The People Of The State Of Ill. v. Chester

• Decision Date: 12 January 2010
• Docket Number: No. 4-08-0841.,4-08-0841.
• Citation: 339 Ill.Dec. 248,926 N.E.2d 723,396 Ill.App.3d 1067
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee,v.Gregory J. CHESTER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

396 Ill.App.3d 1067

926 N.E.2d 723

339 Ill.Dec. 248

The PEOPLE of the State of Illinois, Plaintiff-Appellee,v.Gregory J. CHESTER, Defendant-Appellant.

No. 4-08-0841.

Appellate Court of Illinois,

Fourth District.

Jan. 12, 2010.

Michael J. Pelletier, Gary R. Peterson, and Karen Munoz, all of State Appellate Defender's Office, of Springfield, for appellant.

William A. Yoder, State's Attorney, of Bloomington (Patrick Delfino, Robert J. Biderman, and Aimee Sipes Johnson, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

Justice POPE delivered the opinion of the court:

In October 2007, defendant, Gregory J. Chester, was indicted on three counts of aggravated battery (720 ILCS 5/12-4(a), 12-4(b) (6) (West 2006)) and one count of resisting a peace officer (720 ILCS 5/31-1(a-7) (West 2006)). Following a jury trial, defendant was convicted and sentenced to 12 years' imprisonment for aggravated battery (McLean County case No. 07-CF-1069) with the sentence to run consecutive to defendant's sentences in McLean County case No. 07-CF-797 of 5 years' imprisonment for obstructing justice and 364 days in jail for resisting arrest. Defendant appeals only on issues raised in his aggravated-battery case (McLean County case No. 07-CF-1069), arguing the following: (1) the trial court violated Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007); (2) the State improperly commented during closing argument on defendant's exercise of his right to refrain from testifying and presenting evidence; and (3) the trial court abused its discretion in sentencing defendant to 12 years' imprisonment. We affirm.

I. BACKGROUND

On October 6, 2007, Bloomington police officer Andrew Chambers was in complete police uniform patrolling in a marked police car when he passed a purple Cadillac driven by defendant, who Officer Chambers knew did not have a valid driver's license. After Officer Chambers activated his car's lights and siren, the Cadillac pulled into the driveway of an apartment complex. Defendant exited the vehicle and looked back at Officer Chambers, then proceeded to take off running. Officer Chambers got out of his vehicle and, standing approximately 20 feet from defendant, yelled at defendant to stop. Defendant proceeded into the common area of the apartment building through a steel door. As Officer Chambers followed, defendant slammed the door into the officer. Officer Chambers shielded his face with his left arm. He immediately felt extreme pain, and his fingers went numb when the door slammed on his arm.

Once inside the building, Officer Chambers attempted to deploy his taser, but the probe fell off in the hallway. As he proceeded up the stairs, defendant yelled, “[B]aby, police are chasing me. Open the door.” Officer Chambers followed defendant up the stairs and saw defendant banging on the door of apartment C, saying “let me in, let me in.” A female inside the apartment opened the door for defendant, who entered the apartment and slammed the door on Officer Chambers' right arm. Officer Chambers braced himself and pushed the door back on defendant, knocking him to the ground. Defendant continued to resist arrest as Officer Chambers attempted to subdue him with pressure-point tactics. Defendant ripped the officer's uniform and ripped off his credentials and badge. Officer Chambers was eventually able to conduct a “drive stun” on defendant, holding the gun directly against defendant's body. The drive stun was not successful, and defendant continued hitting Officer Chambers and became more aggressive in his resistance. The officer issued a second drive stun for approximately five seconds. Defendant dropped his arms to his side and said, “I quit.”

X-rays of Officer Chambers's left arm revealed fractures in the ulna and radius, both of the bones in the forearm. Because of the injuries he sustained, he was in physical therapy for 1 1/2 months and missed approximately 3 months of work.

After presenting its case, the State dropped one count of aggravated battery (720 ILCS 5/12-4(b)(6) (West 2006)) as improperly charged. The jury convicted defendant of the remaining two aggravated-battery charges and resisting a peace officer. After the trial court found the resisting charge and one of the aggravated-battery charges merged with the remaining count of aggravated battery, the court sentenced defendant as stated.

