People v. Averett ( 2010 )

Docket Nos. 106362, 106621 cons.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
WARREN AVERETT, Appellant.–THE PEOPLE OF THE STATE
OF ILLINOIS, Appellee, v. DAVID TUCKER, Appellant.
Opinion filed April 15, 2010.
JUSTICE KILBRIDE delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Thomas, Garman, and
Karmeier concurred in the judgment and opinion.
Justice Burke dissented, with opinion, joined by Justice Freeman.
OPINION
These consolidated appeals address whether a defendant may be
entitled to relief on appeal after choosing not to testify at trial if the
trial court had a “blanket policy” of deferring rulings on motions in
limine to exclude prior convictions for impeachment until after the
defendant testified. Defendant Warren Averett also contends that he
should receive a new trial because the trial court failed to respond
properly to a legal question from the jury during deliberations.
Consistent with our decision in People v. Patrick, 233 Ill. 2d 62
(2009), we conclude that the trial court’s deferral of rulings based on
a blanket policy is unreviewable on appeal because the defendants
chose not to testify at trial. We also hold that Averett is not entitled
to relief on his challenge to the trial court’s response to the jury’s
question. Accordingly, we affirm the appellate court’s judgment in
these consolidated appeals.
I. BACKGROUND
A. Warren Averett
Defendant Warren Averett was charged with possession of a
controlled substance with intent to deliver (720 ILCS 570/401(c)(1)
(West 2004)). Prior to trial, he moved in limine to bar the State from
using his prior convictions as impeachment. Averett sought to exclude
evidence of his conviction of possession of a controlled substance in
1999 and his convictions of delivery of a controlled substance in 1999
and 2000. The circuit court of Cook County reserved its ruling on the
admissibility of the prior convictions for impeachment purposes,
stating “the court’s policy here is, I will not make a decision in regards
to that until I hear the testimony of [defendant] and determine whether
or not it becomes relevant to those three convictions.”
Based on the trial court’s decision to defer ruling on his motion in
limine, Averett chose not to testify at trial. Defense counsel stated
Averett did not want to risk being impeached with his prior
convictions if the trial court ruled adversely on his motion in limine.
After being admonished on his right to testify, Averett confirmed he
did not want to testify.
Regarding Averett’s claim based on the jury’s question, the record
shows that approximately 45 minutes after deliberations began, the
jury sent a note asking, “Where is the $60 found on the defendant?
Why was this not submitted as evidence?” The jury’s note also stated,
“Clarify the charges of intent to sell defined by the Court?” The trial
court consulted with the prosecutor and defense counsel on drafting
a response. With the parties’ agreement, the trial court responded with
a note stating, “You have heard all of the testimony and received all
of the evidence and the instructions on the law. Please continue to
deliberate.” The jury found Averett guilty of possession of a
controlled substance with intent to deliver and the trial court
sentenced him to eight years’ imprisonment.
On appeal, Averett argued that the trial court abused its discretion
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in refusing to rule on his motion in limine until after he testified and
that the trial court failed to answer properly the jury’s question
requesting clarification of the charges. The appellate court
disapproved of the trial court’s blanket policy of refusing to rule on
motions in limine until after hearing the defendant’s testimony. The
appellate court, nevertheless, held that the issue was not reviewable
because Averett failed to testify. The appellate court also held Averett
waived his challenge to the trial court’s response to the jury’s
question. Further, the plain-error rule did not apply because the trial
court did not abuse its discretion in responding to the question. The
appellate court, therefore, affirmed the trial court’s judgment, but
modified the fines, fees, and costs order to reflect monetary credit for
the time Averett spent in custody prior to sentencing. 381 Ill. App. 3d
1001.
Justice Greiman dissented, concluding that the trial court’s failure
to rule on the motion in limine was reviewable. Justice Greiman
would have held that the trial court erred in failing to rule in a timely
manner on Averett’s motion in limine. 381 Ill. App. 3d at 1022
(Greiman, J., dissenting).
B. David Tucker
Defendant David Tucker was charged with burglary (720 ILCS
5/19–1(a) (West 2004)). Before trial, in the circuit court of Cook
County, he filed a motion in limine to bar the use of his prior
convictions of armed robbery and burglary as impeachment. The trial
judge reserved ruling on the motion, finding it was premature and
stating he would “deal with the issue when it becomes appropriate.”
After the State presented part of its evidence, the trial court asked
defense counsel how he intended to proceed after the State rested.
Defense counsel stated he anticipated presenting one witness’
testimony by stipulation and would have no other witnesses. The trial
court then admonished Tucker on his right to testify. Tucker indicated
he understood the admonishments and had decided not to testify. The
jury found Tucker guilty of burglary and the trial court sentenced him
to five years’ imprisonment.
On appeal, Tucker argued that the trial court interfered with his
constitutional right to testify and his right to the “guiding hand of
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counsel” by reserving its ruling on his motion in limine until after he
testified. The appellate court held that the trial court’s refusal to rule
on the motion in limine was not reviewable given Tucker’s failure to
testify. Accordingly, the appellate court affirmed the trial court’s
judgment. No. 1–06–2619 (unpublished order under Supreme Court
Rule 23).
