People v. Crow , 403 Ill. App. 3d 698 ( 2010 )

Filed 8/30/10 NO. 4-09-0369
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Schuyler County
GEORGE H. CROW III, ) No. 08CM74
Defendant-Appellant. )
) Honorable
) Mark A. Schuering,
) Judge Presiding.
_________________________________________________________________
JUSTICE McCULLOUGH delivered the opinion of the court:
A jury found defendant, George H. Crow III, guilty of
domestic battery (720 ILCS 5/12-3.2(a)(1) (West 2008)), and the
trial court sentenced him to 24 months' probation and 180 days in
jail. He appeals, arguing (1) his conviction should be reversed
because the court failed to determine whether jurors understood
or accepted the principles set forth in Supreme Court Rule 431(b)
(Official Reports Advance Sheet No. 8 (April 11, 2007), R.
431(b), eff. May 1, 2007) and (2) he is entitled to a $15 credit
toward his $200 domestic-violence fine. We modify the court's
sentencing order to reflect that defendant is entitled to a $15
credit for his presentence incarceration but otherwise affirm the
court's judgment and remand for issuance of an amended sentencing
judgment.
On September 3, 2008, the State charged defendant with
domestic battery (720 ILCS 5/12-3.2(a)(1) (West 2008)), alleging
he knowingly caused bodily injury to his wife, Jackie Crow, by
grabbing her by the face and scratching her cheek, pulling her
hair, and shoving her head against a wall. Defendant pleaded not
guilty and demanded a jury trial. Also, prior to trial, he
waived his right to counsel and elected to represent himself.
On February 18, 2009, defendant's jury trial began.
During voir dire, the trial court proposed similar questions to
all jurors, questioning one juror by himself and the remainder of
the jurors in groups. It used substantially the same language
during its questioning of all potential jurors, inquiring as
follows:
"Q. Do you understand that a person
charged with a crime is presumed to be inno-
cent of the charge against him; and, sec-
ondly, do you understand the presumption of
innocence stays with the defendant throughout
the trial, and is not overcome unless from
all the evidence in the case you believe the
State has proved his guilt beyond a reason-
able doubt. Do you understand both of those?
***
Q. The next set of questions, do you
understand the State must prove the defendant
guilty beyond a reasonable doubt, and do you
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understand that the defendant does not have
to prove anything, in other words, he does
not have to prove his innocence?"
Defendant did not object to the court's questioning.
He also elected not to testify on his own behalf. During the
jury-instruction conference, the trial court informed defendant
that he could submit an instruction to inform jurors that they
must not consider the fact that he did not testify when arriving
at a verdict. See Illinois Pattern Jury Instructions, Criminal,
No. 2.04 (4th ed. 2000). He declined to submit such an instruc-
tion. The jury returned a verdict, finding defendant guilty of
the charged offense.
On March 20, 2009, defendant, with the aid of counsel,
filed motions for a judgment notwithstanding the verdict and a
new trial. He raised no issue with respect to the trial court's
questioning of jurors during voir dire. On May 7, 2009, the
court denied defendant's posttrial motions and sentenced him to
24 months' probation and 180 days in jail.
This appeal followed.
On appeal, defendant argues the trial court improperly
failed to comply with the requirements of Rule 431(b). Specifi-
cally, he argues that, during voir dire, the court failed to
admonish or question potential jurors about (1) their understand-
ing and acceptance of the principle that a defendant's failure to
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testify cannot be held against him or (2) their acceptance of the
remaining three Rule 431(b) principles. Defendant asks this
court to reverse his conviction and remand the case for a new
trial.
The supreme court rules are not mere suggestions;
instead, they have the force of law and should be followed.
People v. Glasper, 234 Ill. 2d 173, 189, 917 N.E.2d 401, 411
(2009). Questions involving the trial court's compliance with a
supreme court rule are subject to de novo review. People v.
Yusuf, 399 Ill. App. 3d 817, 820, 928 N.E.2d 143, 146 (2010).
In People v. Zehr, 103 Ill. 2d 472, 477, 469 N.E.2d
1062, 1064 (1984), the supreme 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." Rule 431(b)
ensures compliance with Zehr. Yusuf, 399 Ill. App. 3d at 820,
928 N.E.2d at 147. It requires that the trial court ask specific
questions of potential jurors during voir dire examination,
providing as follows:
"The court shall ask each potential
juror, individually or in a group, whether
that juror understands and accepts the fol-
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lowing 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 defen-
dant 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." Official Re-
ports Advance Sheet No. 8 (April 11, 2007),
R. 431(b), eff. May 1, 2007.
Here, defendant failed to preserve this issue for
review by neglecting to raise it with the trial court. See
People v. Lovejoy, 235 Ill. 2d 97, 148, 919 N.E.2d 843, 871
(2009) ("To preserve an issue for appellate review, a defendant
must both object at trial and present the issue in a written
posttrial motion"). Nevertheless, the plain-error doctrine may
be applied to excuse his forfeiture. Yusuf, 399 Ill. App. 3d at
820, 928 N.E.2d at 146.
