THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEAN A. FUKAMA-KABIKA, Defendant-Appellant.
NO. 4-17-0809
In the Appellate Court of Illinois, Fourth District
August 11, 2020
2020 IL App (4th) 170809-U
JUSTICE DeARMOND delivered the judgment of the court. Justices Knecht and Holder White concurred in the judgment.
Appeal from the Circuit Court of Champaign County, No. 15CF648, Honorable Thomas J. Difanis, Judge Presiding. FILED Carla Bender 4th District Appellate Court, IL
ORDER
¶ 1 Held: The appellate court affirmed, holding (1) there was no error in the giving of Zehr admonishments under
¶ 2 In May 2017, a jury convicted defendant, Jean A. Fukama-Kabika, of two counts of criminal sexual assault, one count of criminal sexual abuse, and one count of unlawful restraint. The trial court sentenced defendant to seven years in the Illinois Department of Corrections (DOC) on each of the sexual assault counts and one year in prison for the unlawful restraint count, with each sentence to be served consecutively. Defendant was sentenced to three years in DOC on the sexual abuse count, to be served concurrently. In his posttrial motion, defendant claimed the prosecution improperly sought to shift the burden of proof during closing
I. BACKGROUND
¶ 3 ¶ 4 In May 2015, the State charged defendant with one count of criminal sexual assault, a Class 1 felony (
¶ 5 When the police confronted defendant about the victim‘s accusations, he admitted the victim was unwilling and told him “no” when he began his advances. Defendant, whose primary language is French, testified through an interpreter and indicated he had difficulty communicating with the police when they questioned him. During police questioning, however, he acknowledged turning the car‘s ignition off against her will to prevent her from leaving. When asked why he persisted in his advances after the victim made it clear she wanted him to leave her car, the officer testified defendant said “he continued to try to initiate this contact with her because he was a male and you had to continue trying to make sure that a woman was not really interested.” According to the officer, defendant acknowledged reaching into the victim‘s pants and touching her vagina with his fingers even after she “continued to tell him no” and only stopped when “he realized that he was not going to get as much or this was not going to go as far as he wanted so he ended up giving up.” Defendant, testifying on his own behalf, said the sexual contact was consensual. He also testified his inability to communicate effectively in English caused the officers to misunderstand what he was trying to convey about the interaction between him and the victim in the car. He said he understood the victim to be saying she did not want another relationship, but that she was not opposed to what was transpiring in her vehicle.
¶ 6 Although each side called several additional witnesses to corroborate either what transpired earlier in the evening or after the victim first disclosed the incident in her car, the evidence of the encounter was limited to the testimony of defendant and the victim. Since the victim declined to go to the hospital, despite the investigating officers’ request she go, there was no physical or forensic evidence presented.
¶ 8 This appeal follows.
II. ANALYSIS
¶ 10 Defendant raises four issues, only two of which were argued before the trial court in his posttrial motion. He now claims the trial court (1) erred in its
A. Zehr Admonishments
¶ 11 ¶ 12 Defendant accurately notes the question of whether a trial court violated
¶ 13 Three years earlier, in People v. McGuire, 2017 IL App (4th) 150695, ¶ 35, 92 N.E.3d 494, this court sought to explain the importance of strict compliance with
“That rule ensures that members of the jury understand and accept the bedrock principles of Anglo-American criminal law. Failing to comply with [the rule] could threaten the integrity of the jury‘s verdict or, at the very minimum, cast doubt on any guilty verdict a jury might return. Trial courts must exercise diligence when instructing the jury of the Zehr principles as codified in
Rule 431(b) and must not deviate in any way from the precise language chosen by the Illinois Supreme Court to be in that rule.”
