People v. Yusuf , 409 Ill. App. 3d 435 ( 2011 )

NO. 4-08-0034 Opinion Filed 4/14/11
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
AHMED A. YUSUF, ) No. 06CF1876
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
_________________________________________________________________
JUSTICE McCULLOUGH delivered the judgment of the court,
with opinion.
Presiding Justice Knecht and Justice Turner concurred
in the judgment and opinion.
OPINION
In October 2007, a jury convicted defendant, Ahmed A.
Yusuf, of armed robbery (720 ILCS 5/18-2(a)(2) (West 2006)). In
December 2007, the trial court sentenced him to seven years’
imprisonment. Defendant appealed, arguing the court erred in
failing to question the jurors during voir dire in compliance
with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007)
regarding the jurors' understanding of the four basic constitu-
tional guarantees afforded criminal defendants at trial. In
November 2008, this court affirmed. People v. Yusuf, No. 4-08-
0034 (Nov. 19, 2008) (unpublished order under Supreme Court Rule
23).
In September 2009, the Illinois Supreme Court denied
defendant’s petition for leave to appeal but issued a supervisory
order (People v. Yusuf, 233 Ill. 2d 598, 914 N.E.2d 489 (2009)
(nonprecedential supervisory order on denial of petition for
leave to appeal) (No. 107674)) directing this court to vacate our
order and to reconsider in light of People v. Glasper, 234 Ill.
2d 173, 917 N.E.2d 401 (2009). In accordance with the supreme
court’s directions, we vacated our prior judgment and reconsid-
ered in light of Glasper. We reversed defendant’s conviction and
remanded the matter for a new trial. People v. Yusuf, 399 Ill.
App. 3d 817, 928 N.E.2d 143 (2010).
In January 2011, the supreme court issued a supervisory
order (People v. Yusuf, 239 Ill. 2d 588, 940 N.E.2d 1152 (2011)
(nonprecedential supervisory order on denial of petition for
leave to appeal) (No. 110420)) directing this court to vacate our
order and to reconsider in light of People v. Thompson, 238 Ill.
2d 598, 939 N.E.2d 403 (2010). In accordance with the supreme
court’s directions, we vacate our prior judgment and reconsider
in light of Thompson to determine whether a different result is
warranted. After considering the supreme court’s reasoning in
Thompson, we affirm defendant’s conviction.
On November 20, 2006, the State charged defendant with
two counts of armed robbery. At trial, Sarad Chandra, a conve-
nience store clerk, testified that shortly after 10 p.m. on
November 19, 2006, a man carrying a gun and dressed in dark
clothing and a ski mask came into the store and demanded money.
Chandra opened the register, and the man took the money and ran
out of the store. The store surveillance tape was played for the
jury.
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The State also presented evidence at trial establishing
that on the evening of November 19, 2006, Maokun Li left his
office and was walking to his vehicle when defendant, wearing a
black ski mask, appeared from behind a bush. Defendant produced
a gun and ordered Li to give him his wallet and cellular phone.
Defendant also demanded Li’s personal identification number for
the debit card. Li testified defendant also threatened to shoot
him. According to Li’s testimony, defendant ordered Li to lay on
the ground and not to look at him. Li called the police after
defendant fled. The police arrested defendant shortly thereaf-
ter.
Defendant did not present any evidence at trial. After
considering the State's evidence, closing arguments, and jury
instructions, the jury acquitted defendant of the armed robbery
of Chandra but found him guilty of the armed robbery of Li. The
trial court sentenced defendant as stated.
On appeal, defendant claims the trial court erred where
it failed to comply with the mandates of Supreme Court Rule
431(b). Specifically, defendant argues the procedure used by the
court failed to allow the venire an opportunity to respond to or
be questioned on the Zehr principles, i.e., it failed to comply
with the directives of Rule 431(b). See People v. Zehr, 103 Ill.
2d 472, 477-78, 469 N.E.2d 1062, 1064 (1984).
In this case, defendant’s trial counsel did not object
at the time of the trial court’s error. In addition, defendant’s
posttrial motion did not allege the court failed to comply with
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Rule 431(b). As a result, the issue has been forfeited. See
People v. Hestand, 362 Ill. App. 3d 272, 279, 838 N.E.2d 318, 324
(2005). Defendant, however, argues the court's failure to comply
with Rule 431(b) constitutes plain error affecting his right to a
fair trial by an impartial jury.
A reviewing court may disregard a defendant's forfei-
ture and review the issue under the plain-error doctrine to
determine whether reversal is required. People v. Lewis, 234
Ill. 2d 32, 42, 912 N.E.2d 1220, 1226 (2009). The plain-error
doctrine allows a reviewing court to consider forfeited error
when (1) the evidence is closely balanced or (2) the 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. Walker, 232 Ill. 2d
113, 124, 902 N.E.2d 691, 697 (2009). Under either prong of the
plain-error analysis, the defendant has the burden of persuasion.
