People v. Vesey
957 N.E.2d 1253
Ill. App. Ct.
2011
Check Treatment
957 N.E.2d 1253 (2011)

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Janet VESEY, Defendant-Appellant.

No. 3-09-0570.

Appellate Court of Illinois, Third District.

September 27, 2011.

*1254 Robert Agostinelli, Deputy Defender (Court-appointed), Office of the State Appellate Defender, Ottawa, Ron D. Dolak (Court-appointed), Konicek & Dillon, P.C., Geneva, for Janey Vesey.

Terry A. Mertel, Deputy Director, State's Attorneys Appellate Prosecutor, Jeff Terronez, State's Attorney, Gary F. Gnidovec, State's Attorneys Appellatе Prosecutor, Rock Island, for People.

OPINION

Justice HOLDRIDGE delivered the judgment of the court, with opinion.

¶ 1 After a jury trial, the defendant, Janet Vesey, was convicted of unlawful possession of a controlled substance. 720 ILCS 570/402(c) (West 2008). She appeals her conviction and argues that she is entitled to a new trial because the trial court failed to comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007). We reverse and remand.

¶ 2 FACTS

¶ 3 I. Discovery of the Controlled Substance

¶ 4 On December 23, 2008, the defendant and her sister had spent the day finishing their Christmas shopping. They had also visited Walmart so the defendant could try on bras and girdles for an event that the defendant had to attend the following January. During the early morning hours of December 24, they were pulled over by Officer Ibrahim Ramirez. Ramirez pulled the defendant over because the vehicle's license plates were suspended. During the traffic stop, the defendant admitted to the officer that her driver's license was suspended. She was arrested, and the оfficer performed a limited pat-down on her, which mainly consisted of checking her pockets for weapons.

¶ 5 The defendant was taken to the Rock Island County jail, and she was turned over to correctional officer Michelle Haun. Haun took the defendant to a small room so that she could hаve some privacy while changing into jail-issued clothing. Haun testified that she looked in the room before taking the defendant in. As the defendant was removing her bra, Haun heard a noise and the defendant say "[t]hat's not mine, [t]hat's not mine!" Haun described the noise as a "light little thud." Looking down, she saw a bag on the floor that contained a white substance and a straw.

¶ 6 According to the defendant, she was strip searched when she was taken into the small room. After she had changed into the jumpsuit, she bent over to put on flip-flops and saw the bag on the floor. She told Haun about the bag because she did not want to be blamed for it later. Haun said that it must have fallen from the defendant's bra and gave the bag to another officer. The substance tested positive for cocaine.

*1255 ¶ 7 II. Voir Dire

¶ 8 The trial of this matter took place on April 23, 2009. The trial court conducted voir dire by calling panels of four prospective jurors at a time. During the first panel, the cоurt asked:

"Do each of you folks understand that the defendant is presumed innocent at this point and has a right to have a trial?
* * *
And the presumption of innocence, folks, remains with the defendant throughout the entire case, and it's not overcome unless the State is able to show her guilt beyond a reasonable doubt. Do each of you understand that?
* * *
And do each of you understand that the defendant is presumed innocent and has a right to rely on that presumption of innocence and has a right to put on no evidence whatsoever if she wants to. Do each of you understand that?
* * *
And if the defendant would choose not to рut on any evidence, that fact could not be considered by you in judging her guilt or innocence. Do each of you understand that?
* * *
Do any of you have any quarrels or disagreements ‍​‌​​‌‌​​‌​‌​​‌‌​​‌​‌‌‌​​‌​‌​‌‌​​‌‌‌​​​‌​‌‌​​​​​​‍with any of these propositions of law?"

¶ 9 The State and the defendant accepted all four individuals on the jury. The trial court then called the second panel and asked:

"And do all of you understand the burden of proof issues that we have been talking about? In other words, at this point the defendant is presumed innocent of the charge and she is entitled to rely on that presumption of innocence throughout the entire case. Do each of you understand that?
* * *
And do each of you understand that presumption of innocence is not overcome unless the State is able to prove her guilt beyond a reasonable doubt? Do each of you understand that?"