We allowed petitions for leave to appeal filed by both Averett and
Tucker (210 Ill. 2d R. 315(a)), and consolidated the appeals for
review. We subsequently issued a per curiam order, clarifying that
these appeals were allowed “to consider whether relief might be
available to a defendant, even if he chose not to testify, if the trial
court had a ‘blanket policy’ not to rule on the motion in limine in
advance of the defendant deciding not to testify.” People v. Patrick,
Nos. 104077, 104445 cons. (May 27, 2009) (per curiam order on
denial of motion to reconsider denial of petition for rehearing).
II. ANALYSIS
I. “Blanket Policy” of Deferring Rulings
These appeals arise out of our decision in Patrick. In that case, we
considered the consolidated appeals of Robert Patrick and Ezekiel
Phillips. Prior to trial, Patrick filed a motion in limine seeking to
exclude evidence of his prior convictions for use as impeachment. The
trial court refused to rule on the motion before defendant testified.
The trial judge stated his procedure was to defer ruling until after the
defendant testified, explaining, “I do this [in] every single case. I do
not give advisory opinions. *** I don’t make an exception for
anybody.” Patrick testified at trial and was impeached with his three
prior convictions of possession of a controlled substance. Patrick was
convicted of second degree murder and the appellate court affirmed.
Patrick, 233 Ill. 2d at 66-67.
At trial, Phillips asked the trial court for a ruling on the
admissibility of his four prior convictions if he chose to testify. The
trial court granted his motion in part, determining that one of the prior
convictions would be excluded. The trial judge reserved ruling on the
other three convictions, however, stating he could not determine
whether they were more probative than prejudicial until after he heard
Phillips testify. Based on that ruling, Phillips chose not to testify. The
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jury found Phillips guilty of armed violence and aggravated battery.
The appellate court affirmed his convictions, but vacated his sentences
and remanded for a new sentencing hearing. Patrick, 233 Ill. 2d at 67-
68.
On appeal to this court, Patrick and Phillips argued that the trial
courts erred in deferring rulings on their motions in limine until after
they testified. We noted that a trial court’s ruling on a motion in
limine will not be disturbed on appeal absent an abuse of discretion.
Thus, we considered whether the trial courts abused their discretion
by deferring their rulings until after hearing the defendants’ testimony.
Patrick, 233 Ill. 2d at 68-69.
We discussed the defendants’ constitutional right to testify and the
importance of the decision on whether to testify. Defendants clearly
benefit if a ruling on the admissibility of prior convictions is made
before deciding whether to testify. An early ruling provides a
defendant with information necessary to make the critical decision on
testifying and to ascertain the strength of their testimony. An early
ruling also allows a defendant to make reasoned tactical decisions in
planning the defense. Patrick, 233 Ill. 2d at 69-70.
After discussing several decisions from our appellate court and
other jurisdictions, we agreed with the comments in those decisions
recognizing a defendant’s need for an early ruling on a motion to
exclude prior convictions for impeachment purposes. We also
acknowledged that, except in rare cases, the trial court will have the
information necessary to make a decision before trial. We concluded
that a trial court abuses its discretion if it fails to rule on a motion in
limine to bar evidence of prior convictions for impeachment purposes
when it has sufficient information to make the ruling. Patrick, 233 Ill.
2d at 70-73.
This court then examined whether the trial court abused its
discretion in the consolidated cases. In Patrick’s case, the trial court
had a blanket policy of refusing to rule on motions in limine seeking
to exclude prior convictions for impeachment until after the defendant
testified. We held that the trial court’s application of a blanket policy
of deferring rulings until after the defendant testified was an abuse of
discretion. Patrick, 233 Ill. 2d at 74-75.
The State argued that even if the deferral of a decision on the
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motion in limine was an abuse of discretion, Patrick was not
prejudiced by the error. We applied the harmless-error standard for
constitutional errors. In reviewing for harmless error, we noted that
Patrick relied on a theory of self-defense. Although his testimony was
not absolutely necessary to establish his claim, it was still important
for Patrick to know before testifying whether his prior convictions
could be used for impeachment. Patrick may have decided not to
testify if he had known he would be impeached with his prior
convictions. Alternatively, he could have informed the jury of the prior
convictions to lessen their impact. We noted that the impact of the
impeachment with Patrick’s prior convictions was established by the
State’s repeated argument that the jury should not believe a three-time
convicted felon. Further, the guilty verdict of second degree murder,
rather than first degree murder, indicated that the jury believed Patrick
was justified to some degree in his use of force. Accordingly, we
concluded that Patrick was entitled to a new trial because the error
was not harmless beyond a reasonable doubt. Patrick, 233 Ill. 2d at
75-76.
In Phillips’ case, the trial court granted the motion in limine in
part, finding that one of the defendant’s four prior convictions would
be excluded. The trial judge reserved ruling on Phillips’ other three
convictions, however, stating he could not determine whether they
were more probative than prejudicial until after hearing Phillips’
testimony. Based on that ruling, Phillips decided not to testify.
Patrick, 233 Ill. 2d at 77.
Based primarily on Luce v. United States, 469 U.S. 38, 83 L. Ed.