¶ 14 In an effort to reinforce the significance of following the language in the rule, we highlighted the need for prosecutors to be aware of the rule‘s strict requirements so they could alert the court to any deficiencies in their admonishment, thereby protecting their records. In McGuire, the trial court, after reciting each principle individually, asked prospective jurors if they “disagreed” with each principle but failed to ask whether they understood and accepted them. We noted this was “clear error.” However, the trial court, at the completion of its inquiry for each group of jurors then asked both the State and defense to indicate whether they “believe that [the prospective jurors] ha[ve] been properly admonished as far as [the] Zehr principles.” McGuire, 2017 IL App (4th) 150695, ¶ 9. As a result, defendant‘s acquiescence precluded raising the issue under a “plain error” analysis on appeal and distinguished the facts in McGuire from People v. Sebby, 2017 IL 119445, 89 N.E.3d 675, decided by the supreme court only five months before. There, our supreme court said Rule 431(b) was not satisfied when the trial court asked prospective jurors whether they “believed in” or “had any problem with” any of the four Zehr principles. Although originally grouping all four together, as the court continued questioning the jurors it discussed each principle while interspersing comments and questions about whether the jurors could be fair and impartial. There too, the defense failed to object to the method of questioning at trial and sought to raise the issue as one of first prong plain error, i.e., clear error where the evidence is closely balanced. The supreme court held a Rule 431(b) violation constituted an “instructional error” which would not entitle a defendant to second-prong automatic reversal as a structural error absent evidence of actual jury bias. Sebby, 2017 IL 119445, ¶ 67. However, when coupled with proof of closely balanced evidence, it required reversal under the first prong, since “[i]f the defendant carries that burden, prejudice is not presumed; rather, ‘[t]he error is actually prejudicial.‘” Sebby, 2017 IL 119445, ¶ 51 (quoting People v. Herron, 215 Ill. 2d 167, 193, 830 N.E.2d 467, 483 (2005)). The supreme court found, after evaluating “the totality of the evidence and conduct[ing] a qualitative, commonsense assessment of it within the context of the case,” the evidence was closely balanced and the court‘s instructional error warranted reversal and remand for a new trial. Sebby, 2017 IL 119445, ¶¶ 53, 78.
¶ 15 The accepted methods of questioning are as numerous as the cases deciding the issue. By way of example, in the oft-cited People v. Belknap, 2014 IL 117094, ¶ 42, 23 N.E.3d 325, jurors were questioned in panels of six. In Wilmington, 2013 IL 112938, ¶ 28, the prospective jurors were questioned as a group. In People v. Hayes, 409 Ill. App. 3d 612, 614, 949 N.E.2d 182, 185 (2011), jurors were questiоned in panels of 14. In People v. Willhite, 399 Ill. App. 3d 1191, 1193, 927 N.E.2d 1265, 1267 (2010), jurors were broken down into panels of four before being questioned. The trial court in People v. Brown, 2019 IL App (5th) 160329, ¶ 4, 145 N.E.3d 486, questioned jurors by row. In People v. Morris, 2013 IL App (1st) 110413, ¶¶ 80, 83, 1 N.E.3d 1033, where the court questioned all 14 prospective jurors in the jury box as well as 20-25 prospective jurors seated in the gallery, the First District noted, “[T]here is no requirement that a trial court use the exact language of the rule and the rule does not prescribe a precise formula for trial judges to use in ascertaining jurors’ prejudices or attitudes.” (Internal quotation marks omitted.) In each case, regardless of whether the actual questions were found to be error, the method was never criticized.
¶ 16 Here, defendant fails to note the trial court, at the outset of the jury selection process, informed all the prospective jurors present they would be receiving writtеn instructions at the conclusion of the trial, which would include the following:
“The first instruction is that the defendant is presumed to be innocent of the charges against him. This presumption remains with him throughout every stage of the trial and during your deliberations on the verdict, and is not overcome unless from all the evidence in this case you are convinced beyond a reasonable doubt that he is guilty. The State has the burden of proving the defendant—proving the guilt of the defendant beyond a reasonable doubt, and this burden remains on the State throughout the case. The defendant is not required to prove his innocence. In connection with that last sentence, this defendant, as does every individual, possess an absolute right not to testify at his trial if he
so chooses. If the defendant chooses not to testify, yоu will receive an instruction that states the fact that the defendant did not testify must not be considered by you in any way in arriving at your verdict.”
