*1 admissibility Fonner, of the App. refusal. 3d at 543. The appellate if person court concluded that even who refused the test could the proposed show that would have noncompliant test been if taken, person has any potential still refused the test and noncompliance would nullify summary the basis for suspen Fonner, sion. 3d at 543. case,
In undisputed the instant it is that the defendant refused to testing Therefore, submit to from the outset. section 11—501.2 does apply not even no need because there was for a 20-minute observation period testing. testing, before Had the defendant submitted to at that point a period 20-minute observation should commenced prior have testing Department. However, as promulgated by the because the testing, requirement defendant refused to submit to there was no for a 20-minute period. language observation The clear of the promulga- require tions subject does not officers to observe a for at least prior requesting subject testing, minutes that the submit to nor was provide that the promulgations intent drafters. The that after the subject testing, consented to must has officer observe the subject prior obtaining test, for at least 20 minutes breath prior obtaining subject’s testing. consent submit to
Accordingly, judgment we reverse the entered the circuit court County of St. rescinding statutory Clair the defendant’s summary suspension.
Reversed. STEWART,JJ., concur. SPOMER and ILLINOIS, Plaintiff-Appellee, THE THE PEOPLE STATE OF JAMES OF ANDERSON, Defendant-Appellant. (1st Division) District No. 1 — 07—1768
First Opinion filed March *2 GARCIA,J., dissenting. Pelletier, Koch, Unsinn, Ap-
Michael J. Patricia and Brian E. all of State Office, pellate Chicago, appellant. Defender’s (James Alvarez, Fitzgerald, Attorney, Chicago Anita M. State’s E. Alan Gaines, Spellberg, Connolly, J. Clare and Carol L. Assistant State’s At- Wesolik torneys, counsel), People. for the opinion
JUSTICE of the court: LAMPKIN1 delivered Supreme The amended Illinois Court Rule went into effect James May Jury on selection the murder case later, began May three 2007. The found Anderson weeks on aggravated battery with a degree defendant of first murder and appeal, firearm. Defendant raises on but we focus on several issues 431(b) (Ill. complied of whether the trial court with Rule 431(b) (eff. 2007)) not, and, if May conducting S. Ct. R. voir dire whether the defendant’s should be reversed for another convictions trial. reverse and remand. We opinion originally by Justice
1This authored Justice Warren Wolfson. Supreme Lampkin appointed Appellate to the Court the Illinois Illinois 25, 2009, Wolfson,retired, September replacing as a member Court on Justice along panel assigned Lampkin, with the on the to review this case. Justice pursuant to the panel, other reconsidered this case members has Anderson, Supreme supervisory 233 Ill. 2d Court’s order. N.E.2d 487
FACTS May
On agreed codefendants, to drive the Christopher Washington Smith, neighborhood Sheldon to a where the codefendants shot three individuals. Two of the victims were injured defendant, and one According died. merely the codefendants asked him to drive them marijuana. to obtain Defendant testified he did not know the codefendants intended to shoot the victims. Defendant said he continued to follow the codefendants’ instructions targets chose their because he feared safety. for his Defendant attempted never to withdraw himself from the report scene or the of- fenses. Washington,
Codefendant pled guilty who to his involvement the offenses and was sentenced to years’ imprisonment, testified he was in a midnight car around in question looking avenge date gang Washington fellow member’s death. did not know the driver of Washington the car. was armed. people, He shot three in different victims, locations. He said he shot all the but he did not instruct car, driver to slow the car in order to do police so. The chased the Washington and the driver left it away. Washington caught to run and arrested.