2d 443, 105 S. Ct. 460 (1984), and People v. Whitehead, 116 Ill. 2d
425 (1987), we held that by choosing not to testify, Phillips failed to
preserve review of his challenge to the trial court’s refusal to rule on
his motion in limine. Phillips’ decision not to testify deprived the
reviewing court of a reviewable record. In accordance with our
decision in Whitehead, we concluded Phillips was required to testify
and obtain a definitive ruling on his motion in limine to allow proper
review on appeal. Accordingly, we held that the trial court’s deferral
of a ruling on Phillips’ motion was not reviewable because Phillips
chose not to testify. Patrick, 233 Ill. 2d at 77-79.
The appeals in Averett and Tucker involve a trial court’s blanket
policy of deferring rulings on motions in limine. Our per curiam order
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in Patrick explained that it was “readily discernible” in Averett and
Tucker that the trial courts had a blanket policy against ruling on
motions in limine to exclude prior convictions for use as impeachment
before the defendant testified. Therefore, in accordance with our
decision in Patrick, we conclude that the trial judges abused their
discretion in these cases by using a blanket policy to defer rulings on
the motions in limine. See Patrick, 233 Ill. 2d at 74-75 (application
of a blanket policy of deferring rulings until after a defendant testifies
is an abuse of discretion).
The critical question presented here is whether relief may be
available on appeal despite the defendants’ choice against testifying
because the trial courts had a ‘blanket policy’ of not ruling on motions
in limine before the defendants testified. Averett and Tucker raise
several arguments in support of their contention that the trial court’s
deferral of rulings based on a blanket policy is reviewable on appeal
even though they did not testify at trial.
A. Structural Error
First, Averett and Tucker argue that the blanket policy resulted in
structural error affecting the integrity of the entire proceeding and
requiring reversal without any showing of prejudice. They contend
that the trial courts’ blanket policy of refusing to rule on motions in
limine until after hearing the defendant’s testimony is not subject to
harmless-error review because the consequences of the policy are
unquantifiable. The defendants, therefore, maintain their decision not
to testify is irrelevant to the analysis.
An error is typically designated as “structural” and requiring
automatic reversal only if it necessarily renders a criminal trial
fundamentally unfair or unreliable in determining guilt or innocence.
People v. Glasper, 234 Ill. 2d 173, 196 (2009), quoting Rivera v.
Illinois, 556 U.S. ___, ___, 173 L. Ed. 2d 320, 330-31, 129 S. Ct.
1446, 1455 (2009). The Supreme Court has held an error is structural
only in a “ ‘very limited class of cases.’ ” Neder v. United States, 527
U.S. 1, 8, 144 L. Ed. 2d 35, 46, 119 S. Ct. 1827, 1833 (1999),
quoting Johnson v. United States, 520 U.S. 461, 468, 137 L. Ed. 2d
718, 728, 117 S. Ct. 1544, 1549 (1997). Structural errors include a
complete denial of counsel, denial of self-representation at trial, trial
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before a biased judge, denial of a public trial, racial discrimination in
the selection of a grand jury, and a defective reasonable doubt
instruction. Washington v. Recuenco, 548 U.S. 212, 218 n.2, 165 L.
Ed. 2d 466, 474 n.2, 126 S. Ct. 2546, 2551 n.2 (2006). “ ‘[I]f the
defendant had counsel and was tried by an impartial adjudicator, there
is a strong presumption that any other [constitutional] errors that may
have occurred are subject to harmless-error analysis.’ ” Neder, 527
U.S. at 8, 144 L. Ed. 2d at 46, 119 S. Ct. at 1833, quoting Rose v.
Clark, 478 U.S. 570, 579, 92 L. Ed. 2d 460, 471, 106 S. Ct. 3101,
3106 (1986).
We may determine an error is structural as a matter of state law
regardless of whether it is deemed structural under federal law.
Glasper, 234 Ill. 2d at 199-200, citing Rivera, 556 U.S. at ___, 173
L. Ed. 2d at 331, 129 S. Ct. at 1456. We conclude, however, that the
error from a trial court’s blanket policy of refusing to rule in a timely
manner on motions in limine to bar prior convictions does not rise to
that level. While the error is serious, it is not comparable to the errors
recognized by the Supreme Court as structural. There is no allegation
of a complete denial of counsel or trial by a biased adjudicator. Thus,
based on Neder there is a strong presumption that the error is subject
to harmless-error review. Moreover, the error does not necessarily
render a trial fundamentally unfair or unreliable. It does not affect the
framework of the trial process. Rather, it is simply an error within the
trial proceedings. See Neder, 527 U.S. at 8, 144 L. Ed. 2d at 46, 119
S. Ct. at 1833.
We also note that the defendants’ argument is not supported by
our decision in Patrick. In Patrick, we determined that the trial court
abused its discretion by using a blanket policy to defer rulings on
motions in limine. The error was reviewable because Patrick testified
at trial. After reviewing the impact of the error in light of the facts of
the case, we determined that the error was not harmless. Patrick, 233
Ill. 2d at 75-76. This court’s application of harmless-error review in
Patrick demonstrates that we did not treat the error as structural.
Structural errors are not subject to harmless-error review. People v.
