THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. BRIAN BIRGE, Appellant.
Docket No. 125644
SUPREME COURT OF THE STATE OF ILLINOIS
February 19, 2021
2021 IL 125644
JUSTICE
OPINION
¶ 1 Following a jury trial, defendant Brian Birge was convicted of burglary (
¶ 2 We allowed defendant‘s petition for leave to appeal.
BACKGROUND
¶ 3 In February 2017, the case against defendant proceeded to a jury trial on the charges of burglary and arson. During voir dire, the trial court separated the venire into two groups of 16 each. It admonished the first group regarding the principles enumerated in
THE COURT: This is a criminal case as I mentioned. The defendant is presumed innocent. There are a number of propositions of law that you must be willing to follow if you are going to serve
as a juror in this case. So I am going to recite those for you now. Please listen carefully as I will be asking if you understand these principles of law and if you accept these principles of law.
A person accused of a crime is presumed to be innocent of the charge against him. The fact that a charge has been made is not to be considered as any evidence or presumption of guilt against the Defendant.
The presumption of innocence stays with the Defendant throughout the trial and is not overcome unless from all of the evidence you believe the State proved the Defendant‘s guilt beyond a reasonable doubt.
The State has the burden of proving the Defendant‘s guilt beyond a reasonable doubt. The defendant does not have to prove his innocence. The Defendant does not have to present any evidence on his own behalf and does not have to testify if he does not wish to. If the Defendant does not testify, that fact must not be considered by you in any way in arriving at your verdict.
So by a show of hands, do each of you understand these principles of law?
PROSPECTIVE JURORS: (All hands raised.)
THE COURT: Okay. And do each of you accept these principles of law?
PROSPECTIVE JURORS: (All hands raised.)
¶ 5 Defense counsel also questioned these same prospective jurors, asking whether they understood that defendant is presumed innocent and that the State had to prove defendant guilty beyond a reasonable doubt. All potential jurors raised their hands, indicating that they understood those principles. Nine jurors were selected from this first group.
¶ 6 The court then brought in a second group of 16 prospective jurors and admonished them in the same manner as it did the first group. It again asked, “By a show of hands, do each of you understand these principles of law?” All 16 of these venire members raised their hands. The court next asked, “Do each of you accept these principles of law?” All 16 venire members raised their hands again. When defense counsel questioned these prospective jurors, he too asked if they understood that defendant is presumed innocent and that the State must prove defendant guilty beyond a reasonable doubt. All 16 raised their hands to indicate that they understood those principles. From this group, three jurors and one alternate were selected. And the case proceeded to trial.
¶ 7 Pontiac police sergeant Brad Baird testified at trial that he was on routine patrol on May 28, 2016, around 1:30 a.m., when he was flagged down by Willie Williams, who reported that a nearby store known as Chief City Vapor was on fire. Sergeant Baird went to the location and noticed that smoke and flames were coming from the building, the door was ajar, and broken glass lay scattered on the floor of the entryway. Nobody was in the building at the time. A trail of merchandise outside the store led to the southeast of the building, where there where several boxes with hundreds of items.
¶ 8 Officer Jonathan Marion testified that he was on duty at the time in question when he responded to a report from Sergeant Baird of a structure on fire at Chief City Vapor. Officer Marion arrived at the scene and saw heavy smoke and flames showing from inside the building. Officer Marion testified that Sergeant Baird, another officer, and the person who had flagged down Baird on the street were already at the scene when Marion arrived. The only other person in the vicinity was
¶ 9 Detective Michael Henson testified that he investigated the Chief City Vapor burglary after the fire was extinguished. Several stacks of clear plastic tags that read “sealed for your protection” were strewn about, both inside and outside the store. The tags were just like the ones that Officer Marion had recovered from defendant‘s person. Henson also received keys recovered from defendant and learned that they opened an exterior garage and storage unit connected to Chief City Vapor. Finally, Henson testified that the store‘s video surveillance system was badly damaged in the fire and that he was therefore unable to obtain any video of the crime. He decided against making further efforts to obtain surveillance video of the incident because the recovery attempt would be both costly and unlikely to be successful.
¶ 10 Tom Roe testified he owned the business known as Chief City Vapor but that his father owned the building that the business was located in. Roe did not give anyone permission to enter the building after the store closed on the night of the fire. Roe kept some change and approximately $100 in cash in the store‘s cash register. The keys discovered on defendant‘s person unlocked the outbuildings on the property and were always kept in Roe‘s desk, located inside the building. The trail of items found outside the building were the property of his business. That included the clear plastic tags (which were stored on shelves and used to seal bottles of vaping liquid). When asked about the damage the fire caused, Roe testified that he “had to gut the entire building down to pulling studs, pulling insulation, furnace.” He further stated that “everything was lost,” including the merchandise and furniture.
¶ 11 Shane Arndt, an arson investigator, testified that the Chief City Vapor fire was caused by someone introducing an open flame to the couch inside the store. He ruled out any accidental ignition source, such as faulty wiring or a furnace. The only potential source he could not rule out was the possibility that the disposable lighter recovered from defendant had been used to set the fire. He also testified that the glass door to the business was broken prior to the fire because the shattered glass on the floor did not have any smoke damage.
¶ 12 Defendant testified that he had overdosed on drugs approximately 12 hours prior to the fire and had been hospitalized. After discharge, defendant‘s mother dropped him off at “Aly Anne‘s” gambling parlor, which was located close to where Officer Marion later questioned defendant. Defendant testified that he did not remember many of the details from the relevant time because he was heavily medicated, drinking, and using drugs. He remembered leaving the gambling parlor and walking to his sister‘s house. Defendant knocked on the door, but his sister did not answer, so he decided to return to Aly Anne‘s to continue gambling. On his walk back, he observed some “commotion”
¶ 13 Defendant further testified that he remembered talking to Officer Marion “a little bit” but did not recall discussing the cut on his hand. Defendant denied any involvement with the fire and testified that he never set foot on the property.
¶ 14 The jury found defendant guilty of both charges. At the sentencing hearing, a presentence investigation report (PSI) was admitted without objection. It showed defendant had four prior felony convictions—aggravated criminal sexual abuse, residential burglary, unlawful possession of a controlled substance, and theft. Defendant reported no physical or mental health issues but did report a history of substance abuse. The PSI recommended that the trial court order defendant to pay restitution to the victim. Although a letter had been sent to the victim requesting information about restitution, the victim did not respond. The PSI noted that defendant may have difficulty paying restitution.
¶ 15 The trial court sentenced defendant on both counts to 24 years and 6 months’ imprisonment, with the sentences to run concurrently. The court also ordered defendant to pay $117,230 in restitution. The restitution order stated as follows: “Defendant shall pay all said restitution *** in any event within five (5) years after this date, and as follows: *** full payment within 12 months after defendant‘s release from imprisonment in this case.”
¶ 16 Defendant appealed, arguing that the circuit court‘s Rule 431(b) admonishments, which grouped the principles enunciated in the rule into one statement, constituted plain error. He maintained that the court should have recited each of the four principles in the rule individually and asked the venire members if they understood and accepted each principle after each was recited. He also argued that the circuit court erred in ordering restitution without sufficient evidentiary support or, in the alternative, that his trial counsel was ineffective for failing to object to the State‘s recommended restitution order. Defendant conceded before the appellate court that he did not object to the Rule 431(b) admonishments or the restitution order and, further, that he failed to raise the issues in a posttrial motion, but he asked the court to nevertheless consider these arguments under the plain-error doctrine.
¶ 17 In response, the State argued that Rule 431(b) does not require the court to recite each principle separately and consequently no error, much less plain error,
occurred. The State, however, conceded that the case should be remanded to the circuit court for a new hearing to substantiate the amount of restitution ordered.