Lewis, 234 Ill. 2d at 43, 912 N.E.2d at 1227.
Before reviewing the issue under the plain-error
doctrine, however, we must first determine whether any error
occurred. People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d
403, 411 (2007). This court reviews de novo a trial court’s
compliance with a supreme court rule. People v. Young, 387 Ill.
App. 3d 1126, 1127, 903 N.E.2d 434, 435 (2009).
In Zehr, the Supreme Court of Illinois held a trial
court erred during voir dire by refusing defense counsel's
request to ask questions about (1) the State's burden of proof,
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(2) defendant's right to not testify, and (3) the presumption of
innocence. Zehr, 103 Ill. 2d at 477, 469 N.E.2d at 1064.
The supreme court amended Rule 431(b) to assure compli-
ance with its decision in Zehr. Adopted March 21, 2007, and
effective May 1, 2007, the rule now reads as follows:
"(b) The court shall ask each potential
juror, individually or in a group, whether
that juror understands and accepts the fol-
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.
The court's method of inquiry shall
provide each juror an opportunity to respond
to specific questions concerning the princi-
ples set out in this section." (Emphases
added.) Ill. S. Ct. R. 431(b) (eff. May 1,
2007).
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The committee comments provide as follows:
"The new language is intended to ensure
compliance with the requirements of People v.
Zehr, 103 Ill. 2d 472[, 469 N.E.2d 1062]
(1984). It seeks to end the practice where
the judge makes a broad statement of the
applicable law followed by a general question
concerning the juror’s willingness to follow
the law." Ill. S. Ct. R. 431(b), Committee
Comments (eff. May 1, 1997).
As of May 1, 2007, the plain language of Rule 431(b)
requires a trial court to (1) sua sponte question each potential
juror as to whether he understands and accepts the Zehr princi-
ples (2) in a manner that allows each juror an opportunity to
respond. As the voir dire in this case occurred in October 2007,
after the amendment became effective, the court was required to
comply with the rule as amended May 1, 2007.
At the beginning of voir dire, prior to the jurors
being sworn in, the trial court addressed the pool as follows:
"I want to go over some of those [jury]
instructions with you now so that you can
keep them in perspective as you listen to the
testimony. The first instruction is *** that
the defendant is presumed to be innocent of
the charge[s] against him [(Rule 431(b) prin-
ciple (1))]. This presumption remains with
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him throughout every stage of the trial and
during your deliberations on the verdict, and
is not overcome unless from all of the evi-
dence in this case, you are convinced beyond
a reasonable doubt that he is guilty [(Rule
431(b) principle (2))].
The State has the burden of proving the
guilt of the defendant beyond a reasonable
doubt, and this burden remains on the State
throughout the case. The defendant is not
required to prove his innocence [(an apparent
reference to Rule 431(b) principle (3))]. In
connection with the last sentence, this de-
fendant, as does every citizen, possesses an
absolute right not to testify at his trial if
he so chooses. If the defendant chooses not
to testify, you will receive an instruction
that states that the fact the defendant did
not testify must not be considered by you in
any way in arriving at your verdict [(Rule
431(b) principle (4))]." (Emphases added.)
During voir dire, the trial court questioned the
potential jurors about their previous experiences with the legal
system and whether they were familiar with the defendant, attor-
neys, or witnesses. The court also asked each juror whether he
or she could think of any reason why he or she could not be "fair
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and impartial." While each of the 12 jurors selected to hear the
case answered those questions in the negative, the court did not
conduct Zehr questioning of individual jurors. As a result, the
court never directly questioned the individual jurors regarding
their understanding of the Zehr principles as required by the
second paragraph of amended Rule 431(b).
Prior to deliberations, the trial court gave the jury
Illinois Pattern Jury Instructions, Criminal, Nos. 2.03 and 2.04
(4th ed. 2000) (hereinafter, IPI Criminal 4th), regarding (1)
defendant’s presumption of innocence, (2) the State’s burden of
proof, and (3) "[t]he fact that defendant did not testify must
not be considered by [the jurors] in any way in arriving at [a]
verdict."
In this case, the record shows the trial court did not
fully comply with Rule 431(b). While the court advised the
venire en masse of the four Zehr principles, it did not pose the
specific questions of whether the jurors understood and accepted
all four of those principles during voir dire. See Ill. S. Ct.
R. 431(b) (eff. May 1, 2007) ("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.").
As a result, the court in this case did not follow the mandate of
Rule 431(b), and this failure to comply was error.
Having found error, we next consider whether the error
was so serious that it affected the fairness of defendant's
trial. We note defendant does not argue the evidence was closely
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balanced. Instead, defendant contends the error "allowed for the
possibility of a partial jury, which affects the integrity of the
judicial process and ignores [his] constitutional rights to a
fair trial." As a result, we confine our review to the second
prong of the plain-error analysis. See People v. Blue, 189 Ill.