Rivera, 227 Ill. 2d 1, 19-20 (2007). The impact of the trial courts’
blanket policy of deferring rulings can be quantified as shown by our
harmless-error analysis in Patrick. Accordingly, we conclude the error
here is not structural requiring automatic reversal of defendants’
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convictions.
B. Constitutional Error
Averett and Tucker acknowledge our holding in Patrick that a
claim of error is unreviewable if the defendant chooses not to testify
at trial, but they contend that decision is inapplicable to cases
involving constitutional error. According to the defendants, the trial
courts’ application of a blanket policy of refusing to rule on motions
in limine until after hearing the defendant’s testimony violated their
constitutional right to testify.
In Patrick, this court discussed the benefit to defendants of early
rulings on the admissibility of their prior convictions for impeachment.
In discussing the benefit to defendants, we noted several constitutional
provisions, including the fifth, sixth, and fourteenth amendments to the
Untied States Constitution. Patrick, 233 Ill. 2d at 69. We also noted
the important tactical decisions affected by a trial court’s failure to
timely rule on a motion in limine. Patrick, 233 Ill. 2d at 69-70. We
did not, however, find the use of a blanket policy of deferring rulings
results in a violation of a defendant’s constitutional rights.
Contrary to the defendants’ arguments in this case, the trial courts’
blanket policy of deferring rulings did not violate their constitutional
right to testify at trial. In Ohler v. United States, 529 U.S. 753, 146
L. Ed. 2d 826, 120 S. Ct. 1851 (2000), the Supreme Court considered
whether a defendant could obtain appellate review of the district
court’s in limine ruling allowing the prosecution to admit evidence of
her prior conviction as impeachment. The defendant testified at trial
and acknowledged her prior felony conviction on direct examination.
On appeal, the defendant challenged the district court’s ruling on the
prosecution’s motion in limine. The defendant argued, in pertinent
part, that her right to testify would be unconstitutionally burdened if
she could not appeal the district court’s in limine ruling. Ohler, 529
U.S. at 759, 146 L. Ed. 2d at 832, 120 S. Ct. at 1855.
The Supreme Court held that denying appellate review did not
prevent the defendant from taking the stand and presenting any
admissible testimony. Ohler, 529 U.S. at 759, 146 L. Ed. 2d at 832,
120 S. Ct. at 1855. Although the use of a prior conviction as
impeachment may deter a defendant from testifying, the defendant was
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required to weigh that factor in deciding whether to testify. Ohler,
529 U.S. at 759, 146 L. Ed. 2d at 832, 120 S. Ct. at 1855.
Similarly, this court has recognized that “[d]efendants are often
faced with difficult decisions when weighing the pros and cons of
testifying at trial. The necessity of making those decisions does not
inevitably deprive defendants of any constitutional right.” People v.
Rosenberg, 213 Ill. 2d 69, 81 (2004). In Rosenberg, we further stated
that a defendant’s decision not to testify due to possible impeachment
with prior convictions does not result in a constitutional violation.
Rosenberg, 213 Ill. 2d at 81.
Here, Averett and Tucker were not prevented from taking the
stand and testifying by the trial courts’ deferrals of their rulings on
their motions in limine. They were required to weigh the possibility
of being impeached with their prior convictions along with other
factors in determining whether to testify. The defendants’
constitutional right to testify was not violated by any deterrent effect
on their testimony due to the risk of being impeached with their prior
convictions.
Averett and Tucker also argue that the trial courts’ blanket policy
of deferring rulings on motions in limine deprived them of their due
process right to the “guiding hand of counsel.” In support of their
claim, defendants cite Brooks v. Tennessee, 406 U.S. 605, 32 L. Ed.
2d 358, 92 S. Ct. 1891 (1972). In Brooks, the Supreme Court
considered the constitutionality of a statute requiring a criminal
defendant who chose to testify to present his testimony first. The
Supreme Court held that the statute “exacts a price for [the
defendant’s] silence by keeping him off the stand entirely unless he
chooses to testify first.” Brooks, 406 U.S. at 610, 32 L. Ed. 2d at 363,
92 S. Ct. at 1894. The statute violated the defendant’s constitutional
right to remain silent because it reduced that privilege by making its
assertion costly. Brooks, 406 U.S. at 610-12, 32 L. Ed. 2d at 362-63,
92 S. Ct. at 1894-95.
The Supreme Court further held that the statute violated the
defendant’s due process right to “ ‘the guiding hand of counsel at
every step in the proceedings against him.’ ” Brooks, 406 U.S. at 612,
32 L. Ed. 2d at 364, 92 S. Ct. at 1895, quoting Powell v. Alabama,
287 U.S. 45, 69, 77 L. Ed. 158, 170, 53 S. Ct. 55, 69 (1932). The
Court explained that the defendant and his attorney may not be
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restricted in determining whether, and when in the course of the
defense, the defendant should testify. Brooks, 406 U.S. at 613, 32 L.
Ed. 2d at 364, 92 S. Ct. at 1895.
As we have determined, possible impeachment with prior
convictions does not restrict defendants in deciding whether to testify.
Despite possible impeachment with their prior convictions, the
defendants were not prevented or limited in presenting their
testimony. We conclude the Supreme Court’s decision in Brooks is
distinguishable because the defendants here were not restricted in any
way in determining whether and when they would testify.