"The plain-error doctrine allows a reviewing
court to remedy a 'clear or obvious error' in
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two circumstances, regardless of the defen-
dant's forfeiture: (1) where the evidence in
the case is so closely balanced that the
jury's guilty verdict may have resulted from
the error and not the evidence; or (2) where
the error is so serious that the defendant
was denied a substantial right, and thus a
fair trial." People v. McLaurin, 235 Ill. 2d
478, 489, 922 N.E.2d 344, 351 (2009).
The first step in a plain-error analysis is to determine whether
any error occurred at all. Yusuf, 399 Ill. App. 3d at 820, 928
N.E.2d at 146.
Rule 431(b) plainly requires a trial court to question
potential jurors as to their understanding and acceptance of the
four stated principles. In this instance, the trial court asked
each prospective juror about his or her understanding of only the
first three principles. It neglected to question jurors as to
their acceptance of those first three principles and entirely
failed to reference the fourth principle in its questioning. The
court's actions constituted error.
Since error occurred, we must next determine whether
the evidence was closely balanced or whether the error was so
serious that it denied defendant a substantial right and a fair
trial. Here, defendant does not argue, nor does the record
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reflect, that the evidence was closely balanced.
Evidence presented at defendant's trial showed Jackie
and defendant lived together with their two daughters. The State
introduced statements signed by Jackie and the couple's 14-year-
old daughter, Tabitha. According to Jackie's statement, she and
defendant got into an argument and defendant grabbed her by the
face, scratched her face, and slammed her head into the front
door of the home. She reported defendant grabbed her by the
back, sides, butt, and legs. He also grabbed her and repeatedly
slammed her into the wall. Tabitha's statement showed defendant
pulled Jackie's hair, grabbed her face, and scratched her. A
photograph of Jackie was introduced into evidence showing an
injury to her face.
Schuyler County Sheriff Don Schieferdecker took Jackie-
's statement. When he met with her, she was "crying," "very red
in the face," and "very emotionally upset." Jackie reported that
she had been in a domestic fight with defendant. Schieferdecker
prepared Jackie's statement, and Jackie looked it over and signed
it. Schuyler County deputy sheriff Leo Icenogle met with Tabitha
on the date of the alleged offense. Tabitha reported that her
parents got into an argument and her father struck her mother
several times. Icenogle questioned Tabitha and prepared a
statement based upon his questions and her answers. Tabitha and
Jackie both signed the statement.
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At trial, Jackie and Tabitha recanted their statements
to police. Jackie acknowledged she and defendant argued but
denied that there had been any physical contact. She asserted
she tried to block defendant from leaving the home and his
cigarette hit her on the cheek and left a mark. Jackie testified
defendant threatened to go to the police so she hurried to the
police station. She wanted to be the first to file a complaint
because she was worried about losing her state job. Although
Jackie admitted that she gave a statement to police and signed
it, she denied providing any of the information contained in the
statement submitted at trial. She testified she did not read the
document that she signed because she was upset. Jackie also
testified that she wanted the case dropped and wished to continue
her relationship with defendant.
Tabitha, after first denying that she had any recollec-
tion of the incident at issue, testified she remembered her
parents screaming at each other. She denied witnessing any
physical contact between the two or that she provided any of the
information contained in her signed statement. Tabitha acknowl-
edged that her signature appeared on the statement.
We find the evidence against defendant was overwhelm-
ing. It showed Jackie immediately reported the incident to
police and both she and Tabitha provided statements that showed
defendant grabbed Jackie, scratched her, pulled her hair, and
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shoved her against a wall. At the time she provided her state-
ment, Jackie was upset and crying. A photograph showed an injury
to her face. Testimony from Jackie and Tabitha that they did not
provide the information contained in their signed statements or
did not remember the events surrounding the alleged offense was
not credible. The evidence was not closely balanced.