¶ 18 The appellate court agreed defendant forfeited his claims; it then reviewed them for plain error. 2019 IL App (4th) 170341-U, ¶¶ 28, 57. With respect to the Rule 431(b) admonishments, it found that no clear or obvious error occurred because the circuit court‘s admonishments satisfied the requirements of the rule. Id. ¶¶ 32, 34. It concluded that the circuit court complied with the ” ‘specific question and response’ ” process outlined in People v. Thompson, 238 Ill. 2d 598, 607 (2010), and People v. Curry, 2013 IL App (4th) 120724, ¶ 65 (which recommended first reading verbatim all four principles to the venire members and then confirming that they understood and accepted those principles). 2019 IL App (4th) 170341-U, ¶¶ 31-32 (quoting Thompson, 238 Ill. 2d at 607).
¶ 19 The appellate court also rejected defendant‘s request to excuse his forfeiture of the restitution argument as second-prong plain error. Id. ¶ 60. It found that the alleged error—the lack of some receipt or testimony in the record proving the restitution amount—was not sufficiently grave that it denied defendant a fair trial. Id. The appellate court also found that defendant‘s ineffective assistance of counsel claim failed. Id. ¶ 55. Even assuming counsel‘s performance was deficient, defendant could not demonstrate prejudice—the appellate court reasoned—where defendant failed to allege that the amount of restitution was incorrect or that the outcome of the sentencing hearing would have been any different had counsel objected to the restitution order, especially in light of the victim‘s testimony that he had to ” ‘gut the entire building’ and ‘everything was lost’ in the fire.” Id.
¶ 20 As noted above, we granted defendant‘s petition for leave to appeal.
ANALYSIS
I. Admonishments Under Rule 431(b)
¶ 23 Before this court, defendant first argues that the trial court erred in admonishing the venire under Rule 431(b) because, by grouping the principles into one broad statement of law, the court failed to ensure that the potential jurors understood and accepted each of the four distinct concepts enumerated in the rule. Defendant
concedes that he forfeited this argument by failing to object at trial and by failing to raise the alleged error in a posttrial motion but asks this court to review it under the first prong of the plain-error doctrine.
¶ 24 It is well settled that, under the plain-error doctrine, a reviewing court may consider an unpreserved error if (1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant‘s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence. People v. Piatkowski, 225 Ill. 2d 551, 564-65 (2007). Under either prong, the defendant bears the burden of persuasion. Thompson, 238 Ill. 2d at 613. However, a violation of Rule 431(b) is not a second-prong, structural error that requires automatic reversal under a plain-error analysis. Id. at 608, 611 (decided under amended version of Rule 431(b)); People v. Glasper, 234 Ill. 2d 173, 199-200 (2009) (decided under preamendment version of the rule). The first step under either prong of the plain-error doctrine in a case involving an alleged Rule 431(b) violation is to assess if a clear or obvious error occurred (People v. Sebby, 2017 IL 119445, ¶ 49), and our review of the matter is de novo (People v. Downs, 2015 IL 117934, ¶ 15).
¶ 25 Determining whether the circuit court erred by reciting all four Rule 431(b) principles together to the group of prospective jurors requires this court to construe the rule. See Thompson, 238 Ill. 2d at 606. The same well-settled canons of statutory construction that are employed for interpreting statutes apply as well when a reviewing court is tasked with construing
¶ 26 Rule 431(b) states as follows:
“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)
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 if a defendant does not testify it cannot be held against him or her; however, no inquiry of a prospective juror shall be made into the defendant‘s decision not to testify when the defendant objects.
The court‘s method of inquiry shall provide each juror an opportunity to respond to specific questions concerning the principles set out in this section.”
Ill. S. Ct. R. 431(b) (eff. July 1, 2012).
¶ 27 Here, the circuit court read the specific principles set forth in the rule verbatim to the prospective jurors and asked the specific questions required by the rule. Each of the prospective jurors indicated that they understood and accepted those principles by a show of hands. The rule plainly states that the court can ask the questions to the potential jurors as a group, and the rule does not require that their response be conveyed orally rather than by a show of hands. We believe that the procedure followed by the circuit court was all that was required by the plain language of the rule, and we therefore find that defendant‘s argument must be rejected.
¶ 28 This conclusion is consistent with the committee comments to the rule and our case law on the subject. The committee comments state that the intent of the rule is “to ensure compliance with the requirements of People v. Zehr, 103 Ill. 2d 472 (1984).”
¶ 29 In Zehr, this court observed the following:
“[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. If a juror has a prejudice against any of these basic guarantees, an
instruction given at the end of the trial will have little curative effect.” People v. Zehr, 103 Ill. 2d 472, 477 (1984).
¶ 30 After setting forth the above-mentioned precepts, the Zehr court found that it was error not to submit to the prospective jurors the questions tendered by defense counsel during voir dire about these principles. Id. at 477-78. It was not enough that the potential jurors were generally “asked whether they would follow the law as given them by the court even though they might personally disagree with it and whether any reason, moral, religious or otherwise,
¶ 31 The holding in Zehr was subsequently codified in our Rule 431(b). See Thompson, 238 Ill. 2d at 617 (Burke, J., dissenting, joined by Freeman, J.). As originally adopted, Rule 431(b) required the trial court to ask the Zehr questions only upon a request by the defendant. Id. at 617-18. This court, however, amended the rule in 2007 to impose an affirmative duty on trial courts to sua sponte ask potential jurors whether they “understood and accepted the principles.” Id. at 618 (citing
¶ 32 In Thompson, this court had the opportunity to address a violation of the same amended version of Rule 431(b) that is at issue in the present case. The trial court in Thompson did not ask any of the prospective jurors whether they “accepted” the principle set forth in the rule dealing with the presumption of innocence. Id. at 607 (majority opinion). And, “[m]ost notably, the trial court did not question any of the prospective jurors on the third principle, whether they understood and accepted that defendant was not required to produce any evidence on his behalf.” Id. This court found that “[t]he failure to address the third principle, by itself, constitutes noncompliance with the rule.” Id.
¶ 33 Thompson construed Rule 431(b) to mandate a “specific question and response process.” Id. “The trial court must ask each potential juror whether he or she understands and accepts each of the principles in the rule.” (Emphasis added.) Id. Additionally, “the rule requires an opportunity for a response from each prospective juror on their understanding and acceptance of those principles.” (Emphasis added.) Id.
¶ 34 Defendant relies upon Thompson in support of his position. But neither Thompson nor any other case decided by this court has held that the trial court must recite the principles separately to the prospective jurors, and the plain language of the rule, as we have already noted, does not require the court to explain the principles to the jurors in any particular fashion. Under the plain language, a court complies with Rule 431(b) if it (1) instructs the prospective jurors on the four principles, (2) asks if the prospective jurors understand those principles, and (3) asks if the prospective jurors accept those principles. Again, there is no requirement that the trial court recite the four principles separately.
¶ 35 Our construction of the rule is consistent with the appellate court decisions addressing the issue. All agree that reciting the Rule 431(b) principles together satisfies the requirements of the rule. See, e.g., People v. Kinnerson, 2020 IL App (4th) 170650, ¶ 62 (held trial court need not recite each principle separately); People v. Choate, 2018 IL App (5th) 150087, ¶ 44 (combining principles is not a per se violation of Rule 431(b)); People v. Smith, 2012 IL App (1st) 102354, ¶ 105 (Rule 431(b) does not mandate separate questioning for each principle); People v. Davis, 405 Ill. App. 3d 585, 590 (2010) (court is not required to separate the principles). We do note that some appellate court decisions have suggested that the better practice is to separate the principles and ask, after each principle is read one at a time, if the jurors understood and accepted each principle individually. See, e.g., People v. Perry, 2011 IL App (1st) 081228, ¶ 74 (opining that the “better practice” would be for the court to ask the jurors if they “understand and accept each of the principles, after each principle is read“). But again, none of these decisions holds definitively that not separating the principles constitutes a violation of Rule 431(b).