Although members, originally gang Washington he named two rival eventually implicated defendant and Washington codefendant Smith. police said at trial the him forced to name defendant and codefendant *3 backgrounds. Smith because of their criminal Washington agreed videotape had It his statement. was trial, videotaped introduced into evidence. At he said most of the he, videotape, Washington statement was untrue. In the said defendant, and by gang gang Smith were selected their to shoot rival exchange drugs members in and money. Defendant drove the car. handguns Defendant and Smith were armed with and at all three shot throughout Washington different individuals neighborhood. said trial, he by police. “jacked” was treated well At he testified he was police. Attorney and Detective John Otto testified he Assistant State’s (ASA) January William Merritt interviewed defendant on rights, Otto advised defendant of his Miranda which defendant waived. shootings Defendant admitted he drove the vehicle involved Washington passengers. while Smith and rode as When Otto con- fronted defendant inconsistencies between his confession and statement, shootings Washington’s diagram defendant drew a during vehicle as he remembered them. Defendant said he drove the shooting. never he was threatened at each Defendant told Otto testimony with that of Detec- gunpoint. ASA Merritt’s was consistent Otto, driver, he was the but not a shooter. adding tive defendant said The videotaped. have his confession consented to Defendant videotaped statement The videotape was admitted evidence. statement, in shock adding he was oral consistent with defendant’s He did not driving as told. shooting, but he continued after the first say gunpoint. at he was threatened Washington Smith were he did not know
Defendant testified marijuana. driv- them to obtain While agreed armed he to drive when near two men defendant to slow down ing, Washington first instructed window, asked Washington rolled down standing on a corner. shocked, he Defendant was but marijuana, men for then shot at them. to the next away. complied. way He On the was instructed to drive car location, told defendant to slow the when Washington Smith he they another individual. Smith asked that individual whether saw gang he a rival member. marijuana had and whether responded questions. no to both Smith shot him. Defendant individual stop then drove to the next location as instructed. He was told to alley. Washington when reached a man in an asked the man marijuana. Then he shot him. about cross-examination,
On defendant said he did not want to continue car, driving he gunpoint. was ordered to at Defendant admit- statement; however, ted he did not include that fact in his videotaped he gave videotaped said it to the detectives before he statement. Anderson testified he to the drove second location as instructed thought disagreed. because he he would be shot if he said Defendant stopped during he shooting, attempt car the second but did not knowing Washington exit because he afraid. Defendant denied alley, Smith intended to shoot the man in the but admitted he again. drove the car around the block to find the man When unsuc- cessful, Washington Smith and and approached exited the car another individual. he Defendant was instructed to wait the car and individual, complied. Washington Smith and shot told then away. defendant to drive Defendant tried to slow the car when the police approached, but was instructed to turn on a dead-end road and speed up. complied away He and did exit the car to run until Page instructed. County. Defendant later moved to Du Defendant evading police, reported denied but admitted he the offenses never family’s safety. because he feared for his and his aggravated battery found defendant *4 victim, aggravated battery with a firearm of the first of of the third degree firearm of the second victim and first murder theory accountability. of victim. Both convictions were based on years’ imprison- Defendant sentenced to consecutive terms of 35 degree years’ imprisonment ment for the first murder count and 10 for aggravated battery with a firearm count. timely appeal This followed.
DECISION 431(b)
I. Rule
We first turn to the issue of whether the
complied
court
with the
431(b)
requirements
conducting
and,
of Rule
not,
voir dire
if
compliance may
whether lack of
be considered harmless error.
431(b)
Defendant did not make
objection.
a Rule
People
See
v.
(1988) (in
Enoch,
176, 186,
122 Ill. 2d
N.E.2d
order to
preserve
review,
appellate
an error for
object
the defendant must
at
motion).
alleged
trial and include the
posttrial
a
The State
contends the defendant forfeited the Rule
by failing
issue
timely objection
make a
and by omitting the issue from
posttrial
his
recognize,
suggested
defendant,
motion. We
rigid
a
ap
“less
plication of the
applied
waiver rule” is
when the trial court’s conduct
Nevitt,
is at the center of the claimed
455,
People
error.
v.
135 Ill. 2d
(1990);
Stevens,
substantial
forfeiture
either of two circumstances:
“First, where
closely
the evidence
a case is so
that the
balanced
jury’s guilty
may
verdict
have resulted from the error and not the
evidence,
reviewing
may
court
consider a forfeited error in order
preclude
argument
wrongly
that an innocent man was
Second,
[Citation.]
convicted.
where the error is so serious that
trial,
defendant was denied a substantial
and thus a fair
reviewing
may
preserve
consider a forfeited error in order to
integrity
judicial
Herron,
process.” People
(2005).
