PEOPLE v. BLANTON (2009)

In December 2007, a jury found defendant, Craig J. Blanton, guilty of armed robbery (720 ILCS 5/18-2(a)(2) (West 2006)) and aggravated robbery (720 ILCS 5/18-5(a) (West 2006)). In January 2008, the trial court vacated the aggravated robbery conviction under the one-act, one-crime rule, and sentenced defendant to 25 years' imprisonment for armed robbery. Defendant appeals, arguing (1) the sentence for armed robbery violates the proportionate-penalties clause of the Illinois Constitution (Ill. Const.1970, art. I, § 11), (2) the trial court failed to comply with Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007), and (3) the court improperly considered the class of victim as an aggravating sentencing factor. Because the court's failure to comply with Supreme Court Rule 431(b) is dispositive, we do not address the other issues and reverse and remand for a new trial.

I. BACKGROUND

In March 2007, the State charged defendant by information with armed robbery (720 ILCS 5/18-2(a)(2) (West 2006)) and aggravated robbery (720 ILCS 5/18-5(a) (West 2006)). In April 2007, the grand jury returned a true bill on both counts.

On December 13, 2007, the trial court conducted voir dire examination of the venire. The court advised the venire as a whole that the State has the burden of proof and must prove defendant guilty beyond a reasonable doubt, that defendant was presumed innocent of the charges brought against him, and that defendant did not have to present evidence unless he chose to do so. With each panel of venirepersons seated in the jury box, the court either (1)(a) again explained the principles that the State bore the burden of proof beyond a reasonable doubt, defendant was presumed innocent, and defendant did not have to present any evidence unless he chose to do so or (b) stated that the venire had previously heard several legal propositions explained during the voir dire, and (2) asked each panel of venirepersons whether he or she understood and supported those principles. Each venireperson ultimately selected as a juror answered “yes.”

Defense counsel also questioned several of the members of the venire about the same principles addressed by the trial court: that defendant was presumed innocent, the State must prove defendant guilty beyond a reasonable doubt, and that defendant was not required to offer evidence on his behalf. Defense counsel asked one venireperson, ultimately selected for the jury, whether he understood that if defendant chose not to present any evidence, the venireperson could not hold that against defendant. The venireperson answered “Right.” Defense counsel asked another venireperson, also ultimately selected for the jury, whether he understood that defendant did not have to “say anything or prove that he did not commit” the crime but that the State must prove that defendant committed the crime. The venireperson answered “Yes.”

The case proceeded to trial. Defendant presented no evidence and did not testify. At the jury-instruction conference, the State tendered a set of jury instructions but withdrew the instruction that charged the jury to judge defendant's testimony in the same manner as the testimony of any other witness. See Illinois Pattern Jury Instructions, Criminal, No. 1.02 (4th ed.2000) (hereinafter IPI Criminal 4th). Defense counsel did not object to withdrawing that instruction or tender the instruction that the jury should not consider the fact that defendant did not testify. See IPI Criminal 4th No. 2.04 (“[t]he fact that [the] defendant did not testify must not be considered by you in any way in arriving at your verdict”). The trial court did not instruct the jury that defendant's failure to testify could not be considered.

The jury found defendant guilty of aggravated robbery and armed robbery. In January 2008, the trial court vacated the aggravated-robbery conviction under the one-act, one-crime rule and sentenced defendant to 25 years' imprisonment for armed robbery.

This appeal followed.

II. ANALYSIS

Defendant argues the trial court's failure to fully comply with Supreme Court Rule 431(b) requires reversal of his conviction and remand for a new trial. The State argues (1) defendant forfeited the argument by not objecting in the trial court or in a posttrial motion; (2) defendant acquiesced in the procedure used by the court, a procedure that did not include a specific, direct reference to testimony of the defendant; (3) no error occurred in the voir dire as a whole because references to the fact that defendant did not have to present evidence were sufficient to disclose any potential bias from the potential jurors even though no specific questions were asked regarding the jurors' views about defendant's right not to testify; and (4) any shortcomings in the conduct of voir dire should be deemed harmless.