¶ 36 Defendant cites several cases in an attempt to show a conflict among appellate court panels on how the four principles ought to be presented, but none of these cases supports his position. Rather than finding error in how the court presented the four principles, each of his cited cases found error because the trial court failed to ask if the prospective jurors understood and accepted all four principles or omitted a principle altogether. See, e.g., People v. Othman, 2020 IL App (1st) 150823-B, ¶¶ 65-66 (court failed to ask if jurors understood one of the principles and failed to ask if they accepted another); People v. Lampley, 2011 IL App (1st) 090661-B, ¶ 35 (court failed to ask if jurors understood and accepted the principles and instead
asked if they had ” ‘any problems’ ” with the principles); People v. McCovins, 2011 IL App (1st) 081805-B, ¶ 36 (court provided prospective jurors with a broad statement of the law “interspersed with commentary on courtroom procedure and the trial schedule, and then concluded with a general question about the potential jurors’ willingness to follow the law“); Perry, 2011 IL App (1st) 081228, ¶ 73 (asked general questions about jurors’ willingness to follow the law but did not ask specifically whether they understood and accepted the principles); People v. Hayes, 409 Ill. App. 3d 612, 626-27 (2011) (finding error when the court combined the first three principles into one broad principle and failed to ask if prospective jurors “accepted” that principle); People v. Johnson, 408 Ill. App. 3d 157, 171 (2010) (court failed to ask if the prospective jurors understood and accepted any of the principles and omitted the fourth principle altogether). Unlike the trial courts in the above-noted appellate cases cited by defendant, the trial court in this case presented the Rule 431(b) principles to the venire members without eliminating any one of them, without interspersing the principles with other instructions, and without failing to ask whether the venire understood and accepted the principles.
¶ 37 Defendant reiterates the criticism expressed in the committee comments of our rule toward the past practice of trial judges making a broad statement of applicable law during voir dire followed by a general question about the potential juror‘s willingness to follow the law. Defendant intimates that the instant trial judge‘s verbatim recital of the Rule 431(b) criteria was akin to the broad statement and general question condemned by the committee comments.
¶ 38 But we find no merit to defendant‘s argument and find no such cause for concern under the circumstances of the present case. Here, the trial court did not provide a “broad statement of applicable law.” Nor did it follow those four principles in the rule with “a general question concerning the juror‘s willingness to follow the law.” Rather, the trial court carefully recited the four specific principles in the rule verbatim and then asked specific questions about whether the jurors accepted and understood those principles. Nor are there present any of the concerns involved in Zehr where the trial court in that case did not admonish about the four principles but instead asked a general question about whether the jurors would be willing
¶ 39 Defendant also argues that the four principles in the rule involve “abstract and complicated concepts, which an ordinary layperson might struggle to take in.” He maintains that grouping the principles together undermines the purpose of the rule, which is to exclude any juror “who is prejudiced against these bedrock principles.”
¶ 40 We disagree that the purpose of the rule was undermined by reciting the principles together or that there was any danger of confusion by doing so. The “bedrock principles” defendant refers to are concepts that are familiar to the average layperson and relatively easy to understand. Jurors are often presented with far more numerous, and far more complicated, instructions at trial. Yet jurors are presumed to follow those instructions. See People v. Taylor, 166 Ill. 2d 414, 438 (1995).
¶ 41 In Zehr, and again in Thompson, this court stated that it is the prospective jurors’ understanding and acceptance of the bedrock principles that is essential to ensuring that the jurors are fair and impartial. Zehr, 103 Ill. 2d at 477; Thompson, 238 Ill. 2d at 609. Here, the prospective jurors expressed their understanding and acceptance of the principles by a show of hands. Nothing in the record suggests that the jurors were confused by the court‘s presentation of the Rule 431(b) principles. And defense counsel asked follow-up questions about the presumption of innocence and the burden of proof to ensure to his satisfaction that the prospective jurors understood those principles. In sum, we find no merit to defendant‘s argument that the purpose of the rule is thwarted by reciting the four principles together.
¶ 42 Because we find that no error occurred with respect to this matter, we need not address defendant‘s argument on the remaining portion of the first prong of the plain-error analysis as to whether the evidence presented at his trial was closely balanced.
II. Restitution
¶ 44 Defendant next argues that the trial court erred in ordering him to pay $117,230 in restitution without any evidentiary support for awarding that amount. Once again, defendant recognizes that he did not properly preserve the claim but now argues that it is reviewable under the second prong of the plain-error doctrine. As noted above, under the second prong of the doctrine, we may consider a forfeited
claim when “a clear or obvious error occurred and that error is so serious it affected the fairness of the defendant‘s trial and challenged the integrity of the judicial process.” Piatkowski, 225 Ill. 2d at 565.
¶ 45 In response, the State concedes both that (1) the trial court erred in ordering defendant to pay the amount of restitution imposed without any evidentiary basis for it and (2) defendant was denied a fair sentencing hearing because of the error. Citing People v. Lewis, 234 Ill. 2d 32, 48-49 (2009), both defendant and the State urge that the proper remedy is for this court to remand the cause to the circuit court for a compliant hearing limited to the amount of restitution to be imposed.
¶ 46 We agree that a plain error occurred, affecting the integrity of the judicial process and the fairness of the proceeding; therefore, we find that the cause must be remanded for a new hearing on restitution.
“In fixing the amount of restitution to be paid in cash, *** the court shall assess the actual out-of-pocket expenses, losses, damages, and injuries suffered by the victim named in the charge and any other victims who may also have suffered out-of-pocket expenses, losses, damages, and injuries proximately caused by the same criminal conduct of defendant ***.” (Emphasis added.)
730 ILCS 5/5-5-6(b) (West 2014).
C.f. Black‘s Law Dictionary (11th ed. 2019) (defining “assess” as “[t]o calculate the amount *** of (a tax, fine, etc.)“).
¶ 48 According to the statute‘s plain language, the trial court must evaluate the actual costs incurred by the victim and cannot rely on conjecture or speculation as to the amount to be awarded. See People v. Dickey, 2011 IL App (3d) 100397, ¶ 25. To satisfy the requirement, then, the trial court must receive sufficient information to evaluate the accuracy of the victim‘s restitution claim.
¶ 49 Here, there was no numerical evidence presented of the victim‘s losses. Roe did testify about the damages to his merchandise, the furniture, and his father‘s building. But his testimony merely described the general damage that occurred. It did not ultimately assist in calculating the cost of his actual losses. As the restitution amount awarded had no actual basis in the trial or sentencing evidence and was simply declared by the prosecutor and accepted by the sentencing court, we find that the restitution order requiring defendant to pay $117,230 was clear error.
¶ 50 We do note that there is a split of authority among appellate court panels over whether the lack of sufficient evidentiary support for a restitution order is an error so serious that it affects the fairness of the defendant‘s trial and challenges the integrity of the judicial process. Compare People v. Jones, 206 Ill. App. 3d 477, 482 (1990) (under the second prong of the plain-error doctrine, a forfeited claim that the restitution order lacked a sufficient evidentiary basis is reviewable), with People v. Hanson, 2014 IL App (4th) 130330, ¶¶ 36, 40 (declining to follow Jones and instead finding that the restitution claim was not reviewable as plain error because it was not sufficiently grave that it deprived the defendant of a fair trial). We find that Jones took the correct approach. Accordingly, we now overrule Hanson.