167, 178-79,
The court conducted voir dire and The court group prospective jurors: first told the entire case, by way charges gentlemen, “The in this ladies and come County Jury They any indictment. evidence a Cook Grand presumed charges guilt against [defendant]. He is innocent proving guilty beyond him a reason- and the State has the burden able doubt.” *5 brought forward. panel jurors of then prospective
The first The judge said: earlier, innocent of presumed I indicated defendant is
“As charges. proving burden of the defendant State has the required is not guilty beyond a reasonable doubt. testify innocence, required or call witnesses his nor is he prove own behalf. on his proof beyond of a reasonable the State meet their burden
Should could not or doubt, jury in the box who anybody is there seated your jurors and the go jury not into the room with fellow would give you sign I a verdict governs case as and law that this do that guilty? Anybody could not not for form of who or would any reason?
(No response.) audible proof burden of response. No Should the State fail meet their beyond doubt, anybody jury in the a reasonable is there seated box your go jury who could not or would not into the room with fellow you jurors governs give and the law this case I it to and as form sign guilty? a verdict of not
(No response.) audible response.”
No Eight panel. eight jury jury members were selected from this After the selected, jury members were were sent to room and were not present dire remaining panels. for voir of the panel jurors brought forward, the second potential
When the judge said: gentlemen, your you
“Ladies and I wish to thank for time and earlier, patience. charges I against As indicated the defendant by way any Jury They come of a indictment. not Grand evidence against the defendant. charges against
The defendant is presumed innocent of the him proving beyond and the State has him the burden of reason- He is required able doubt. to call on his own behalf witnesses testify or on his own behalf. anybody any qualms problems
Is there who has or with those propositions of law?
(No response.) audible beyond response. proof meet their No Should the State burden doubt, anybody jury box a reasonable there in the who seated jury your jurors fellow go could not or would not into the room with you governs give and follow the law this case I it to and sign Anybody a verdict form not or would not guilty? who could any do that for reason? (No response.) audible response.
No Should the State meet proof fail to their burden of beyond doubt, anybody reasonable is there seated in the box who go could not or would your into the room with fellow jurors governs give and the I you law this case as it to sign guilty? the verdict form not (No response.) audible response.”
No Four were panel selected serve from this juror one as an selected alternate.
When the the third panel, judge court called said:
“Again, gentlemen, you your ladies and I to thank time wish patience. remarks, my opening indicated in As the defendant is presumed charges him innocent and the has State the burden him proving guilty beyond a reasonable doubt. *6 anyone any problems qualms
Is there who has or with that proposition of law?
(No audible response.) response. required prove No The defendant is to his in- not required nocence. He testify is not to call or on his own witnesses behalf.
If the proof beyond State meets their burden of a reasonable doubt, anybody is there seated in the box who not or could your would go not into room fellow and law governs give you this case as I to sign and a verdict form guilty? Anybody of who would or could do not not that? (No response.) audible response.
No If the State to of should fail meet their burden proof doubt, beyond anybody a reasonable is there who could sign or would the law verdict form guilty. not follow and a of not (No response.) audible response.” No juror selected panel.