In sum, we conclude that the trial court’s application of a blanket
policy of deferring rulings on motions in limine did not violate the
defendants’ constitutional rights to testify or to the “guiding hand of
counsel.” The defendants’ claims do not involve constitutional error
subject to review on appeal despite their choice against testifying at
trial.
C. Plain Error
Averett and Tucker next contend that the error from the trial
courts’ blanket policy is reviewable under the plain-error doctrine.
Defendants assert that under the second prong of the plain-error rule,
relief may be granted on a procedurally defaulted claim if a clear error
affected the fairness of the trial and challenged the integrity of the
judicial process. The defendants argue that the trial courts’
applications of a blanket policy of withholding rulings on motions in
limine deprived them of a fair trial and compromised the integrity of
the judicial process. The defendants maintain that their testimony is
unnecessary to the analysis under the second prong of plain-error
review because it does not require any balancing of the evidence.
Generally, an error is not preserved for review unless the
defendant objects at trial and includes the error in a written posttrial
motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). The plain-error
rule bypasses normal forfeiture principles and permits reviewing
courts to consider unpreserved error in specific circumstances. People
v. Lovejoy, 235 Ill. 2d 97, 148 (2009). The plain-error doctrine applies
when:
“(1) a clear or obvious error occurs and the evidence is so
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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 occurs
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).
While the plain-error rule may be applied to bypass normal
forfeiture principles, it cannot be applied here because the defendants’
decisions not to testify go beyond normal forfeiture. In Patrick, we
explained that the effect of the defendant’s choice against testifying
was to render the issue unreviewable. Patrick, 233 Ill. 2d at 79.
Without the defendant’s actual testimony, reviewing courts would be
forced to speculate on the substance of that testimony and the
prosecution’s questions on cross-examination. Patrick, 233 Ill. 2d at
78-79, quoting People v. Whitehead, 116 Ill. 2d 425, 443-44 (1987).
In Whitehead, this court explained that the defendant must either call
a witness and open the possibility of an erroneous decision subject to
appellate review, or forgo calling the witness and adopt an alternative
strategy favoring the defendant’s chances at trial. Patrick, 233 Ill. 2d
at 78-79, quoting Whitehead, 116 Ill. 2d at 443-44. The defendant
could not, however, “have it both ways” by altering his trial strategy
to make the best of the trial court’s decision and still maintain on
appeal that the trial court’s decision was erroneous. Patrick, 233 Ill.
2d at 79, quoting Whitehead, 116 Ill. 2d at 443-44. Defendants must
testify and obtain a definitive ruling on their motions for the issue to
be reviewable on appeal. Patrick, 233 Ill. 2d at 79.
Our decision in Patrick makes clear that a defendant’s choice not
to testify in these circumstances goes beyond normal forfeiture. The
rationale of Patrick does not allow the defendants to “have it both
ways” by altering their trial strategies to make the best of the trial
courts’ deferrals of their rulings and later maintain on appeal that they
are entitled to new trials because the deferrals of the rulings were
erroneous. In these circumstances, the alleged error is unreviewable.
Patrick, 233 Ill. 2d at 78-79. Accordingly, the plain-error rule for
bypassing normal forfeiture principles is inapplicable here.
In a related argument based on this court’s decision in People v.
Walker, 232 Ill. 2d 113 (2009), Averett further contends that the trial
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court’s arbitrary failure to timely rule on his motion in limine
undermined the fairness of his trial and the integrity of the
proceedings. Accordingly, Averett also contends we must reverse his
conviction based upon an application of Walker.
Averett’s argument fails for the same reasons discussed in
response to the plain-error claim. In Walker, the defendant forfeited
his claim that the trial court abused its discretion in denying his
attorney’s request for a continuance because that claim was not raised
in a posttrial motion. Walker, 232 Ill. 2d at 124. We considered the
defendant’s claim of error under the plain-error doctrine. Walker, 232
Ill. 2d at 124. After concluding that the trial court committed clear
error by failing to exercise its discretion in ruling on the request for a
continuance, we held that the defendant was entitled to relief under
the second prong of plain-error review. Walker, 232 Ill. 2d at 125-
130. Under the specific facts presented, we found the defendant’s
rights were prejudiced because his attorney was completely
unprepared to proceed to trial. In so finding, we examined the record
and identified the clear prejudice to the defendant from his attorney’s
lack of preparation. Walker, 232 Ill. 2d at 130-31. We further held
that the “error was so serious that it demonstrably affected the fairness
of defendant’s trial and challenged the integrity of the judicial
process.” Walker, 232 Ill. 2d at 131. The defendant, therefore,
established plain error and was entitled to a new trial. Walker, 232 Ill.
2d at 131.
In Walker, the defendant forfeited his claim of error and this court
applied the plain-error doctrine to bypass normal forfeiture principles.
Unlike Walker, Averett did not simply forfeit his claim. Rather,
Averett’s claim is unreviewable on appeal because he chose not to
testify. The plain-error doctrine for bypassing forfeiture is inapplicable
to the circumstances presented by this appeal. Additionally, even if the
plain-error rule could be applied here, the facts presented in Walker
are clearly distinguishable from this case. In Walker, the record
showed trial counsel’s lack of preparation demonstrably affected the
entire trial process. See Walker, 232 Ill. 2d at 130-31. Our decision in
Walker, therefore, does not support Averett’s claim for relief.