¶ 17 Later, when asking about these principles in particular, the trial court grouped all four Zehr principles into one question, asking each panel of four prospective jurors whether they “understood” or “understand those instructions” and whether they “will follow those instructions” before impaneling them. Defendant objects not only to the grouping of the principles but also what he characterized as the “suggestive practice” of the court by “affirmatively stat[ing] the jurors would understood [sic] and follow the principles before eliciting their response with the leading question ‘is that correct?‘.”
¶ 18 As the State accurately points out, this particular judge‘s practice of grouping all four Zehr principles into one question was previously addressed in Willhite, and the practice in general, most recently in People v. Kinnerson, 2020 IL App (4th) 170650. In each case, the defendant complained about the collapsing of all four issues into one broad instruction; and, in each, just as in the case before us, there was no objection to this process at trial or by way of a posttrial motion. One may suspect, since the majority of cases raising Zehr issues on appeal involve arguing plain error to avoid forfeiture, this may be because it is rarely an issue for defendant or his counsel at trial.
¶ 19 Regardless, in Kinnerson, the defendant also argued the trial court erred by “combining the four principles into a single statement on the law.” (Internal quotation marks omitted.) Kinnerson, 2020 IL App (4th) 170650, ¶ 60. This court found the trial court‘s statement of all four principles, followed immediately by questioning of jurors “row by row,” asking, “do
¶ 20 Defendant argues our rationale in Willhite is based solely on an earlier vacated version of People v. McCovins, 399 Ill. App. 3d 323, 928 N.E.2d 486 (2010), vacated, 239 Ill. 2d 574, 940 N.E.2d 1151 (2011). This is not new. We addressed the identical argument in Kinnerson, where, after noting the absence of language in both Thompson and
B. Defendant‘s Sixth Amendment Claim
¶ 23 Here, the trial court removed an individual because of his inappropriate interactions with a juror. This is more akin to the removal of an unruly spectator, similar to the situation in People v. Cooper, 365 Ill. App. 3d 278, 282-83, 849 N.E.2d 142, 146-47 (2006), which discussed “partial closure” within the context of excluding several family members of the defendant due to their behavior before the jury. There, this court noted the presumption against removal may yield to an “overriding interest that is specifically articulated.” (Internal quotation marks omitted.) Cooper, 365 Ill. App. 3d at 282. We also found the standard to be applied when determining the sufficiency of the record to support a trial judge‘s exclusion of a disruptive individual from the courtroom is whether there has been an abuse of discretion. Cooper, 365 Ill. App. 3d at 282.
¶ 24 In the case before us, one person, not related to defendant and identified only as someone from his church who was present for “support,” was seen shaking hands and interacting in some fashion with one of the jurors being excused for lunch. There is no indication anyone else was excluded or that defendant opposed the removal of the person interfering with a juror. The trial transcript reveals after the second panel of jurors had been selected and sworn, they and the remaining venire were being released for lunch when thе following conversation occurred:
“THE COURT: Mr. Dill [(defense attorney)], who is that gentleman that‘s shaking hands with one of my jurors?
MR. DILL: Judge, this is a man that I met this morning
who goes to church with my client and he‘s here for support. That‘s—. THE COURT: Sir, you‘re excused from this trial. I don‘t expect to see you here again. You do not interact with my jurors. We will be in recess.”
¶ 25 When they reconvened, the court made no further comment. The “overriding interest” was “specifically articulated” by the trial court when confronting counsel and addressing the individual. He was being removed for directly interacting with what we can surmise was one of the jurors who had already been selected and sworn since the court referred to “one of my jurors.” The “overriding interest” here was to ensure a trial with fair and impartial jurors, something one would assume was important to defendant as well, unless, of course, he was hoping for some level of bias or influence generated by the supporter‘s interaction with the juror with whom he was seen shaking hands.