One alternate from this challenge The defense court’s of the questioning does not the trial and third juror panels. question- second We focus our attention on the ing panel, eight jurors first which were selected. from statutory
The canons of to rules. apply construction (2002). 324, 332, v. Ill. 2d Our Oliphant, Robidoux 201 goal and primary give is to ascertain effect to the intent of the drafters Robidoux, and by relying plain ordinary language of the rule. Ill. 2d at 201 332. The court has said: promulgated aspirational. “The we have are not rules of court law, They They the force of and the suggestions. are not have they obeyed as presumption must be that will be enforced Dicke, 204, 210, Bright written.” 166 Ill. 2d 652 N.E.2d v. law, which we supreme court rules is a of of Construction Robidoux, Ill. 2d at 332. review de novo. provides: 431(b), May as effective amended juror, individually or in potential
“The court ask each shall accepts following juror understands group, whether that (1) presumed innocent the defendant is principles: (2) her; can against him or that before a defendant be charge(s) beyond prove must the defendant convicted State (3) to doubt; required is offer reasonable (4) behalf; defendant’s any evidence his or her own that the on however, her; him or no testify to cannot be held failure juror made the defendant’s inquiry prospective of a shall be into objects. testify failure to when the defendant inquiry provide juror op each The court’s method shall portunity respond specificquestions concerning principles (eff. added.) Ill. (Emphasis in this S. Ct. R. set out section.” 2007). 1,May amendment, required the 2007 the court was to admonish
Before the jurors accepted and ascertain whether understood and principles Zehr, People enumerated announced in (1984), Ill. requested by “[i]f N.E.2d 1062 the defendant.” 177 2d 431(b). that, R. Before 431 was amended ensure changing compliance principles by with the Zehr the court’s voir dire requirements discretionary from to compulsory amending the word O’Brien, “may” to “shall.” See 754 N.E.2d (2001) (use expression the word “shall” is “construed a clear legislative impose mandatory obligation”). intent It axiomatic rules are designed that amendments to serve County Collector, some In purpose. Application re *7 (2005). 670, 668, 3d 826 must the N.E.2d 951 We construe rule amendments, of purpose relying consistent with the the presumption that to the law in supreme change the court intended Collector, Application County 1997 and 2007. See In re the 356 Ill. of App. 3d at 670. 431(b) The clear language requires of Rule the court to ensure jurors know, understand, accept qualified to the enumerated Zehr, provided and are principles opportunity respond. See 103 practice judge Ill. 2d at 477. The rule “seeks the the to end where by general applicable makes a broad statement of the law followed juror’s the the law.” 177 Ill. concerning willingness follow 431, Comments, 2d R. Committee at lxxix. requested the 2007 language “[i]f
When amendment deleted the defendant,” by charged rule courts with an the the affirmative 864
sua sponte duty
potential
to ask
jurors
they
whether
understand and
accept
principles
every
Zehr
in each and
People Magal
case.
v.
lanes,
72,
(2009),
Graham,
397 Ill.
3d
App.
citing
82
v.
Ill.
People
393
273,
App.
268,
3d
(2009);
Arredondo,
913 N.E.2d
People
99
Ill.
v.
394
950,
App.
944,
(2009);
3d
Madrid,
amended rule seeks to end. See 177 Ill. 2d R.
Committee Com
ments.
regard
jurors,
With
to the first
of
panel
prospective
from which
eight
selected,
were
only
the court
provided
three
the four Zehr
form,
principles
questions. Asking
panel
narrative
the first
group
members as a
would
they
sign
appropriate
whether
verdict
form if the
had
State
or had not met its burden
was a
proof
“general
question concerning
juror’s willingness
to follow the law.”
Ill.
431,
2d R.
Comments,
Committee
at lxxix. The court did not
adequately
empaneled
determine
the majority
whether
accepted
understood and
four
any
principles.
Zehr
The court’s
inquiry
satisfy
did not
Rule
error.
constitutes
30,
September
2009,
On
supreme
supervisory
our
court
issued
(2009))
Anderson,
(People
order
v.
In supreme Glasper, application court considered whether appropriate harmless error the trial refused where court to ask members, defendant, requested by venire whether testify understood that defendant’s decision not to could be time, Glasper, held him. at 189. At the the 1997 Glasper, version of Rule was in effect. 2d at 200. The held, case, Glasper pursuant court the facts of the failure to 431(b)(4) comply with the 1997 version of Rule constituted harmless Ill. 2d at Glasper, error. 431(b)(4) so,
In
doing
supreme
found the
court
Glasper
right provided
did not constitute a structural error where the
the rule
not “a
or even
constitutional
fundamental
Rather,
protection.” Glasper,
However, the supreme court said: holding is to the version of emphasize that this limited
“We 431(b)(4) trial, the and that in effect at time instant was versions of the rule. We necessarily apply subsequent not would 431(b)(4) a viola holding we are not that Rule also make clear that Glasper, 234 Ill. 2d at error.” tion could never result a reversible 200. the analysis appropriate The harmless-error not under Glasper Here, applicable facts of this case. version of Rule stated, requires amended in 2007. 2007 amendment that trial As jurors know, understand, accept and the Zehr judges ensure all indicate principles, provided opportunity and with an their understanding acceptance them. the 1997 version was While 200), Ill. permissive (Glasper, 2d at court intention ally Zehr questioning amended 2007 to mandate every each and defendant.