¶ 51 Our conclusion is supported by an analogous decision of this court in Lewis, 234 Ill. 2d at 47-49, which held that an unpreserved challenge to the assessment of a street-value fine was a plain error that affected the integrity of the judicial process and the fairness of the proceeding. In resolving the claim, this court noted that the relevant statute provided that the street-value fine ” ‘shall be determined by the court on the basis of testimony of law enforcement personnel and the defendant as to the amount seized and such testimony as may be required by the court as to the current street value of the *** controlled substance seized.” Id. at 44 (quoting
¶ 52 Lewis then held as follows:
“The error here is more than a simple mistake in setting the fine. Rather, it is a failure to provide a fair process for determining the fine based on the current
street value of the controlled substance. Plain-error review is appropriate because imposing the fine without any evidentiary support in contravention of the statute implicates the right to a fair sentencing hearing. [Citation.] The integrity of the judicial process is also affected when a decision is not based on applicable standards and evidence, but appears to be arbitrary.” Id. at 48.
In concluding that plain-error review was appropriate, Lewis further determined that “[a]n error may involve a relatively small amount of money or unimportant matter, but still affect the integrity of the judicial process and the fairness of the proceeding if the controversy is determined in an arbitrary or unreasoned manner.” Id. Finally, Lewis determined that the appropriate remedy was to vacate the street-value fine and to remand the cause for imposition of a new fine based on evidence of the street value of the drugs seized. Id. at 49.
¶ 53 Similar to the street-value statute at issue in Lewis, the restitution statute in the instant case requires the trial court to determine the amount of restitution based on such factors as “actual out-of-pocket expenses, losses, [and] damages.”
¶ 54 Our resolution of this issue makes it unnecessary to address defendant‘s remaining claim that his trial counsel rendered ineffective assistance in failing to object to the restitution order.
CONCLUSION
¶ 56 For the foregoing reasons, we hold that the appellate court correctly found that no error occurred in the admonishments given to the prospective jurors pursuant to Rule 431(b). However, the restitution order requiring defendant to pay $117,230 was entered erroneously without sufficient evidentiary support and constituted plain error. The appellate court consequently erred in affirming that restitution order. The restitution order must therefore be vacated and the cause remanded for a new hearing on restitution.
¶ 57 Accordingly, we affirm the judgment of the appellate court in part and reverse in part and remand the cause to the circuit court for a new hearing on the amount of restitution to be imposed.
¶ 58 Appellate court judgment affirmed in part and reversed in part.
¶ 59 Circuit court judgment affirmed in part and vacated in part.
¶ 60 Cause remanded with directions.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. BRIAN BIRGE, Appellant.
Docket No. 125644
SUPREME COURT OF THE STATE OF ILLINOIS
¶ 61 JUSTICE NEVILLE, dissenting:
¶ 62 The majority holds that the trial court did not err during voir dire because the voir dire procedure employed by the
¶ 63 First, I believe the trial court erred when it (1) conducted group rather than individual questioning of each of the 32 prospective jurors; (2) asked two sets of 16 prospective jurors two compound questions about each of the four principles in Rule 431(b) and elicited no information about the jurors’ beliefs and opinions because it accepted silent, nonverbal, show-of-hands group answers from the 32 jurors to the two compound questions; (3) inferred from the prospective jurors’ silent, nonverbal, show-of-hands group answers that the prospective jurors understood the four legal principles; (4) used silent, nonverbal, show-of-hands group answers, which precluded a record about each juror‘s biases and prejudices and left the trial court and this court with no information to evaluate each juror‘s qualifications to serve impartially on a jury; (5) failed to read the four principles verbatim when it read the four principles and omitted the numbers separating the principles; (6) omitted the numbers separating the four principles and by doing so collapsed the four Rule 431(b) principles into one broad statement; (7) failed to read the four principles verbatim when it added words to the four legal principles; (8) abdicated its duty to determine the 32 jurors’ knowledge of the four principles and their biases and prejudices by permitting the 32 jurors to provide silent, nonverbal, show-of-hands group answers to two compound questions, which did
not provide information for the court to assess credibility, and therefore, the jurors’ silent, nonverbal, group, show-of-hands answers did not provide the trial court with information to make a judicial decision about the 32 jurors’ impartiality. I believe that the aforementioned errors individually constitute clear and obvious errors and, collectively, they rise to the level of second-prong plain error, or structural error, because they denied defendant his right to a fair trial. People v. Thompson, 238 Ill. 2d 598, 614, (2010) (“A finding that defendant was tried by a biased jury would certainly satisfy the second prong of plain-error review because it would affect his right to a fair trial and challenge the integrity of the judicial process.“).
¶ 64 Second, because the evidence in this case is circumstantial and because there is no eyewitness testimony or forensic or video evidence that establishes defendant committed the burglary and arson, the evidence in this case can only be considered closely balanced. Because I find error under both the first and second prong of the plain-error doctrine, I would reverse defendant‘s conviction and remand for a new trial.
¶ 65 Finally, I believe that Rule 431(b) is unconstitutional on its face because the rule permits group questioning of jurors and silent, nonverbal, show-of-hands answers and because that procedure prevents the trial court from obtaining information about each prospective juror‘s biases and opinions. I believe that Rule 431(b) must be amended to codify a voir dire procedure that protects a defendant‘s right to a fair trial by an impartial jury. Therefore, I respectfully dissent.
I. BACKGROUND
¶ 67 Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) requires the trial court to “conduct voir dire examination of prospective jurors by putting to them questions it thinks appropriate, touching upon their qualifications to serve as jurors in the case at trial.” The court must allow the
“(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 if a defendant does not testify it cannot be held against him or her; however, no inquiry of a prospective juror shall be made into the defendant‘s decision not to testify when the defendant objects.”
Id.
¶ 68 Additionally, Rule 431(b) explains how the trial court should elicit information from prospective jurors: “The court‘s method of inquiry shall provide each juror an opportunity to respond to specific questions concerning the principles set out in this section.” (Emphases added.)
A. The Trial Court‘s Application of Rule 431(b)
¶ 70 In this case, the trial court conducted voir dire by questioning 32 prospective jurors in two panels consisting of 16 jurors each. The record reveals the trial court admonished the first panel of 16 prospective jurors as follows:
“THE COURT: This is a criminal case as I mentioned. The Defendant is presumed innocent. There are a number of propositions of law that you must be willing to follow if you are going to serve as a juror in this case. So I am going to recite those for you now. Please listen carefully as I will be asking if you understand these principles of law and if you accept these principles of law.
A person accused of a crime is presumed to be innocent of the charge against him. The fact that a charge has been made is not to be considered as any evidence or presumption of guilt against the defendant.
The presumption of innocence stays with the defendant throughout the trial and is not overcome unless from all of the evidence you believe the State proved the defendant‘s guilt beyond a reasonable doubt. The State has the burden of proving the defendant‘s guilt beyond a reasonable doubt. The defendant does not have to prove his innocence. The defendant does not have to present any evidence on his own behalf and does not have to testify if he does not wish to. If the defendant does not testify, that fact must not be considered by you in arriving at your verdict.
So by a show of hands, do each of you understand these principles of law?
PROSPECTIVE JURORS: (All hands raised).
THE COURT: Okay. And do each of you accept these principles of law?
PROSPECTIVE JURORS: (All hands raised).
THE COURT: All right. Thank you.”
Next, the trial court instructed the second panel of 16 jurors as follows:
“THE COURT: All right. Again, I have to recite the propositions of law with you because, well, because I am required to, but also because it‘s very important. So please listen carefully.
A person accused of a crime is presumed to be innocent of the charge against them. The fact that a charge has been made is not to be considered as any evidence or presumption of guilt against the defendant.
The presumption of innocence stays with the defendant throughout the trial and is not overcome unless from all of the evidence you believe the State proved the defendant‘s guilt beyond a reasonable doubt.
The State has the burden of proving the defendant‘s guilt beyond a reasonable doubt. The defendant does not have to prove his innocence. The defendant does not have to present any evidence on his own behalf and does not have to testify if he does not wish to. If the defendant does not wish to testify, that fact must not be considered by you in any way in arriving at a verdict.
So by a show of hands, do each of you understand these principles of law?
PROSPECTIVE JURORS: (All hands raised).
