2021 IL App (1st) 181002
Ill. App. Ct.2021Background:
- Undercover officer Angela Pittman bought a small bag of heroin in a "buy/bust"; she testified Ticey (driver) handed a Ziploc of white powder to codefendant Goodman, who completed the sale.
- Goodman (passenger) testified for the defense that he alone sold the heroin, that Ticey only drove him to a hospital and sold cigarettes to get gas money, and that Ticey did not possess or pass narcotics.
- Goodman pled guilty to related charges and received probation; he testified at trial for the defense and wholly exculpated Ticey.
- After an initial mistrial, a second jury convicted Ticey of delivery of a controlled substance; the trial court sentenced him to 8½ years' imprisonment.
- On appeal, the court found the trial judge failed to ask the venire the fourth Zehr/Rule 431(b) admonition (that a defendant's decision not to testify cannot be held against them) and that the trial court erroneously gave the IPI accomplice instruction despite Goodman’s exculpatory defense testimony.
- The appellate court held the Rule 431(b) omission and the accomplice instruction were reversible error in this closely balanced credibility contest and reversed and remanded for a new trial.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Voir dire: Omission of Rule 431(b) fourth principle (failure to testify cannot be held against defendant) | No reversible error; trial covered the "subject matter" and defendant forfeited the claim | Trial court did not specifically ask jurors whether they understood/accepted the fourth principle; plain error review warranted | Court found Rule 431(b) violation; evidence closely balanced; error could have influenced verdict — new trial ordered |
| Use of accomplice instruction (IPI Crim. 4th No. 3.17) | Instruction within court's discretion; probable cause existed that Goodman was an accomplice and instruction can be given even if witness testifies for defendant | Instruction was improper because Goodman’s testimony wholly exonerated Ticey and the instruction unfairly discredited the defense's sole witness | Court held the instruction was improper where accomplice witness fully exonerated defendant in a closely balanced case and could prejudice defendant — error warranted reversal |
| Trial court answer to jury note during deliberations ("touch and pass" question) | Trial's answer was a question of law and appropriate; no coercion | Answer effectively directed verdict / deprived fair deliberations | Court did not decide this issue because reversal on other grounds made further review unnecessary |
Key Cases Cited
- People v. Zehr, 103 Ill.2d 472 (establishes the four Zehr principles to be given in voir dire)
- People v. Belknap, 2014 IL 117094 (failure to ask each Rule 431(b) principle is error)
- People v. Thompson, 238 Ill.2d 598 (Rule 431(b) requires opportunity for each juror to respond; de novo review of compliance)
- People v. Sebby, 2017 IL 119445 (instructional error in a closely balanced case can warrant a new trial)
- People v. Fane, 2020 IL App (2d) 180151 (accomplice instruction should not be given where accomplice witness wholly exculpates defendant)
- People v. Krush, 120 Ill. App.3d 614 (total exoneration by accomplice precludes accomplice instruction)
- People v. Dodd, 173 Ill. App.3d 460 (instruction inappropriate where witness’ testimony fails to implicate defendant)
- People v. Kirchner, 194 Ill.2d 502 (accomplice instruction may be proper where probable cause exists that witness aided/abetted)