The defense attorney also inquired of the second panel:

"Does anyone feel as though myself or Ms. Vesey has anything that they have to prove hеre today? Anyone? Raise your hand if you think that we do?
* * *
If I were to sit here, and obviously I'm not going to, I've obviously expressed that I'm going to be calling some witnesses, and stare at the ceiling tile and not call any witnesses, would you think that I have done something wrong?
* * *
Does anybody feel as though—my question here is to make sure you undеrstand that my client as she sits here today is an innocent person. She does not have to prove anything. That the entire burden of proof remains on the State. Does anybody have a problem with that?"

¶ 10 Three of the four panel members were accepted onto the jury. The next prospective juror was questioned individually by the trial court and the attorneys, and he was accepted onto the jury. The trial court asked him if he understood the principles of reasonable doubt and the presumption of innocence. This juror was not asked if he accepted those principles of law.

¶ 11 The last four jurors that eventually made it onto the jury were all asked if they understood the presumption of innocence *1256 and the fact that the State had to prove the defendant guilty beyond a reasonable doubt. Those jurors were also asked if they had any quarrels with those principles of law.

¶ 12 After the trial, all of the jurоrs were instructed on the presumption of innocence and the burden of proof. The jury found the defendant guilty, and she was sentenced to 24 months of probation. She appealed.

¶ 13 ANALYSIS

¶ 14 The defendant argues that she was denied the right to a fair trial because the trial court failed to strictly comply with Rule 431(b). Ill. S.Ct. R. 431(b) (eff. May 1, 2007). The defendant admits that she did not object to this error during trial, or raise the issue in a posttrial motion, and that failure to do so ordinarily results in forfeiture of the issue. People v. Schaefer, 398 Ill.App.3d 963, 338 Ill.Dec. 650, 924 N.E.2d 1176 (2010). Therefore, in order for the defendant to succeed in her argument, the trial court must have committed plain error. People v. Herron, 215 Ill.2d 167, 294 Ill.Dec. 55, 830 N.E.2d 467 (2005). Under the plain error rule, we will remаnd for a new trial only if: (1) the evidence is closely balanced; or (2) the error was so serious it denied the defendant a fair trial. Herron, 215 Ill.2d 167, 294 Ill.Dec. 55, 830 N.E.2d 467.

¶ 15 Rule 431(b) provides:

"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) that before а 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 the defendant's failure to testify cannot be held against him or her; however, no inquiry of a prospective juror shаll be made into the defendant's failure to testify when the defendant objects." (Emphases added.) Ill. S.Ct. R. 431(b) (eff. May 1, 2007).

¶ 16 In this case, error occurred because certain members of the jury were not asked about some of these principles. No member of the jury was asked whether he or she understood and accepted that the defendant's refusal to testify could not be held against her. In addition, 4 of the 12 jurors were not asked by the trial court if they accepted the presumption of innocence or the State's burden of proof.[1] The trial court's failure to properly question jurors under Rule 431(b) constitutes noncompliance with the rule. People v. Thompson, 238 Ill.2d 598, 345 Ill.Dec. 560, 939 N.E.2d 403 (2010).

¶ 17 The issue then becomes whether the error warrants a new trial. The defendant first argues that she is entitled to a new trial because the evidence in this case is closely balanced. The defendant points out that she presented four witnesses at trial while the State only offered two. In addition, thе trial largely came down to Haun's word against the defendant's. This suggests that the evidence *1257 was closely balanced because there was no corroborating evidence of guilt and defendant's verdict was decided by who the jury found more credible. See People v. Naylor, 229 Ill.2d 584, 608, 323 Ill.Dec. 381, 893 N.E.2d 653 (2008) (holding that evidence was closely balanced where "[t]he evidence boiled down to the testimony of * * * two police officers against that of the defendant").