THE COURT: And do each of you accept these principles of law?
PROSPECTIVE JURORS: (All hands raised).
THE COURT: All hands have gone up. Thank you.”
¶ 71 The trial judge‘s admonishments make it clear that the trial judge read the four principles but omitted the numbers that separate the principles. Compare
¶ 72 After the trial court‘s voir dire, the court permitted defense counsel to question the prospective jurors regarding the principles. Defense counsel only asked the following group questions:
“MR. BERTRAM [(DEFENDANT‘S ATTORNEY)]: First of all, and if you agree, please raise your hand like you‘ve done before here. Do all of you understand as my client sits here beside me that he is presumed innocent and it‘s the State‘s job, it‘s the State‘s burden to prove him guilty beyond a reasonable doubt? Does everybody understand that? Would you please raise your hand?
PROSPECTIVE JURORS: (All hands raised.)
MR. BERTRAM: All hand raised. Okay. And do you also understand that it is not, my client does not have to present any evidence? He does not have to stand up and testify. That is, again it‘s the burden of the State to bring enough evidence here to prove him guilty; and if they do not do so, then, well, I won‘t to get that until the end.”
Defendant‘s attorney also asked the jurors generally about their ability to focus on the trial and to be fair to defendant. Defense counsel ended his voir dire this way:
“MR. BERTRAM: Ladies and gentlemen, one final question; and this is for all of you and please raise your hands. If the State is unable to prove my client guilty beyond a reasonable doubt after you‘ve heard all the evidence in this case—well, you know what? I‘m sorry. I‘m going to ask one question first. Can you all wait and hear all of the evidence and go back when you deliberate to deliberate [sic]this to decide whether the State‘s proved my client guilty beyond a reasonable doubt? Can you all do that? If we can, please raise your hand.
PROSPECTIVE JURORS: (All raise hands.) MR. BERTRAM: And now my final question. If the State was unable to prove my client guilty beyond a reasonable doubt, can you all return a verdict of not guilty? If you can, please raise your hand.
PROSPECTIVE JURORS: (All hands raised.)”
¶ 73 Defendant‘s attorney questioned the second panel of the prospective jurors about the principles by asking only the following:
“MR. BERTRAM: And as you all stand there, and again raise your hand if you agree with this, do you understand that as my client sits here that he is presumed innocent and it‘s the job of the State to prove him guilty beyond a reasonable doubt? Does everybody understand that? If so, please raise your hand.
PROSPECTIVE JURORS: (All hands raised.)
MR. BERTRAM: All hands raised. Does everybody agree with that? Sorry. Jumped the gun. Does anybody not agree with that, think we should do it another way? If so, raise your hand. ***
PROSPECTIVE JURORS: (No response.)
MR. BERTRAM: Okay. No hands raised. Good.”
¶ 74 Twelve of the thirty-two prospective jurors were selected, and the case proceeded to trial. The jury convicted defendant of burglary and arson and the trial court sentenced him to 24 years and 6 months’ imprisonment on each count to be served concurrently. Defendant filed an appeal.
B. The Appellate Court‘s Holding
¶ 76 In the appellate court, defendant argued the trial court failed to properly admonish the prospective jurors pursuant to Rule 431(b) because the trial court conflated all four principles and asked whether the prospective jurors understood and accepted this one broad proposition, rather than asking whether the prospective jurors understood and accepted each individual principle. 2019 IL App (4th) 170341-U, ¶ 28. Defendant admitted he forfeited that argument but asked the appellate court to review it under the plain-error rule. The appellate court conducted the first step in the plain-error analysis and held that “no error occurred with the Rule 431(b) admonishments in this case.” Id. ¶ 32.
C. This Court‘s Holdings
¶ 78 The majority affirms the appellate court. The majority concludes the trial court committed no errors during voir dire based on the following holdings:
First, the majority holds the trial court did not err when it admonished the 32 prospective jurors in two groups consisting of 16 prospective jurors each. Supra ¶ 27.
Second, the majority holds the rule plainly states that the trial court can ask the questions to prospective jurors as a group. Supra ¶ 27.
Third, the majority holds that the rule does not require that jurors’ responses be oral rather than by a show of hands. Supra ¶ 27.
Fourth, the majority holds the procedure followed by the trial court was all that was required by the plain language of the rule. Supra ¶ 27.
Fifth, the majority also holds that the procedure followed by the trial court was consistent with the committee comments to the rule, which state the rule seeks to end the practice where courts make a broad statement of the law. Supra ¶ 28; see
Seventh, the majority also holds that the trial court did not err because it did not provide a “‘broad statement of applicable law.‘” Supra ¶ 38.
Eighth, the majority holds that the trial court did not err when it “carefully recited the four specific principles in the rule verbatim.” Supra ¶ 38.
Ninth, the majority holds the trial court did not ask “‘a general question concerning the juror‘s willingness to follow the law.‘” Supra ¶ 38.
Tenth, the majority holds the four
Eleventh, the majority holds that the “‘bedrock principles‘” defendant refers to “are concepts that are familiar to the average layperson and relatively easy to understand.” Supra ¶ 40.
Twelfth, the majority holds that the prospective jurors expressed their understanding and acceptance of the principles by a show of hands and that there is nothing in the record to suggest that the jurors were confused by the trial court‘s presentation of the
¶ 79 I disagree with all of the majority‘s holdings.
II. ANALYSIS
A. Standard of Review
¶ 82 When reviewing the plain language of
¶ 83 Reviewing the manner and scope of the trial court‘s examination means that we examine the trial court‘s voir dire questions to determine whether the trial court elicited information from prospective jurors to learn of each prospective juror‘s beliefs and opinions, biases, and prejudices, so defendant is assured a fair and impartial jury. Morgan v. Illinois, 504 U.S. 719, 729-30 (1992); Wainwright v. Witt, 469 U.S. 412, 424 n.6 (1985). I believe the manner and scope of the trial court‘s implementation and execution of the procedure prescribed in the plain language of Rule 431—group questions and silent, show-of-hands answers by jurors—provided no information and denied defendant his constitutional right to a fair trial. Accordingly, the trial court erred and abused its discretion when it conducted voir dire in this case.
B. Plain-Error Review
¶ 85 On appeal to this court, defendant acknowledges he did not preserve his
¶ 86 “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.”
“the plain-error doctrine allows a reviewing court to consider unpreserved error when (1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant‘s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).
¶ 87 “‘Clear’ or ‘obvious’ in the context of the plain-error doctrine means that the law is well settled at the time of trial; if the law was unclear at the time of the trial, but becomes clear (i.e., settled) during the appeal, then the error is not ‘plain’ for purposes of the plain-error doctrine. [Citations.]” People v. Downs, 2014 IL App (2d) 121156, ¶ 20 (citing In re M.W., 232 Ill. 2d 408, 431 (2009), citing Piatkowski, 225 Ill. 2d at 565 n.2, citing United States v. Olano, 507 U.S. 725, 734 (1993)), rev‘d on other grounds, 2015 IL 117934, ¶ 20; see also United States v. Sumner, 265 F.3d 532, 539 (7th Cir. 2001) (“‘Plain’ in this context is synonymous with clear or obvious. At a minimum, this means the error must be clear under current law.” (citing Olano, 507 U.S. at 734)).
C. The United States Supreme Court Has Settled Voir Dire Law
¶ 89 The law is settled on how the trial court should conduct voir dire. A criminal defendant‘s right to trial by a fair and impartial jury is guaranteed by both the United States and Illinois Constitutions.