Here, panel, judge inquired the trial never of the first from which jurors selected, knew, understood, eight they accepted were or whether principles. panel apprised all four of the Zehr of the first innocent, principles, namely, presumed three that defendant doubt, prove a guilty beyond State had to reasonable any evidence; however, and that defendant did have to offer asked, judge individually group, jurors never or as whether the accepted principles. understood these Unlike the defendant jurors asking Glasper, merely impaneled here were not without accepted whether defendant’s understood decision testify Therefore, whether to could not used him. be 431(b)(4), only instant trial court comply failed to with Rule 431(b)(1) (b)(3). is, through also comply failed to with Rules There therefore, way or unbiased. no know whether were biased right impartial to an is a or other substantial Il right” words “a under both the United States and constitutional Bean, 560 N.E.2d linois Constitutions. See (1990) examples rights analyzing (discussing of substantial while during dire whether the defendant’s absence in camera voir amounted such). prosecu all criminal provides “[i]n The sixth amendment *** tions, trial, impartial enjoy right the accused shall Const., jury.” VI, XIV; I, §§8, U.S. amends. art. Const. The Supreme Court said: guarantee right impartial
“[P]art defendant’s to an adequate identify is an unqualified jurors. [Citations.] voir dire to plays ‘Voir dire in assuring critical function the criminal *9 his right [constitutional] defendant that to an impartial will be honored. an adequate Without voir the trial judge’s responsibil- dire ity prospectivejurors to remove who impartially will be able follow court’s instructions and evaluate evidencecannot be Illinois, 719, 729-30, [Citation.]” fulfilled.’ Morgan v. 504 119 U.S. (1992) 503, 492, 2222, (holding L. Ed. 2d trial court the venire 112 2230 S. Ct. required, upon request, question defendant’s regarding potential capital members bias in case trial). order ensure fair And, plain Bean, violations of rights substantial constitute error. 137 Ill. 2d at 81. 431(b) questions out in qualifica set Rule are “essential to the Zehr,
tions of
Instructing
a criminal case.”
“If against any guarantees, has a of these basic given instruction at the end of the will ef trial have little curative Zehr, fect.” Ill. 2d at 477. (1988) Starks,
See v. People N.E.2d (“Zehr teaches that admonitions and instructions are no substitute for added)). interrogation” (emphasis amending act of rule very compulsory supreme to make recognized Zehr demonstrates the court principles securing the enumerated are fundamental to a fair and impartial jury. weight
We
of the
need
consider
evidence
in the
plain
because we have found the
error described
second
is,
circumstance of the Herron test. That
the instant Rule
“is so
denied
serious
defendant was
a substantial
thus
that,
Herron,
having
a fair
215 Ill. 2d at
Once
said
trial.”
178-79.
inquire
there is no need to
into the harmfulness of the error or the
prejudice
measure
incurred
Plain error is
defendant.
revers
Keene,
ible error.
Ill. 2d
The facts this case dictate reversal for error because of 431(b). egregious comply trial We court’s failure to await supreme from error oc- instruction our court to whether reversible any curs time court or all of Rule every comply a trial fails 431(b). Remaining
II. Contentions 431(b) issue, need we see no disposition of the Rule
Because our other to consider defendant’s contentions.
CONCLUSION case and remand this judgment
We reverse the court for a new trial. and remanded.
Reversed
HALL, EJ., concurs. GARCIA, dissenting:
JUSTICE
(2009),
In
People Glasper,
court’s failure “to
our
court addressed whether
circuit
431(b)”
subject
voir
Zehr
conduct
dire
accordance with
harmless-error
analysis.
ruled
to harmless-error
Our
analysis applies. Glasper,
The version of Rule at issue was the 1997 ver Glasper *10 sion, that the required questions which each of the Zehr be asked of only upon request venire defendant. 234 2d at 187. Glasper, the Ill. 431(b) version, The version of Rule at issue before us is the 2007 places the sponte duty which a sua on the circuit court to ask each of (eff. 431(b) 1, 2007); questions. May Zehr Ill. S. Ct. R.