This appeal followed.

II. ANALYSIS

A Voir Dire

Defendant argues the trial court violated 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 jurors on the third and fourth Rule 431(b) principles, which provide defendant is not required to present evidence on his own behalf and defendant's choice not to testify may not be held against him. Defendant concedes he failed to preserve this issue for review but maintains the issue may be addressed by this court as it constitutes plain error.

The plain-error doctrine allows a reviewing court to consider an unpreserved and otherwise forfeited error when “(1) the evidence is close, regardless of the seriousness of the error[;] or (2) the error is serious, regardless of the closeness of the evidence.” People v. Herron, 215 Ill.2d 167, 186-87, 294 Ill.Dec. 55, 830 N.E.2d 467, 479 (2005). A harmless-error analysis applies when the defendant timely objected to the error. People v. Johnson, 388 Ill.App.3d 199, 203, 327 Ill.Dec. 879, 902 N.E.2d 1265, 1268 (2009). Because defendant failed to object at trial, we analyze any error under the plain-error doctrine. However, before we consider the plain-error doctrine, we must determine whether the trial court committed an error. We review the trial court's compliance with a supreme court rule de novo. People v. Suarez, 224 Ill.2d 37, 41-42, 308 Ill.Dec. 774, 862 N.E.2d 977, 979 (2007).

In People v. Zehr, 103 Ill.2d 472, 477, 83 Ill.Dec. 128, 469 N.E.2d 1062, 1064 (1984), our supreme court held essential to the qualification of a jury in a criminal case is each juror's knowledge of the following four principles: (1) a defendant is presumed innocent, (2) he is not required to present evidence on his own behalf, (3) the State must prove him guilty beyond a reasonable doubt, and (4) his decision not to testify may not be held against him. The subject matter of these principles should be addressed in the course of voir dire as a juror's prejudice as to any of them would not be automatically cured with closing remarks by counsel or jury instructions from the trial court. Zehr, 103 Ill.2d at 477, 83 Ill.Dec. 128, 469 N.E.2d at 1064.

In 1997, our supreme court adopted Rule 431(b) to embrace the voir dire principles established in Zehr. 177 Ill. 2d R. 431(b). The original rule provided, “[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. (Emphasis added.) 177 Ill. 2d R. 431(b). At that time, the trial court had no obligation to sua sponte question jurors as to the Zehr principles. People v. Graham, 393 Ill.App.3d 268, 272, 332 Ill.Dec. 504, 913 N.E.2d 99, 103 (2009).

However, effective May 1, 2007, the supreme court amended the language to require trial courts to question jurors on the Rule 431(b) principles without a defendant's prompting, providing:

“ ‘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.’ ” People v. Arredondo, 394 Ill.App.3d 944, 950, 334 Ill.Dec. 375, 916 N.E.2d 1263, 1268 (2009), quoting Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007.

By removing the language that only required Zehr questioning at defendant's request, our supreme court imposed a sua sponte duty on courts to ask potential jurors individually or in a group whether they accept these principles. Graham, 393 Ill.App.3d at 273, 332 Ill.Dec. 504, 913 N.E.2d at 103. In carrying out this new duty, trial courts are required to allow each juror to respond. Graham, 393 Ill.App.3d at 273, 332 Ill.Dec. 504, 913 N.E.2d at 103.

The trial in the present case occurred after the 2007 amendment became effective. Thus, the trial court had a duty to question the jurors about the Rule 431(b) principles and allow the jurors to indicate whether they accepted the principles.

During voir dire in the present case, the trial court addressed the Rule 431(b) principles as follows:

“The defendant in this case is presumed to be innocent of the charges against him. This presumption remains with the defendant throughout every stage of the trial and during the jury deliberations on the verdict, and it is not overcome unless from all the evidence in this case the jury is convinced, both individually and collectively, that the defendant has been proven guilty beyond a reasonable doubt.

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 trial court then asked the potential jurors in groups, row by row, whether they understood and accepted those basic propositions of law. Everyone answered in the affirmative. After the court addressed individual issues with jurors, defense counsel began questioning. Defense counsel told the prospective jurors the following:

“N

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