We next consider whether the trial court's error was so
serious that it denied defendant a substantial right and a fair
trial. In Glasper, 234 Ill. 2d at 189, 917 N.E.2d at 411, the
trial court violated Rule 431(b) by refusing the defendant's
request to question prospective jurors as to the fourth princi-
ple, regarding the defendant's decision not to testify. Under
the version of Rule 431(b) applicable at the time, questioning
under the rule was not mandatory unless it was requested by the
defendant. Glasper, 234 Ill. 2d at 189, 917 N.E.2d at 411. The
supreme court identified the issue before it as "whether the
trial court's error, based on a violation of [s]upreme [c]ourt
[r]ule, denied the defendant his constitutional right to a fair
and impartial jury such that the error was presumptively prejudi-
cial and required automatic reversal." Glasper, 234 Ill. 2d at
194, 917 N.E.2d at 414. Ultimately, the court concluded that the
trial court's Rule 431(b)(4) violation was amenable to harmless-
error review and did not require automatic reversal. Glasper,
234 Ill. 2d at 200, 917 N.E.2d at 418.
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In reaching its decision, the supreme court noted the
error did "not involve a fundamental right, or even a constitu-
tional protection." Glasper, 234 Ill. 2d at 193, 917 N.E.2d at
413. Instead, the error concerned a right made available by
rule, and "[t]he violation of a Supreme Court Rule does not
mandate reversal in every case." Glasper, 234 Ill. 2d at 193,
917 N.E.2d at 414. The court stated that, while Rule 431(b)(4)
was "designed to help ensure that defendants are tried before a
fair jury," it could not "say that Rule 431(b)(4) questioning is
indispensable to a fair trial." Glasper, 234 Ill. 2d at 196, 917
N.E.2d at 416. It reasoned as follows:
"This point is inherent in the rule itself,
which originally required the questioning
only if the defendant requested it. It would
be inconsistent to conclude that the failure
to question the venire in compliance with
Rule 431(b)(4) ensures that biased jurors
will be impaneled when a defendant can choose
to forgo such questioning, apparently without
such concerns." Glasper, 234 Ill. 2d at
196-97, 917 N.E.2d at 416.
The supreme court went on to state that "automatic
reversal is only required where an error is deemed 'structural,'
i.e., a systemic error which serves to 'erode the integrity of
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the judicial process and undermine the fairness of the defen-
dant's trial.'" Glasper, 234 Ill. 2d at 197-98, 917 N.E.2d at
416, quoting People v. Herron, 215 Ill. 2d 167, 186, 830 N.E.2d
467, 479 (2005). The court noted that the alleged error in the
case before it was not included within the limited class of
errors recognized by the United States Supreme Court as "struc-
tural." Glasper, 234 Ill. 2d at 198, 917 N.E.2d at 416. It
concluded that the trial court's error did not rise to the level
of "structural" error. Glasper, 234 Ill. 2d at 199, 917 N.E.2d
at 417.
The supreme court emphasized that its holding was
limited to the version of the rule in effect at the time of the
defendant's trial and would not necessarily apply to subsequent
versions of the rule. Glasper, 234 Ill. 2d at 200, 917 N.E.2d at
418. It also made clear that it was "not holding that a Rule
431(b)(4) violation could never result in reversible error."
Glasper, 234 Ill. 2d at 200, 917 N.E.2d at 418. The court stated
that if facts demonstrated that a Rule 431(b)(4) violation
resulted in the defendant being tried before a biased jury, it
"would not hesitate to reverse [the] defendant's conviction, as a
trial before a biased jury would constitute structural error."
Glasper, 234 Ill. 2d at 200-01, 917 N.E.2d at 418.
In People v. Amerman, 396 Ill. App. 3d 586, 594, 919
N.E.2d 1068, 1075 (2009), the Third District found that, although
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Glasper was a harmless-error case, its structural-error discus-
sion and rationale equally applied to the second prong of the
plain-error analysis. This court has found that "the rationale
in Glasper applies to the present version of Rule 431(b)."
People v. Wrencher, 399 Ill. App. 3d 1136, 1148, 929 N.E.2d 1124,
1134 (2009). Recently, the Second District has also held "that
the Glasper reasoning applies to the current version of Rule
431(b) with equal force and that a similar analysis under the
plain-error doctrine as under harmless-error analyses is required
before reversing a defendant's conviction." People v. Patrick,
No. 2-08-0745, slip op. at 26 (July 27, 2010), ___ Ill. App. 3d
___, ___, ___ N.E.2d ___, ___.
Here, defendant relies heavily upon this court's
decision in People v. Blanton, 396 Ill. App. 3d 230, 925 N.E.2d
703 (2009). In that case, the trial court fulfilled its duties
with respect to the first three Zehr and Rule 431(b) principles
but neglected to either advise jurors of the fourth principle
(that the defendant's failure to testify could not be held
against him) or to question their understanding and acceptance of
that fourth principle. Blanton, 396 Ill. App. 3d at 235, 925
N.E.2d at 706-07. This court found error clearly occurred and,
applying a plain-error analysis, determined that the court's
error was "'so substantial that it affected the fundamental
fairness of the proceeding.'" Blanton, 396 Ill. App. 3d at 235-
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36, 925 N.E.2d at 707-08, quoting People v. Hall, 194 Ill. 2d
305, 335, 743 N.E.2d 521, 539 (2000). We reversed the trial
court's judgment and remanded for a new trial. Blanton, 396 Ill.