¶ 90 Voir dire errors occurred in this case when no information was elicited from prospective jurors during group questioning with silent, nonverbal, show-of-hands group answers about each prospective juror‘s beliefs and opinions, so that the trial court could determine each potential juror‘s
D. Voir Dire Questions to Be Answered by This Court
¶ 92 In this case we must determine whether the trial judge‘s admonishments and questioning of two panels of 16 prospective jurors complied with the constitution‘s voir dire requirements, which mandate that the trial judge‘s admonishments and questioning permit him or her to elicit information from each prospective juror about their beliefs and opinions so the trial judge can make a decision about the prospective jurors’ impartiality. See Skilling v. United States, 561 U.S. 358, 394-95 (2010). In Skilling, the jurors affirmed on their pretrial questionnaires that they would have no trouble basing a verdict only on the evidence at trial. See id. at 388 (pretrial questionnaire “helped to identify prospective jurors excusable for cause“). Nevertheless, the trial court followed up by questioning each prospective juror individually to uncover concealed biases and prejudices. Id. at 373-74, 388. The Skilling Court pointed out that the federal district court‘s “face-to-face opportunity to gauge demeanor and credibility, coupled with information from the questionnaires regarding jurors’ backgrounds [and] opinions *** gave the court a sturdy foundation to assess fitness for jury service.” Id. at 395. We must determine whether the voir dire procedure in this case permitted the trial court to determine the 32 prospective jurors’ fitness for jury service.
E. Group Voir Dire Procedures Denied Defendant His Right to a Fair Trial
¶ 94 In this case, we must determine whether the group admonishments and questioning of prospective jurors and the silent, nonverbal, show-of-hands group answers by prospective jurors elicited any information about the prospective jurors’ beliefs, opinions, biases, or prejudices so that the trial court could make a decision about each juror‘s impartiality. We must also determine whether the trial court‘s questions—(1) “do you understand these principles of law” and (2) “do you accept these principles of law“—produced a record that permitted the trial court to ascertain information about each prospective juror‘s beliefs and opinions in order to allow removal of any of the 32 members with a bias or prejudice against defendant. I submit that the trial court‘s group questioning and silent, show-of-hands answers allowed the jurors’ possible prejudices to go undiscovered, thus thwarting the very purpose of voir dire. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 143 (1994) (“If conducted properly, voir dire can inform litigants about potential jurors ***. Voir dire provides a means of discovering actual or implied bias ***.“). Accordingly, I maintain the trial court committed multiple errors and abused its discretion when it exercised its discretion and selected group instead of individual questioning of the 32 jurors. See id.
F. The Trial Court‘s Plain Errors
1. The Trial Court Erred When It Conducted Group Rather Than Individual Questioning of Each of the 32 Prospective Jurors
¶ 97 The majority holds the trial court did not err when the trial court questioned the prospective jurors in two groups of 16.
¶ 98 While
¶ 99 I think the trial court abused its discretion when it elected to question the 32 jurors in a group, instead of individually. See
2. The Trial Court Erred When It Asked Potential Jurors Two Compound Questions About the Four Principles in Rule 431(B) and Received No Information About the Juror‘s Beliefs and Opinions Because It Accepted Silent, Nonverbal, Show-of-Hands Group Answers From the 32 Jurors to the Two Compound Questions
¶ 101 In this case the trial judge omitted the four numbers separating the principles, recited all four principles in a broad statement, and then asked the prospective jurors if they understood the principles. When the court asked two questions about the unnumbered principles, (1) do you understand the principles and (2) do you
¶ 102 Compound questions cause confusion and are objectionable because when a witness or juror answers a question consisting of two or more questions, it is hard to determine which question is being answered. See E. Cleary & M. Graham, Handbook of Illinois Evidence § 611.20, at 550 (7th ed. 1999). Here, asking the group of 32 jurors two compound questions involving four principles prevented the trial court from determining whether each prospective juror both understood and accepted each of the four legal principles. By not asking about the four principles in separate questions, it cannot be determined from the record which of the four principles, if any, the prospective jurors understood and accepted.
¶ 103 The 32 prospective jurors’ silent, group answers to the two compound questions elicited no information for the trial court to assess the prospective jurors’ beliefs and opinions. Therefore, because the trial court had no information about these jurors’ biases and prejudices, the trial court had no information about the prospective jurors’ impartiality, and the trial court‘s lack of information denied defendant a fair trial. Accordingly, the trial court erred and abused its discretion when it asked two sets of 16 prospective jurors a compound question about each of the four principles in
3. The Trial Court Erred When It Inferred From the Potential Jurors’ Nonverbal, Show-of-Hands Group Answers That the Potential Jurors Understood the Four Legal Principles
¶ 105 The majority concludes, without citation of any authority, that the “‘bedrock principles’ *** are concepts that are familiar to the average layperson and relatively easy to understand.” Supra ¶ 40. I disagree because commentators point out that legal principles are not only difficult for lay jurors to understand and apply but are also difficult for law students to understand and apply. Christopher N. May, ”What Do We Do Now?“: Helping Juries Apply the Instructions, 28 Loy. L.A. L. Rev. 869, 870 (1995) (“[T]he problem that these juries face[ ] is identical to that which confounds most law students—sometimes well into the second year. Lay jurors, who have received no more than an hour or two of legal instruction, cannot be expected to perform better than those who have studied diligently for months.“).
¶ 106 The majority also finds that “[j]urors are often presented with far more numerous, and far more complicated, instructions at trial.” Supra ¶ 40. Jurors are certainly presented with “far more numerous, and far more complicated, instructions at trial.” But what the majority fails to note is that the pretrial instructions in this case are different from posttrial instructions, which are presented to the jury in
a. Presumption of Innocence
¶ 108 I maintain that even the use of the phrase “presumption of innocence,” without more, can confuse jurors. Other courts have noted that “[i]t is not unusual for a juror to be confused or uncertain about the presumption of innocence because it is a difficult legal concept.” People v. Young, 16 P.3d 821, 825 (Colo. 2001) (en banc). Scholars have studied laypersons’ ability to understand legal principles and found that even second-year law students struggle with understanding jury instructions. May, supra, at 870. “Studies literally abound demonstrating the extent to which jurors misapprehend the relevant law. The problem is especially severe when the law is set forth in pattern instructions that—because they are designed without the facts of any particular case in mind—tend to be abstract, general, and technical.” Id. at 872.
b. Proof Beyond a Reasonable Doubt
¶ 110 In addition, commentators point out that jurors can experience difficulty applying jury instructions to the facts of a given case. May, supra, at 870 (“We must try to recapture our innocence if we are to make the jury‘s task a meaningful one.“); see also Lawrence T. White & Michael D. Cicchini, Is Reasonable Doubt Self-Defining?, 64 Vill. L. Rev. 1, 8 (2019) (reviewing studies and concluding that jurors struggle with the concept of beyond a reasonable doubt); Firoz Dattu, Illustrated Jury Instructions: A Proposal, 22 Law & Psychol. Rev. 67, 100 (1998) (noting that “[s]ome legal concepts are inherently difficult to explain” to jurors). Empirical studies have shown that, without instruction, “jurors may underestimate the quantum of evidence needed for a criminal conviction.” Timothy P. O‘Neill, Instructing Illinois Juries on the Definition of “Reasonable Doubt“: The Need for Reform, 27 Loy. U. Chi. L.J. 921, 924 (1996). Commentators have found that “instructions should carefully define reasonable doubt for jurors.” White, supra, at 2.
¶ 111 Studies have also shown that jurors’ comprehension of instructions in any form “varies among jurors, partly in relation to their educational level,” and more “telling are studies showing that jurors frequently cannot answer simple true-false questions concerning statements of law
¶ 112 I think the majority‘s assumption that the prospective jurors understood the four principles without evidence in the record (the 32 prospective jurors answered with a show of hands) denied defendant a fair trial before an impartial jury. “[T]he most pressing constitutional issue in this case is whether the jury eventually selected was able to lay aside any preconceived notions and enter the jury box impartial.” Sophia R. Friedman, Sixth Amendment—The Right to an Impartial Jury: How Extensive Must Voir Dire Questioning Be?, 82 J. Crim. L. & Criminology 920, 937 (1992). The trial court‘s recital of the four principles to a diverse group of prospective jurors, without probing whether each prospective juror understood the four principles, is an abuse of the court‘s discretion.