Supreme Court Rule 431(b) was amended in 1997 to ensure compliance with People v. Zehr, 103 Ill.2d 472, 477, 83 Ill.Dec. 128, 469 N.E.2d 1062, 1064 (1984). The Zehr court held that “essential 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.” Zehr, 103 Ill.2d at 477, 83 Ill.Dec. 128, 469 N.E.2d at 1064. As originally amended, Rule 431(b) provided that the trial court was not obligated to ask potential jurors whether they understood and accepted the Zehr principles absent a request from defense counsel. See People v. Jocko, 389 Ill.App.3d 247, 259-60, 329 Ill.Dec. 193, 906 N.E.2d 38, 48 (2009).

Effective May 1, 2007, Rule 431(b) was amended to impose “a sua sponte duty on the trial court to question each potential juror as to whether he understands and accepts the Zehr principles.” People v. Gilbert, 379 Ill.App.3d 106, 110, 318 Ill.Dec. 17, 882 N.E.2d 1140, 1145 (2008). That is, such questioning was no longer dependent upon a request by defense counsel. Gilbert, 379 Ill.App.3d at 110, 318 Ill.Dec. 17, 882 N.E.2d at 1145. Rule 431(b) currently provides 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) 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 the defendant's failure to testify cannot be held against him or her; however, no inquiry of a prospective juror shall be made into the defendant's failure 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.” Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007.

Rule 431(b) requires the trial court to address all four Zehr principles in a manner that allows each venireperson an opportunity to respond whether he or she understands and accepts those principles. Typically, that would involve advising the venirepersons of the four Zehr principles and then inquiring of each person individually whether he or she understands and accepts those principles. The only exception to this requirement applies to the principle that the defendant's failure to testify cannot be held against him: the defendant can object to inquiry being made into that principle. See Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b)(4), eff. May 1, 2007 (no inquiry “shall be made into the defendant's failure to testify when the defendant objects”). In such case, however, the objection should be made on the record by defense counsel in the presence of the defendant or by defendant.

In this case, the trial court questioned each venireperson as to whether he or she understood and accepted the first three Zehr principles in a manner that allowed each venireperson an opportunity to respond. However, the court never asked any of the venirepersons whether he or she understood and accepted the fourth Zehr principle-that the defendant's failure to testify could not be held against him (hereinafter referred to as the fourth Zehr principle). Neither defense counsel nor the State addressed the fourth Zehr principle either.

Given the absence of any inquiry of the venirepersons regarding the fourth Zehr principle by the trial court, defense counsel, or the State, defense counsel may have actually objected to any such inquiry. See Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b)(4), eff. May 1, 2007 (“no inquiry of a prospective juror shall be made into the defendant's failure to testify when the defendant objects”). However, the record does not reflect that. Therefore, error clearly occurred here because the trial court did not question each venireperson as to whether he or she understood and accepted the fourth Zehr principle.

In response to the State's argument that defendant forfeited the issue by failing to raise it in the trial court, defendant asks this court to review the error under the plain-error doctrine. The State asserts that a harmless-error analysis applies. We agree with defendant.

Defendant did not object to the error in the trial court. A plain-error analysis applies when the defendant failed to make a timely objection in the trial court while a harmless-error analysis applies when the defendant timely objected to the error. People v. Johnson, 388 Ill.App.3d 199, 203, 327 Ill.Dec. 879, 902 N.E.2d 1265, 1268 (2009), appeal allowed, (No. 108253) 232 Ill.2d 588, 331 Ill.Dec. 374, 910 N.E.2d 1130 (2009).

