The People Of The State Of Ill. v. Wheeler

• Decision Date: 31 March 2010
• Docket Number: No. 1-08-1370.,1-08-1370.
• Citation: 927 N.E.2d 829,399 Ill.App.3d 869,340 Ill.Dec. 90
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee,v.James WHEELER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

399 Ill.App.3d 869
927 N.E.2d 829
340 Ill.Dec. 90

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
James WHEELER, Defendant-Appellant.

No. 1-08-1370.

Appellate Court of Illinois,
First District, First Division.

March 31, 2010.

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COPYRIGHT MATERIAL OMITTED

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Adrienne River, Patricia Unsinn, Deputy Defender, Michael J. Pelletier, State Appellate Defender, Office of the State Appellate Defender, Chicago, IL, for Defendant-Appellant.

James F. Fitzgerald, Mary L. Boland, Brian W. Reidy, Anita Alvarez, State's Attorney, County of Cook, Chicago, IL, for Plaintiff-Appellee.

Justice GARCIA delivered the opinion of the court.

The defendant, James Wheeler, was convicted of residential burglary by a jury and sentenced to 15 years' imprisonment. He seeks automatic reversal under the plain error doctrine based on the trial judge's alleged violation of Illinois Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007) for failing to establish that each prospective juror understood and agreed with the four principles enunciated by our supreme court in People v. Zehr, 103 Ill.2d 472, 83 Ill.Dec. 128, 469 N.E.2d 1062 (1984). The State counters the trial judge complied with Rule 431(b) and, in any event, the alleged error is not a second-prong plain error, triggering automatic reversal.

We find the trial judge violated Rule 431(b), but the violation did not challenge the integrity of the trial process such that automatic reversal is triggered. We follow the line of decisions since People v. Glasper, 234 Ill.2d 173, 334 Ill.Dec. 575, 917 N.E.2d 401 (2009), holding a violation of Rule 431(b) is not a second-prong plain error. Because the defendant makes no claim that the Rule 431(b) error is a first-prong plain error, the claimed error is forfeited. We affirm.

BACKGROUND

In the early morning of January 15, 2006, Daryl James Mortensen returned to

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his home in a western suburb to find some of his belongings missing and one of his windows open. Mortensen called the village police, who dusted his apartment for fingerprints. The police obtained one set of prints from a vase that had been in Mortensen's sole custody for at least seven years. Mortensen had used the vase to store coins but the vase was empty when he returned home.

On May 7, 2006, the defendant was arrested outside his Chicago apartment. Edward Rottman, a fingerprint examiner for the Illinois State Police, found that two of the fingerprints lifted from the vase matched the defendant's. After a trial in April 2008, a jury found the defendant guilty of residential burglary.

In the course of jury selection, Judge Lawrence W. Terrell admonished the venire of the four principles set forth in Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007). The judge informed the venire:

“Every defendant in our country is presumed to be innocent of the charges. This presumption remains with the defendant throughout every stage of the trial, even through your deliberations on your verdict.

* * *

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.

A defendant is not required to prove his or her innocence, nor is a defendant required to present any evidence at all. Any defendant may simply rely on the presumption of innocence.

Moreover, every defendant has a Constitutional right not to testify, and the jury cannot draw any inference of guilt if the defendant fails to testify.”

After announcing these principles, the judge discussed the division of labor between judge and jury, the requirement that the jury arrive at a decision only after hearing all evidence and arguments, and the prohibition against allowing one's prejudices or sympathies to taint the verdict. He then discussed administrative matters, such as the purpose of objections, the requirement that jurors not discuss the case outside of court, and the procedure for recesses and lunch breaks.

Only after a relatively lengthy discussion of matters unconnected to the Zehr principles he announced earlier, did the trial judge question the venire directly. He asked the first group of prospective jurors: “The principles of law I described earlier, are you in agreement with those principles?” Each eventual juror answered affirmatively. In questioning the second group of prospective jurors, the judge asked whether they agreed with “the presumption of innocence and the burden of proof” in addition to “ the principles of law I described earlier.” Each eventual juror answered affirmatively.

The selected jurors found the defendant guilty; he was sentenced to 15 years in prison. This timely appeal followed.