¶ 113 Clearly questioning prospective jurors individually will require additional time, which I also note could be mitigated with the use of an appropriate prescreening questionnaire. See State v. Chauvin, No. 27-CR-20-12646 (Dist. Ct. Hennepin County, Minn.), Special Juror Questionnaire, https://www.mncourts.gov/mncourts gov/media/High-Profile-Cases/27-CR-20-12646/JurorQuestionnaire12222020.pdf (Dec. 22, 2020) [https://perma.cc/F5TW-39ML] (juror questionnaire for trial of four police officers in the death of George Floyd). Taking additional time to ensure that a criminal defendant facing a deprivation of liberty is judged by an impartial jury is a small price to pay.
“[I]t would be far more injurious to permit it to be thought that persons entertaining a disqualifying prejudice were allowed to serve as jurors and that inquiries designed to elicit the fact of disqualification were barred. No surer way could be devised to bring the processes of justice into disrepute.” (Internal quotation marks omitted.) Mu‘Min v. Virginia, 500 U.S. 415, 446 (1991) (Marshall, J., dissenting, joined by Blackmun and Stevens, JJ.) (quoting Aldridge v. United States, 283 U.S. 308, 315 (1931)).
The trial court erred and abused its discretion when it inferred from the prospective jurors’ silent, nonverbal, show-of-hands group answers that the prospective jurors understood the four legal principles.
4. The Trial Court Erred When It Used Silent, Nonverbal, Show-of-Hands Group Answers, Which Precluded a Record About Each Juror‘s Biases and Prejudices and Left the Trial Court and This Court With No Information to Evaluate Each Juror‘s Qualifications to Serve Impartially on a Jury
¶ 115 The trial court asked prospective jurors to indicate their response to a compound question—one question: do you understand, which inquired about the four legal principles—by a show of hands. The show-of-hands, group answer by the 32 prospective jurors was a silent, nonverbal answer. A silent, nonverbal answer leaves no record concerning the individual prospective juror‘s beliefs and opinions. Without a record for the court to evaluate the prospective juror‘s beliefs and opinions, there is no way for the trial court or this court to assess juror impartiality. This trial court violated defendant‘s right to a fair trial by not eliciting information from each prospective juror to determine their impartiality. Therefore, the trial court abused its discretion by permitting the prospective jurors to provide silent, nonverbal answers to the court‘s questions.
¶ 117 “[T]he trial court [has] no effective opportunity to assess the demeanor of each prospective juror in disclaiming bias” by simply having prospective jurors raise their hands along with everyone else. (Internal quotation marks omitted.) See id. at 451 (quoting Mu‘Min v. Commonwealth, 389 S.E.2d 886, 901 (Va. 1990) (Whiting, J., dissenting, joined by Stephenson and Hassell, JJ.)). The raising of a hand is lacking in “tone of voice *** [which may] suggest[ ] [bias] to the trial judge.” See id. at 433 (O‘Connor, J., concurring); see also Patton v. Yount, 467 U.S. 1025, 1038 n.14 (1984) (“Demeanor plays a fundamental role not only in determining juror credibility, but also in simply understanding what a potential juror is saying. Any complicated voir dire calls upon lay persons to think and express themselves in unfamiliar terms, as a reading of any transcript of such a proceeding will reveal. Demeanor, inflection, the flow of the questions and answers can make confused and conflicting utterances comprehensible.“). The trial court erred and abused its discretion when it used silent, nonverbal, show-of-hands group answers, which did not create a record about each juror‘s biases and prejudices, and therefore there is no basis for the trial court or this court to evaluate each prospective juror‘s qualifications to serve as an impartial juror.
5. The Trial Court Erred When It Failed to Read the Four Principles Verbatim When It Read the Four Principles and Omitted the Numbers Separating the Principles
¶ 119 The majority holds the trial court did not err because “the circuit court read the specific principles set forth in the rule verbatim to the prospective jurors.” (Emphasis added.) Supra ¶ 27. A review of
¶ 120
6. The Trial Court Erred When It Omitted the Numbers Separating the Four Principles and by Doing So Collapsed the Four Rule 431(B) Principles Into One Broad Statement
¶ 122 In this case, the record reveals the trial court read the
7. The Trial Court Erred When It Failed to Read the Four Principles Verbatim When It Added Words to the Legal Principles
¶ 124 Additionally, instead of reading the principles “verbatim,” a review of the trial transcript reveals the trial court added words that are not included in the principles. See supra ¶¶ 69-70. For example, the trial court stated, “there are a number of propositions of law that you must be willing to follow if you are going to serve as a juror in this case.” The trial court also stated, “a person accused of a crime is presumed to be innocent of the charge against him.”
¶ 125 It is clear from the preceding that the trial court added words and changed words in
8. The Trial Court Erred When It Abdicated Its Responsibility to Determine the 32 Jurors’ Knowledge of the Four Principles and Their Biases and Prejudices by Permitting the 32 Jurors to Provide Silent, Nonverbal, Show-of-Hands Group Answers to the Two Compound Questions, Which Did Not Provide Information for the Court to Assess Credibility, and Therefore the Jurors’ Silent, Nonverbal Answers Did Not Provide the Trial Court With Information to Make a Judicial Decision About the 32 Jurors’ Impartiality
¶ 127 The trial court has the obligation in the first instance to impanel an impartial jury. Rosales-Lopez, 451 U.S. at 189. The Supreme Court has held that
“[v]oir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored. Without an adequate voir dire the trial judge‘s responsibility to remove prospective jurors who will not be able impartially to follow the court‘s instructions and evaluate the evidence cannot be fulfilled. [Citation.]” Id. at 188.
¶ 128 I subscribe to the principle that it is “axiomatic that the greater the depth of the questions, the greater the opportunity to observe demeanor and the greater the quantum of information available to enable the trial judge to make an accurate assessment of credibility.” Friedman, supra, at 941. “‘[S]earching questioning of potential jurors . . . to screen out those with fixed opinions‘” (emphasis omitted) (Mu‘Min, 500 U.S. at 440 (Marshall, J., dissenting, joined by Blackmun and Stevens, JJ.) (quoting Nebraska Press Ass‘n v. Stuart, 427 U.S. 539, 564 (1976))) and content-based questions involving a juror‘s beliefs and opinions must be asked of prospective jurors for the trial court to fulfill its obligation. In this case, the trial court‘s failure to ask content-based questions—questions eliciting information from potential jurors about their beliefs and opinions—so that the court could determine the 32 jurors’ impartiality made the trial court‘s
¶ 129 Raising one‘s hand in a group is at best the prospective juror‘s “own ‘assurance[ ] that he is equal to [the] task‘” but is not a substitute for a judge‘s determination the juror can be fair and impartial. (Emphasis in original.) Id. (quoting Murphy v. Florida, 421 U.S. 794, 800 (1975)). A prospective juror‘s own assurances “‘cannot be dispositive of the accused‘s rights.‘” Id. (quoting Murphy, 421 U.S. at 800). The prospective jurors are not to make their own determination as to whether they understand the principles for themselves.
¶ 130 The determination of whether the jurors understand and can be impartial is the exclusive function of the trial court. Murphy, 421 U.S. at 800 (“the juror‘s assurances that he is equal to this task cannot be dispositive of the accused‘s rights“). I agree with Justice Marshall‘s dissent in Mu‘Min, where he stated that “the trial court must do more than
¶ 131 The trial court erred and abused its discretion when it abdicated its duty to determine the prospective jurors’ understanding and impartiality by permitting the prospective jurors to determine their own understanding of the principles and their own impartiality. When the trial court judge cannot make a judicial determination about each prospective juror‘s impartiality because the jurors have provided silent, nonverbal, show-of-hands group answers to the court‘s questions, the defendant has been denied his right to a fair trial.