This court notes that we applied a harmless-error analysis in People v. Stump, 385 Ill.App.3d 515, 522, 324 Ill.Dec. 828, 896 N.E.2d 904, 909 (2008), appeal allowed, 232 Ill.2d 593 (2009) (finding harmless error where, although the trial court failed to strictly comply with Rule 431(b), all four Zehr principles were addressed at some point during voir dire by the court or defense counsel and the evidence against the defendant was overwhelming). In that case, however, the State did not argue that defendant forfeited the issue by failing to object in the trial court. Stump, 385 Ill.App.3d at 519, 324 Ill.Dec. 828, 896 N.E.2d at 907 (State conceded the trial court failed to specifically comply with Rule 431(b) but argued any error was harmless).

More recently, the First District issued a case applying a plain-error analysis rather than the harmless-error analysis applied by this court in Stump, 385 Ill.App.3d at 522, 324 Ill.Dec. 828, 896 N.E.2d at 909. See People v. Anderson, 389 Ill.App.3d 1, 9, 328 Ill.Dec. 603, 904 N.E.2d 1113, 1121 (2009) (First District, where the defendant did not make a Rule 431(b) objection, the issue was forfeited; the appellate court reviewed the error for plain error and found plain error occurred). In Anderson, the court also distinguished Stump on the basis that in Anderson, neither defense counsel nor the trial court addressed each potential juror with all four the Zehr principles during voir dire while in Stump, the trial court or defense counsel addressed each juror with all of the Zehr principles at some point. See Anderson, 389 Ill.App.3d at 9, 328 Ill.Dec. 603, 904 N.E.2d at 1121 (discussing the distinction between the two cases).

Because defendant did not object in the trial court, this court must examine the error for plain error. This court may review an error under the plain-error doctrine if (1) the evidence is closely balanced or (2) the error is “so substantial that it affected the fundamental fairness of the proceeding, and remedying the error is necessary to preserve the integrity of the judicial process.” People v. Hall, 194 Ill.2d 305, 335, 252 Ill.Dec. 653, 743 N.E.2d 521, 539 (2000). Under the second prong, “[p]rejudice to the defendant is presumed because of the importance of the right involved.” People v. Herron, 215 Ill.2d 167, 187, 294 Ill.Dec. 55, 830 N.E.2d 467, 480 (2005).

The principle involved here-that a defendant's failure to testify in his own behalf cannot be held against him-“ ‘is perhaps the most critical guarantee under our criminal process and is vital to the selection of a fair and impartial jury that a juror understand this concept. [Citation.]’ ” People v. Brooks, 173 Ill.App.3d 153, 158, 122 Ill.Dec. 938, 527 N.E.2d 436, 439 (1988). In this case, the jurors were never advised that defendant's failure to testify could not be held against him. In that regard, this case is unlike Stump, where the jurors were advised of all four Zehr principles at some point during voir dire by either the judge or defense counsel. Stump, 385 Ill.App.3d at 522, 324 Ill.Dec. 828, 896 N.E.2d at 909. In contrast here, the error was so substantial that it affected the fundamental fairness of the proceeding. See, e.g., Anderson, 389 Ill.App.3d at 9, 328 Ill.Dec. 603, 904 N.E.2d at 1121 (finding the Rule 431(b) error denied the defendant a substantial right and a fair trial). As stated in Zehr:

“We are of the opinion that essential 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.” Zehr, 103 Ill.2d at 477, 83 Ill.Dec. 128, 469 N.E.2d at 1064.

This court must reverse and remand for a new trial.

This court notes that the trial judge in this case did an excellent job of addressing the first three Zehr principles. The judge explained the first three Zehr principles to each panel, either by specifically stating the principles or referring to having done so earlier with another panel or the venire as a whole. The judge then asked each panel member whether he or she understood those principles-giving each a chance to say “yes” or “no”-and whether he or she accepted those principles-giving each a chance to say “yes” or “no.” This is the preferred method of addressing the principles, although, of course in this case, the judge should have also addressed the fourth Zehr principle in such manner.

III. CONCLUSION

For the reasons stated, we reverse and remand for a new trial.

Reversed and remanded.

Justice MYERSCOUGH delivered the opinion of the court:

McCULLOUGH, P.J., and APPLETON, J., concur.