¶ 18 In Herron, the court stated that where there is error in a closely balanced case it is important to err on the side of fairness so as to not convict an innocent person. Herron, 215 Ill.2d 167, 294 Ill. Dec. 55, 830 N.E.2d 467. Once the defendаnt proves that there was an error and that the evidence was closely balanced, the error is considered prejudicial. Id. The Herron court explained:

"If the defendant carries the burden of persuasion and convinces a reviewing court that there was error and that the evidence was closely balanced, the case is not cloaked with a presumption of prejudice. The error is actually prejudicial, not presumptively prejudicial." Herron, 215 Ill.2d at 193, 294 Ill.Dec. 55, 830 N.E.2d 467.

See also People v. Piatkowski, 225 Ill.2d 551, 564-65, 568, 571-72, 312 Ill.Dec. 338, 870 N.E.2d 403 (2007).

¶ 19 In People v. White, 2011 IL 109689, 353 Ill.Dec. 517, 956 N.E.2d 379, our supreme court noted that a defendant may obtain reversal of his conviction under the closely-balanced-evidence prong of plain error only if he can shоw that he was prejudiced by the alleged error. White, 2011 IL 109689, ¶ 133. However, in our view, this does not alter the rule established in Herron, i.e., that a defendant may show prejudice (and therefore obtain reversal of his conviction) merely by showing that the trial court committed an error and that the evidence was closely balanced. In White, the supreme court held that the evidence was not closely balanced. White, 2011 IL 109689, ¶¶ 134-42. Thus, under the rule set forth in Herron, the White сourt reasonably concluded that the defendant had failed to prove that the error alleged by the defendant was prejudicial. White does not upend the established principle that if a defendant shows that there was error and that the evidence was closely balanced (as the defendant ‍​‌​​‌‌​​‌​‌​​‌‌​​‌​‌‌‌​​‌​‌​‌‌​​‌‌‌​​​‌​‌‌​​​​​​‍has done in this case), the error is both prejudicial and reversible and no further showing of actual prejudice is required. Thus, although White states that a defendant alleging plain error under the closely-balanced-evidence prong must "show that he was prejudiced," (White, 2011 IL 109689, ¶ 133), a defendant may show such prejudice merely by showing that an error occurred and that the evidence was closely balanced. Herron, 215 2d at 193, 294 Ill.Dec. 55, 830 N.E.2d 467.

¶ 20 However, although White's holding is consistent with the traditional plain error analysis applied in Herron, certain statements in White appear to be in tension with that analysis. For example, White compares the showing of prejudice required in plain error cases to the showing of prejudice required in cases involving claims of ineffective assistanсe of counsel based on evidentiary error. White, 2011 IL 109689, ¶ 133. In the latter cases, a defendant must show that there was a "reasonable probability of a different result had the evidence in question been excluded." Id. ¶ 133 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Applying this "results-oriented" analysis (id. ¶ 134), the supreme court noted that the alleged error at issue in White was not prejudicial because it did not "figurе prominently in the [trial] court's finding of guilt." Id. ¶ 140; see also id. ¶¶ 133, 135. These *1258 statements arguably conflict with Herron's rulings that a defendant alleging plain error "need not prove that the error * * * actually misled" the fact finder and that a defendant may prove prejudice merely by showing "that there was error and that the evidence was closely balanced." Herron, 215 Ill.2d at 193, 294 Ill.Dec. 55, 830 N.E.2d 467. However, we conclude that these statements in White are dicta which are unnecessary to thе court's holding. As noted above, White held that the defendant could not show prejudice because the evidence was not closely balanced. Because White's holding is consistent with the traditional plain error analysis announced in Herron, we do not read White as changing that analysis.[2]

