of the trial and will continue to cloak him throughout the course of the proceedings. That is during jury selection, during the opening statements that counsel will be given an opportunity to make to you, during the presentation of the evidence, during the closing arguments the attorney may give, during the instructions of law I will read and provide to you and on into your deliberations and unless and until you individually and collectively are convinced beyond a reasonable doubt that the defendant is guilty.

It is absolutely essential as we select this jury that each of you understand and embraces these fundamental principles, that is that all persons charged with a crime are presumed to be innocent and that it is the burden of the State who brought the charges to prove the defendant guilty beyond a reasonable doubt.

What this means is that the defendant has no obligation to testify in his own behalf or to call any witnesses in his defense. He may simply sit here and rely upon what he and his attorney perceive to be the State's inability to present sufficient evidence to meet their burden. Should that happen, you will have to decide the case on the basis of the evidence presented by the prosecution.

The fact that the defendant does not testify must be not be considered by you in any way in arriving at your verdict. However, should the defendant elect to testify, or should his attorney present witnesses in his behalf you have to consider that evidence in the same manner and by the same standards as evidence presented by the State's Attorney.

The bottom line, however, is that there is no burden upon the defendant to prove his innocence. It is the State's burden to prove him guilty."

The court then began to question the potential jurors. During the voir dire, the court asked each potential juror, "You heard me discuss the defendant's right to remain silent in this case. Would you be able to follow the law as I stated it?" Each responded in the affirmative. The court also asked, "If the State were to meet their burden of proof and they proved the defendant guilty beyond a reasonable doubt, would you sign a guilty verdict form?" The individual venirepersons answered yes. Additionally, the court asked, "On the other hand, if they failed to meet that burden, would you sign a not guilty verdict form?" The potential jurors each said they would do so. Finally, the court questioned each venireperson if he or she would remain fair to the parties, and each said he or she would. Defendant's attorney declined to ask any questions of the potential jurors.

At trial, T.W. testified that on August 31, 2001, she was 18 years old. While on her way home from school, she took the bus to the 95th and Dan Ryan station in Chicago. At the station, she was approached by defendant. He indicated that he was from out of town and needed help to find his location. T.W. offered to help defendant and willingly got in his car.

After riding in the car for 5 to 10 minutes, T.W. decided to get out of the car because defendant had turned into an alley. She began to walk toward Vincennes Avenue to catch a bus. As she was walking, defendant came up from behind and grabbed her across the face with his arm. Defendant forced T.W. into his car and struck her in the face multiple times with his fists.

Defendant then got on top of T.W. and forced her to engage in oral sex. He then removed T.W.'s clothing and forced her to have vaginal intercourse. Afterward, defendant told T.W. to get out of the car and struck her once more. T.W. tried to grab her purse, but defendant would not let her have it and pushed her out of the car.

T.W. found a friend who took her home. Once at home, T.W. called the police and an ambulance arrived to take her to the hospital. At the hospital, a sexual assault kit was opened and used to collect evidence from T.W.'s body.

T.W. admitted that she originally lied to the police by telling them that she met defendant on the bus and that she was abducted on the street. She testified that she told that story because she was afraid it was her fault since she entered defendant's car willingly. T.W. gave a description of defendant's age, height, weight and race.

In September 2002, the police contacted T.W. and she viewed a photograph array. She identified two individuals in the array as looking like her attacker, one of whom was defendant. She identified defendant in court as her attacker and she was certain he was the one who assaulted her.

Forensic testing was performed on the vaginal swabs taken from T.W. as part of the sexual assault kit. The testing showed the presence of semen on the swab. Further, testing matched the DNA profile in the semen to defendant's DNA profile. According to the forensic scientist, this DNA profile "would be expected to occur approximately 1 in 240 quadrillion a black, 1 in 71 quadrillion white, and 1 in 490 quadrillion Hispanics unrelated individuals." Also, it was determined that defendant does not have an identical twin.

The State was permitted to introduce evidence of other crimes. K.J. testified about an attack that occurred shortly after T.W.'s attack, on September 21, 2001. K.J. was taking a semester off from college to earn money. She was working on Chicago's south side selling cologne to businesses and individuals. K.J.'s supervisor initiated a sale to defendant, but left K.J. to complete the sale. Defendant told her he wished to purchase three bottles, but needed to go to his uncle's house nearby to get the money. K.J. followed defendant to the house, which was a block away from her coworkers. Defendant told her to wait while he got the money. When he returned, he grabbed her around the neck and forced her into an abandoned garage.

Inside the garage, defendant continued to strangle K.J. by lifting her off the ground by her neck. Defendant then forced K.J. to perform oral sex on him. Next, he told her to lie down and he forced her to have vaginal intercourse with him. At one point, K.J. tried to escape, but defendant caught her and struck her in the head with his fists. Eventually, K.J. was able to escape and she returned to her coworkers, told them what happened, and was taken to the hospital. She identified defendant as her attacker.

After the State rested its case, defendant moved for a directed verdict, which the trial court denied. Defendant rested without presenting any evidence.

Prior to deliberations, the trial court made the following statements to the jurors.

"The defendant is presumed to be innocent of the charge against him. This presumption remains with him throughout every stage of the trial and during your deliberations on the verdict and it is not overcome unless, from all the evidence in this case, you are convinced beyond a reasonable doubt that he is guilty.

The State has the burden of proving the guilt of the defendant beyond a reasonable doubt, and this burden remains on the State throughout the case. The defendant is not required to prove his innocence.

The fact that the defendant did not testify must not be considered by you in any way in arriving at your verdict."

Following deliberations, the jury found defendant guilty of two counts of aggravated criminal sexual assault. At defendant's sentencing hearing, the State presented evidence of two additional aggravated criminal sexual assaults committed by defendant as well as defendant's 12 prior felony convictions, including convictions for criminal sexual assault, aggravated battery, unlawful use of a weapon and several narcotics offenses. The trial court sentenced defendant to a mandatory term of natural life in prison. This appeal followed.

On appeal, defendant argues that the amended version of Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007) should be applied retroactively and, thus, the trial court failed to comply with Rule 431(b) when it did not question the prospective...