G. The Evidence Is Closely Balanced
¶ 133 The second question to be answered in a first prong plain-error analysis is whether the evidence is closely balanced. The eight errors I have identified establish that “‘a clear or obvious error occurred‘” in this case. People v. Sebby, 2017 IL 119445, ¶ 48 (quoting Piatkowski, 225 Ill. 2d at 565). Next we must determine whether “‘the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant.‘” Id. (quoting Piatkowski, 225 Ill. 2d at 565).
¶ 134 The State presented the testimony of two police officers who arrived on the scene within minutes of being alerted to smoke and flames coming from Chief City Vapor. Neither officer testified that they saw defendant enter or leave Chief City Vapor or start the fire. The State also presented an arson investigator as an expert. He opined that the fire was incendiary in origin and was caused by someone introducing an open flame to a couch inside the store. But he agreed with defense counsel that the source of the open flame that ignited the fire could have been the lighter found on the countertop in the store or an unfiltered lit cigarette left on the couch. Considering all the State‘s evidence, the State did not present any eyewitness testimony, or any forensic evidence, such as fingerprints or DNA (blood) or videos that connected defendant to the crimes charged.
¶ 135 Defendant testified that he did not burglarize or start the fire in Chief City Vapor. Defendant testified that, after he was released from the hospital for a drug overdose, his mother dropped him off at a gambling parlor. Defendant gambled at the parlor and then decided to walk over to this sister‘s house, which is located several blocks past Chief City Vapor. After no one answered the door at his sister‘s house, defendant started walking back to the gambling parlor. On his way back to the gambling parlor defendant walked by Chief City Vapor, where, he testified, he picked up the hooded sweatshirt containing items the owner testified were removed from his store. Defendant testified that the items found in his possession when he was arrested were picked up off the sidewalk outside Chief City Vapor.
¶ 136 Without any eyewitness testimony, forensic evidence, or video evidence to connect defendant to the burglary or arson, and without any testimony to contradict defendant‘s statement that he picked up items from the store off the sidewalk near the store, this court has a case where it must determine whom to believe. A commonsense
H. Rule 431(b) Is Facially Unconstitutional
¶ 138 Sometimes, “[i]n the exercise of its judicial responsibility, it is necessary *** for the Court to consider the facial validity” of a statute or rule when that argument has not been raised by the parties. Citizens United v. Federal Election Comm‘n, 558 U.S. 310, 333 (2010); Whole Woman‘s Health v. Hellerstedt, 579 U.S. 582, 136 S. Ct. 2292, 2307 (2016). The due process clause of the fourth amendment to the United States Constitution “guarantees more than fair process; it offers heightened protection against government interference with certain fundamental rights and liberty interests.” (Internal quotation marks omitted.) In re N.G., 2018 IL 121939, ¶ 24 (quoting Washington v. Glucksberg, 521 U.S. 702, 719-20 (1997)). Although a
¶ 139 Laws that interfere with or place an undue burden on constitutional rights may be facially unconstitutional. See Whole Woman‘s Health, 579 U.S. at 2318 (holding Texas law facially unconstitutional where it placed an “‘undue burden’ on [a] constitutional right“); Kleindienst v. Mandel, 408 U.S. 753, 763 (1972) (first amendment rights “‘may not constitutionally be abridged‘” (quoting Red Lion Broadcasting Co. v. Federal Communications Comm‘n, 395 U.S. 367, 390 (1969))); Brown v. Louisiana, 383 U.S. 131, 142 (1966) (“Interference with [a]
constitutional] right, [properly] exercised, by state action is intolerable under our Constitution.“). Our rules, like statutes, “must be construed to avoid an *** unconstitutional result.” In re Loss, 119 Ill. 2d 186, 194 (1987). A rule will be deemed facially invalid if no set of circumstances exist under which the statute or rule would be constitutional. Burns v. Municipal Officers Electoral Board of the Village of Elk Grove Village, 2020 IL 125714, ¶ 13. A rule that ” ‘has the effect of placing a substantial obstacle in the path of a’ ” defendant‘s right to a fair trial by an impartial jury ” ‘cannot be considered a permissible means of serving its legitimate ends.’ ” See Whole Woman‘s Health, 579 U.S. at ___, 136 S. Ct. at 2309 (quoting Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 877 (1992)).
¶ 140 I believe we must ask whether the plain language of Rule 431(b) affords a criminal defendant the fair-trial protections, during voir dire, that he or she is entitled to under our constitutions or whether the current rule serves to deprive a criminal defendant of those rights and whether, therefore, Rule 431 is facially unconstitutional.
¶ 141 In Rinehart, this court stated:
“Because there is no precise test for determining which questions will filter out partial jurors [citation], the manner
and scope of the examination rests within the discretion of the trial court, and we review such decisions for an abuse of discretion. An abuse of discretion occurs when the conduct of the trial court thwarts the purpose of voir dire examination—namely, the selection of a jury free from bias or prejudice. [Citations.] Stated differently, a trial court does not abuse its discretion during voir dire if the questions create ‘a reasonable assurance that any prejudice or bias would be discovered.’ [Citation.]” (Emphasis added.) Rinehart, 2012 IL 111719, ¶ 16 (citing, inter alia, People v. Clark, 278 Ill. App. 3d 996, 1003 (1996)).
¶ 142 I believe the plain language of
¶ 143 The purpose of voir dire is to ascertain sufficient information about prospective jurors’ beliefs and opinions so the trial court can make a judicial determination of their qualifications to serve on a jury impartially and remove those prospective jurors whose minds are so closed by bias and prejudice that they cannot apply the law as instructed. See Morgan, 504 U.S. at 729 (“part of the guarantee of a defendant‘s right to an impartial jury is an adequate voir dire to identify unqualified jurors“); Wainwright, 469 U.S. at 424; Irvin, 366 U.S. at 723.
¶ 144
¶ 145
¶ 147 First, to comply with the constitution‘s guarantee of a defendant‘s right to a fair trial before an impartial jury, I would amend
¶ 148 Second, the amended
¶ 149 Third, the amended
¶ 150 Fourth, the amended
“Currently, the state courts are split on the issue of whether to define reasonable doubt. Illinois is in the minority of jurisdictions that admonish trial courts from defining the term reasonable doubt, even when asked by the jury for guidance. Only 10 other states find themselves in agreement with Illinois’ position. As for the remaining 39 states, they leave the decision to define the term up to the trial court if there is no pattern jury instruction. The Federal Courts are also split as to defining reasonable doubt.” Bobby Greene, Reasonable Doubt: Is It Defined by Whatever Is at the Top of the Google Search Page?, 50 J. Marshall L. Rev. 933, 941 (2017).
See also Timothy James Ting, It‘s Time to Define “Beyond a Reasonable Doubt”, 106 Ill. B.J. 24 (2018); O‘Neill, supra.
¶ 151 Therefore, because Illinois is in the minority of jurisdictions that do not define reasonable doubt, I would define the principle in order to ensure the principle is applied properly by jurors and to ensure that every defendant receives a fair trial.
¶ 152 Finally, I would amend
¶ 153 III. CONCLUSION
¶ 154 In sum, the trial court exercised its discretion to implement and execute
¶ 155 This court must codify and promulgate a procedure that complies with the constitution and protects a defendant‘s right to a fair trial by an impartial jury. To comply with the constitution, the amended rule must prohibit group voir dire and mandate individualized content-based questioning of each juror so that the trial court and this court have a basis upon which to gauge each prospective juror‘s
¶ 156 In my opinion, the record does not establish that Mr. Birge received a fair trial before an impartial jury because the voir dire in this case was structurally defective. Therefore, I would reverse the judgment of the appellate court, reverse defendant‘s conviction, and remand the case for a new trial. Consequently, I respectfully dissent.