¶ 26 Of note once again, defendant did not object. His counsel did not include this issue in a lengthy and detailed posttrial motion. Instead, we see it for the first time on appeal, as if sprung full-grown from the forehead of Zeus and argued as if the court conducted a wholesale evacuation of the courtroom. Our remarks should not be construed or misconstrued as some comment on a defendant‘s legitimate and necessary right to appeal. They are not. Instead, they highlight once again the fact that the issue was not of concern to defendant or his counsel, but appears now, exaggerated beyond what the reсord reveals. This was not a “closing” of defendant‘s public trial. The extent of the closure, or more accurately, eviction, would fall under the “triviality standard” of Peterson v. Williams, 85 F.3d 39, 42 (2d Cir. 1996). A triviality standard, properly understood, looks to whether the actions of the court and the effect that they
¶ 27 Our supreme court recently analyzed the public trial issue in People v. Radford, 2020 IL 123975, where a defendant contended the trial court erred by partially closing the courtroom during jury selection when it filled the courtroom with prospective jurors, leaving only enough space for two members of the defendant‘s and the victim‘s families. The court discussed at length the sixth amendment right to public trials, noting, “[a] contemporaneous objection is particularly crucial when challenging any courtroom closure” and the failure to object deprives a trial court of the opportunity to explain its justification or develop an alternate plan. Radford, 2020 IL 123975, ¶ 37. More importantly, the court stated, “This need to lodge a contemporaneous objection to a courtroom closure also prevents a defendant from potentially remaining silent about a possible error and waiting to raise the issue, seeking automatic reversal only if the case does not conclude in his favor.” Radford, 2020 IL 123975, ¶ 37.
¶ 28 In People v. Evans, 2016 IL App (1st) 142190, ¶ 11, 69 N.E.3d 322, the First District “assume[ed] that preventing juror contamination [wa]s an ‘overriding interest‘” when evaluating the effect of removing an individual—in that case, the defendant‘s step-grandmother. See also Waller v. Georgia, 467 U.S. 39, 48 (1984). It was the inability to show efforts at contamination which doomed the trial court‘s decision to exclude her from witnessing voir dire. Evans, 2016 IL App (1st) 142190, ¶¶ 11-12. In People v. Willis, 274 Ill. App. 3d 551, 554, 654 N.E.2d 571, 574 (1995), the trial court was found to have erred by barring defendant‘s family members from voir dire to prevent contamination of prospective jurors, without evidence. The situation before us is not the one to which defendant alludes in his citation of Presley v. Georgia, 558 U.S. 209, 215 (2010). Presley, as well as Willis and Evans, involved “perceived” possible
C. Victim‘s Rebuttal Testimony
¶ 29 ¶ 30 Defendant next argues the trial court‘s decision to permit the victim to be recalled by the State as a rebuttal witness was error. Defendant accurately notes we review the discretionary admission of rebuttal testimony under an abuse of discretion standard. People v. Woods, 2011 IL App (1st) 091959, ¶ 26, 952 N.E.2d 105. Indeed, it is within the trial court‘s discretion whether to allow rebuttal testimony and that determination will not be disturbed absent “a clear abuse of discretion.” (Emphasis added.) People v. Harris, 231 Ill. 2d 582, 588, 901
¶ 31 After defendant testified on his own behalf, the prosecutor indicated it was his intention to recall the victim. Defendant objected, contending the same topics were already covered by the victim and defendant, and since nothing new had been brought up by defendant‘s testimony, there was no legitimate basis for recalling the victim other than to allow her to repeat her emotional testimony before the jury.
¶ 32 The trial court noted several areas where their testimony had differed but made it clear to the State: “[I]ts going to be really limited ***. Again, we‘re not going back over this all again. [Defense counsel] has a point. You can ask some specific questions where you think they are rebutting the testimony that was presented.”