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D. Testimony at the Pretrial Hearing
In another separate argument, Averett contends that he did not
forfeit his challenge to the trial court’s deferral of its ruling by
deciding not to testify at trial because he testified to the critical facts
at a pretrial hearing on his motion to suppress evidence. He was
subjected to cross-examination at the pretrial hearing. Thus, Averett
argues the prejudice from the trial court’s error is not speculative.
Rather, the record is sufficient to assess the harm from the trial court’s
deferral of its ruling on his motion in limine.
Despite Averett’s testimony at the pretrial hearing, the record is
still insufficient to review the trial court’s error in deferring its ruling.
Because Averett chose not to testify at trial, we do not know whether
the trial court would have actually allowed impeachment with his prior
convictions, whether the prosecutor would have decided to use those
convictions as impeachment, or whether the State would have focused
its arguments on the prior convictions. All of those factors are
important in assessing whether the error was harmless. See Patrick,
233 Ill. 2d at 75-76 (considering the impact of impeachment with prior
convictions and the prosecutor’s arguments based on those
convictions in assessing whether error was harmless). We cannot
speculate on the substance of the direct examination or the cross-
examination at trial. Patrick, 233 Ill. 2d at 78-79, quoting Whitehead,
116 Ill. 2d at 443-44.
Further, our reasoning for finding the deferral of a ruling
unreviewable when a defendant decides not to testify is not limited to
the failure to present a sufficient record for harmless error review. Our
reasoning includes preventing a defendant from “hav[ing] it both
ways” by altering trial strategy to make the best of the order and then,
if the trial strategy proves unsuccessful, claiming on appeal that the
order was erroneously entered. Patrick, 233 Ill. 2d at 79, quoting
Whitehead, 116 Ill. 2d at 443-44. As we held in Patrick, a defendant
must testify and obtain a definitive ruling on the motion in limine for
the issue to be reviewable on appeal. Patrick, 233 Ill. 2d at 79.
E. Article I, Section 12, of the Illinois Constitution
Tucker also raises a separate contention that the failure to review
his claim of error because he chose not to testify at trial violates article
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I, section 12, of the Illinois Constitution. Tucker asserts he is entitled
to a remedy for the trial court’s error under that constitutional
provision.
The Illinois Constitution provides that “[e]very person shall find
a certain remedy in the laws for all injuries and wrongs which he
receives to his person, privacy, property or reputation. He shall obtain
justice by law, freely, completely, and promptly.” Ill. Const. 1970, art.
I, §12. This court has held article I, section 12, only expresses a
philosophy, however, and does not require a certain remedy in any
specific form. Schoeberlein v. Purdue University, 129 Ill. 2d 372, 379
(1989). Limiting or restricting available remedies does not violate this
aspirational goal. Schoberlein, 129 Ill. 2d at 379. Based on this
court’s interpretation of article I, section 12, as aspirational, we
conclude that provision does not require a specific remedy for the trial
court’s error in deferring its ruling on Tucker’s motion in limine.
Tucker’s argument that he is entitled to a certain remedy under article
I, section 12, of the Illinois Constitution therefore fails.
F. Summary
The defendants have not provided any valid basis for finding the
trial court’s blanket deferral of its rulings reviewable on appeal despite
their decision not to testify. We conclude that our decision in the
Phillips portion of Patrick controls here. In Tucker and Averett, the
trial courts employed a blanket policy of deferring rulings on motions
in limine until after the defendant testified. The use of the blanket
policy was an abuse of discretion. See Patrick, 233 Ill. 2d at 74-75. In
Phillips’ case, the trial judge did not use a blanket policy, but he
nonetheless abused his discretion in failing to timely rule on the
admissibility of three of the defendant’s prior convictions for
impeachment purposes. Patrick, 233 Ill. 2d at 77. In both situations,
the failure to timely rule was an abuse of discretion. Additionally, in
both situations the defendants decided not to testify at trial based on
the trial court’s deferral of its ruling on their motions. See Patrick,
233 Ill. 2d at 77 (Phillips chose not to testify based on the trial judge’s
ruling).
In our view, Tucker and Averett were in the same position faced
by Phillips prior to trial. Each was required to wait for a ruling on the
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admissibility of prior convictions for impeachment purposes until after
testifying. Thus, each of them faced the same strategic and tactical
decisions and the same uncertainty over whether they would be
impeached with their prior convictions if they chose to testify.
Therefore, in accordance with our decision in Phillips’ case, we
conclude that the trial courts’ decisions to defer ruling on the
defendants’ motions under a blanket policy is unreviewable on appeal
because the defendants chose not to testify at trial.
II. Jury Question During Deliberations
Averett argues that the jury’s note to the trial court during
deliberations unmistakably asked a legal question on an element of the
offense. The jury’s question showed confusion on the meaning of
intent to deliver. Averett contends he is entitled to a new trial because
the trial court’s response to the question failed to address the jury’s
confusion on that legal issue. Averett acknowledges that he waived
this issue by acquiescing in the trial court’s response to the jury’s
question. He contends that reversal is required, however, under the
plain-error rule or because his attorney was ineffective in agreeing to
the trial court’s answer.