ANALYSIS Compliance With Rule 431(b)

Underlying his claim of plain error, the defendant contends the trial judge erred by not “strictly [complying] with amended Supreme Court Rule 431(b).” The State responds the trial judge followed Rule 431(b) by noting strict compliance is not required: the rule does not require “ ‘magic words' or ‘catechism.’ ”

We examine whether the trial judge complied with Rule 431(b), but only to determine whether plain error occurred. We find no aid to our plain error analysis

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to decide whether the rule requires “strict” or, as the State suggests, substantial compliance. See People v. Garstecki, 234 Ill.2d 430, 445, 334 Ill.Dec. 639, 917 N.E.2d 465 (2009) (“Because the trial court complied with the rule's mandatory obligation, we are not presented with the question of whether the rule is mandatory or directory”). Rule 431(b) mandates that each prospective juror be asked about his or her acceptance and understanding of each of the essential principles, now referred to as the Zehr questions. In the course of making such an inquiry, the method employed by the trial judge must afford “each juror an opportunity to respond to specific questions concerning the principles set out in this section.” Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007. We examine the record to determine whether the clear mandates of the rule were followed. Both sides agree that “[t]he issue of compliance with a supreme court rule is reviewed de novo.” People v. Garner, 347 Ill.App.3d 578, 583, 283 Ill.Dec. 460, 808 N.E.2d 10 (2004).

In 1984, our supreme court declared: “[E]ssential to the qualification of jurors in a criminal case is that they know that a defendant is presumed innocent, that he is not required to offer any evidence in his own behalf, that he must be proved guilty beyond a reasonable doubt, and that his failure to testify in his own behalf cannot be held against him.” Zehr, 103 Ill.2d at 477, 83 Ill.Dec. 128, 469 N.E.2d 1062.

In 1997, the supreme court amended Rule 431(b) to require the Zehr questions be asked when requested by the defendant by replacing the word “may” with “shall.” 177 Ill. 2d R. 431(b). In 2007, the supreme court again amended Rule 431(b) to place “an affirmative sua sponte duty on the trial courts to ask potential jurors in each and every case whether they understand and accept the Zehr principles.” People v. Graham, 393 Ill.App.3d 268, 273, 332 Ill.Dec. 504, 913 N.E.2d 99 (2009); Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007. The Committee Comments continue to state that the rule “seeks to end the practice where the judge makes a broad statement of the applicable law followed by a general question concerning the juror's willingness to follow the law.” 177 Ill. 2d R. 431(b), Committee Comments, at lxxix.

Here, the trial judge recited each of the four Zehr principles to the entire venire, followed by a recitation of matters not pertaining to the Zehr principles. After this relatively lengthy recitation, he proceeded to ask the first group of prospective jurors whether they agreed with “[t]he principles of law I described earlier.” In addition to this question, the trial judge asked the second group of prospective jurors whether they agreed specifically with “the presumption of innocence and the burden of proof.” As the State points out: “Of the 14 jurors selected, 9 jurors were asked if they agreed with the principles of law discussed earlier. With the other jurors selected, the court asked the jurors if they agreed with the principles of law discussed earlier, and specifically stated the presumption of innocence and the burden of proof.”

We find the trial judge's inquiry of the first nine jurors, as to whether they agreed with the “principles” he had addressed earlier, fell short of the inquiry required by Rule 431(b). The question put to this first group of prospective jurors was much like “a general question concerning the juror's willingness to follow the law” that Rule 431(b) sought to prohibit. 177 Ill. 2d R. 431(b), Committee Comments, at lxxix; see People v. Arredondo, 394 Ill.App.3d 944, 953-54, 334 Ill.Dec. 375, 916 N.E.2d 1263 (2009) (trial judge's general

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inquiry about the “appropriate verdict form” was general questioning concerning the jurors' willingness to follow the law, which Rule 431(b) sought to prohibit).

To be clear, we do not suggest that the rule requires questioning of each prospective juror, either individually or in a group, regarding the acceptance and understanding of each Zehr principle, although following this method would obviate plain error review on appeal. See People v. Strickland, 399 Ill.App.3d 590, 601-04, 339 Ill.Dec. 269, 926 N.E.2d 744 (2010) (rejecting claim that the voir dire method employed by the circuit court violated Rule 431(b)).

We do find, however, that the questioning of the prospective jurors about each Zehr principal must be timely connected to an “opportunity to respond to specific questions concerning the principles.” Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007. As...