¶ 33 After a recess, the trial court reiterated, “[R]ebuttal is going to be brief. There are very few, as I recall the testimony, things that could be rebutted by the victim testifying.” It is clear from the record the trial court thought there were several areas where rebuttal testimony was proper but was careful to note the “really limited” nature of rebuttal evidence it would allow the State to elicit from the victim. In fact, during the necessarily leading questioning by the State at one point, when the State instructed the witness to “[t]ell the jury what happened,” the court immediately stepped in, addressing the State: “No ***. The answer is either yes or no,” requiring the State to keep the inquiry specific and limited. In addition, as defense counsel repeatedly objected to “asked and answered” questions, the court was quick to note to the prosecutor when his questioning went beyond the limited bases for rebuttal.
¶ 34 The proper use of rebuttal evidence is to “explain, contradict or disprove
¶ 35 Here, the court strictly limited the prosеcutor both as to topic and extent of examination, to address only those issues which would tend to “‘explain, repel, contradict or disprove evidence of the defendant.‘” Hood, 213 Ill. 2d at 261 (quoting Lucas, 132 Ill. 2d at 434). The areas of inquiry were limited to interaction between the victim and defendant while at the hotel where defendant testified the victim “slow danced” with him, a claim by defendant he had prearranged plans for the next day with the victim, a claim by defendant of a number of planned dates which had to be cancelled due to work, and defendant‘s claim the victim sang him a song and provided a “lap dance” while they were parked outside his residence.
¶ 36 Considering this case was a credibility contest between the victim and defendant as to what transpired between the two of them while parked in a vеhicle, claims by defendant to
¶ 37 The trial court was careful to limit the length and area of inquiry to those specific assertions made by defendant during his testimony and most of defense counsel‘s objections were sustained. The victim‘s testimony can in no way be characterized as “improperly bolstering her credibility.” Instead, it addressed the inference raised by defendant during his testimony about the nature of the relationship between defendant and the victim, which was intended to buttress his claim of consensual behavior.
¶ 38 We do not find the court‘s admission of limited rebuttal testimony here to be arbitrary, fanciful, or unreasonable.
D. Prosecutor‘s Comments During Closing Argument
¶ 40 Defendant also contends he failed to receive a fair trial due to comments made by the prosecutor during closing argument. Defendant claims the prosecutor misstated the law, shifted the burden of proof to the defense, and improperly vouched for the credibility of the victim. We consider whether a prosecutor‘s comments during closing argument are sufficiently egregious to require a new trial as а legal issue subject to de novo review. People v. Anderson, 2018 IL App (4th) 160037, ¶ 47, 102 N.E.3d 260. In People v. Wheeler, 226 Ill. 2d 92, 122, 871 N.E.2d 728, 744 (2007), our supreme court clearly indicated its intent to “reaffirm our intolerance of prosecutorial misconduct.” It first acknowledged, however, “[p]rosecutors are
¶ 41 We note all the comments of which defendant complains are contained in the State‘s rebuttal argument. Regarding the “burden-shifting” comment, defendant asserts in his brief that “the prosecutor first raised the issue that [the victim] would not levy these allegations for no reason.” Thus, although defense counsel replied by stating he did not know the answer to the factual question of why the victim would make false allegations, this argument did not permit the prosecutor to respond with repeated and incorrect statements of law that shifted the burden of proof to defendant. One small problem—there was no comment by the prosecutor in his initial closing about how the “victim would not levy these allegations for no reason” and the record cited by defendant is to the final comment of the prosecutor‘s rebuttal argument.
¶ 42 A careful reading of the State‘s initial closing argument reveals it focused on the two different versions of what happened and discussed the credibility determinations the jury was being required to make. It was the defense who first brought up the idea of “why would she
“This [sic] I kissed her and she fell into my arms overcome with cries of passion and pleasure. And then things stopped and we just went our separate ways and she drives home, and suddenly she apparently for no reason claims sexual assault.”
He then went on to discuss other aspects of defendant‘s testimony.