2d 99, 139, 724 N.E.2d 920, 941 (2000) (where a defendant has
been denied the right to a fair trial, a reviewing court must
remedy the error to preserve the integrity of the judicial
process without regard to the evidence against the defendant).
"To determine whether defendant's right to a fair trial
has been compromised, we employ the same test that this court
uses whenever it applies the second prong of the plain error
test." Blue, 189 Ill. 2d at 138, 724 N.E.2d at 940. We consider
whether a substantial right has been affected to the extent we
doubt that defendant's trial was fundamentally fair. Blue, 189
Ill. 2d at 138, 724 N.E.2d at 940-41. Regardless of the weight
of the evidence presented against defendant, a new trial is
essential where the trial court's error threatens the integrity
of the judicial process. Blue, 189 Ill. 2d at 139, 724 N.E.2d at
941.
In Glasper, 234 Ill. 2d at 189, 917 N.E.2d at 411-12,
the supreme court addressed whether (1) the trial court's failure
to comply with preamended Rule 431(b) requires a reviewing court
to presume prejudice and automatically reverse defendant's
conviction or (2) the error is subject to harmless-error analy-
sis. While the supreme court held the trial court erred by not
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fully complying with Rule 431(b), it (1) declined to find that a
violation of Rule 431(b) is per se reversible error and (2)
concluded the error was harmless where (a) no evidence was
presented that the jury was biased and (b) the evidence against
the defendant was overwhelming. Glasper, 234 Ill. 2d at 199-201,
917 N.E.2d at 417-18.
We note in Glasper, the supreme court expressly limited
its holding to the preamended version of Rule 431(b). As a
result, that decision does not purport to govern the application
of amended Rule 431(b), which is at issue in this case. Glasper,
234 Ill. 2d at 200, 917 N.E.2d at 418 (emphasizing "that this
holding is limited to the version of Rule 431(b)(4) that was in
effect at the time of the instant trial, and would not necessar-
ily apply to subsequent versions of the rule").
In Thompson, however, the supreme court clarified Rule
431(b) questioning is not indispensable to a fair trial and a
violation thereof does not necessitate automatic reversal under
the second prong of the plain-error analysis. Thompson, 238 Ill.
2d at 614-15, 939 N.E.2d at 414. Specifically, the supreme court
found the following:
"A finding that defendant was tried by a
biased jury would certainly satisfy the sec-
ond prong of plain-error review because it
would affect his right to a fair trial and
challenge the integrity of the judicial pro-
cess. Critically, however, defendant has not
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presented any evidence that the jury was
biased in this case. Defendant has the bur-
den of persuasion on this issue. We cannot
presume the jury was biased simply because
the trial court erred in conducting the Rule
431(b) questioning." Thompson, 238 Ill. 2d
at 614, 939 N.E.2d at 413-14.
The Thompson court held that because the defendant had failed to
establish the court’s Rule 431(b) violation resulted in a biased
jury, the defendant had failed to meet his burden of showing the
error affected the fairness of his trial and challenged the
integrity of the judicial process. Thompson, 238 Ill. 2d at 615,
939 N.E.2d at 414.
The supreme court also made it clear its reasoning
applied regardless of whether the analysis took place under the
amended or preamended version of the rule. Thompson, 238 Ill. 2d
at 614, 939 N.E.2d at 414 ("the failure to conduct Rule 431(b)
questioning does not necessarily result in a biased jury, regard-
less of whether that questioning is mandatory or permissive under
our rule"). The court found while amended Rule 431(b) serves to
promote the selection of an impartial jury, it is only one method
of helping ensure the selection of an impartial jury and "is not
the only means of achieving that objective." Thompson, 238 Ill.
2d at 614, 939 N.E.2d at 414. Finally, the supreme court held a
Rule 431(b) violation "does not implicate a fundamental right or
constitutional protection." Thompson, 238 Ill. 2d at 614-15, 939
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N.E.2d at 414. Instead, a Rule 431(b) violation "only involves a
violation of [supreme court] rules." Thompson, 238 Ill. 2d at
615, 939 N.E.2d at 414.
In this case, all four Zehr principles were addressed
to each juror at some point during voir dire, and the evidence
presented at trial against defendant was overwhelming. In
addition, the jury received IPI Criminal 4th Nos. 2.03 and 2.04,
regarding the presumption of innocence, the State’s burden of
proof, and defendant’s decision not to testify. Most important,
defendant does not show the jury acted with bias in reaching its
verdict. See Thompson, 238 Ill. 2d at 611, 939 N.E.2d at 412("Despite the trial court’s failure to comply with Rule 431(b) in
this case, there is no evidence that defendant was tried by a
biased jury."). We conclude the court's error did not rise to
the level of plain error. Accordingly, defendant has forfeited
his Rule 431(b) claim.
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we grant the State its $50
statutory assessment against defendant as costs of this appeal.
Affirmed.
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