Graham, App. 393 Ill. 3d as we Just I, supreme found the trial court violated Rule in Anderson the “[t]he in it Glasper court found trial court committed error when precedent by ques ignored long-standing refusing our and our rules to 431(b)(4).” Glasper, the in accordance tion venire at 189. dispositive
The the amend question before us now is whether 431(b), duty upon to Rule sua the circuit imposing sponte ment court, changed analysis regarding the must violation we follow the rule from one where harmless error such that automatic applies, the rejected, presumed reversal is to one is under prejudice where doctrine, reversal prong plain second the such that automatic error (“We to upon 2d at are called Glasper, is mandated. See 234 Ill. requires presume the trial us to determine whether court’s conviction, automatically whether prejudice and reverse defendant’s or finds majority is The subject analysis”). the error to harmless-error (399 866); I cannot App. automatic is mandated 3d at reversal agree.
As supreme our court in Glasper: stated in
“The error this not right, case does involve a fundamental or even protection. a constitutional The error right involves a made only by Glasper, available rule of court.” this Ill. 2d 193. only difference the between version of Rule the judge required in to this case the follow version violated Glasper in the right is in now all is afforded to by defendants sponte duty upon virtue the sua imposed the circuit by however, court change, change 2007 amendment. That does not right question: remains neither “a fundamental [nor] protection.” 193; even a Glasper, constitutional Ill. 2d at see (2009) (“We Alexander, People v. 396 Ill. do think not precludes this difference application Glasper rationale to case”). the instant
I acknowledge that
court
Glasper
directed the
beyond
lower courts not to look
exact holding:
its
emphasize
holding
“We
that this
to the
limited
version of
431(b)(4)
trial,
that was in
at the
effect
time of the instant
necessarily apply
subsequent
would not
to
versions of the rule.”
Glasper,
where error was “that a Rule violation could never result in 2d at Glasper, reversible error.” exist,
I acknowledge grounds major- reasonable expressed here, ity disagree plain error issue us. The supreme before might in Glasper expressly apply held that its decision 431(b), 2007 version of Rule in existence at the time the version Glasper was issued in supervisory decision while the court’s order, I, vacating light Anderson we the decision in directed reconsider Glasper. I read two directives to mean that we should not look Glasper our holding may to control decision we look reasoning Glasper applies to determine whether it nonetheless 431(b). I reasoning ap- the 2007 of Rule find in Glasper version plies equal force here. change
Critical to is the defendant’s failure to marshal my view *11 431(b), persuasive the imposing reason 2007 amendment to Rule court, change analysis the in sponte duty sua on circuit warrants a brief, should supplemental we follow. In his allowed this court after issued, simply the defendant restates the supervisory order was urges: support rule to the outcome he
“[Questioning mandatory is now all cases under the current 431(b), was in effect time of Anderson’s version of Rule which at the 2007), (April Reports trial. Advance Sheet No. See Official result, rule this compliance 431(b), May eff. 2007.As a Rule sort of trial, making precisely fair this indispensable now to a analysis.” subject to harmless error should not be that duty sponte to a sua explain why change fails The defendant him, trial indispensable it a fair for on the circuit court makes specific Zehr request that a judge’s erroneous denial of the indispensable to a fair trial question be was not asked of venire it, of- supplemental As I the defendant’s brief Glasper. read issuing our decision nothing fers more than what we considered Glasper analysis. I did have benefit of the Anderson when we I, I am Having my special reconsidered concurrence Anderson thoroughly no court’s failure longer convinced that circuit questioning it inevitable that the conduct Rule makes 2d at Glasper, See 234 Ill. decided defendant’s case biased. (“We Rule reject idea to conduct that the trial court’s failure biased”). 431(b)(4) I questioning makes it inevitable that the solely agree cannot that the defendant is entitled a new trial based on claim the circuit court did not his otherwise meritorious 431(b), comply trigger an error that does not automatic may People Magallanes, reversal as constitute error. See harmless *** (2009) (“The holding Glasper compels us 431(b)(4) to reject argument defendant’s errors reversible”). automatically
I respectfully dissent. ILLINOIS, Plaintiff-Appellee, THE PEOPLE THE STATE OF JAMES OF WHEELER, Defendant-Appellant. (1st Division)
First No. 1 — 08—1370 District Opinion filed March