App. 3d at 236, 925 N.E.2d at 708.
We now find Blanton was wrongly decided. First,
Blanton attempted to distinguish Glasper on the basis that it
involved a former version of Rule 431(b) that did not mandate
questioning pursuant to the rule unless expressly requested by
the defendant. Blanton, 396 Ill. App. 3d at 238, 925 N.E.2d at
710. However, in Glasper, the defendant's counsel requested Rule
431(b)(4) questioning. Glasper, 234 Ill. 2d at 189, 917 N.E.2d
at 411. As a result, the trial court had a mandatory obligation
to question the jury as set forth in the rule that is similar to
the mandatory duty now contained in the amended version of the
rule. See People v. Magallanes, 397 Ill. App. 3d 72, 92, 921
N.E.2d 388, 405 (2009) ("there is no quantitative or qualitative
difference between the trial court failing to admonish jurors
when requested to do so, as in Glasper, and when the trial court
fails to admonish jurors under the amended rule, as in the
present case"); see also People v. Alexander, 396 Ill. App. 3d
563, 576, 919 N.E.2d 1016, 1027 (2009) (finding the difference
between the former and amended versions of Rule 431(b) did not
preclude application of Glasper's rationale). The supreme
court's analysis in Glasper is equally applicable to the facts
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presented here.
Blanton next distinguished Glasper on the basis that,
unlike in Blanton, the jury in Glasper "had been admonished and
instructed against forming an adverse inference against [the]
defendant based on his decision not to testify." Blanton, 396
Ill. App. 3d at 239-40, 925 N.E.2d at 711. Blanton accurately
references one factor relied upon by the supreme court. However,
in Glasper, the court also pointed to the absence of facts that
demonstrated the defendant was tried before a biased jury.
Glasper, 234 Ill. 2d at 200-01, 917 N.E.2d at 418. Further, the
court rejected the claim that the error in failing to comply with
Rule 431(b) could not be "'"qualitatively assessed for harm,"'"
finding a rational-juror standard could be applied to the evi-
dence adduced against the defendant. Glasper, 234 Ill. 2d at
201, 917 N.E.2d at 418, quoting People v. Rivera, 227 Ill. 2d 1,
20, 879 N.E.2d 876, 888 (2007). Here, the record contains no
evidence that defendant's jury was biased and, again, the evi-
dence against defendant was overwhelming.
Additionally, as stated, Glasper held "[i]t would be
inconsistent to conclude that the failure to question the venire
in compliance with Rule 431(b)(4) ensures that biased jurors will
be impaneled when a defendant can choose to forgo such question-
ing, apparently without such concerns." Glasper, 234 Ill. 2d at
196-97, 917 N.E.2d at 416. The amended version of Rule 431(b)
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continues to allow a defendant to forgo questioning regarding his
decision not to testify. While nothing in the record indicates
that defendant in this case chose to forgo Rule 431(b)(4) ques-
tioning, he did expressly reject the opportunity to have his jury
instructed regarding his decision not to testify.
Although the facts in Blanton are similar to the facts
of the case at bar, we disagree with the distinctions made in
Blanton with respect to Glasper. Instead, we find the rationale
employed in Glasper equally applies to the facts of the present
case. Here, potential jurors were questioned as to their under-
standing of the first three Zehr principles. Defendant, himself,
rejected instructing the jury as to the subject matter of the
fourth principle. No evidence was presented that showed defen-
dant was tried before a biased jury. Also, the evidence against
him was overwhelming. The trial court's errors were not "struc-
tural." Further, its errors do not amount to plain error or
warrant reversal of defendant's conviction.
Finally, on appeal, defendant argues he is entitled to
a $5 per diem credit, totaling $15, toward the $200 domestic-
violence fine the trial court imposed. Section 110-14 of the
Code of Criminal Procedure of 1963 (725 ILCS 5/110-14 (West
2008)) provides that "[a]ny person incarcerated on a bailable
offense who does not supply bail and against whom a fine is
levied on conviction *** shall be allowed a credit of $5 for each
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day so incarcerated upon application of the defendant." On
appeal, a defendant may be allowed a per diem credit pursuant to
section 110-14 for incarceration prior to sentencing. People v.
Woodard, 175 Ill. 2d 435, 457-58, 677 N.E.2d 935, 946 (1997).
The State concedes that defendant is entitled to a $15 credit,
and the record supports its concession. We modify the court's
sentence to show defendant is entitled to a $15 credit for his
three days of presentence incarceration.
For the reasons stated, we affirm the trial court's
judgment as modified and remand for issuance of an amended
sentencing judgment reflecting the credit against fine stated.
As part of our judgment, we award the State its $50 statutory
assessment against defendant as costs of this appeal.
Affirmed as modified; cause remanded with directions.
KNECHT and TURNER, JJ., concur.
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