¶ 21 Moreover, although White apparently modified another aspect of the traditional plain error analysis, this modification does not effect our analysis or our conclusion in this case. White acknowledged that, "as a matter of convention," the supreme court "has typically undertaken plain-error review by first determining whether error occurred at all." White, 2011 IL 109689, ¶ 144. Typically, only after the court has first determined that an error occurred will the court proceed ‍​‌​​‌‌​​‌​‌​​‌‌​​‌​‌‌‌​​‌​‌​‌‌​​‌‌‌​​​‌​‌‌​​​​​​‍to determine whether the evidence in the case was closely balanced, rendering the error reversible. See, e.g., People v. Sargent, 239 Ill.2d 166, 189-90, 346 Ill.Dec. 441, 940 N.E.2d 1045 (2010). However, in White, the court broke with convention and determined that the evidence was not closely balanced without first determining whether any error had occurred. Because the court found that the evidence was not closely balanced, it affirmed the defendant's conviction on that basis without determining whether the trial court had erred.[3] The court applied this unconventional analysis for three reasons. First, the error alleged by the defendаnt was a constitutional error, and the established doctrine of constitutional avoidance requires courts to avoid the adjudication of constitutional issues if the case can be decided on other grounds. White, 2011 IL 109689, ¶¶ 144-48. Second, the record before the trial court was inadequately developed to permit a fair review of the defendant's claim of error because the State did not have an opportunity to adduce all available evidence bearing on the defendant's constitutional contentions. Id. ¶¶ 143, 148. Third, because the evidence was not closely balanced, any error committed by the triаl court would not have prejudiced the defendant. Thus, it was unnecessary to determine whether any error had occurred. Id. ¶¶ 144-48.

¶ 22 None of these considerations applies here. The error at issue in this case is the trial court's failure to comply with Illinois Supreme Court Rule 431(b), not any alleged constitutional errоr. Moreover, the record of the trial court's error is sufficiently developed for us to review it. In addition, because the evidence in this case is closely balanced, any error committed *1259 by the trial court would be automatically prejudicial. Thus, unlike the facts presented in White, the facts in this case require us to determine whether an error occurred.

¶ 23 For all these reasons, we conclude that the "conventional" plain error analysis is appropriate in this case. Having applied that analysis, we hold that the trial court erred by failing to comply with the requirements of Rule 431(b). Although the error in this case was minimal, there is no de minimis exception to the first prong of the plain error test. People v. Belknap, 396 Ill.App.3d 183, 335 Ill.Dec. 420, 918 N.E.2d 1233 (2009). Moreover, we find that the evidence in this case was closely balanced. Accordingly, the trial court's clear and obvious error prejudiced the defendant. Therefore, we do not need to reach the second prong of the plain error test, and we reverse and remand for a new trial.

¶ 24 CONCLUSION

¶ 25 For the foregoing reasons, the judgment of the circuit court of Rock Island is reversed, and the cause is remanded for further proceedings.

¶ 26 Reversed and remanded.

Presiding Justice CARTER and Justice O'BRIEN concurred in the judgment and opinion.

NOTES

Notes

[1] Although three of those four were asked by the defendant's attorney if they "ha[d] a problem" with those principles, this does not change the fact that the trial court failed to provide each juror an opportunity to respond to specific questions concerning the principles set forth in Rule 431(b). See People v. Hill, 408 Ill.App.3d 23, 28, 349 Ill.Dec. 94, 945 N.E.2d 1246 (2011); People v. Stewart, 406 Ill.App.3d 518, 534-35, 346 Ill.Dec. 273, 940 N.E.2d 273 (2010). Moreover, the fourth juror was not asked by either the trial court or the defense attorney if he accepted the principles.

[2] If the supreme court intended to overrule the ‍​‌​​‌‌​​‌​‌​​‌‌​​‌​‌‌‌​​‌​‌​‌‌​​‌‌‌​​​‌​‌‌​​​​​​‍traditional plain error analysis announced in Herron, we would expect it to acknowledge that it was doing so, particularly considering that it cited Herron when defining the scope of the prejudice requirement in plain error cases. White, 2011 IL 109689, ¶ 133. We should not assume that the supreme court has overruled a well-established prior decision sub silentio if we can avoid making that assumption.

[3] The court was able to reach this result because the only basis for the defendant's claim of plain error was his claim that the evidence was closely balanced. The defendant did not argue for plain error review under the second prong of the plain error doctrine. White, 2011 IL 109689, ¶¶ 131, 144.

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