¶ 43 During the defense closing, however, counsel said:
“[The prosecutor] alluded to the fact why would she make this up? Why would anyone make up these allegations? Why would they do this? I don‘t know. We don‘t know. We certainly don‘t—no one has to prove why someone would come into court ***. We don‘t have to prove that, but why? Why would she make that up? Every day you read the newspaper. Terrible things happen. People lie. People do terrible thing to other people, and most of the time we don‘t know why. There‘s no answer to that question, but the evidence has shown you that‘s exactly what happened here. That‘s exactly what happened.”
¶ 44 It was in response to these comments that the prosecutor, in his rebuttal argument, said:
“Cоunsel brings it up and we have to address it. Why? Why, why, why, why, why is [victim] saying this happened? Counsel says I have no idea. I will give you a spoiler right now and
say I do. Here is the answer. It is because it happened. She is saying it happened because it happened. Now for you to disbelieve [the victim]—for you to disbelieve [the victim] I think you should have some reason for her to have made this up.”
¶ 45 There was an objection interposed by defense counsel and overruled by the court. The prosecutor continued: “For you to disbelieve her I suggest you have to have some reason why she would have made it up, and this is why. Did that look like fun? When [the victim] was on the stand, when she shared this with you, did that look like fun?”
¶ 46 There was no objection to this comment. To support defendant‘s claim of “burden shifting,” defendant‘s brief parsed the prosecutor‘s words during his rebuttal argument, omitting an intervening objection and reciting only portions of a sentence.
¶ 47 Regardless, the comments were obviously in response to defendant‘s closing argument and are not improper. As noted by the State, our supreme court outlined the difference between a permissible argument concerning the credibility of a witness and an impermissible one in People v. Banks, 237 Ill. 2d 154, 184-185, 934 N.E.2d 435, 452 (2010). Citing its previous decision in People v. Coleman, 158 Ill. 2d 319, 633 N.E.2d 654 (1994), the supreme court distinguished between a situation “where a prosecutor improperly argues that a jury would have to believe the State‘s witnesses were lying in order to acquit defendant,” and a permissible argument where the State argues “a jury would have to believe the State‘s witnesses were lying in order to believe the defendant‘s version of events.” (Emphasis in original.) Banks, 237 Ill. 2d at 185.
¶ 48 “Statements must be considered in the context of closing arguments as a wholе, and the State can reasonably respond in rebuttal to the defense‘s characterization of the evidence
¶ 49 Defendant further claims the State sought to “shift the burden of truth” with the prosecutor‘s final statement during rebuttal:
“The only explanation for those facts or those circumstances and for her going through this and saying things she did that day are true. That is why she is saying it, and there is no other explanation and there is no other explanation offered. The explanation is this: The defendant is guilty and he should so be found.”
¶ 50 In addition to the fact there was no objection, the comment is in direct response to one made by defense counsel, “Why would anyone make up these allegations? Why would they do this? I don‘t know,” followed by defense counsel‘s assertion that “people lie.” In context, the comment appears directed more toward the victim than defendant. The prosecutor was arguing the one and only explanation to be offered on her behalf was that she was telling the truth. There is nothing about the prosecutor‘s comment which shifts the burden of proof, and as a comment on a matter raised by defendant, it is proper under the circumstances. See Bell, 2020 IL App (4th) 170804, ¶ 134. “It is permissible for a prosecutor to comment on thе uncontradicted nature of the State‘s case even where the only person who could have contradicted the State‘s evidence was the defendant himself.” People v. Reno, 32 Ill. App. 3d 754, 759, 336 N.E.2d 36, 39 (1975). Here, there was no effort to comment on defendant‘s lack of evidence, or some claimed “burden,” but merely a response to defendant‘s closing argument.
¶ 51 Defendant‘s final claim is that the prosecutor “personally vouched for and
¶ 52 Absent error, there is no need to consider defendant‘s plain error claim regarding those comments for which there was no objection or reference in his posttrial motion. People v. Jackson, 2020 IL 124112, ¶ 88 (“Without reversible error, there can be no plain error.“).
III. CONCLUSION
¶ 54 For the reasons set forth above, we affirm the trial court‘s judgment.
¶ 55 Affirmed.
JUSTICE DeARMOND