The State agrees that Averett waived this issue because he invited
any error by acquiescing in the trial court’s answer to the jury’s
question. The State further contends Averett’s plain-error and
ineffective-assistance claims fail because the trial court’s response was
proper and defense counsel cannot be ineffective for agreeing to a
proper response by the trial court.
When a defendant acquiesces in the trial court’s answer to a
question from the jury, the defendant cannot later complain that the
trial court’s answer was an abuse of discretion. People v. Emerson,
189 Ill. 2d 436, 491-92 (2000). Here, defense counsel and the
prosecutor assisted the trial court in drafting its response to the jury’s
question. Defense counsel agreed to the trial court’s answer. Thus,
Averett waived this issue by acquiescing in the trial court’s response.
To establish an ineffective-assistance claim, Averett must show his
attorney’s performance was deficient and prejudice resulted from the
deficiency. See People v. Bailey, 232 Ill. 2d 285, 288-89 (2009). An
attorney’s performance is deficient only if it is objectively
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unreasonable based on prevailing professional norms. Bailey, 232 Ill.
2d at 289. Averett contends his attorney was deficient in failing to
object to the trial court’s response to the jury’s question. Thus,
Averett’s claim hinges on showing the trial court’s response was
improper.
Generally, a trial court must provide instruction when the jury has
posed an explicit question or asked for clarification on a point of law
arising from facts showing doubt or confusion. People v. Millsap, 189
Ill. 2d 155, 160 (2000), citing People v. Childs, 159 Ill. 2d 217, 228-
29 (1994). A trial court may, nevertheless, exercise its discretion to
decline answering a question from the jury under appropriate
circumstances. Millsap, 189 Ill. 2d at 161, citing People v. Reid, 136
Ill. 2d 27, 39 (1990). Appropriate circumstances include when the jury
instructions are readily understandable and sufficiently explain the
relevant law, when additional instructions would serve no useful
purpose or may potentially mislead the jury, when the jury’s request
involves a question of fact, or when giving an answer would cause the
trial court to express an opinion likely directing a verdict one way or
the other. Millsap, 189 Ill. 2d at 161, citing Reid, 136 Ill. 2d at 39-40.
In this case, the jury’s note stated, “Clarify the charges of intent
to sell defined by the Court?” The note indicates that the jury
explicitly sought clarification of the charges. The jury did not ask for
a definition of “intent.” We find that the jury’s question was clearly in
reference to clarifying the charges in this case.
As noted, a trial court may exercise its discretion to decline
answering a question if the jury instructions are readily understandable
and explain the relevant law. Millsap, 189 Ill. 2d at 161, citing Reid,
136 Ill. 2d at 39-40. The jury had already received explicit instructions
on the definition and elements of the charged offense. The trial court
apparently determined that the written instructions answered the jury’s
question on clarifying the charges. The trial court, therefore, directed
the jury to review the jury instructions. We agree that the jury
instructions were readily understandable and explained the charged
offense. The trial court’s reference to those instructions should have
been sufficient to clarify the issue for the jury. Accordingly, we
conclude that the trial court did not err in answering the jury’s
question.
Averett cannot show defense counsel was objectively
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unreasonable by failing to object to the trial court’s proper response
to the jury’s question. See Bailey, 232 Ill. 2d at 288-89 (2009)
(ineffective-assistance claim requires a showing that counsel’s
performance was objectively unreasonable). Accordingly, Averett has
not established his ineffective-assistance claim in this case.
III. CONCLUSION
We conclude that the trial courts’ decisions to defer their rulings
on the defendants’ motions in limine under a blanket policy is
unreviewable on appeal because the defendants chose not to testify at
trial. We also hold that Averett is not entitled to relief on his claim
that the trial court erred in responding to the jury’s question during
deliberations. Accordingly, we affirm the appellate court’s judgments
in both Averett and Tucker.
Appellate court judgments affirmed.
JUSTICE BURKE, dissenting:
In People v. Patrick, 233 Ill. 2d 62 (2009), this court considered
two cases that were consolidated for our review because they
presented a common issue: whether a trial court abuses its discretion
when it refuses to rule on a defendant’s motion in limine to determine
what prior convictions may be admitted for impeachment purposes
until after the defendant takes the stand and testifies. This court
unanimously held that a trial court abuses its discretion and, thereby,
substantially prejudices a defendant when, without good reason, it
refuses to rule prior to trial on a defendant’s motion in limine to
determine what prior convictions are admissible for impeachment
purposes. After reaching this holding, a majority of this court then
went on to treat the two consolidated cases disparately, granting relief
in one, but not the other. The majority granted relief to defendant
Patrick, who had testified at trial, but denied relief to defendant
Phillips, finding that he failed to preserve the error for review by
choosing not to testify at his trial.
I dissented in Patrick to point out inconsistencies in the majority’s
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reasoning. If, as the majority held with regard to defendant Patrick, a
trial court’s refusal to rule on the motion in limine prejudices the
defendant because it deprives him of the information necessary to
make a knowing and intelligent decision about whether to testify and
if, for this reason, the trial court’s error is of constitutional dimension
and cannot be deemed harmless, why should it matter whether the
defendant testifies? The answer is that it makes no difference whether
the defendant testifies or not–the defendant is substantially prejudiced
by the trial court’s refusal to rule. Patrick, 233 Ill. at 88-89 (Burke,
J., concurring in part and dissenting in part, joined by Freeman, J.).
After Patrick was decided, a number of petitions for leave to
appeal that were held pending Patrick’s release were disposed of.
Some petitions were resolved by remanding the causes to the appellate
court for reconsideration in light of our opinion in Patrick; other
petitions were denied. We granted the petitions for leave to appeal in
the consolidated cases presently before this court and, in a subsequent
per curiam order, explained that our purpose in doing so was “to
consider whether relief might be available to a defendant, even if he
chose not to testify, if the trial court had a ‘blanket policy’ not to rule
on the motion in limine in advance of the defendant deciding not to
testify.” People v. Patrick, Nos. 104077, 104445 cons. (May 27,
2009) (per curiam order on denial of motion to reconsider denial of
petition for rehearing).1
Not surprisingly, a majority of this court once again finds,
consistent with Patrick, that a defendant’s decision not to testify at
trial makes the trial court’s error nonreviewable. Again, I must
strongly disagree.
I will not repeat here all of the arguments I made in Patrick. It will
suffice to say that for the same reasons set forth in Patrick I must
respectfully dissent in the case at bar. I continue to maintain that the
1
Quite frankly, I do not understand the rationale offered by the court for
granting appeals in these cases. It is unclear how the fact that a trial court
has a “blanket policy” of delaying ruling on these motions has any possible
relevance to the issue of whether a defendant who does not testify at trial is
prejudiced by the lack of a pretrial ruling. The majority does not offer any
explanation.
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majority’s rationale is flawed. The defendant’s decision not to testify
does not, as the majority contends, deprive the reviewing court of a
reviewable record (see slip op. at 12) when it is the trial court’s error
in refusing to rule which denies the defendant the information
necessary to make a knowing and intelligent decision on whether to
testify.
In the case at bar, the majority supports its finding that the error is
unreviewable when a defendant does not testify by referencing the
Patrick opinion. The majority states that, in Patrick, after determining
that the trial court abused its discretion by using a blanket policy to
defer rulings on motions in limine, it “review[ed] the impact of the
error in light of the facts of the case [and] determined that the error
was not harmless.” (Emphasis added.) Slip op. at 8. This is
emphatically not what occurred.
As I pointed out in my dissent in Patrick, the majority, after finding
that the trial court abused its discretion, did not engage in typical
harmless-error review. In fact, in finding prejudice, i.e., reversible
error, with respect to defendant Patrick, the majority never looked at
Patrick’s trial testimony or determined what impact, if any, the trial
court’s deferred ruling had on the outcome of his trial. The majority
never considered whether the trial court’s ultimate ruling on the
admissibility of the prior convictions was correct or whether the
evidence overwhelmingly supported the guilty verdict. In other words,
in defining prejudice, the majority never looked beyond the trial court’s
error in refusing to rule prior to trial. With respect to defendant Patrick
(who testified at trial), the majority found that the very fact that the
trial court did not rule prior to defendant testifying was inherently
prejudicial and that this prejudice infected the entire proceeding. The
majority stated:
“Patrick was unjustifiably required to make a tactical decision
without the ability to evaluate the impact it would have on his
defense. Patrick’s counsel was unable to inform the jury
whether Patrick would testify and was anticipatorily unable to
disclose Patrick’s prior convictions to lessen the prejudicial
effect the convictions would have on his credibility.” Patrick,
233 Ill. 2d at 75.
The majority also held that it was “critical” for Patrick to have the
court rule prior to trial because the defendant relied on a theory of self-
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defense and “knowing whether his prior convictions were going to be
used for impeachment was a vital factor that needed to be weighed” in
forming his decision about whether to testify. Patrick, 223 Ill. 2d at 75.
In the case at bar, the majority concedes that withholding ruling on
motions in limine is a “serious” error in these cases (slip op. at 8) but
still finds that this error is not reviewable because “[w]ithout the
defendant’s actual testimony, reviewing courts would be forced to
speculate on the substance of that testimony and the prosecution’s
questions on cross-examination.” Slip op. at 12, citing Patrick, 223 Ill.
2d at 78-79. Since, in Patrick, the majority never relied on the
defendant’s trial testimony to find reversible error, the majority’s
reasoning is impossible to reconcile.
In sum, I am unsure why this court granted leave to appeal in these
cases only to perpetuate the error that was made in Patrick. It
continues to elude me how the majority can recognize that it is
“serious” and prejudicial error for a trial court to refuse to rule on a
defendant’s motion in limine, and yet deny that defendant relief. It
remains my belief that a trial court, by refusing to rule, prejudices the
defendant in his ability to decide whether to testify. For this reason, I
maintain that the trial court’s refusal to rule on these motions prior to
trial constitutes reversible error, whether or not the defendant testifies.
JUSTICE FREEMAN joins in this dissent.
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